A series of defections and mergers raised new questions about the effectiveness of the anti-defection law. The law has been used to aid defections rather than prevent them. The anti-defection law, which was included in the Tenth Schedule of the Constitution in the 1980s, was crucial to upholding democratic principles. They were intended to ensure political stability and protect against opportunistic defections that undermined the electoral mandate.
The law stipulates that people are ineligible to challenge the party whip on important issues, such as a vote of confidence. It allows members of a political party to merge with another party if two-thirds of its legislative members decide to do so. The anti-defection law does not apply to voting in the Rajya Sabha or legislative assemblies, where members can vote according to the dictates of their conscience.
The law, which was enacted during Prime Minister Rajiv Gandhi’s tenure, aims to prevent individual or small-scale defections. The idea was to allow parties to impose discipline among their members on crucial issues and respect the mandate of the people.
The Speaker of the House, who is considered the guardian of the House, has the power to disqualify a lawmaker for defying the whip and formally declaring a party on the floor of the legislature. All of these objectives of the law now seem ineffective in controlling defections, which destabilize opposition parties.
Large sections of the Trinamool Congress (TMC) legislative wings in the state Assembly and Lok Sabha have broken away from the party, claiming support of two-thirds of elected legislators, after the party lost power to the Bharatiya Janata Party (BJP) in West Bengal.
The TMC expelled two of its 78 legislators before 57 of them rebelled and backed Ritabrata Banerjee as opposition leader. Twenty TMC parliamentarians proposed merging with the little-known Indian National Citizens Party, which received just 1,108 votes in three Tripura constituencies, and supported the BJP-led National Democratic Alliance, boosting the ruling coalition’s numbers in the Lok Sabha. Three of the 13 members of the Transitional Military Council also resigned.
On Sunday, two of the Shiv Sena’s six rebel MPs (UBT) announced their defection and joining the Eknath Shinde-led Shiv Sena. Four more defections are expected to follow. Since they represent two-thirds of the parliamentary party, the anti-defection law will not apply.
In June 2022, Eknath Shinde’s rebellion forced Uddhav Thackeray to resign as Chief Minister of Maharashtra. Shinde claimed that his faction was the real Shiv Sena, and the Election Commission of India (ECI) agreed on the basis of the party’s legislative majority.
Something similar is happening now with TMC. Surprisingly, this discontent with TMC chief Mamata Banerjee began only after the party lost the assembly elections on May 3. Splitting the party by two-thirds of lawmakers is a clear trend to avoid action under the anti-defection law.
Some other innovative methods have been adopted. The first is to demand that dissident legislators resign, leading to the fall of the government. The new government assumes its duties. The renegades then compete for ruling party tickets and win.
In 2019, the Congress-Janata Dal (Secular) government fell in Karnataka after the resignation of 15 legislators. The BJP led by BS Yediyurappa came to power. Twelve of the fifteen defectors who contested on BJP tickets won. A year later, the government in Madhya Pradesh fell when 22 Congress members resigned. Shivraj Singh Chouhan took over as Prime Minister. Eighteen of the 22 Congress defectors, who contested on BJP tickets, won.
Presidents have been slow to act on disqualification requests, sometimes until the end of Assembly terms. There have been cases where opposition legislators have been disqualified for defying the party whip within a month or two of the next election.
In 2020, the Supreme Court had ordered the Manipur president to decide on Congress’s disqualification requests within three months after keeping them pending for nearly four years. Despite the order, speakers continued to postpone decisions on disqualification petitions, which helped parties stay in power through defections.
In cases that come within three months, speakers often reject opposition petitions, forcing them to follow the time-consuming legal route of challenging their orders. The anti-defection law stipulates that only the Speaker of the House of Representatives can decide on disqualification. The court can ask a speaker to review his or her order, but it cannot direct disqualification.
The Tenth Schedule has turned out to be an ineffective tool for reducing defections. It has been used for mass defections and divisions in political parties.
A comprehensive overhaul of the anti-defection law is urgent to prevent defections, with the stipulation that a defector cannot run in any elections for six years, similar to the provision for lawmakers convicted of crimes to be imprisoned for three years or more. It must take into account the Supreme Court order regarding a three-month time limit for the Speaker to decide on recusal applications from the date they are submitted. Likewise, there must be a timetable for the constitutional courts to decide on petitions against speakers’ orders.
During the period when the Speaker of the Council is considering the petition, he may not participate in legislative work or receive any salary or allowances. A criminal case must be filed against the legislator on charges of cheating on the people’s rule in the event of his incompetence.
Only a strict law without exceptions can prevent lawmakers from making a mockery of democracy. It is time to reform the anti-defection law.
