Anti Defection Law and Recent AAP Controversy

Introduction

Recently, the move of Raghav Chadha from AAP along with six other Rajya Sabha MPs created headlines. Constitutional law experts seem to hold mixed opinions on whether the switch constitutes defection. Some experts believe it falls within the exception laid out in the 10th Schedule, while others disagree. However, the real question lies in determining whether it truly meets the exception requirements under Paragraph 4 of the 10th Schedule. In this article, we will examine this question, explore the constitutionality of the act, and look into the opinions of AAP and other experts on the issue.

Explanation of Anti Defection Law

The 10th Schedule of the Constitution of India, introduced by the Constitution (fifty-second) Amendment Act, 1985 read with Article 102(2) and 191(2) deals with anti-defection laws. Para 2 of the 10th Schedule provides for disqualification of a member belonging to any political party on the ground of defection. Two bases have been provided for such disqualification. Firstly, if he has voluntarily given up the membership of such a political party. Secondly, if he votes or abstains from voting in such House contrary to any direction issued by the political party or person or any authority authorised on that behalf, without prior permission and such act not condoned within 15 days. Merger forms an exception to such disqualification. (Para 4)

How this situation is under exception or not?

Further, Para 4 of the Schedule provides merger as an exception to such disqualification. It provides that when an original political party merges with the another political party, such merger being agreed to by two-third of the members of the Legislature party concerned, then any member who claims to have become member of the political party so formed as the consequence of merger or the members who opt out to work as an independent group will not be disqualified.

In the context of the present issue, the argument of Raghav Chadha is based on the ground of merger, that he along with two-third members have switched the party and therefore, exempted under the Para 4 of the Schedule.

However, the legal question which arises here is: whether it is a valid merger of AAP (original political party in this case) to BJP? This question is instrumental to the decision whether the switching of the party by Raghav Chadha and other members of AAP is a legally valid move or not?

The answer to these questions depend on the interpretation of the terms ‘political party’ and ‘legislature party’ used under the 10thSchedule. The term ‘legislature party’ has been used in relation to the member of a House and it means group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.

As held by the Supreme Court in the case of Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) 493/2022, ‘political party’ and ‘legislature party’ are not same and therefore, a difference lies between these two terms.

As per Para 4, the merger must originate from the ‘political party’ and not the ‘legislature party’. It is a valid merger when two-third of the members of the ‘legislature party’ agree to it.

Interpretation by AAP and other experts

The question of merger is not satisfied on the grounds that 2/3rd of the members have joined BJP. Out of 10 AAP MPs, 7 have joined BJP. The six other MPs who joined BJP along with Raghav Chadha are Sandeep Pathak, Ashok Mittal, Swati Maliwal, Harbhajan Singh, Rajinder Gupta and Vikram Sahni. On complete perusal of para 4(1) along with para 4(2), it is clear that two conditions need to be fulfilled to enjoy the protection of para 4. First, the original party merges with another political party and second, not less than two-thirds of the members of the legislature party concerned have agreed to such a merger.

Who will decide the question of defection?

Para 6 of the 10th Schedule provides that the question of defection shall be decided by the chairman or the speaker and his decision shall be final. The proceedings taken under this paragraph are protected under Article 122 and no court can judicial review on the proceedings of disqualification except on limited grounds.

Conclusion and Way Forward

The anti-defection laws were introduced under the Constitution to curb political defections in order to maintain stability in the governance. Permitting the continuance of defecting members in the House undermines the very object and purpose of the anti-defection laws. Such acts undermine the proper functioning of the House and shake the trust of the ‘people of India’ in the Indian Parliament.

A member must not be allowed to act in his own interest while belonging to a political party and representing its mandate in the House. It questions the integrity of the concerned member and the member who cannot lay his loyalty to a party from which he has been elected as an MP, cannot be a trusted representative who can act in the interest of the people. Therefore, there should be no space for an undemocratic and corrupt act in the ‘Temple of Democracy’.

Further, permitting these acts in the House means permitting corruption in the House and the decision makers acting impartially, must disqualify any member who is involved in defection, in order to maintain the trust of the People of India in the House and its representatives.

As the exception of merger seems to be the most misused exception to justify the act of defection, there is a pressing need for strict guidelines and rules relating to a valid merger. The gap that exists in the interpretation of para 4 must be expelled by filling those gaps with proper guidelines. Such guidelines may come from the Speaker or Chairman of the House in accordance with para 8 as they have been bestowed with the power of formulating rules to give effect to the provisions of the X Schedule.

Therefore, steps must be taken to make the anti-defection laws more effective. Such steps can either originate from the House itself as discussed above or even from Judiciary through its tool of interpretation.

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