ANTI DEFECTION LAW: HAS THE LAW SERVED ITS PURPOSE?

Anti-defection laws find its origins in the late 1960s when the MP from Harayana, Gaya Lal
changed his party thrice in a fortnight. This entire changing of political affiliations gave birth
to an infamous phrase “Aya Ram, Gaya Ram.” This led to the demand for a legislation to
stop this undemocratic act which was finally quenched with the addition of Tenth Schedule in
the Constitution through the 52nd amendment in 1985 by the Rajiv Gandhi-led government.
The main aim of the legislation was to check the change of political affiliations after getting
elected on a certain party ticket. However, this was not the first time such a law was
introduced in the Indian political sphere, there have been at least two attempts before the 52 nd
Amendment Act. In 1970s, there were a large number of incessant floor crossing by
legislators which caused ruckus and chaos and led to the formation of a Commission. The
commission was led by the then Home Minister YB Chavan i even after opposition from the
Lok Sabha. On the basis of this commission 32nd Amendment Act was introduced to check
defections. But the bill lapsed when the Lok Sabha was resolved. Later the 48 th Amendment
Act was introduced which met the same fateii. Hence, India got an Anti-defection Law after a
lot of misses. This article seeks to analyse how far has it brought about the intended change.

FEW YEARS ON, HOW IS THE PICTURE ON GROUND?

If we see the picture today, it is everything but encouraging. Defections have been incessant
in the State Legislatures. These defections have been in return of material benefits and
ministerial positions. The party that benefits from it, most of the times, is able to form a
government in the State with the help of defected legislators who most of the times become
the members of the cabinet. Recently, we witnessed the dissolution of the Legislature of
Puducherry due to defections. This is not an isolated case. In March last year, one-year-old
Kamal Nath led Congress government failed the floor test because 22 MLAs defected from
the Congress party and joined the Bharatiya Janata Party. This led to the formation of BJP
government in the state. The same has happened in Karnataka, Goa, and some of the north
eastern states in India.

The elected candidates are bound by the manifesto and the policy and programme of the party
during their tenure. If in the midst of the tenure, they change their views and dissociate from
the party, they owe it both to the party and electorate to resign their seats and contest
elections afresh. Not to do so is to betray and deprive both the party and the electorate of a
representative of their choice. That is against democracyiii.
WHY HAS THE ANTI DEFECTION LAW FAILED TO PREVENT THE DEFECTIONS?

Clearly, the Tenth Schedule has failed to prevent the defections. There are many reasons for
the failure of this law. Analysing the Tenth Schedule, we find that it punishes the legislator
on an individual level and not the political party which has lured the legislator for the
defection. Political parties who are at the heart of our politics are not accountable for
enticement or luringiv. They benefit from defections and are often accused of enticing MLAs
of rival parties to switch loyalties. Further, the legislators have found out ways of escaping
the anti-defection law. For example, the punishment for a legislator who defects is
disqualification from the house and he/she would be ineligible to hold ministerial position for
six months. The legislators have started resigning from the house instead of defecting. This
means that they could be re-elected in the by-polls and then conveniently hold the ministerial
position that the enticing political party has assured them of. This power to resign from the
house is guaranteed to every legislator under Section 190 (3) (b) of the Tenth Schedule.

Further, if two-thirds of the elected legislators of a certain political party move to another
political party, it will not be considered a defection and the defecting legislators will not be
punished or disqualified from the house. This provision has become a problem. Now, the
enticing political party tries to get two-thirds of legislators of the other party to their camp.
This has resulted in a problem called mass defections v which leads to the destabilisation of
the governments. The recent example of such a case was witnessed in Rajasthan where more
than two-third legislators of Bahujan Samajwadi Party joined the Congress. Although it is
hard for the parties to get two-thirds of legislators to their side, in states where the strength of
the legislatures is small, it is not a difficult task. The Tenth Schedule was added to the
Constitution to enhance the stability of the governments. But with the coming of an era of
mass defections, it has failed to improve the stability of the elected governments.

A new development has been sought out: use of the chartered planes and resorts. While the
floor test is being conducted, the members of the house are taken from a chartered plane to a
resort. More often than not they are taken to a state which is ruled by them so that the
defecting legislators not only enjoy the five-star hotels but also the police protection. This
gives them an opportunity to miss the voting which leads to the toppling of government. This
is termed as “resort politics” and witnessed in states like Uttarakhand where the Congress
legislators were accompanied by leaders of the BJP and they were taken away in a chartered
flight to Delhi. This led to the imposition of the President’s Rule in the state, which was later
set aside. In the meantime, the Speaker of the house had disqualified the legislators who did
not show up during the floor test. Similarly, defecting legislators in Karnataka were flown to
Maharashtra in a chartered plane, and taken to a resort. The coalition government consisting
of the Congress and the Janata Dal (Secular) floundered and lost majority. The resignations
become a tool to reduce the strength of the house and then topple governments vi. The same
was witnessed in Puducherry recently.

Moreover, the Speaker has been made the sole arbiter on the case of defections or
resignations. It is the Speaker of the House that will decide if the legislator has defected. This
is because the Speaker is considered to be impartial. But with defections taking place, the
position of the Speaker has been highly politicised vii and corrupted. The Speaker acts on the
wishes of the ruling political party in the House because he is one of them. Recently, during
the political crisis in Rajasthan, where the Rajasthan Congress government was divided in
two camps led by Sachin Pilot and Ashok Gehlot respectively, the Speaker of the House, C P
Joshi acted on the dictates of the Chief Minister Ashok Gehlot. The Speaker of the House
tries to save the government by misusing the powers that are entrusted to him by the Tenth
Schedule.

