Why Anti-Defection Law Must Not Be Saved

There is a continuous churning in the rank and file of political parties. Very often political leaders and workers switch allegiances before elections take place. The broad reasoning associated with such switching is two-fold. One, improved chances of winning the election from a different party and second, dissatisfaction with their current political party on being denied a ticket to fight the election. 

After elections, the changing of political parties by elected representatives is often associated with destabilising a government in power. The recent example being that of Karnataka Vidhan Sabha, where the change in the political allegiance by some MLAs led to the fall of the H D Kumaraswamy government. 

The Anti-Defection Law of 1985 was enacted to control the rampant shifting of political parties by its elected members. The idea behind the law is simple. The lawmakers assumed that by controlling the defection by Members of Legislative Assemblies (MLAs) or Members of Parliament (MPs) the law will be able to ensure stability in governments. 

Over the last three decades, the law has completely failed at its purpose. The latest proof of its failure being the 14-month Kumaraswamy government, which fell in July this year. However, the law had many unintended outcomes. One of them being that it gave a large enough group of legislators legal protection to break away from their political parties and join another one. 

For example, earlier this month all the six MLAs of the Bahujan Samaj Partyin Rajasthan joined the Congress. In Sikkim, the Bhartiya Janta Party (BJP) did not win any seats in the legislative assembly election. This state election was held at the same time as the 2019 general elections. The Sikkim Democratic Front party led by former chief minister Pawan Chamling had won 13 out of the 32 seats in the assembly. Barely three months later 10 of those SDF MLAsjoined the Bhartiya Janta Party. The party went from having no presence in the Vidhan Sabha to become the principal opposition party in the state. 

Goa is a state where the MLAs are known to shift political allegiances quite easily. In July, 10 out of the 15, Congress MLAsin the state legislative assembly shifted to the Bhartiya Janta Party. 

While such shifts are not uncommon in state legislators, this year Parliament also saw an en masse switching of political allegiances. The Telugu Desam Party (TDP) had six MPs in the Rajya Sabha representing the state of Andhra Pradesh. The party had not fared well at the ballot box, both at the state and national level. A month after the general election four out of the six Rajya Sabha MPs of the partyjoined the BJP. The shift added to the numbers of the treasury benches in the Rajya Sabha and gave it the confidence to move ahead with contentious issues such as removing the special status for Jammu and Kashmir, Triple Talaq and the bill to amend the Right to Information Act.   

The blame for this large-scale political promiscuity lies with the anti-defection law. It encourages the mass defections of legislators and only penalises individual legislators from deserting their political party for greener pastures. When the law was enacted, it had two provisions which encouraged the mass shifting of legislators. The first one protected one-third of the MPs/MLAs who split from their political party as a group. The second provision protected two-thirds legislators of a political party who shifted from their political party and merged themselves into another political party. The law specified that in both such instances of splits or mergers, the participating legislators would not lose their membership of the legislature, which is the penalty for defection by individual legislators. 

The first provision related to splits was defended as a check against the lack of internal democracy in political parties. However, the low threshold of a third of legislators required to split a political party was used routinely to break political parties as per political expediency. The situation reached a stage that in 1999 a proposal was mooted to delete the split provision from the anti-defection law. The Law Commission in its 170th report observed, “...there has been unanimous support (including that of the Prime Minister of India) to this proposal…”

The Commission recommended the deletion of the split provision. In 2003 there was political consensus on the issue. The 97th constitution amendment bill piloted by then minister for Law and Justice Arun Jaitley removed the split provision from the anti-defection law.

During the debate on the bill in the Rajya Sabha, two MPs, while supporting the deletion of the spilt provision asked for the deletion of the merger provision as well. One of them was Bal Apte of the BJP and the other one was Ravula Chandra Sekar Reddy of the TDP. Reddy stated, “Let this legislation be extended and made applicable to mergers as well since, in my opinion, merger is a hiatus and a respectable name for defection. They would have fought the election on a particular plan and manifesto. By merging the parties, they will be defeating the mandate of the people. If you want to cleanse politics, we should prohibit this type of mergers also.”

The merger provision exists in the statute books and continues to encourage mass defections amongst legislators. It serves a purpose for political parties because in the words of another Rajya Sabha MP, “Defection has been pampered, perpetrated and encouraged by political parties only to suit their convenience in clinging to power”. 

The events of this year should catalyse a public debate about the need for the deletion of not only the merger provision but also the rest of the anti-defection law. After all, this law continues to threaten the very foundations of our representative democracy. 

Chakshu Roy heads legislative and civic engagement initiatives at PRS Legislative Research. Views are personal.