Aaya Ram, Gaya Ram 2.0: Why India’s Anti-Defection Law Is Failing Democratic Legitimacy

The recent split in the Trinamool Congress (TMC) has once again brought India’s anti-defection law into sharp focus. This has happened four decades after the Tenth Schedule was enacted to curb political defections, preserve governmental stability, test constitutional institutions and challenge electoral mandates. The developments within the TMC are not an isolated political event: They are a reminder that the anti-defection framework is increasingly incapable of dealing with the realities of contemporary Indian politics.

Recent events across the political spectrum underscore the failure of the law. When Aam Aadmi Party (AAP) leader and Rajya Sabha member Raghav Chadha, along with six other MPs, left the party and joined the Bharatiya Janata Party (BJP), criticism quickly followed regarding the inability of the anti-defection framework to effectively respond. Imme­diately after the assembly election in Tamil Nadu recently, several newly ele­c­ted All India Anna Dravida Munnetra Kazhagam (AIADMK) MLAs crossed over to support the single-largest party, the Tamilaga Vettri Kazhagam (TVK), during the floor test, enabling it to form the government. The developments within the TMC now add another chapter to the same story. Each episode has revi­ved the debate over the effectiveness of the anti-defection law, yet each has also demonstrated that the constitutional fra­mework remains vulnerable to political innovation and strategic circumvention.

Limitations and Misuse

Few laws in Indian politics have produced as much frustration, litigation and constitutional confusion as the anti-defection law. Enacted through the Tenth Schedule in 1985, it was born in the aftermath of the Aaya Ram, Gaya Ram era. The objective was fairly simple: preserve the stability of governments and protect the mandate of the electorate from political horse-trading. Four decades later, however, the law stands at a constitutional crossroads. Recent political developments have once again exposed both its limitations and its misuse and have shown that the law is no longer capable of dealing with the realities of modern coalition politics. What was designed as a shield against instability has increasingly become either a dead letter or a weapon of political convenience.

The anti-defection law today suffers from a basic contradiction. It was intended to preserve democratic morality, but in practice, it often suppresses democratic expression within political parties while simultaneously failing to prevent large-scale defections engineered through political bargaining. The law punishes individual dissent but rewards organised political migration. That contradiction lies at the heart of the problem.

The framers of the Tenth Schedule assumed that political loyalty was synonymous with party loyalty. Accordingly, a legislator can be disqualified for voluntarily giving up membership of a political party or for voting contrary to the party whip. Over time, the Supreme Court has expanded the meaning of voluntarily giving up membership far beyond formal resignation. Conduct, public statements, political alignment and even symbolic acts have been treated as evidence of defection. This judicial expansion was perhaps necessary to prevent easy circumvention of the law, but it also produced a culture where legislators increasingly became bound not by constitutional judgement, but by party command.

The result is visible across Parliament and state assemblies. Legislators often vote not according to conscience, constituency interest or legislative debate, but according to instructions issued by the party leadership. The whip system, which should ordinarily be reserved for matters affecting the survival of a government, has become an instrument of absolute political control. Members of legislatures are reduced to numerical assets in a permanent contest for power.

Even this excessive rigidity has not prevented political instability. Instead, Indian politics has simply adapted itself around the law. Entire factions now resign together, engineer mergers or delay disqualification proceedings long enough to alter governments before judicial review can catch up. The constitutional morality that the law sought to preserve is routinely defeated through procedural innovation.

The Maharashtra political crisis of 2022 exposed one of the most significant weaknesses of the anti-defection laws. Eknath Shinde’s faction, which commanded the support of more than two-thirds of the Shiv Sena MLAs in the Assembly, claimed legitimacy on the strength of its numerical dominance within the legislative party, even though the organisational structure and leadership of the political party initially remained with the Uddhav Thackeray faction. The episode demonstrated how the Tenth Schedule, which was intended to curb defections, can paradoxically allow an elected legislative bloc to effectively appropriate the identity and mandate of a political party through legislative strength.

Deeper Constitutional Problem

The split within the TMC reflects similar structural concerns. As competing factions seek to assert political dominance and claim the support of elected representatives, the law once again struggles to distinguish between the organisational identity of a political party and the legislative party. These recurring disputes reveal a deeper constitutional problem.

The most serious structural flaw lies in the mechanism for adjudication. Under the present framework, the Speaker or Chairman decides disqualification petitions. In theory, this appears institutionally logical. In practice, it has repeatedly collapsed under the weight of political reality. Speakers are almost always members of ruling political parties and frequently act in their interests. Delays in deciding petitions have become a political strategy in themselves. In several cases, courts have had to intervene merely to direct Speakers to decide petitions within a reasonable time.

At the same time, the law must become far stricter against opportunistic defections that alter electoral mandates. If an elected representative wishes to leave the party on whose symbol and support they were elected, the consequence should be resignation. The principle is straightforward: the seat belongs not solely to the individual, but also to the political mandate under which the electorate voted. Defection should not become a shortcut to power without electoral accountability.

Equally important is the need to remove adjudicatory power from the Speaker. Disqualification disputes should instead be decided by an independent constitutional tribunal. Time limits must be mandatory. A disqualification petition pending for months while governments rise and fall makes a mockery of constitutional governance.

There is also a deeper issue that often escapes discussion. The anti-defection law reflects an older understanding of political parties as internally democratic institutions. In reality, most parties in India today are highly centralised structures dominated by a small leadership circle. When legislators are compelled to obey the whip in virtually every matter, power effectively shifts away from legislatures and into party headquarters. This weakens parliamentary democracy itself.

The Constitution never intended Parliament or state assemblies to function as ceremonial bodies that merely ratify decisions already taken elsewhere. Debate, persuasion, disagreement and negotiation are essential features of representative government. Excessive anti-defection restrictions hollow out that process. The Supreme Court has attempted, through a series of judgements, to impose constitutional discipline in this area. Yet courts alone cannot solve what is ultimately a political and legislative problem. Parliament must confront the uncomfortable truth that the present framework satisfies nobody.

The anti-defection law was enacted at a time when India feared instability. Today, India faces a different danger: democratic centralisation without accountability. Stability remains important, but stability achieved by silencing legislative independence is neither constitutionally healthy nor politically sustainable.

Forty years after the Tenth Schedule entered the Constitution, the country must ask a basic question: should the anti-defection law protect governments at all costs, or should it protect democratic legitimacy? The answer to that question will determine whether the law remains a constitutional safeguard or continues as a political instrument manipulated by politicians when convenient.

(Views expressed are personal)

Kumar Kartikeya is an advocate practising before the Supreme Court of India

Sushant Inderjeet Singh is a litigation practitioner before the Supreme Court of India