It’s time to scrap anti-defection law

10th Schedule of Constitution took away individual thoughts from legislatures in pursuit of elusive stability of governments

Senior advocate Sanjay Hegde

The anti-defection law, contained in the 10th schedule to the Constitution, was created to control the “Aaya Ram, Gaya Ram” phenomenon of politics in India. The law, however, had unintended consequences and changed the nature of our parliamentary democracy itself.

Firstly, politics has now morphed into the “Aaya Sena, Gaya Sena” circus. The anti-defection law curbed retail defections to a certain extent, but not wholesale horse trading and hence failed to ensure stable governments. The law has provision for disqualification as penalty for floor-crossing, but it is rendered powerless if the defector is willing to give up his seat. It cannot prevent his immediate return to the legislature, because he can contest elections as the candidate of a new political outfit. Thus political manoeuvrings, like the “Operation Lotus” of Karnataka, can transform a majority into a minority in a legislature.

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Secondly, the anti-defection law has rendered the constitutional heads and institutions like the governors of the states powerless. It rather turned the speakers of the legislatures into independent power centres. In cases of wholesale defections, when questions arise whether the councils of ministers continue to enjoy the confidence of the legislatures, the governor’s independent decisions can make or unmake governments. Many a governor at that stage acts as an agent of the ruling party at the centre and becomes a player in a game although he was to play the role of an umpire. The same goes for the speaker, who is technically supposed to have renounced his original party when elected to preside over sessions of the house. When vested with the power to decide questions of disqualification, he is supposed to act as an impartial tribunal. However, in actual practice, the speakers rarely forget the interests of the political parties they owe allegiance to. Their disqualification decisions, or lack of action on their part, often help their parties to gain or hold on to power.

Thirdly, the anti-defection law has ended up drawing the courts into supervising the political processes. Under the normal constitutional doctrine of separation of powers, the courts do not comment or rule upon the internal working of the legislatures and vice versa. However, because the speaker has been held to be a tribunal in disqualification matters, the jurisdiction of the constitutional courts is invoked by one or the other political party. Thus almost every trial of strength in the legislature is preceded by a case in the courts and ad-hoc solutions are found to deal with one-off situations. The courts also end up risking an adverse perception as political players.

The Supreme Court in 2020 recognized the anomalies of the anti-defection law and ruled in the “K Meghachandra Singh versus Speaker, Manipur Legislative Assembly and others” case - “It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto.” The apex court ruled that parliament might seriously consider amending the Constitution of India to substitute the speaker with a permanent tribunal or some other outside independent mechanism.

Parliament, however, has not yet found it expedient to have a rethink or to fine-tune the law.

The nation must consider junking the anti-defection law altogether. Replacing retail horse-trading with wholesale defections has only shifted power from individuals to group leaders. It has also taken away the independence of individual thought away from our legislative assemblies and parliament. Rarely is any legislation individually studied or debated, when voting is set on party lines, enforced with whips and threats of disqualification. The parliamentary democracy has been reduced to voting by bloc, drowning the individual voice, in a collective chorus. Benjamin Franklin famously said: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety”. Similarly, sacrificing a legislator’s individual thought for the sake of elusive stability of legislative majority will in the long term only beget collective instability. Hence, India may be best advised to abandon the 10th Schedule of the Constitution, rather than fine-tuning it.

(The writer is a senior advocate designated by the Supreme court of India)