As the political crisis in Maharashtra rages, a fresh application has been filed in a 2020 writ petition in the Supreme Court which sought to bar MLAs who have been disqualified or have resigned from contesting elections for up to five years.
The petition in question was filed by Congress leader Jaya Thakur and, in an effort to curb defections, sought directions from the top court to restrict disqualified MLAs from contesting bypolls to assemblies during the same term in which they were elected.
Disqualifications on the grounds of defection are detailed in the Tenth Schedule of the Constitution, commonly referred to as the ‘anti-defection law’.
Thakur had filed the plea in 2020 and in January, 2021, the Supreme Court had issued notice to the Union government and the Election Commission of India (ECI) seeking their responses in the matter within four weeks. However, the counter-affidavits have not come yet.
In light of the political situation in Maharashtra today, where 34 Shiv Sena MLAs pledged their support for dissident party leader Eknath Shinde, Thakur has moved a fresh interlocutory application in the petition, pulling up the ECI and the Union government for their failure to respond in the plea.
Seeking immediate directions on the plea from the Supreme Court, Thakur’s fresh application says that “political parties are taking advantage of this situation and continuously destroying the elected government. in various states of our country” and that these things are being repeated in Maharashtra of late.
Further, the application alleges a “concerted, pan-India effort” by political parties to render the Tenth Schedule redundant.
Calls for the strengthening of the anti-defection law have been made on several occasions in the past as well. Thakur’s application cites examples of MLAs defecting for political gain in three states – Manipur, Karnataka, Madhya Pradesh.
In 2020, the Kamal Nath-led Congress government in Madhya Pradesh fell after 22 Congress MLAs resigned. The Supreme Court had ordered a trust vote following the resignations, however, anticipating the outcome, the chief minister had tendered his resignation, paving the way for an alternative government, led by the Bharatiya Janata Party’s (BJP) Shivraj Singh Chauhan.
Following the incident, numerous legal and constitutional commentators had seen the move as an attempt to undermine the Tenth Schedule and suggested that the only way to curb such defections is to give the anti-defection law more teeth.
Similarly, in 2019, 15 MLAs of the ruling Congress-Janata Dal (Secular) coalition resigned from their respective parties, leading to the H.D. Kumaraswamy-led government in the state to fail the subsequent trust vote and being forced to resign.
In that case, too, a number of the rebel MLAs camped out at hotels in a different city, away from the state which they represented.
Proposals for a provision to debar such disqualified MLAs from contesting by-elections during the same assembly’s tenure had been mooted in the wake of these two incidents and more.
Thakur’s present application goes on to outline the adverse impacts that such mass resignations have on governance as well as on the citizens.
“The result is that due to this, people of the state are denied stability and the voters are denied their right to choose and elect representatives having a common ideology. Moreover, these constant defections cause huge loss to the public exchequer, which is involved in the conduct of bye elections,” the application reads.
As such, the application seeks for immediate directions from the top court for the amendment of the provisions of the Tenth Schedule to include a bar on rebel MLAs from contesting bypolls during the same assembly term that they were initially elected in.
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