'Enormous issues in enforcing anti-defection law are making of Parliament members': Supreme Court

The bench directed that the petition be tagged with the pending challenge concerning political defections in Goa.

Observing that “enormous issues” in the implementation of the anti-defection law are “the making of the members of Parliament”, the Supreme Court on Monday agreed to examine a plea by senior advocate Kapil Sibal assailing interpretation of a provision that allows legislators to escape disqualification by way of a political party merger.

The bench indicated that such issues ordinarily belonged to the legislative and political domain. (File Photo/PTI)

A bench of justices PS Narasimha and Alok Aradhe issued notice on a petition filed by Sibal in his own name, questioning the interpretation of Paragraph 4 of the Tenth Schedule to the Constitution that permits disqualification to be avoided where legislators claim protection under the merger provision, requiring a two-thirds threshold and allowing members to either join the new group or leave.

While agreeing to tag the matter with a similar pending case relating to the Goa political defections before a three-judge bench, Justice Narasimha remarked that although there were “enormous issues” with the working of the Tenth Schedule, the law was framed by Parliament itself. “There are many issues. We will issue notice. These are issues that typically should be raised on the floor of the House. The Tenth Schedule is intended to regulate the mechanism between the legislators. We have upheld the Tenth Schedule. We have been seeing it. There are enormous issues with the Tenth Schedule. But who made it? It’s the making of the MPs,” observed the bench.

When Sibal, also a Rajya Sabha MP, argued that defects in the law had enabled governments to be toppled through engineered defections, the bench reiterated: “Who made it? It’s the making of the members of Parliament. It is for the problems of the legislators to be decided.”

Appearing in person, Sibal urged the court to entertain the petition under Article 32 of the Constitution, saying the issue had “huge repercussions” for Indian democracy and could fundamentally alter electoral mandates. “This matter is already pending...the Goa matter. But apart from that, this has huge repercussions to our polity. A political party has to take the decision. Please see the enormity of the problem. The electoral verdict can be changed. A minority can become a majority and a majority can become a minority,” submitted Sibal.

He contended that the merger exception under the anti-defection law had become a tool to legitimise political defections that effectively overturned the mandate given by voters.

The bench indicated that such issues ordinarily belonged to the legislative and political domain. Sibal responded that constitutional courts could not remain passive merely because Parliament had enacted the law. He described the operation of the provision a “complete fraud”.

The bench directed that the petition be tagged with the pending challenge concerning political defections in Goa, where the scope of the merger exception under the Tenth Schedule is already under consideration by a three-judge bench, headed by CJI Surya Kant.