Article -1
It is highly unlikely that political defections as well as India’s anti-defection law will ever not be a part of
public discourse. The Speaker of the Maharashtra Assembly, Rahul Narwekar, is currently juggling his
responsibilities of presiding over the Assembly’s winter session alongside hearing the disqualification
petitions against the rival factions of the Shiv Sena.
The anti-defection law, found under the Tenth Schedule of the Constitution, was enacted to curb
frequent floor-crossing by legislators. It provides for the disqualification of elected legislators from the
legislature in instances where they voluntarily switch parties or vote against the party’s direction. But
when two-thirds of elected members of a party agree to “merge” with another party, they become
exempt from disqualification. Before 2003, there was a provision where, if as a result of a split in the
original party, one-third of the members of the legislature moved out of the party, they were exempt
from disqualification. However, given its excessive misuse, the provision was omitted by the 91st
Amendment to the Constitution.
Chinks in the armour
The years following the implementation of the Tenth Schedule have exposed the chinks in its armour.
Political defections have persisted and, more worryingly, gone unpunished or undetected. Owing to the
deft use of the exemptions under the Tenth Schedule, political parties have caused democratically
elected State governments to fall. In the last 10 years alone, group defections have caused the
unravelling of State governments in Maharashtra, Madhya Pradesh, Manipur, Karnataka, and Arunachal
Pradesh.
In the splits that occurred in the Shiv Sena and the Nationalist Congress Party (NCP), a group in each of
these parties mustered the required two-thirds majority of legislators in the legislature party, and
formed a separate faction. The splitting factions of the Shiv Sena and the NCP neither merged with an
existing political party nor established a new one. Instead, each of them claimed to be the original
political party themselves, and then forged alliances with the Bharatiya Janata Party (BJP) to form or join
the ruling government. With the split exception gone, the only protection available to group defectors is
that of a merger. However, there was no merger between any two parties in Maharashtra. Needless to
say, this will be a concern which factions of both the Shiv Sena and the NCP will have to contend with in
the disqualification hearings.
A brief survey by the Vidhi Centre for Legal Policy, of disqualification petitions filed under the Tenth
Schedule before the Speaker of the Uttar Pradesh Legislative Assembly (1990-2008), revealed another
practice which can be loosely termed as “splits followed by mergers”. In this trend, an elected legislator
(or a group of legislators) would separate from the political party they belonged to, and avail themselves
of the exemption given to splits between political parties by forming a group of one-third MLAs of the
legislature party. After that, the entire group of splitting legislators would merge with another party.
Given that they would merge in full, they would meet the threshold of two-third of the MLAs required to
effectuate a merger with another party. From the disqualification petitions surveyed in U.P., several
occurrences of splits followed by mergers emerged. In 2003, U.P. MLA Rajendra Singh Rana from the
Bahujan Samaj Party, along with 36 MLAs, split to form the Loktantrik Bahujan Dal (LBD). In the same
year, these 37 MLAs of the LBD merged with the Samajwadi Party (SP). Similarly, another U.P. MLA,
Rajaram Pandey, defected thrice between the Janata Dal, the Lok Janshakti Party, and the Samata Party,
to ultimately move to the SP. In many such instances, through a combined use of both these exceptions,
MLAs could jump ship more than once, blatantly mocking the anti-defection law.
This trend was also visible in the Haryana Assembly (1989-2011). Some of these splits and mergers
happened in quick succession, and sometimes within the same day. For instance, a group comprising
Kartar Singh Bhadana and 16 other MLAs split from the Haryana Vikas Party on August 13, 1999, and
merged with the Haryana Lok Dal Rashtriya in just three days.
A potent tool
Splitting and merging MLAs were exempted from disqualification under the Tenth Schedule to protect
instances of principled defections, especially where MLAs found themselves at odds with the ideology of
their original party. However, the practical use of these exceptions belies this expectation, with mergers
being engineered strategically to bring down elected governments. The very provisions of the antidefection law have become a potent tool in the hands of political parties to defeat the object of the law.
The way in which the merger provision has come to be used also fuels speculation. In Karnataka, for
instance, Janata Dal (Secular) leader H.D. Kumaraswamy predicted the downfall of the incumbent
Congress government spurred by the exit of 50-60 MLAs. Irrespective of the veracity of these claims,
such speculation is not conducive for the seamless working of a representative democracy. No provision
of law should be a fallback option for parties in the Opposition to upend democratically elected
governments. The merger exception should be deleted from the Tenth Schedule. That should be the first
step towards ridding the Tenth Schedule of its ailments, after which other steps should follow.
Article – 2
The anti-defection law in India, a crucial instrument designed to maintain the stability of governments
and uphold the integrity of democratic institutions, has been a subject of much debate since its
inception. Introduced in 1985, the law sought to address the rampant party-switching by legislators,
which frequently led to political instability. While it has been somewhat effective in curbing the practice
of defection, various loopholes and implementation issues have surfaced over time, necessitating
further reforms.
