Anti-defection law ridden with loopholes, prone to misuse

Legal experts want the anti-defection law to be re-examined as it is not equipped in its present form to prevent rampant misuse of its provisions.

A Congress delegation led by M. Veerappa Moily, after submitting a memorandum to the Governor at Raj Bhavan in Hyderabad on March 23, 2019. In its representation, the delegation said Telangana Chief Minister K. Chandrasekhar Rao violated constitutional norms by encouraging defections to the Telangana Rashtra Samithi.

In February, a motion of confidence moved by Puducherry Chief Minister V. Narayanasamy was not put to vote. The Speaker announced it defeated as the Chief Minister led a walkout by Members of the Legislative Assembly belonging to the ruling Congress-DMK alliance before the voting commenced. The government had been reduced to a minority with the resignation of six MLAs, two of whom resigned hours before the Chief Minister was asked by Governor Tamilisai Soundarajan to seek a vote of confidence.

The Puducherry Assembly has 33 members—30 elected MLAs and three nominated by the Central government. In the 2016 Assembly election, the Congress had won 15 seats and the DMK three. A Congress MLA was disqualified under the anti-defection law in July 2020. This reduced the party’s strength to 14.

Irrespective of the stern provisions in the anti-defection law for disqualification, legislators have been circumventing it with impunity The Tenth Schedule of the Constitution providing provisions for disqualification on the grounds of defection, commonly known as the anti-defection law, was enshrined in the Constitution through the 52nd Amendment. It was further amended in 2003 through the 91st Amendment to the Constitution. According to the Act, a member of Parliament or a State Assembly belonging to any political party, shall be disqualified if he or she gives up the membership of the party or votes or abstains from voting in the House contrary to the whip issued by the party without prior permission. In the case of the merger of not less than two-thirds of the members of a legislative party with another party, the provisions do not apply. This was the case in Rajasthan, when shortly after the 2018 Assembly election all the six Bahujan Samaj Party MLAs joined the ruling Congress. They did not incur any disqualification because more than two-thirds, in this instance all the MLAs, joined the Congress.

The anti-defection law was introduced by the Rajiv Gandhi government in 1985 to end the malaise of the “aya Ram, gaya Ram” phenomenon in Indian politics. The term was used to describe legislators prone to switching allegiance frequently—here today, gone tomorrow. The provisions of the law were based on the recommendations of the 1978 Dinesh Goswami Committee on electoral reforms. Every time during government formation in recent years, especially when no party gets a clear majority, legal experts have scrutinised the provisions of the law that sought to end defections.

In March 2020, as the nation braced for the COVID-19 challenge, the Kamal Nath government in Madhya Pradesh was rocked by a series of resignations. Congress legislators were shepherded to hotels in complete secrecy to avoid poaching by the opposition Bharatiya Janata Party (BJP). The Congress government lost its majority when 22 MLAs resigned, and led by senior party leader Jyotiraditya Scindia, joined the BJP. The Congress had formed the government in December 2018. The party had won 114 seats and reached the majority with the support of two legislators of the Bahujan Samaj Party (BSP) and Samajwadi Party. Four independents had also offered their support to the Kamal Nath government. The first signs of threat to the government were reported in early March when senior Congress leader Digvijaya Singh alleged that the BJP was indulging in horse-trading by carting away eight MLAs to a resort in Gurugram. One of them returned a little later, but it turned out that there were 10 legislators in the resort, including seven of the Congress. These MLAs were then flown to Bengaluru and were joined by others, bringing the number of disaffected members to 22. Most of them were re-elected on the BJP ticket in byelections held in November. The BJP won 19 of the 28 seats that went to polls.

In 2019, the scene of political activity was Karnataka. Soon after the trust vote and the passage of the Finance Bill for a period of three months along with the supplementary budget, Speaker K.R. Ramesh Kumar, who had earlier disqualified 17 rebel MLAs of the Congress and the Janata Dal (Secular), tendered his resignation.

The disqualification of the ruling Congress-JD(S) MLAs helped the BJP as the effective strength of the House came down from 225 to 208. The BJP enjoyed the support of 106 MLAs. Before resigning, Ramesh Kumar made a plea for electoral reforms and called for a fresh look at the anti-defection law. “If we speak of rooting out corruption without electoral reforms, it will only be hypocrisy,” he said. Pleading that the Tenth Schedule needs a “total re-examination”, he contended that the law in its current form was not equipped with sufficient provisions to prevent defections. The House should put “a moral pressure” to amend it, Kumar urged.

Earlier, Kumar was in the limelight for allegedly failing to act promptly on the resignation of the ruling combine MLAs who, had been flown to Mumbai to avoid pressure from the ruling dispensation. The alleged delay by the Speaker in taking a call on resignations brought into public discourse a petition filed by the Telangana Congress, which was being examined by the Constitution bench of the Supreme Court. The petition revolved around the question whether the court can issue a directive to the Speaker to take a decision on the disqualification of members within a stipulated time. The petition came after several Congress MLAs switched allegiance to the Telangana Rashtra Samiti. The Speaker had then ignored a notice to disqualify them under the anti-defection law. They continued to attend the House proceedings leading to the Congress leader’s petition before the Supreme Court.

‘Destructive of democratic process’

Even as the twin issues of the Speaker’s inertia and legislators’ resignation intertwine, the focus is well and truly on the anti-defection law with most constitutional experts in agreement that the Act needs a be looked at afresh.

