Another body blow for anti-defection law at the Presiding Officers' meet in Shimla

The 82nd All-India Presiding Officers’ Conference held over 3 days in Shimla wrapped up on November 18. Om Birla, the Lok Sabha Speaker who chaired the conference concluded that the participating Speakers of 36 Vidhan Sabhas and Vidhan Parishads could not reach a consensus on the changes in the anti-defection law. Even though the report of the CP Joshi committee on anti-defection law was submitted to the members, there was no unanimity on the issue. Instead, the Speakers and Deputy Speakers have been requested to take up the matter with the political parties in their respective states to seek their consent on the issue.

With the increasing abuse of the anti-defection laws and the repeated failures of the legislators in addressing its flaws, it does call into question their intent to improve upon this law. The voters who elect their representatives to the Parliament and State Assemblies continue to be shortchanged while the politicians openly party-hop for power and money.

What is the anti-defection law?

The anti-defection law was added to the Constitution as the Tenth Schedule in 1985 by the Rajiv Gandhi government. It was introduced with the purpose of bringing stability to the elected governments by discouraging legislators from defecting to other political parties and preventing horse-trading of legislators using the lure of power and money. The law specifies the 3 circumstances for shifting of parties by MPs and MLAs:

1. When a member elected on the ticket of a political party “voluntarily gives up” membership of the party or votes in the House against the wishes of the party. In such a case, the legislator loses his/her seat in the legislature.
2. When a legislator who has won his or her seat as an independent candidate joins a political party after the election. In such a case, the legislator loses his/her seat in the legislature on joining another party.
3. If a nominated MP joins a political party 6 months after their nomination, they stand to lose their seat in the House.

How the law is twisted and abused

The anti-defection law has been barely able to control defections as our savvy politicians have mastered the loopholes and blatantly exploit them “within the provisions of the law.”

• The law, in all its wisdom, permits defections if two-thirds of a party’s legislators break away at once. The political parties have been able to use this exception to their absolute advantage. All they need to do to weaken their opposition or topple a government is to lure two-thirds of the opposition party’s legislators and strengthen themselves. In Goa, 10 out of 15 Congress MLAs defected to the BJP in 2019. Three of the defectors were subsequently sworn into the cabinet. In Rajasthan, 6 BSP MLAs merged their party with the Congress in 2019 (the case is being heard in the Supreme Court). In Sikkim, 10 of the 15 MLAs of the Sikkim Democratic Front joined the BJP in 2019. Such is the fear of defection that parties often sequester their MLAs in 5-star resorts to prevent them from getting poached by a rival party or an opposing faction of their party. Some of the recent examples are Rajasthan (2020), Maharashtra (2019), Karnataka (2019 and 2018), and Tamil Nadu (2017).
• The law does not provide a fixed time frame within which the presiding officer (Speaker, Chairman) has to decide a defection case. In many, if not most instances, the Speaker is from the ruling party and can delay the disqualification of the defecting legislators. In Mar 2020, the Supreme Court dismissed a minister in Manipur when the Speaker did not decide on the defection petition against him even after three years. In West Bengal, a disqualification petition against Mukul Roy, BJP MLA who defected to the Trinamool Congress, was pending with the Assembly Speaker for over 4 months. In Andhra Pradesh and Telangana, MLAs who have defected have even gone on to become MPs while the Speaker took time to decide on their defection. Last year, the Supreme Court observed that anti-defection cases should be decided by Speakers in three months.
• The primary ground for disqualifying a legislator for defecting is the voluntarily surrender of his/her membership of his party which is not the same as resigning from his party. This term “voluntarily giving up the membership” is subject to interpretation which as per the Supreme Court is left to the presiding officer to draw a reasonable inference from the conduct of the legislator within and outside the House. Here too, the impartiality of the Speaker becomes a sticking point.
• Another way around the law for the defecting legislators is to resign from the party. This too has the same outcome of destabilizing the government. In Jul 2019, 14 Karnataka MLAs from the Congress and Janata Dal (Secular) chose to resign rather than vote against their parties which eventually weakened their party’s strength in the Assembly.

Impact on India’s parliamentary democracy

Just as all mature democracies, India too has a system where each constituency elects a member to a legislature to make laws and frame policies on its behalf. However, unlike the very same mature democracies, India’s Anti-Defection Law allows the legislator to represent neither his own constituency nor the entire nation, but only of his political party. As a case in point, an act similar to the one where 4 UK cabinet ministers voted against their party on Brexit or the 7 Republican senators who voted to convict President Trump given their differing views on the subject would technically be illegal if it were to be attempted in India. The fact that India’s state Assemblies and Union Parliament comes secondary to the diktats of the “high command” of political parties is a ludicrous concept to fathom. Making elected legislators obey the commands of unelected party bosses is highly undemocratic in nature.

In the current dispensation, the BJP enjoys a complete majority in the Lok Sabha. PM Narendra Modi and Home Minister Amit Shah not only head the government but also their political party and issue the whips to their MPs. Given that any revolt by their MP is illegal under the anti-defection law, they are assured of a smooth run during their 5-year term without any voice of dissent that could otherwise be raised in the national interest. This surely does not appear to be in the spirit of the parliamentary form of democracy that India is.

The anti-defection law has been cited as the single most important reason for stifling objective debate in India’s Parliament and state legislatures. The voters who have elected their representatives continue to feel cheated as their MPs and MLAs are legally bound to only obey the commands of party bosses rather than raise their issues fearlessly lest they lose their seat of power. Over the years, many bills were raised in the Parliament against the law and many suggestions have been made to curb defections, but none could see the light of the day. Former Vice President Hamid Ansari suggested that the anti-defection law be applied only to save governments in no-confidence motions. The Election Commission suggested that it should be the primary deciding authority in defection cases. Public policy experts argued that the President and Governors should hear defection petitions. The Supreme Court suggested that Parliament should set up an independent tribunal headed by a retired judge to decide defection cases swiftly and impartially. All of this to no avail.

Ever since 1967, “Aaya Ram, Gaya Ram” has remained the political slogan for defections and trading of legislators for money. While most of our political dispensation of today remains singularly fixated only with Ram, the anti-defection law in its current form seems like it’s here to stay for a while.