The fundamental design of India’s anti-defection law is flawed and can galvanise legislators into defecting.
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Defections are not uncommon in Indian politics. The states that were until recently poll-bound witnessed multiple last-minute defections across national and regional parties. Even at other times, while movements across political parties continue unabated, the anti-defection law remains ineffective. Housed under the Tenth Schedule of the Indian Constitution, the law is meant to disqualify legislators who voluntarily abandon the membership of the party to which they belong or if they vote against their party’s direction in the Parliament or state assembly.
The Tenth Schedule carves an exception for “mergers” between political parties. Under this exception, a legislator can claim exemption from disqualification if their original political party merges with another political party. Simultaneously, it is required that such a legislator be part of a group that comprises two-thirds of the “legislature party” that agrees to the merger. A legislature party is a group consisting of all elected members of a House belonging to one particular party. Till 2003, the Tenth Schedule also exempted “splits.” For legislators to be able to claim this exemption, splits in original political parties were to be accompanied by one-third of members of legislature parties opting to operate as separate groups.
These exceptions were inserted in the Tenth Schedule to protect instances of principled defections. In practice, however, they have been used to bypass the anti-defection law completely. Defecting legislators muster the required strength to pull off a lawful merger in order to separate from their original parties without attracting disqualification. Previously, this was done to carry out splits as well. This is evident from a survey of 55 petitions filed under the Tenth Schedule between 1986 and 2004 before the Speaker of the Lok Sabha. Of these 55 instances, disqualification occurred in only six. Of the 49 instances where no disqualification occurred, 22 could be attributed to splits and 16 to mergers in political parties. Given the excessive misuse of splits to engineer wholesale defections, many of which caused elected governments to fall, the exception was deleted in 2003. The merger exception still remains and is routinely resorted to, as evidenced by the 2016 merger of 43 Congress MLAs in Arunachal Pradesh with the People’s Party of Arunachal or the more recent merger in Meghalaya (in 2021) of 12 Congress MLAs with the All-India Trinamool Congress. In Arunachal Pradesh, the departure of these 43 MLAs from the Congress led to the fall of a democratically elected government.
Mergers are especially easy to pull off in comparatively smaller legislative assemblies, where legislature parties consist of relatively fewer MLAs. Take, for instance, Goa, with 40 assembly seats. The 2017 Goa assembly elections culminated with the BJP forming a government with the support of the Goa Forward Party, the Maharashtrawadi Gomantak Party, and independents, mustering a strength of 21 MLAs. The Congress was in opposition with 17 MLAs, eventually coming down to 15. Owing to the movement of 10 Congress MLAs to the BJP after 2017, the BJP’s strength increased to 26 in 2019. None of the Congress MLAs who moved across the floor were disqualified by the Speaker because they were protected under the merger exception. Given the small size of legislature parties in an assembly like Goa’s, 10 MLAs sufficed to execute a merger between the Congress and BJP legislature parties.
In fact, 10 is a relatively more respectable figure, given that in some cases, even one or two MLAs effected a valid split or merger. A survey of 18 petitions filed during 1988–2009 before the Speaker of the Meghalaya Assembly (with 60 MLAs) revealed that in two cases of splits and a case of merger, a single member could claim either of these exemptions! Even in larger state assemblies, when the strength of legislature parties drops considerably, the number of MLAs required for a valid group defection reduces significantly. For instance, in 2003, the strength of the Communist Party of India in the Uttar Pradesh assembly dropped to 3. Subsequently, a lone member by the name of Mitrasen Yadav could validly split from the CPI and form a new party, called the Samatawadi Group, which eventually merged with the Samajwadi Party.
The fundamental design of India’s anti-defection law is flawed and can galvanise legislators into defecting. At present, the Tenth Schedule punishes cross-voting, or voting against the party’s direction. Essentially, this provision tethers an individual legislator to the political party, expecting them to toe the party line on all issues debated in the House. Constitutionally speaking, this encroaches on an individual legislator’s freedom of speech. Given how any divergence from their party’s stance can potentially lead to disqualification from the House, legislators feel compelled to align with their parties at all times. The constraint associated with cross-voting propels legislators to change party allegiance if and when they feel their individual freedoms are being pitted against the dictates of their party. To escape disqualification, these legislators defect in groups (fashioning themselves as ‘rebel MLAs/MPs’) and claim advantage of the merger exemption. Essentially, then, the Tenth Schedule punishes defections by individuals but is unable to arrest group defections.
Staunch sceptics of the law might say that India’s anti-defection law is entirely unworkable and should be done away with. However, in the recent past, the Union government has expressed unwillingness to amend the law, much less scrap it altogether. Nonetheless, it is important to strive for incremental reform of the Tenth Schedule, which could start with the deletion of the merger exception. Simultaneously, cross-voting should be penalised only in some cases (such as during confidence motions), while on all other matters, legislators should be free to vote as they wish. Ultimately, the anti-defection law must aid the workings of Indian democracy and not make a mockery of it.
(Ritwika Sharma leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy and is co-author of the recent report, “Anatomy of India’s Anti- Defection Law: Identifying Problems,Suggesting Solutions”)