From India's largest newsroom, I'm Arun George and this is the Times of India podcast. Non attendance of the meeting can act the most be termed as an act of dissent within the party. If viewed as a form of expression, it would be protected by freedom of speech and expression, which includes dissent and is not only an integral part of fundamental rights under Article 1419 and 21 of the Constitution, but is an aspect of the basic structure of the Constitution also.
On the 10th of January, the Speaker of the Maharashtra Assembly, Rahul Narvekar dismissed all the petition. Shifts in our legislators had moved against each other. At the heart of the file petitions was the fact that over 40 shifts in our MLAs led by Iknath Shinde aligned with the BJP. This led to the Udak Thakre LED alliance in Maharashtra falling from power and Iknath Chindi becoming Maharashtras. Chief Minister.
Rahul Narvikar in his order dismissed all the petitions and disqualified none of the MLAs allied with Iknath Chindi on the grounds of defection. All the MLAs, irrespective of whether they were supporting Eknar Chinde or UDA Thakre were deemed to belong to the same party. Narvika ruled that MLAs supporting Eknar Chinde, not attending party meetings and voicing differences of opinion outside the legislature were matters of the party and couldn't be seen as acts of dissent or defection.
Whereas some experts would argue that's exactly what's covered by Indias anti defection law. For today's episode, my colleague Sunil Bagheel and Bhavika Jain spoke with two experts to better understand what this order means for politics at large, especially because India has an anti defection law which was passed to prevent elected representatives from one party switching sides.
Does the Maharashtra case show how the law can be casually bypassed and that it doesn't have enough teeth to prevent such defections? PDT Achari is the former Secretary General of the Lok Sabha Secretariat and says he completely disagrees with the Speaker's ruling in this case. I don't think it is a very correct kind of ruling, because here the Speaker has decided which faction is the party. That is not actually an issue which the Speaker should decide.
That is not a part of the anti defection law. That is not to be decided by the Speaker, that is decided only by the Election Commission. So he has wrongly decided an issue. Secondly, he has to decide whether the Ek Nath Shinde group of MPs ML as belonging to the Shiva Sena party defected from that party. So he should look at the conduct of these people and then he should decide. Now he can decide it on the basis of Supreme Court decisions.
For example, Rajendra Singh Rana case is a case in point. In that case, you know, the Supreme Court had said, look, if a ruling party member goes along with the opposition to the governor and says that the present government should be dismissed and we are prepared to form an alternative government, the moment he goes to the governor, the Supreme Court says that he has actually committed defection. That means he has voluntarily given up the membership of the
party. PDT Acharya explains the two grounds on which an elected representative can be disqualified. As for the anti defection law, there are two grounds on which a person can be disqualified. One is that he has voluntarily given up the membership of the party. Second is that he has defied the whip and voted against the direction of his.
Party The whip that PDDHIE refers to is a sort of formal written order issued by a leader in the party telling legislators on how to vote on a particular issue or what they should be doing next. The Shiv Sena, led by Udav Thakre, accused those allied with Eknath Shindi of doing exactly that. It's something that even the NCP faction of Sharad Pawar has accused Ajit Pawar and the MLE
supporting him of doing. So the Speaker should have decided this issue on the basis of this particular fact that they broke away from the party, they conspired with the opposition and then they approached the governor and the governors told them in As for Rajendra Singh Rama's case, this is a clear case of defection and the Speaker should have decided this. In that case of what could be the solution to the to the situation that has happened?
A reason like Supreme Court has declared certain things illegal, but the government, not just the Chief Minister, all the ministers, the government, everything remains in place. Then what is the solution to such a situation then? Actually, you know, anti defection law should be understood in the context in it it was, it was, it was framed by
parliament. There were defections from one party to the other and there was political instability in many states because of this unchecked defection and therefore something needs to be needed to be done. Of course the anti defection law as it is framed as it exists today is a very tough law if it is implemented and it needs to be implemented because that is why the law is there. And they had done away with the provision of split. That means they wanted to make it as ruthless as possible.
