This is Part I of Two-part series on Anti-Defection law.

Election season was upon us. With Political Parties across several State Legislative Assemblies in battle mode, the political sphere was rife with news of internal rebellions, defections, and crossovers. Ahead of judgment day, West Bengal was privy to a wave of mass political defections. Prominent turncoats who shifted allegiance from TMC to BJP including Senior Leader and former State Transport Minister Suvendu Adhikari, former chairperson of Malda Zilla Parishad district council Sarala Murmu, 4-time MLA Rabindranath Bhattacharya, 4-time MLA, and former deputy speaker of State Assembly Sonali Guha, another 4-time MLA Jatu Lahiri, former mayor of Kolkata Municipal Corporation Sovan Chatterjee and former Union Railway Minister Dinesh Trivedi.

The practice of defections is not new to Indian politics. The ‘Aaya Ram Gaya Ram’ culture, used to denote political turncoats or those who frequently change political allegiance, takes center stage during the election months. The expression has become an infamous part of the country’s political lexicon, owing to its origin to Gaya Lal, a Haryana MLA who changed his party thrice within a fortnight, shuttling between INC and United Front in 1967.  Ever since the Bharatiya Janata Party came into power in the union, anti-defection law has been at the centre of people’s discussion.

In recent years, political turmoils caused by large-scale defections have revived the debate as to whether the law seeking a stable government acts as an effective barrier against defections or does it in reality have a chilling effect on intra-party dissent and free speech of the legislators.

The Politics of Defections
 

Last year alone witnessed a plethora of large-scale political defections resulting in consequent disqualification petitions and, in some cases, tumbling of the established governments. In the late cold December of 2020, news came from Arunachal Pradesh that 6 of the 7 MLAs of JD(U) have defected to the ruling BJP, an ally of the party in Bihar. What was more intriguing was that BJP had already been enjoying a comfortable majority as the single largest party in the state after winning 41 seats out of 60 in the 2019 Assembly elections, with JD(U) being the second largest party with 7.  With this, the JDU’s strength in the state has dwindled to only ”one ”.

In March of 2020, Madhya Pradesh witnessed similar political turmoil when Senior Leader and ex-MP Jyotiraditya Scindia, along with 22 of his loyalists MLAs, unexpectedly handed over their resignation to INC and joined BJP the very next day on March 11, toppling the then Kamal Nath-led Congress government, with Shivraj Singh Chauhan of BJP being sworn in as the new Chief Minister of the State on March 23. 

Disqualification petitions against the 22 rebel MLAs were dismissed by the Pro-tem Speaker, on the ground that resignations tendered by them had already been accepted by the then Speaker. The scene was eerily similar to the situation in  Karnataka where 17 INC and JD(S) MLAs handed in their resignations, resulting in the then Chief Minister H.D. Kumaraswamy of JD(S) losing the trust vote by 99-105, with B.S. Yediyurappa of BJP taking oath as the new Chief Minister of the State on July 26, 2019. The rebel MLAs were disqualified by the Speaker, the decision being upheld by the Supreme Court. 

Anti-Defection Law: Efficacy under a cloud
 

Elections empower citizens to indulge in public discourse and assert their voice to elect the representatives whose policies and priorities match with them the most. However, on being elected, members often “cross the floor” and cause political instability, often tempted by the rival parties with huge “sign-on bonuses” or plump ministerial posts. 

The need for an adequate anti-defection mechanism was felt after the general elections of 1967 when, according to the 255th Report of the Law Commission of India on “Electoral Reforms” of 2015, nearly 438 defections occurred between March 1967 and February 1968. A prime example of the same being Gaya Lal of Haryana. To end this trend, in 1985 the Tenth Schedule was inserted in the Constitution through the Constitution (Fifty-second Amendment Act), 1985 by the Rajiv Gandhi government with the objective of “curbing the evil of political defections motivated by the lure of office or other similar considerations which endanger the foundations of our democracy”, as was observed by Supreme Court in Kihoto Hollohan v. Zachillhu in 1992. The Hon’ble Apex Court, in this case, had upheld the constitutionality of the Tenth Schedule, better known as the anti-defection law, holding that its provisions do not subvert democratic rights of elected members and do not violate their “freedom of speech, freedom of vote and conscience”, though the decision of the Speaker being the deciding authority in disqualification disputes shall be open to judicial review.

The grounds of disqualification of members of the House of Parliament and State Legislature are laid out in Articles 102 and 191 of the Constitution respectively. Apart from disqualification because of holding any office of profit, being declared of unsound mind by competent Court, being an undischarged insolvent, and not being a citizen of India, the Tenth Schedule empowers the Presiding Officer of the House to disqualify a member on the ground of defection if he voluntarily gives up his membership of a party, or votes or abstains from voting in the House contrary to any direction of such party without obtaining its prior permission. However, the latter condition gives a leeway of condonation by the party of such action within 15 days from the date of such act. An exemption has been granted in the case of a merger of the original political party with another, where at least 2/3rd of the members have agreed to such a merger.

However, bringing the efficacy of the law in preventing “horse-trading” under a cloud, the Report of the National Commission to Review the Working of the Constitution of 2002 (NCRWC Report) observed that on average more defections per year took place after the anti-defection law came into force than ever before. Despite the intended barrier, countless defections have ensued without suffering any disqualification. As per a PRS Legislative Research Report, up until 2009, out of the 88 persons complained against in the Parliament, only 26 members have suffered disqualification under the law, whereas in the case of State legislatures, up until 2004, out of 268 complaints, only 113 members have been disqualified. 

Association for Democratic Reforms (ADR) in its recent March 2021 report analyzed the data of 433 MLAs and MPs who had defected from their parties and re-contested elections between 2016 and 2020. It reported that 42% of the MLAs defected from the INC within that particular period while only around 9% joined the party. On the other hand, only around 4% of the MLAs left BJP while it gained nearly 45% of the defected MLAs. The report also noted a 39% average growth in assets of these re-contesting MLAs and MPs and recognized the role played by turncoat MLAs in the recent fall of governments in Madhya Pradesh, Karnataka, Arunachal Pradesh, Goa, and Manipur State Assemblies. Moreover, the law has also come under the scanner for having a chilling effect on the free speech of legislators and intra-arty democracy.

Author Madhawi Agarwal is a Delhi-based advocate.
(The opinions expressed in this publication are those of the author/s. They do not purport to reflect the opinions or views of The Policy Observer or our members.)

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