Defections require a political response

The NCP churn is a test case for the Supreme Court’s guidelines laid down in the Shiv Sena order. It shows, once again, the weakness of the anti-defection law

Internal conflicts within a political party always follow a pattern. After factional disagreements become public, each side tries to take control of the party. First, both groups appoint functionaries and eject rivals from party positions. Then, both sides initiate proceedings to disqualify the opposing group’s lawmakers from the legislature’s membership. Finally, legal wrangling begins to wrest control of the party — the Election Commission of India (ECI) determines the fate of the symbol and the name, and the presiding officer of the legislature (the speaker) weighs in on the all-important question of the legislative strength of each faction, based on the outcome of the disqualification process. At every stage, each group’s numerical strength and the party’s constitution play a crucial role.

The current NCP defection petitions might also take a year and by then, elections will be so close that the entire proceeding will be infructuous, at least politically.(ANI)

In the political drama engulfing Maharashtra, the first two stages — tit-for-tat sackings and disqualification petitions by Sharad Pawar and Ajit Pawar — are already in motion, and it is only a matter of time before the third stage begins. This sequence of events has played out in India numerous times, but this is the first such event after the Supreme Court (SC)’s Shiv Sena verdict in May — based on a case that was almost a play-by-play foretelling of the split in the Nationalist Congress Party (NCP).

The NCP has 53 members in the legislative assembly, nine in the legislative council, five in the Lok Sabha and four in the Rajya Sabha. Then there are also members in its organisational wing. The position of a significant number of leaders remains unclear. This is crucial because in the Sena case, SC ruled that both ECI and the speaker should consider factional strengths in the legislative and organisational wings while deciding on electoral symbols and defections.

The second factor the top court stressed on was the party constitution. The NCP’s constitution is a detailed document. It lays down the party’s organisational structure, the appointment of functionaries, their roles and the process of disciplinary action. The penultimate article pronounces the process of dissolving the party or merging it with another entity.

It states that only the party’s national committee can decide on this matter. The committee is a large representative body headed by the party president who can call a meeting of this committee after a month’s notice. The document also specifies that the quorum for the conference is 75% of the elected members of the committee; 90% should agree to dissolve or merge the party.

When Maharashtra speaker Rahul Narwekar starts hearing defection petitions, he will have this document in front of him. His plate is full — 11 defection pleas by both NCP factions on top of the pending Sena ones from last year. If the NCP crisis deepens, it is likely that, akin to the Sena, almost all NCP lawmakers will face disqualification proceedings from one faction or the other. It may create a situation where nearly 100 lawmakers in a state — a third of its assembly strength — are embroiled in the anti-defection law.

Unfortunately, this law is often the problem rather than the solution. Either legislative naiveté or political guile led to the law’s passage in 1985. It said lawmakers elected on the ticket of a political party can lose their seat if they act or vote contrary to the party’s directions but provided two exceptions. First, if one-third of the lawmakers split from a party, it would not be termed a defection. This provision was widely used to topple governments, and Parliament eventually deleted it in 2003. The second exception — the so-called merger provision — said if a political party merges with another, then the lawmakers who are part of the merger will not be disqualified and that such a merger shall “be deemed” to have taken place if two-thirds of a party’s legislators agreed.

If taken literally, all it requires to merge a political party with another is to convince two-thirds of its legislators. For example, after the 2019 state elections, 10 Sikkim Democratic Front MLAs merged with the Bharatiya Janata Party (BJP). As a result, the BJP, which did not have a single member earlier, suddenly became the main Opposition party in the state. Effectively, then, the ambiguous language has created a guardrail of sorts that political parties and legislators can use for engineering defections.

But SC’s Sena decision said the anti-defection law should be interpreted keeping in mind its purpose of preventing party-hopping. In such a case, the merger of the political party, its workers and members, is necessary before two-thirds of its elected members can merge. This proposition presents an operational problem for the speaker who has to adjudicate defection proceedings. How can he decide how many of the political party’s functionaries favour the merger?

The Law Commission in 1999 recommended deleting the merger provision. It observed that doing away with it would be “in the interest of maintenance of proper political standards in the Houses and also to minimise the complications arising on that account.” But that never happened.

The anti-defection law has never worked. For example, the Sena defection case began in June last year but is nowhere near completion. The current NCP defection petitions might also take a year and by then, elections will be so close that the entire proceeding will be infructuous, at least politically. It is time we realised that placing some legal provisions in the Constitution can’t achieve political morality. And it is better to delete the entire anti-defection law rather than cling to the diminishing hope that it will ever solve the problem of defections. Defections are political problems, and they require political solutions. The law can only play a limited role.

Chakshu Roy is the head of legislative and civic engagement, PRS Legislative Research. The views expressed are personal