The anti-defection law is failing in its purpose

It now only helps political parties control their MLAs and cling on to power. Should it continue to be a part of our Constitution?

In 1985, Parliament amended the Constitution in an apparent move to safeguard our democracy. The government of the day supported this step, saying “the evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” The solution to the vexing problem of lawmakers switching parties at the drop of a hat was to prevent Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) from leaving political parties and joining hands with a rival party. The stated purpose was that it would lead to stable governments. The result was the 10th Schedule of the Constitution, popularly called the anti-defection law.

In the last 30 years, at least four Constitution benches have examined the anti-defection law, which still doesn’t work (Sonu Mehta/HT PHOTO)

A cursory look at politics since then makes it clear that political parties and MLAs have exploited the anti-defection law, leading to its spectacular failure. The latest example of this came with the 2022 unseating of the Maha Vikas Aghadi (MVA) government in Maharashtra, then led by chief minister Uddhav Thackeray of the Shiv Sena. The Supreme Court (SC) set up a five-judge Constitution Bench to examine the Maharashtra political imbroglio and the defection issues arising from the internal conflict in the Shiv Sena. On May 11, the SC delivered its verdict, finding fault with some decisions of the governor and the speaker, but refusing to reinstate Thackeray because he resigned voluntarily without facing a trust vote. The decision may have little immediate effect on the state’s politics. But it may have a significant impact on the office of the speaker, which is critical to the functioning of legislatures. Let’s look at the facts to understand the decision better.

First, there was a rebellion among the Sena MLAs. It created two groups, one led by Thackeray and the other by Eknath Shinde. Both claimed to be the real Shiv Sena. Each group’s whip also issued directions to all the Sena MLAs in the legislature. Under the anti-defection law, the political party appoints the whip, and disobeying its orders can result in MLAs losing their seat in the assembly. On non-compliance with their whip’s directions, both factions instituted defection proceedings against MLAs of the other camp.

Whips of political parties petition the speaker of the legislature, who decides whether to disqualify an MLA. Therefore, speakers have the power to make and break governments by their ruling in defection cases. As a result, their office comes under immense political pressure and is politicised. The Sena case presented the SC with an additional problem. The judges had to decide in a situation where there are rival groups in a political party, which one constitutes the real political party that can issue directions to its MLAs.

The apex court, in its verdict, empowered the speaker to determine the real political party under the anti-defection law. And, to make this determination, the court directed the speaker to consider the political party’s constitution and leadership structure outside the legislature. It observed that such a decision was not to be based “on a blind appreciation of which group possesses a majority in the legislative assembly.”

Over the years, the SC and different commissions have reflected on the role of the speaker under the anti-defection law. The needle has moved from not doubting the speakers’ impartiality in defection proceedings to questioning their ability to remain neutral. The Dinesh Goswami Committee on Electoral Reforms in 1990 recommended taking away the powers of speakers to decide on defections. The National Commission to Review the Working of the Constitution, set up in 2000, made a similar suggestion. More recently, in 2020, a two-judge bench of the apex court ruled, “Parliament may seriously consider amending the Constitution to substitute the speaker of the Lok Sabha and legislative assemblies as arbiter of disputes concerning disqualification which arise under the 10th Schedule with a permanent tribunal ...”

The office of the speaker gets dragged into controversy due to the anti-defection law. Speakers are already required to decide whether MLAs have indulged in anti-party activities outside the legislature. Now with the current judgment, the scope of their enquiry will touch upon the domain of political parties. It will expose their office to even more political pressures, invite further criticism and further undermine the non-partisan nature of their office.

When the idea of an anti-defection law germinated in 1967, a committee of constitutional scholars observed, “While the search for legal and constitutional curbs on political defections has undoubtedly its value, the more lasting solution to the problem can only come from the adherence of political parties to a basic political morality and the observance by them of certain proprietaries and decencies of public life.” No law can codify such morality. It was displayed by Prime Minister Atal Bihari Vajpayee while replying to a confidence motion in 1996. He had said, “If breaking up political parties is the only way to form a coalition that stays in power, then I do not want to touch such a coalition with a barge pole.”

The anti-defection law serves the narrow purpose of helping political parties control their MLAs to stay in power. But should the Constitution and the SC be involved in solving the internal problems of a political party? In the last 30 years, at least four Constitution benches have examined the anti-defection law, which still doesn’t work. So, the time has come for the top court to ask a larger question: Should the anti-defection law continue to remain a part of our Constitution?

Chakshu Roy is the head of legislative and civic engagement, PRS Legislative Research

The views expressed are personal