The main motivator for Parliament to enact anti defection law was to address the ‘evil of political defections’
The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-second Amendment) Act, 1985, sets the provisions for the disqualification of elected members on the grounds of defection to another political party. Owing to the implementation of the Tenth Schedule, there has been a substantive decrease in the defection cases. The provisions of the Tenth Schedule have stood the test of time and several judicial scrutinies.
The Statement of Objects and Reasons of the Bill, which added the Anti-Defection Law to the Constitution, mentioned that the evil of political defections was a matter of national concern and needs to be curbed. The main motivator for Parliament to enact anti defections Law was to address the ‘evil of political defections’. However, since the law was first enacted in 1985, it had not put an end to defections or helped bring the stability in governments it sought to.
Disqualification for defection
A legislator belonging to a political party will be disqualified if he: (i) voluntarily gives up his party membership, or (ii) votes/abstains to vote in the House contrary to the direction issued by his political party. A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days. Independent members shall be disqualified if they join a political party after getting elected to the House.
Nominated members will be disqualified if they join any political party six months after getting nominated. The National Commission to Review the Working of the Constitution (2002) had also noted that since candidates get elected on the basis of the party that gave them the ticket, defecting flouts the very mandate on the basis of which a member was elected.
Here is how the anti-defection law — the Tenth Schedule of the Constitution, inserted by The Constitution (52nd Amendment) Act, 1985, when Rajiv Gandhi’s government was in power — came to be, and how it evolved over the three decades that followed.
The 1967 elections
The seeds of the anti-defection law were sown after the general elections in 1967. The results of those elections were a mixed bag for the Congress. It formed the government at the Centre, but its strength in Lok Sabha fell from 361 to 283. During the year it lost control of seven state governments as MLAs shifted their political allegiance. In this backdrop, P Venkatasubbaiah, a Congress MP in Lok Sabha who served in the Cabinets of both Indira and Rajiv Gandhi, proposed the setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”.
The immediate challenges
No sooner was the law put in place than political parties started to stress-test its boundaries. The issue of what constitutes a spilt in a political party rocked both the V P Singh and the Chandra Shekhar governments. The role of the Presiding Officers also became increasingly politicized. Lok Sabha Speaker said in 1992: “The Speaker is not expected to dabble in keeping the political parties weak or strong or discipline the Parliamentarians for their party purposes.”
Members are exempted from such disqualification when at least two- thirds of the original political party merges with another political party. Further: (i) the members must have become members of the party they have merged with/into, or (ii) they should have not accepted the merger and choose to function as a separate group. The decision to disqualify a member from the House rests with the Chairman/Speaker of the House.
The anti-defection law reduces the accountability of the government and legislators
The key problem with a law that penalises legislators for acting independently is that it goes against the idea of a parliamentary democracy. In a parliamentary democracy, the government is accountable to citizens through a two-step process. Elected representatives (MPs and MLAs) hold the government accountable for its actions. In turn, they are accountable to citizens, as they need to renew their mandate every election. The anti-defection law breaks both links in this chain. There have been proposals to limit the Anti-Defection Law to votes which test the stability of the government such as no-confidence motions and money bills. Note that the Anti-Defection Law currently applies to every vote, and even in Rajya Sabha and Legislative Councils of states, where the government’s stability is not at stake.
Voluntarily giving up party membership
Under the Tenth Schedule, voluntarily giving up membership of a political party is also one of the grounds to be disqualified as a defector. However, what constitutes the voluntary giving up of party membership is not defined under the Schedule. The Supreme Court has held that voluntarily giving up membership is not synonymous with only formally resigning from the party, and has a much wider connotation.
The 2003 Amendment
The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the Vajpayee Government and a committee was formed to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill. The committee observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.” Supreme Court held that if a member belonging to a political party is expelled from the party after being elected, he shall continue to belong to that party as an unattached member.
Some of recent years’ defections are as the Data provides
In Maharashtra (2022): 40 out of 55 MLAs of the Shiv Sena walked out of the coalition government formed by the Shiv Sena, Nationalist Congress Party, and Indian National Congress in Maharashtra. The MLAs that walked out of the coalition then formed the government in the state by entering into a coalition with the primary opposition party, Bharatiya Janata Party. While more than two-thirds of the Shiv Sena MLAs walked out of the earlier coalition, they did not merge with any political party subsequently. Both factions of the party now claim to be the original Shiv Sena. In an interim order, the Election Commission disallowed both factions of the party from only using the name Shiv Sena and the election symbol of the original party.
Karnataka (2019): 17 MLAs from the ruling coalition of Indian National Congress and Janata Dal (Secular) resigned from their membership of the Karnataka Legislative Assembly.16 However, their resignations were not accepted by the Speaker. In the meantime, the government had to prove its majority in the assembly through a confidence motion. The MLAs did not vote in the motion and the government fell. Subsequently, the Speaker rejected the resignation of the MLAs and disqualified them till the end of the assembly’s term in 2023. The Supreme Court upheld the Speaker’s decision to disqualify the MLAs but set aside the order on the term of their disqualification. Several of the disqualified MLAs joined the Bharatiya Janata Party and contested the bye elections.
Most advanced democracies do not disqualify legislators for defecting against their parties. Such members may be subject to internal party discipline including expulsion from the party. The seating arrangement of the person changing his party allegiance may be modified in the House. Only in five other countries, members can be disqualified from the House for changing political allegiances as well as voting against the party line. These are Bangladesh, Guyana, Pakistan, Sierra Leone, and Zimbabwe. However, in Pakistan a member can be disqualified from voting against party lines only in certain cases. These include: (i) election of the Prime Minister/Chief Minister, (ii) vote of confidence/no-confidence, and (iii) money Bills or constitution amendment Bills.
The (ab)use of the law? The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths. The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states. The Speakers started taking an active interest in political matters, helping build and break governments.
The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end. The anti -defection law has not been able to stop political defections. The evil of political defections continues to be a matter of national concern and needs to be curbed in the interests of purity of electoral process and democracy.
(The Author is Senior Advocate, Supreme Court of India)