That basic thing you know we must understand and then you will understand the logic of this law. That means anybody who leaves a party who has been elected on a particular ticket comes to the legislature and after that somebody leaves him away and he goes away. That actually goes against the verdict of the people. You're thumbing your nose against the people who are elect, who elected you. That is precisely what the law
wants to, wants to prevent. After all, they have done a certain thing, and they must face the consequences of that in terms of the law. The 170th Law Commission report submitted in 1999, Which he effectively suggested that defections should be completely disallowed and once a member is elected on a certain party ticket, he or she should remain a member of that party and if you want to defect then you should resign and seek reelection.
What is your opinion on that? Actually the there should be a simple law that the man should resign if he wants to move across to another party. Otherwise he will make, he will be making a nonsense of the verdict of the people wealthy, which he has no right to do. But here that is not how it is. You defect, you enjoy the benefit of defection, and then you continue glad this kind of discussion comes, which kind of protects you. That is not what is intended by
this law. See, intra party disputes are resolved. Not by defecting from that part. Intra party disputes are resolved. There should be some mechanism in every party to resolve the intra party disputes, but if it goes to the extent of defecting then it becomes a different issue. It no longer remains an intra party dispute. Also, Sir, with this verdict, if I were a part of a, if I were leading a small political party somewhere in other parts of the country, I would really feel threatened.
Because you know that. Really allows a large part of my legislators to be easily broken off and taken to the two bigger parties. Certainly it has implications. So that is why I'm saying that the anti defection law should be implemented in liter and spirit by the speaker and the speaker doesn't do that. Then the court should step in and they should set right things so that people obey the law.
It seems that the political fraternity, so to speak, has found a way around the law that is on the books as of now. Do you see the political will in changing the law again to make defections completely impossible? Well, that depends on the political class, how they look at it and all that. After all, a law is brought by the ruling party, whichever party it is. So they will bring a law which will suit their interest basically and amendments are also brought by them to suit
their interest. Let's not get away from that because that is the reality. But so far as the anti deflection law was concerned, there was a consensus among the entire political spectrum. There was a consensus that we must have a law to deal with this issue. OK? It can cut both ways. It can affect any part and today's ruling party may be at the receiving end tomorrow. So this can happen to any political part. That is why there was a consensus and that consensus cannot be done away with.
And the anti deflection law is the product of that kind of consensus. After all, why is that provision made in the law which says that a member shall be deemed to belong to the party which set him up as a candidate? But in my view, that is the key. That is the key to resolving this problem. Speaker has to merely see which party they belong to at the time of defection. They belong to this party, a party which set them up as candidates in the election. See how easy it is to decide
that issue. But there's another point of view that the anti defection law as it stands doesn't cover cases like the shifts in our NCP because the defectors don't claim to have left the party. Sunil Bagheel and Bhavika Jain spoke with Shihari Ani, who is the former Advocate General of Maharashtra. He doesn't believe there's anything wrong with the Maharashtra speaker's order.
In my view, the speaker passed an order that was completely within the four corners of what the Supreme Court had expected him to do. Obviously, the Uddhav Thakri side is alleging bias on the part of the speaker and some of it is clearly reflected and observed in the Supreme Court judgment of May 2022. What's your opinion about? There is a legal concept. It's called official bias.
It is based on an assumption that if you belong to a particular group or an office, you exhibit the bias of that office. I do not say this concept applies 100% here, but it is possible to argue that you belong to the BJP. So you are exhibiting a bias in favor of the BJP. If you are alleging malice, if you are alleging that the action is motivated by considerations other than the ones that should weigh, the law clearly requires that you make out the reasons for that.