Historical genesis of the law
The problem of defection has deep roots in Indian politics, dating back to the post-Independence era. In
the first few decades following Independence, India experienced a significant number of defections,
which often resulted in the destabilisation of governments. This trend not only undermined the
mandate of the electorate but also raised serious ethical questions about the conduct of elected
representatives.
Legislators would switch parties, sometimes in exchange for financial gains or ministerial positions,
leading to the fall of governments and the formation of new ones without fresh elections. This was
colloquially referred to as “Aaya Ram, Gaya Ram”, a phrase that originated from an incident in Haryana
in the 1960s, where a legislator, Gaya Lal, switched parties multiple times in a single day. Such incidents
underscored the need for a law to curb this practice.
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Indian Parliament enacted the anti-defection law through the 52nd Amendment to the Constitution,
introducing the Tenth Schedule during Rajiv Gandhi’s tenure as Prime Minister. This law laid down the
grounds for disqualification of Members of Parliament and State legislatures on the basis of defection. A
member could be disqualified if they voluntarily gave up the membership of their political party or
disobeyed the party whip in key votes such as confidence motions or Budget approvals. The law was
aimed at providing stability to governments and ensuring that elected representatives remained loyal to
the party’s mandate on which they were elected.
While the initial law provided some deterrence against defections, it still had loopholes. One significant
flaw was the provision that allowed a split in a party if at least one-third of the members defected,
which often led to mass defections. The 91st Amendment in 2003 addressed this issue by requiring that
at least two-thirds of the members of a party must agree for a “merger” to avoid disqualification. This
made it more challenging for small-scale defections to occur and reduced the incidence of such political
manoeuvring.
Despite its intentions, the anti-defection law has faced criticism and challenges in its implementation.
One of the most significant challenges is the inordinate delay in deciding defection cases. In some
instances, Speakers have taken several months, or even years, to render a decision. This delay allows
defectors to continue holding their positions, thereby subverting the purpose of the law. The
discretionary power vested in the Speaker or Chairperson, without any stipulated time frame for
decision-making, has often been a point of contention.
Another issue is the lack of transparency in the issuance and communication of party whips. Whips are
essential instruments used by political parties to ensure discipline among their members, especially on
crucial votes. However, the internal nature of these directives has led to disputes over whether
members were adequately informed about the party’s stance, making it difficult to determine the
legitimacy of defection cases. While the decisions of the Speaker or Chairperson are subject to judicial
review, the courts have generally been reluctant to intervene in defection cases, citing the need to
respect the autonomy of the legislature. This has limited the scope for addressing potential abuses of
power or ensuring timely resolutions.
Proposed amendments
To strengthen the anti-defection law and enhance its impartiality, two key amendments are proposed.
The first concerns the time frame for decisions on defection cases. The absence of a fixed timeline for
the Speaker or Chairperson to decide on defection cases has resulted in delays and potential misuse of
discretionary power, undermining the law’s intent. To address this issue, a four-week time frame should
be established for resolving defection cases. If a decision is not reached within this period, the defecting
members should be deemed to be disqualified from their positions. This amendment to the Tenth
Schedule of the Constitution would ensure timely resolutions, prevent arbitrary decisions, and uphold
the legislative process’s integrity by limiting political bias and misuse of power.
The second is on public notice of party whips. The current lack of transparency in issuing party whips
often leads to disputes over whether members were adequately informed. To resolve this, political
parties should be provided with a framework of the service of the whip in the form of a newspaper
publication or through electronic communication. In Keisham Meghachandra Singh vs The Hon’ble
Speaker Manipur Legislative Assembly and Ors. (2020), the Supreme Court of India recommended
replacing the Speaker’s role in anti-defection cases with an independent tribunal or a body appointed by
the Election Commission of India. However, in a democracy, the importance of the Speaker or
Chairperson’s office cannot be underestimated, as they are crucial in upholding parliamentary integrity
and ensuring impartiality. Instead of sidelining this institution, reforms should aim to strengthen its
accountability and transparency.
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The Government of India must also explore various suggestions made by the Dinesh Goswami
committee report (1990), the Hashim Abdul Halim committee report (1994), the 170th report of the Law
Commission of India (1999), the Report of the National Commission to review the working of the
Constitution of India (2002), the Hashim Abdul Halim committee report (2003) and the 255th report of
the Law Commission of India (2015) for strengthening of the anti-defection law.
Need for political will
The anti-defection law has, historically, played a crucial role in preventing instability caused by
defections and maintaining the sanctity of the electoral mandate. However, its implementation has
revealed certain gaps and challenges that need to be addressed to make the law more effective and
impartial. The amendments to the Tenth Schedule of the Indian Constitution should be prioritised to
facilitate the effective implementation of the Union Government’s “One Nation, One Election” initiative.
By implementing these amendments, the anti-defection law can be revitalised to better serve its
purpose in the current political context. It would ensure that elected representatives adhere to the
principles of party loyalty and discipline while also protecting the democratic mandate of the electorate.
