Rajiv Gandhi’s government in the year 1985 introduced, The Constitution (Fifty-second Amendment) Act, to tackle the politics of defection. Defection in politics can be traced back to Independence when India started to choose its leaders for the first time in 1951, during the first general elections. From the first to the fourth general elections, 542 MLAs shifted their political loyalty for political benefits. The situation worsened in the year 1967 when Congress leader Gaya Lal changed his party from Congress to Janta Dal and back to Congress only in a time span of 24 hours. This resulted in a political catchphrase for Gaya Lal, Aaya Ram Gaya Ram, which is still used while talking about political defections.
In 1985, the Tenth Schedule as an Anti-Defection law was added to the Constitution. It outlines the procedure by which parliamentarians may be excluded from serving on a legislative body on the basis of defection based on a petition by any other member of the House. A lawmaker is considered to have defected if he either willingly leaves his party or defies the leadership's instructions during a vote. This suggests that a lawmaker who abstains from voting or votes against the party whip on any matter risks losing his seat in the House. Both the Parliament and state legislatures are subject to the statute.
The Tenth Schedule established four things: It detailed what would constitute a defection and outlined the conditions for lawmakers to defect in groups. It also indicated the authorities for judging cases of defection and It penalized politicians for defection by removing their seats from the legislature. It was intended to prohibit lawmakers who were elected on the platform of one political party from switching to another. Its objective was to establish political stability.
Any lawmaker who defects from the party leadership or its position on a specific topic may be subject to disqualification procedures. When Parliament passed this statute, it included two options for a group of lawmakers to abstain without incurring legal repercussions. Firstly, if one-third of a political party's lawmakers left it, and secondly if two-thirds of a party's lawmakers combined with another party. It wouldn't be seen as a defection in any scenario.
The statute stipulates that the presiding officers of legislatures would decide cases of defection. Legislators who are found to have broken the law will have their seats in the legislature taken away. "The evil of political defections has been a source of national concern," read the purpose statement for the constitutional amendment measure. If it is not stopped, our democracy's core foundations and guiding values are likely to be threatened.
Speakers, governors, and Law
Legislators may be charged with defecting from a party if they willingly renounce their membership in accordance with the rules of the anti-defection statute. The law doesn't define this phrase, leaving it up to the interpretation of courts. Due to this disqualification procedures may be initiated against any lawmaker who deviates from party leadership or its stance on a particular topic. Courts have given this clause a broad interpretation. Because of this situation, political parties have a lot of ability to quell internal dissent by threatening to expel their MPs and MLAs from the legislature.
Politicians who voice their disagreements with the party leadership run the danger of losing their seats in the legislature. In Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors(2011) vehemently stated that any kind of internal rift in a political party is not a ground for defection from the party. That leads one to consider if our legislators have any other obligations other than that to their political party. Or do they also have a duty to represent the views of the voters who chose them?
The non-partisan constitutional position of legislative speakers has also suffered because of the anti-defection statute. The statute designates the speakers as the last arbiter in defection cases. Giving the speaker such authority was believed to hasten the adjudication procedure. Several lawmakers made the observation during the law's discussion that engaging speakers in defection cases would involve their office in unneeded conflicts.
Speakers often are a part of the coalition or party in power. The perception that they function as party members rather than as objective arbiters has become stronger over time looking at the behaviour of speakers during defection trials. Courts have frequently criticized speakers' actions when they have unreasonably prolonged defection processes.
A Manipur MLA Okram Henry, who was elected on a Congress platform in 2017 was appointed to the BJP cabinet as a minister. The defection procedures against the MLA were postponed by the speaker for more than three years. The apex court's involvement resulted in the MLA's disqualification. The court advised that defection cases be decided by speakers within three months.
In Nabam Rebia Vs. Deputy Speaker(2017), the Supreme court cleared several questions concerning the powers of speakers and governors in defection proceedings. Court said that according to Article 163 of the Constitution, the Governor of a State must consult with the Council of Ministers. Only when necessary may he use his discretion. Even if the Governor has discretion, it should be regarded as "constitutional." The Court affirmed that the Governor is always bound by constitutional requirements and does not have a lot of discretion.
The Governor is granted the authority to call, prorogue, or dissolve the State's legislature under Article 174. The Court came to the conclusion that the powers granted under Article 174 were not subject to the Governor's discretion. The Governor shall not call the House, set its schedule for legislation, or address the legislative assembly without seeking the advice of the council of ministers.
The misuse of the law
Anti-Defection law with all of its intentions to curb the voices of defections in the party and aim to establish stability in the government has failed badly since its very inception in 1985. It has seriously harmed constitutional offices, silenced the voices of our elected officials, and denigrated democracy. For 37 years, the anti-defection statute has been unable to guarantee stable administrations.
Rajasthan, Maharashtra, Karnataka, Goa, Arunachal Pradesh, and Tamil Nadu are some examples where legislators have defected from their party creating instability in the government. After three days as chief minister, B.S. Yediyurappa of the Bharatiya Janata Party (BJP) resigned because he was unable to demonstrate his majority. After that, the Janata Dal (Secular)-Congress coalition's H.D. Kumaraswamy took over as chief minister for 13 months. He was forced to step down when his administration lost a vote of confidence in the parliamentary assembly due to defections and resignations. Yediyurappa took over the wheel again for two years as a result. Even in Madhya Pradesh where Kamal Nath established a government after this election, his government was overthrown after around 13 months as a result of resignations by members of the legislative assembly (MLAs) of Congress.
The question of the Anti-Defection law stands in front of us after the political debacle in Maharashtra, where Devendra Fadnavis, a member of the BJP, served as chief minister for three days following the 2019 state elections. He resigned after failing to win a majority, and a coalition of the Shiv Sena, the Nationalist Congress Party, and the Congress established a government under Uddhav Thackeray of the Shiv Sena. But in 2022 after a split in Shiv Sena Eknath Shinde supported the BJP and formed his government with the support of the BJP.
Uddhav Thackery and his fraction Shiv Sena have raised a question on the judgment of Nabam Rebia stating that it curbs the power of the Speaker of the house and asked a 7-judge constitution bench to review the matter on merits.
Legislators' failure to uphold party discipline in India is a political disagreement between them and their political party. Political parties need to put more effort into fostering internal party democracy, communication, and growth opportunities for their members if they wish to attract supporters who follow the party line. The true question would be whether political parties that struggle to keep their members together should be helped by the Constitution. The anti-defection statute continues to jeopardize the efficient operation of our legislatures, making this subject of utmost importance.
(Kumar Kartikeya is a legal researcher based out of Delhi.)