Does India's Anti-Defection Law Work In The Era Of Uneasy Coalitions?

Earlier this year, the Congress in Goa invoked Gods to put an end to defection in its ranks. The party chose Gods, because its men had failed it in the past.

The Congress paraded its official assembly election candidates before Hindu and Catholic deities and a dargah, making its nominees take an oath against defection after February polls. The Congress and the Aam Aadmi Party (AAP) also made their candidates sign legal affidavits swearing against future defections if they were elected.

Faith in God and fear against defection appeared to have had an irrational convergence in Goa, especially for the Congress party. The Congress had emerged as the single largest legislative unit with 17 seats in the 40-member state assembly in 2017. By 2022, 15 of its MLAs had quit to join the Bharatiya Janata Party (BJP) in batches. Three MLAs quit in the first year, while 10 others, including the Leader of Opposition Chandrakant Kavlekar, split and merged their breakaway unit into the BJP in 2019. Two others quit sometime later.

This failure of Congress to keep its legislative flock together may well be viewed as an extended failure of the country’s anti-defection law to stop legislators from switching parties.

The latest case of defections breaking the back of ruling dispensations played out in Maharashtra recently. On Monday (July 11), the Supreme Court is scheduled to hear a disqualification petition against Maharashtra Chief Minister Eknath Shinde and 15 MLAs who split Shiv Sena to form a government with the support of BJP.   

The Aaya Ram, Gaya Ram era

Trends and tendencies earn themselves a moniker, when they seep into popular consciousness. In New Zealand, a legislator switching political allegiances is called a waka-jumper. A waka, is a large Maori canoe. Nigerians prefer to describe the act of defection as carpet-crossing.

In India, where legislators over decades have traded party loyalties both in bulk and in retail, the moniker is a relatively large one, and one that rhymes, thanks to Haryana lawmaker Gaya Lal.

Elected as an MLA in 1967, Gaya Lal hopped between Congress and the Janata Party on three occasions in quick succession. His politically mercurial flip flops birthed the phrase ‘Aaya Ram, Gaya Ram’, highlighting the peak instability of electoral politics in and around 1967.

The decade between 1957-67 saw 542 members of Parliament and members of legislative parties switch political allegiances before the four-year period from 1967-71 spiralled the defection graph to unprecedented levels.

That was a time when Indira Gandhi had won power on a reduced majority and her leadership credentials within the party were also being questioned by senior colleagues.

According to PRS Legislative Research, a Delhi-based non-profit organisation aimed at improving legislative processes, in those four years, 142 defections were reported in Parliament, while 1,969 MLAs crossed over to other parties in state assemblies across the country.

“Thirty-two governments collapsed and 212 defectors were rewarded with ministerial positions,” according to the agency. The political chaos ignited the debate about the need for an anti-defection law in the country.

It was left to Indira Gandhi’s son Rajiv, who won a landslide mandate in the 1984 general elections, to facilitate the passage of the ‘anti-defection law’ in 1985, by amending the Constitution and incorporating the 10th Schedule.

The new legislation did not make party-switching of lawmakers illegal per say, but put in a framework which allowed presiding officers of legislatures to penalise lawmakers if they indiscriminately switched political parties or defied party whips in legislatures. But the law also allowed legislators to split and merge political parties with a strength of one third and two thirds of its legislative strength respectively.

With defections continuing in spite of the legislation – a state like Goa alone saw 13 chief ministers in 10 years between 1990-2000 when the anti-defection law was in force, it was further tweaked in 2003 with the option of a split in the legislative party done away with. The amendment now allowed only a merger by two-thirds majority as a legitimate means for legislators to cross over.

Another way out

The politics of the last decade suggests that the 2003 amendment to the anti-defection law was also not the sought-after panacea to cure the ill of defection. Just as the Congress, when in brute majority under Indira Gandhi, was accused of jeopardising democratically elected non-Congress governments, the ruling BJP largely also appears to have mastered its own formula for weaning away elected legislators from other political parties.

One way to bypass the provisions of the amended anti-defection law was to either lure MLAs from other political parties in bulk by adhering to the two-thirds majority criteria or enabling resignations of Opposition MLAs mid-term, bringing down the strength of the house and then using its well-oiled organisational apparatus to get them elected on a BJP ticket and gain the required majority number.