Narendra Modi, the Leader of the House in the Lok Sabha, and Rahul Gandhi, the Leader of the
Opposition, should take up the issue and ensure that the amendments are made to strengthen Indian
democracy. In doing so, the law would continue to uphold the stability and the integrity of India’s
parliamentary democracy, adapting to the evolving political landscape with greater efficacy and fairness.
Article – 3
With the general election 2024 inching closer, the spate of political defections across the country is no
cause for surprise. In Bihar, MLAs from the Congress and the Rashtriya Janata Dal have moved to the
Bharatiya Janata Party (BJP) while the elections to the Rajya Sabha that were held recently saw crossvoting in favour of the BJP in Himachal Pradesh. The MLAs concerned have now been disqualified under
the anti-defection law. In the Andhra Pradesh Assembly too there have been disqualifications under this
law.
However, an adjudicatory development from more than a fortnight ago makes one doubt the perceived
need and utility of India’s anti-defection law. On February 15, 2024, the Maharashtra Legislative
Assembly Speaker delivered his verdict on the split in 2023 within the Nationalist Congress Party (NCP).
No MLA from either faction of the NCP was disqualified, and the Ajit Pawar faction was recognised as
being the “real” NCP. Unsurprisingly, the order appears to be similar to the Speaker’s decision in the
split in the Shiv Sena where neither faction was disqualified, and one of the competing factions (in that
case, the Eknath Shinde faction) was recognised as the real Shiv Sena.
Transgressions that pass muster
While official copies of both these decisions are unavailable, the reasoning that went into the decision
can be discerned from the livestreaming of the Assembly proceedings. Relying on the test of legislative
majority, the Speaker noted that the Ajit Pawar-led faction of the NCP had the support of 41 out of 53
NCP MLAs, making it the real NCP. More intriguing was the Speaker’s observations on the applicability of
the anti-defection law to these proceedings.
What transpired between June 30 and July 2, 2023, when the NCP split vertically, is termed as an
expression of “intra-party dissent”. In uncritical terms, the Speaker has said that such intra-party dissent
cannot be subject to the punitive provisions of the Tenth Schedule, and the dissenting MLAs cannot be
disqualified from the Assembly. However, the soundness of this observation can be questioned on the
ground that if any dissenting group within a political party wishes to distance itself from such a party, it
must ideally merge with another party so as to be able to claim protection under the Tenth Schedule.
Under the anti-defection law, a faction that splits from its original party cannot claim exemption from
disqualification on its own, given that the “split” exception was deleted from the Tenth Schedule in
2003.
The only exemption available now to legislators moving in groups is that of mergers, which mandatorily
require a minimum of two-third members to separate from their political party and merge with another.
As is well-known, in both the Shiv Sena and NCP splits, the splitting factions (led by Eknath Shinde and
Ajit Pawar, respectively), did not opt to either merge with an existing political party or establish an
altogether new party. Instead, each of the two factions claimed to be the original political party
themselves, and formed an alternate government with other political parties. In neither of these cases
was there a merger within the strict terms of the Tenth Schedule.
It would have been interesting to see the Speaker contend with this issue in both these cases purely in
terms of the language of the law. Instead, the Speaker made a rather worrying observation to the effect
that it is in the very nature of politics for leaders to forge new alliances, undo old relations, and make or
break into new forms, and that such political movements cannot qualify as defections under the Tenth
Schedule. Why have the anti-defection law in the Constitution when even the most manifest
transgressions of the law are allowed to pass muster with the adjudicating authority?
The Speaker’s concern for preservation of inner-party dissent is laudable, especially when he says that
the Tenth Schedule cannot be used to silence party members. The Speaker had to go by the legislative
strength of each faction to determine the real NCP, because reliable information to that end could not
be sourced from the party’s constitution, leadership and organisational structure.
The issue of inner-party democracy
Undeniably, this highlights the need for better thought-out reform of the political party system — one
which accounts for adequate democracy within parties. Defections are often engineered on the premise
of an absence of inner-party democracy in the original political party of a turncoat legislator. To
systematically remedy this concern, it is time to first conduct a thorough study of how robust
democratic structures and processes are within parties, and, second, usher in statutory regulation that
compels political parties to ensure greater inner democracy. The 255th Report of the Law Commission of
India proposed amendments to the Representation of the People Act, 1951 which could mandate that
besides having a constitution, political parties elect an executive committee (for the party), select
candidates who are to contest elections to Parliament or State Assemblies, and conduct regular
elections within the party at every level. The Law Commission also proposed granting the Election
Commission of India the powers to impose monetary penalties or withdraw the registration of a political
party in case it failed to comply.
The Law Commission’s recommendations have yet to see the light of day. Evidently, in the absence of
more robust means to ensure inner-party democracy, the Tenth Schedule had to be circuitously put into
disuse in the Shiv Sena and NCP verdicts — both instances where the anti-defection law could well be
applied! The Maharashtra Legislative Assembly Speaker is now presiding over a committee which will
review the anti-defection law. Given his recent encounters with this law in two high-profile matters,
there could not be a better opportunity than now for India to get an anti-defection law best suited to its
felt needs and realities.