And the only reason I have come to so far is #1. You belong to the BJP, therefore you must be going in the direction BJP likes to go. And #2. This is as of yesterday, you visited the Chief Minister a couple of times. Maybe. Maybe it would have been better if we had not visited him. But I am not going to be able to establish malice or bias by such acts. They will have to establish that the speaker did it for ulterior motives, and merely saying so is
not enough. So the NCP disqualification matter is under hearing and the first hearing has happened. Does this mean that you know it is headed towards a foregone conclusion? It's not headed to a foregone conclusion for the reason that the foregone conclusion is based not only on the directions that the Supreme Court has given, but also on the evidence that emerged from the directions.
If, for instance, in the matters of disobedience of VIP, the complainant can show that the VIP was properly issued, then the conclusions reached in the Shinde Takre matters will not apply. If, for instance, the party's behavior is shown to be properly justified under the party constitution, then the Shinde Thackeray judgment won't apply. So it is not a precedent to the facts of the case, It is a precedent for the law that it seeks to define.
And in any case, judgments of the speaker do not have precedential value. So a judgment of this speaker does not bind, let us say, the speaker in Madhya Pradesh, although it will be read by the speaker in Madhya Pradesh with great interest. You can have the same backdrop of law but with totally different results emerging from it. That's possible. A major factor that the Maharashtra speakers verdict relied on was the constitution of the party.
While the Shiv Sena had passed one in 2018, it wasn't something that was submitted to the Election Commission. It turned out Sri Haryani says the Speaker was told to rely on the official constitution filed before the Election Commission. Therefore he went by the earlier version of the constitution which in turn went against Udal Thakrin.
But, and he says that parties also need to have better methods of dealing with intra party problems rather than expecting the anti defection law to sort them out. I think the political parties was first of all introspect. They cannot be bringing all such matters serious or frivolous under the tense schedule before the Speaker. Unless they're very serious that this is a defection and must be treated as such. So it it should not be a means for them to settle their own personal problems.
Don't try to make your party governance matters matters of the 10 schedule. Deal with it where you're supposed to deal with it. This is going to be a very prominent feature of the NCP matter that's coming up so far. Surprisingly, Mr. Sharad Pawar has shown great restraint at bringing a focus on to how the problem ought to be viewed. It does not display it in this fashion as the shus energy, but that does not necessarily stop it from assuming that
proportion. It might, but then is it a descent within the party, or is it a descent in which disqualification must follow? Is one of the things that features. I would say the parties must examine their constitutions to see if there are methods by which they can solve this, rather than run around trying to say let us go to the 10 schedule and seek a solution because that's not what the 10 schedule is meant to do and that's not
what it should be used for. The third thing is the parties now actually have a very clear guideline, not only in the speakers judgment but in the Supreme Court's directives. But these are the things that need to be looked at. Examine them for yourself. Talk to a competent lawyer, He'll tell you what they're supposed to mean.
Find out if you have evidence to support all this, then decide on what course of action you want to take I. Just want to bring your attention to the 170 years Law Commission report of 1999 on the same aspect. There should be no defection once you have be, once you're elected under a party's name. I would, but I have a small caveat to that. What happens if I'm elected by my constituency on a particular view?
Let us say that I have been elected to demand, let us say I am from Vidarbha to demand that I will go in the Parliament and fight to bring irrigation to my area. And I go there and I don't do it. I am acting against my people, but nobody can question me for doing that. But supposing the party to which I belong says that looking to the condition of Maharashtra, we feel that the budget only allows us to develop irrigation in western Maharashtra. And whether irrigation will not
be developed. And I, as a member of the party, I'm told you, vote on a whip to support this. Am I in conscience bound to obey such a whip? Or will I go against my party, stand with my electoral public to say no, I have been elected on this mandate and I will not be able to deviate from this mandate. Now, if the law were to so complain that I must obey my party, then my option would be very limited.
I will have to either go with the party or I have to resign and say sorry, I can't go with you before you throw me out. I'm getting out. I'm not. I was never elected for this. Fortunately or unfortunately, such sharp questions do not confront our elected representative, and most questions which confront them are usually of such minor nature and unfortunately raised by such weak electorate population, that some kind of a makeshift answer is good enough to take care of things.