In the Kihoto Hollohan caseviii, the Supreme Court dealt chiefly on the issue of insertion of
the Tenth Schedule. The issue was whether it violated the powers and privileges of the
legislative houses and its members guaranteed under Article 105 of the Constitution of India,
and whether barring jurisdiction of the high courts and the Supreme Court for holding
disqualification proceedings violated the principle of judicial review, which is part of the
basic structure of the Constitution that cannot be done away with. The Apex court, while
reiterating that the power of judicial review cannot be taken away through an amendment had
also laid down the position on when the decisions of the speaker can be challenged, and to
what extent the courts can review such decisions. But in an unprecedent order, recently the
Supreme Court took a suo moto cognisance when the Speaker failed to take a decision. In the
Manipur State Assembly, the disqualification of Thounaojam Shyamkumarix was pending for
a very long time. Shyamkumar had joined the Bhartiya Janata Party shortly after being voted
to power on a Congress ticket during the 2017 Assembly polls. Witnessing that no decision
was taken by the Speaker on the defection, the Supreme Court took suo moto cognisance and
directed Shyamkumar to not enter the State Legislature until the Speaker takes a decision.
Further, the court added that it was needless to say that he will not be allowed to hold any
ministerial berth in the government. The Court lastly said that the Speaker has to take the
decision in a reasonable time. This is the first time that the court has given such an order in
the case of defection.

But the problem with the intervention of the courts is that it takes time x. For example, in the
case of Sharad Yadav, the Rajya Sabha chairman had decided his disqualification in three
months in 2017, and the case is still pending before the Delhi High Court. And most of the
times, the defection cases are forgotten after the political crisis is averted and the camps have
reconciled. Last month, no one appeared on behalf of the dissident Rajasthan Congress
MLAs, that is the Sachin Pilot camp, who had approached the high court seeking protection
from the anti-defection law.

Another problem with the anti-defection laws in India is that it makes the legislators
accountable to the political parties and not their constituencies xi. For example, during the
recent impeachment of 45th US President, Donald Trump, 7 legislators of the Republican
party in the Senate voted for the impeachmentxii. The house could not take any action against
the legislators and even the party did not take any action though it could have. Another
example is of the United Kingdom. 55 MPs of the Conservative Party voted against its own
party’s proposal of a stricter lockdown. This gives the legislators freedom of speech and
expression. In India context, such a vote, that is different from the stand of the party, would
have led to disqualification. Further, due to anti-defection laws, the legislators make no effort
to analyse the policy instruments or other bills that are introduced in the house. They merely
become votes of their party. This is not in favour of the constituency from which the
legislators get elected. This high accountability towards the political party is problematic in
another sense that it is very broad. It also covers the Rajya Sabha MPs who have no authority
to vote out the governmentxiii. This limits the freedom of the legislators to critically analyse
the policies and bills presented before them. The analysis and the discussions that take place
are aligned with the stand of the party and is not their conscious one.

CONCLUSION

If the purpose of the law is to increase the accountability of the legislators towards the
electorate, some major reforms are needed in the anti-defection laws. There should be limits
to the spending of a political party which is absent in the current set-up. The limits on the
spending can put a stop on the unethical horse trading that takes place. Further, anti-defection
laws should be scrutinised from a sense that they are accountable for their actions to the
electorate as well and not just the political party. Reforms must be made to accommodate the
freedom of speech of the legislator that can be used to better analyse the bill/policy
instrument.
i
Chakhsu Roy, “Explained: The Limits of Anti-Defection”, The Indian Express, July 25, 2019.
ii
Anti-Defection Laws in India: Its flaws and its falls, available at: https://www.barandbench.com/columns/anti-
defection-laws-in-india-its-flaws-and-its-falls (last visited 20 March 2021).
iii
P B Sawant, “Only by The People”, The Indian Express, Aug. 13, 2020.
iv
Rahul Kaushik, “An Overview of The Tenth Schedule”, The Economic Times, Oct. 27, 2020.
v
With mass defection, Cong loses govt in Arunachal, available at:
https://www.thehindubusinessline.com/news/national/with-mass-defection-cong-loses-govt-in-
arunachal/article9115838.ece (last visited 25 March 2021).
vi
Mass Resignations Indicate External Influence, Speaker Should Reject Them, Say Experts, available at:
https://thewire.in/politics/mass-resignations-mlas (last visited 24 March 2021).
vii
Feroze Varun Gandhi, “Political and Partisan”, The Hindu, Oct 18, 2017.
viii
1992 SCC Supl. (2) 651.
ix
SC Restrains Manipur BJP Minister From Entering Legislative Assembly Till Further Orders, available at:
https://www.livelaw.in/top-stories/sc-restrains-manipur-bjp-minister-from-entering-assembly-154032?infinitescroll=1
(last visited 26 March 2021).
x
The Anti-Defection Law Continues to Damage Indian Democracy, available at:
https://www.prsindia.org/media/articles-by-prs-team/anti-defection-law-continues-damage-indian-democracy (last
visited 23 March 2021).
xi
The Absurdity of The Anti-Defection Law, available at: https://www.prsindia.org/media/articles-by-prs-
team/absurdity-anti-defection-law (last visited 25 March 2021).
xii
Id.
xiii
The Anti-Defection Law Continues to Damage Indian Democracy, available at:
https://www.prsindia.org/media/articles-by-prs-team/anti-defection-law-continues-damage-indian-democracy (last
visited 23 March 2021).