Says noted constitutional law expert and author Gautam Bhatia: “The anti-defection law is clearly not working. People resign and get around the provisions of the Act. This is destructive of democratic process.” He pointed to the possibility of members switching sides not because of ideological compulsions but because of political blackmail.

The anti-defection law is often flouted in spirit, if not in letter. The noted advocate Warisha Farasat agrees: “According to the provisions of the Tenth Schedule, unless two-thirds of the party defects, the members are disqualified. But what often happens is different as we saw in Goa and Madhya Pradesh. Two-thirds of the party did not shift. There have been cases where a party issues a whip, yet some members do not turn up for the no-confidence motion, and that is good enough for the government to fall. There is no legal magic wand to counter this, but this is definitely a huge problem. What we need to look at is the conduct of the parties that circumvent the Tenth Schedule. What has happened in the last six years is astonishing. You are getting people to switch sides, using this lacuna in the anti-defection law. You can tighten the law but the question is of conduct. If there are mala fides, as in the case of legislators switching sides through resignation, the Schedule is silent on that. But can you keep on tweaking laws? What is important to ask is, why has the misuse become so rampant over the past six years?”

According to Warisha Farasat, “The Act has been there since 1985, why is it that there is sudden misuse in State after State? Something has to be said about the party in power buying MLAs. The point is this [Central] government has no respect for laid down procedures, and constitutional propriety. The problem is not about the Tenth Schedule, one has to go deeper, and ask, when will political parties respect constitutional propriety?”

Advocate Rajneesh Chuni said: “Legislators have become smarter. They do not merge with another party. They merely resign from their party and circumvent the law. However, the whole burden falls on the common man, the voters who might have voted for a particular political party, then are dismayed to see their representative resign midway. They feel cheated. After resignation, the Speaker has to be proactive. He cannot sit on resignations endlessly. But if the resignations are accepted, elections are the only way out. There is no Assembly that has not been betrayed in recent years.”

Speaker’s role

Calling the anti-defection law “a paper tiger”, which has “been under scrutiny for ineffective implementation”, Chuni points out that there have been instances similar to the Karnataka case in the past. Citing the Supreme Court 1992 judgments in Kohito Hollohan vs Zachillhu and others and Keisham Megachandra Singh vs the Honourable Speaker, Manipur (2020) , he said: “The crux of these judgments is, ‘It is time Parliament has a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such a Speaker continues to belong to a political party either de jure or de facto . Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification, which arises under the Tenth Schedule.” Incidentally, in the Kohito Hollohan case, the apex court had noted: “A large number of petitions were filed before various High Courts as well as this court challenging the constitutionality of the amendment [52nd amendment] . This court transferred to itself the petitions pending before the High Courts and heard all the matters together.”

The court had also dealt with the issue of an individual’s preference to vote on a certain issue and the larger issue of collective responsibility of the legislators of a political party, and noted: “A political party functions on the strength of shared beliefs. Any freedom to its members to vote as they please independently of political party’s declared policies will not only embarrass its public image and popularity, but also undermine public confidence in it, which, in the ultimate analysis, is its source of sustenance, nay, indeed, its very survival. Paragraph 2(1) (b) of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a member who votes or abstains from voting contrary to ‘any directions’ issued by the political party. The provision, however, recognising two exceptions; one when the member obtains from the political party permission to vote or abstain from voting and the other when the member has voted without obtaining such permission… his action has been condoned by the political party.”

The Manipur judgment dealt with the case of the Congress emerging as the single largest party with 28 seats and the BJP as the second largest with 21 seats. Talking of the Speaker’s role in the said case, the court felt that it was time “Parliament seriously considered amending the Constitution to substitute the role of the Speaker as arbiter of disputes concerning disqualification with a permanent tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a High Court.”

As for the anti-defection law, suggestions have been made to bar legislators who resign mid-term from contesting elections during the same term. Says Bhatia, “It is one way to plug the lacuna, but there is no straight forward answer here. We have seen instances of the voters choosing the same MLA/MP again in byelection. Voters are not punishing turncoats.”

Chuni said: “It needs to be looked at. Even the Supreme Court has felt this needs some type of amendment. Otherwise it is a redundant law. It is not serving (the) particular purpose it was made for. Somebody trying to enter another party after having won on another party’s ticket should not be allowed to contest elections, at least in that particular term of the Assembly.”

That, however, is easier said than done, as we have seen in the recent byelections in Karnataka and Madhya Pradesh; most legislators who resigned from the Congress or the Janata Dal (S) came back to the Assembly on the BJP ticket. That is where the question of ethics comes in. Warisha Farasat said: “In the same cycle of the Assembly you should not be allowed to contest. I am not saying take away completely the freedom of choice from legislators, but they should not be allowed to contest in the same term. Laws are drafted presuming there will be bona fide on the part of the legislators. Bring the amendment. As an independent observer, I feel, the challenge is to get the main political party to respect the rule of law and respect constitutional propriety. We have not seen this kind of constitutional subversion for a long time. The law cannot ensure everything. No law is perfect. There could be a problem with the anti-defection law, but a greater problem lies in lack of constitutional propriety and respect for the rule of law, and the spirit of the anti-defection law.”

So, despite its limitations and drawbacks, a law framed with all good intentions suffers because of mala fide intent today.