Ecostani: The time has come to overhaul the anti-defection law

ASerial publication of defections and mergers has raised reinvigorated questions virtually the effectualness of the anti-defection jurisprudence. The law has been used to aid defections rather than prevent them. Incorporated into the Tenth Schedule of the Constitution in the 1980s, the anti-defection law was crucial for upholding democratic principles. It was meant to ensure political stability and guard against opportunistic defections that undermined the electoral mandate.The law provides for disqualification for defying a party’s whip on important issues, such as a trust vote. It allows the members of a political party to merge with another if two-thirds of its legislative members so decide. The anti-defection law is inapplicable for voting in the Rajya Sabha or legislative councils, where members can vote according to their conscience.The law enacted during Prime Minister Rajiv Gandhi’s tenure aimed at preventing individual or small defections. The idea was to allow parties to enforce discipline among their members on crucial issues and respect the people’s mandate.The Speaker, considered the custodian of the House, was empowered to disqualify a lawmaker for defying a whip and a formal declaration of a party on the legislative body’s floor. All these objectives of the law now appear ineffective in controlling defections, which are destabilising opposition parties.Significant sections of Trinamool Congress (TMC)’s legislative wings in the state assembly and Lok Sabha broke away from the party, claiming support of two-thirds of the elected lawmakers, after the party lost power to the Bharatiya Janata Party (BJP) in West Bengal.The TMC expelled two of its 78 legislators before 57 of them rebelled and backed Ritabrata Banerjee as the Leader of the Opposition (LoP). Twenty rebel TMC parliamentarians proposed merging with the little-known Nationalist Citizens Party of India, which got just 1,108 votes in three assembly constituencies in Tripura, and backed the BJP-led National Democratic Alliance, boosting the ruling coalition’s numbers in the Lok Sabha. Three of the TMC’s 13 Rajya Sabha members have also resigned.On Sunday, two of the six rebel Shiv Sena (UBT) MPs announced their defection to the Eknath Shinde-led Shiv Sena. Four more defections are expected to follow. As they are two-thirds of the parliamentary party, the anti-defection law will not apply.In June 2022, Eknath Shinde’s rebellion forced Uddhav Thackeray to resign as the Maharashtra chief minister. Shinde claimed his faction was the real Shiv Sena, and the Election Commission of India (ECI) agreed on the grounds of the legislature party majority.Something similar is now happening with TMC. Surprisingly, this dissatisfaction against TMC chief Mamata Banerjee began only after the party lost the assembly elections on May 3. Breaking a party with two-thirds of lawmakers is a clear trend to avoid action under the anti-defection law.Some other innovative ways have been adopted. One is to ask the defecting lawmakers to resign, leading to the fall of a government. The new government takes over. The turncoats then contest on the tickets of the ruling party and win.In 2019, the Congress-Janata Dal (Secular) government in Karnataka fell after the resignations of 15 lawmakers. The BJP under BS Yediyurappa came to power. Twelve of the 15 defectors who contested on BJP tickets won. A year later, the government in Madhya Pradesh fell when 22 Congress lawmakers resigned. Shivraj Singh Chouhan took over as chief minister. Eighteen of the 22 Congress defectors, who contested on the BJP tickets, won.The presiding officers have been slow in deciding disqualification petitions, sometimes until the end of assembly terms. There have been instances of dissenting lawmakers being disqualified for defying the party whip within a month or two of the next election.In 2020, the Supreme Court directed the Manipur Speaker to decide on Congress’s disqualification petitions within three months after keeping them in abeyance for almost four years. Despite the order, speakers have been delaying decisions on the disqualification petitions, helping the parties remain in power through defections.In cases that come within three months, the speakers mostly reject opposition petitions, forcing them to take the time-consuming legal route to challenge their orders. The anti-defection law says only the Speaker can decide on the disqualification. The courts can ask a speaker to review their order, but cannot direct disqualification.The 10th Schedule has been turned into an ineffective tool to curb defections. It has been used for mass defections and splits of the political parties.An overhaul of the anti-defection law is the need of the hour to prevent defections, with a provision that a defector cannot contest any election for six years, similar to the provision for lawmakers convicted of crimes with three or more years of imprisonment. It needs to factor in the Supreme Court order on a three-month time limit for a Speaker to decide on disqualification petitions from the date of submission. Similarly, a timeline has to be there for the Constitutional courts to decide on petitions against the orders of speakers.For the period a Speaker is hearing a petition, the lawmaker in question should not be allowed to participate in legislative business and get any salary or allowances. A criminal action should be initiated against the lawmaker for cheating with the people’s verdict if disqualified.Only a stringent law without exceptions could prevent lawmakers from making a mockery of democracy. And the time has come to overhaul the anti-defection law.