The Northeastern state of Arunachal Pradesh even trumped Goa, a habitual offender state in terms of defections, after the 2014 assembly polls. The Congress had won 47 seats in the 60-member state legislative assembly. But it was reduced to just one seat after a split in the party by its own Chief Minister Pema Khandu, who deserted the Congress with the bulk of other MLAs to join the People’s Party of Arunachal before he and his band joined the BJP months later.

In Manipur too, the BJP managed to vault to power, despite lagging behind in the seat tally after 2017 elections by forging quick alliances with two regional parties and mysteriously eking out support from nine Congress MLAs, none of whom had resigned from the Congress!

Similar spells of party-crossovers led to the fall of governments in Karnataka, Madhya Pradesh, Puducherry, and now Maharashtra.

The BJP, which holds a firm grip at the Centre, has stood to largely benefit from the latest round of defections.

More reform needed

Forty-five per cent of lawmakers who quit their parent political parties between 2016-2020 joined the BJP, according to a study conducted by the Association for Democratic Reforms (ADR). The Congress was the main loser in this period. Forty-two per cent of the total number of defecting legislators were elected on a Congress ticket.

“This fundamental principle, however, has become skewed with the failing standards of ethical and moral propriety of India’s parliamentary democracy. The ‘Aaya Ram, Gaya Ram’ syndrome and the never ending ‘hunger for power and money’ has become a common practice amongst our parliamentarians and political parties,” said ADR in its report last year.

It also noted, “The ‘Conduct of Politics’ necessitates fairness, freedom, reliability, equality, integrity, honesty, and credibility. It will be a mockery of democracy if we fail to plug these loop-holes because of which such defections, changing/switching of party by MPs and MLAs are happening.”

According to former Supreme Court Justice PB Sawant, the 2003 remedy to the anti-defection law was “proving to be worse than the disease” and facilitated mass defections. He recommends further adjustments in the 10th Schedule to mandate defectors to resign their seats and face fresh elections.

“This will end the farce to which the elections have been reduced. The electorate is no longer sure that the party and the candidate whom it has voted to office will abide by the mandate. Toppling the governments and nullifying the verdict of the people, because of the lure of individual gains, has become normal practice. It may bring joy to those who are out to destroy democracy, but is a matter of grave concern for those who want to save democracy and the Constitution,” he wrote in The Indian Express in 2020.

In 2020, the Supreme Court urged the Parliament to rethink the role of the Speaker or presiding officers of legislatures from taking decisions related to disqualification petitions.

“It is time Parliament rethinks 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,” an apex court bench headed by Justice RF Nariman had said.  

The move, experts suggest, would make the adjudication process in hearing disqualification petitions relatively more non-partisan, especially since the role of the presiding officers –who are affiliated to political parties– has often been accused of bias.

The Supreme Court while hearing another petition under the anti-defection law in connection with the Manipur political crisis also ruled that a period of three months was a “reasonable period” for a Speaker to dispose of disqualification petitions barring in “exceptional circumstances”.

According to political commentator Mohan Guruswamy, Rajiv Gandhi’s anti-defection law itself had a fundamental flaw. By making defiance of the whip issued by a political party a ground to expel an elected legislator, political parties, Guruswamy argues, have taken centre stage in an electoral democracy and not legislators themselves who are chosen by voters from their respective constituencies.

The flaw, he says, can be undone.

“It follows that if a representative defies a party whip, the most the party must be allowed to do is remove the member from the party. Expulsion of the member from the House can only be the right of the House or the people,” Guruswamy wrote in the Deccan Chronicle this year.

Uneasy coalitions

In instances where MLAs cannot be broken and the number cannot be achieved by engineering defections, the formation of uneasy coalitions appears to be the next likely political path in recent years.

The BJP has used this route in several states like Karnataka, where it shared an edgy alliance with the Janata Das (S) or in Bihar with the Nitish Kumar led Janata Dal (U). The case of extreme opposites coming together to form a government occurred in erstwhile Jammu and Kashmir when the BJP tied up with the People’s Democratic Party in 2015. 

The Maha Vikas Aghadi (MVA) was also a coming together of the Shiv Sena and non-traditional allies like the Congress and the Nationalist Congress Party to keep the BJP out of power in 2019. The Sena had historically fought battles for the assembly and on the streets of Mumbai and Maharashtra against the Congress since its inception in the 1960s.

As the chorus for more reforms in the anti-defection laws gains momentum, it is worth recalling the note of caution struck by the architect of the Indian Constitution Babasaheb Ambedkar in the Constituent Assembly in 1949. In his speech, Ambedkar chose not to detach the Constitution from those who implement it.

He said, “…however bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.”