Like I say, they do not need to perform surgery, a Band-Aid takes care of whatever the problem is. And yet, if such a confrontation were to occur, and we had a law which said you vote against your party, you're done. That would be the law. It would be a good thing. If such a law is there, people won't vote against the party. It would be a bad thing because they may not be doing justice to their electorate representative. There are two views.
From a voters point of view, there is one person who sort of moves out of a party with 39 more people. We are still not calling it defection, we are still calling it as intra party descent. Then what would amount to defection? Please remember that there was a clause 3 to the 10th schedule which had said that if so many percent of people go out, that would be permissible. If it is not that, then it's not permissible. So in one case it would not be defection and in the other case
it would be a defection. They removed that. With that gone, the 10th schedule as it stands today, to my mind does not cover situations like the current one. It can cover situations of individual acts of defect defection. It would cover situations where even a group of people vote against the VIP, for instance. But voting against the VIP is also not a complete disqualification method because you are allowed to rethink and the man can be brought back in saying, all right, you voted,
don't do it again. Next time it will be bad for you. So that situation apart, the tense schedule as it stands today does not, in my mind, reflect a power which can deal with a situation of mass loss of people from one side to the other. It deals with individual or at best small groups.
Given speakers of legislative bodies don't seem to rule against the governments of the day, irrespective of the methods by which they were formed, one suggestion was to create neutral bodies to decide on cases like that witnessed in Maharashtra. Basically, take elected representatives out of the process of deciding whether a politician has defected or not. Sunil Bagheel asked PDTHRE if it's time to consider that
suggestion seriously. Do you think it is time that this this jurisdiction to decide on disqualification petitions is handed over to a neutral body, as suggested by one of the judgments cited by Justice Rwinton Arman's bench in a similar case? Well, that can be tried because there is nothing sacrosanct about the Speaker deciding this issue. Speaker is a political person.
You know, initially when the Speaker was brought in as a tribunal here, you know, the understanding was this is a matter, you know, which concerns the House and therefore maybe Speaker is the right person to decide this issue. That was the perception of the lawmakers in the beginning.
But later on we have had certain experience and on the basis of that people have started saying that certainly this matter should be given to a neutral authority to train in judicial matters because after all it's a semi judicial decision. So therefore people who have that kind of a training should do this. But then the political class has to take a call on that. After all, it is they who will bring the law and get it passed by Parliament.
Bhavika Jain also asks she Haryani about the Maharashtra speaker's order and whether such defections amount to the voter being cheated given they vote for one person and then see them switch sides as per their convenience. I find that you know when you say that a politician should not fall prey to the allurement of another political party for the gains of power, pretty idealistic in in the situation or in the world that we are today.
Ultimately, putting the onus on listening to his conscience is too optimistic from the point of view of a voter. We can cite as many articles like amendments and Constitution amendments that you like. Isn't it the voter who is ultimately, you know, the cheated party in in any such case. Badly cheated. Cheated is a good word. Just remember this that the politician truly believes that the moment the voter has voted for him, his duty towards the voter is irrelevant.
Also, the politicians, at least nowadays, truly believe that what they think is of importance is what is of importance to the voter when it really is not. I'm going to tell you something else which I believe in, and this is again, very cynical, and it's as a result of my having lived much longer than most people. We are basically a dishonest people, and that includes the voter as well. He doesn't mind this kind of stuff happening.
Why do you let the same man get stand up again and be elected on your ticket? Why didn't you tell him last time? Please sit at home. We are not voting. No, we won't do that. Our voter still votes on considerations which are completely extraneous to why he's supposed to vote. We are democracy because we follow the pattern of voting not for the intent of what democracies were created.
For Today's episode was produced by Jayaraj Singh and Anuja Singh. For a daily spotlight on people, ideas and stories that matter, subscribe to us. We're available on TOI plus Spotify, Apple, Google Podcasts, and all other platforms of your choice. For any new steps, e-mail us at toipodcast at timesinternet dot in.