NCP supremo Sharad Pawar has said that his nephew's action is an act of indiscipline, and attracts the provisions of the anti-defection law. What is this law?

What happens in Maharashtra now remains to be seen.

In the extraordinary political drama unfolding in Maharashtra since dawn on Saturday (November 23), it remains unclear precisely how many Nationalist Congress Party (NCP) lawmakers are with Ajit Pawar in his decision to join hands with the BJP.

NCP supremo Sharad Pawar has said that his nephew’s action is an act of indiscipline, and attracts the provisions of the anti-defection law.

“NCP MLAs who support the BJP should know this move attracts provisions of anti-defection law,” Pawar said in a joint press conference with Shiv Sena chief Uddhav Thackeray who until past midnight on Friday looked set to be the next Chief Minister of Maharashtra.

The gazette notification for the revocation of President’s Rule by President Ram Nath Kovind was issued at 5.47 am on Saturday, PTI reported.

Maharashtra Governor Bhagat Singh Koshyari administered the oath of office to Chief Minister Devendra Fadnavis and Deputy Chief Minister Ajit Pawar at 7.30 am.

It was not immediately clear what evidence of support from NCP MLAs Fadnavis and Pawar presented to the Governor.

Here is how the anti-defection law — the Tenth Schedule of the Constitution, inserted by The Constitution (52nd Amendment) Act, 1985, when Rajiv Gandhi’s government was in power — came to be, and how it evolved over the three decades that followed.

The 1967 elections

The seeds of the anti-defection law were sown after the general elections in 1967.

The results of those elections were a mixed bag for the Congress. It formed the government at the Centre, but its strength in Lok Sabha fell from 361 to 283. During the year it lost control of seven state governments as MLAs shifted their political allegiance.

In this backdrop, P Venkatasubbaiah, a Congress MP in Lok Sabha who served in the Cabinets of both Indira and Rajiv Gandhi, proposed the setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”.

The proposal saw a spirited debate in Lok Sabha. Opposition members suggested renaming the proposal to “save Congress”, while the ruling party accused the opposition of inducing MLAs to defect.

The Y B Chavan panel

Despite the acrimony, the Lok Sabha agreed to the setting up of a committee to examine the problem of political defections. The then Home Minister, Y B Chavan, headed the committee.

The panel defined defection — and an exception for genuine defectors. According to the committee, defection was the voluntary giving up of allegiance of a political party on whose symbol a legislator was elected, except when such action was the result of the decision of the party.

In its report, the committee noted “that the lure of office played a dominant part in decisions of legislators to defect”. It pointed out that out of 210 defecting legislators in seven states, 116 were given ministerial berths in governments which they helped form by their defections.

To combat this, the committee recommended a bar on defecting legislators from holding ministerial positions for a year — or until the time they got themselves re-elected.

It also suggested a smaller Council of Ministers both at the levels of the Centre and the states. The committee was in favour of political parties working together to help evolve a code of conduct to effectively tackle disruptions.

Early attempts at a law

Following the report of the Y B Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections.

The first one was made by Indira’s Home Minister Uma Shankar Dikshit in 1973; the second, in 1978, by Shanti Bhushan, Minister for Law and Justice in the Janata Party government of Morarji Desai.

The third attempt — which was successful — was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira’s assassination.

The Tenth Schedule

The Bill to amend the Constitution was introduced by Rajiv Gandhi’s Law Minister Ashoke Kumar Sen, the veteran barrister and politician who had also served in the Cabinet of Jawaharlal Nehru.

The statement of objects and reasons of the Bill said: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.”

The amendment by which the Tenth Schedule was inserted in the Constitution, did three broad things.

* One, it made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature — the penalty being the loss of their seats in Parliament or the state legislatures.

* Two, it protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party.

* Three, it made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings.

Criticism and passage

During the debate in Parliament, Opposition MPs argued that the Bill would curtail the freedom of speech and expression of legislators. MPs like the socialist leader Madhu Dandavate expressed concern over the impact the amendment could have on the office of the Speaker.

The Law Minister, however, succeeded in navigating the Bill through Parliament in two days. The Bill was debated in Lok Sabha on January 30, the death anniversary of Mahatma Gandhi, and was passed by Rajya Sabha the following day. Prime Minister Rajiv Gandhi referred in Parliament to the Mahatma’s seven social sins, the first one being politics without principles.

The immediate challenges

No sooner was the law put in place than political parties started to stress-test its boundaries.

The issue of what constitutes a spilt in a political party rocked both the V P Singh and the Chandra Shekhar governments.

The role of the Presiding Officers also became increasingly politicised. Lok Sabha Speaker Shivraj Patil said in 1992: “The Speaker is not expected to dabble in keeping the political parties weak or strong or discipline the Parliamentarians for their party purposes.”

The intervention of the higher judiciary was sought to decide questions such as what kinds of conduct outside the legislature would fall in the category of defection, and what was the extent of the Speaker’s power in deciding defections.

The Supreme Court, while upholding the supremacy of the Speaker in defection proceedings, also held that the Speaker’s decisions were subject to judicial review.

The 2003 Amendment

The last step in the legislative journey of the anti-defection law came in 2003.

A Constitution Amendment Bill was introduced in Parliament by the government of Prime Minister Atal Bihari Vajpayee to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill.

The committee observed: “The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.”

The one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation.

The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election.

However, as events in the years and decades since have demonstrated, these amendments have had only limited impact.

The (ab)use of the law

The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths.

The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states.

The Speakers started taking an active interest in political matters, helping build and break governments.

The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end.

The events in the Karnataka Vidhan Sabha in the summer of this year showed that even after three decades, the anti-defection law has not been able to stop political defections.

What happens in Maharashtra now remains to be seen.

(Chakshu Roy is Head of Outreach at PRS Legislative Research. This is an updated version of the article that first appeared in the print edition of July 25, 2019 with the headline ‘The limits of anti-defection’)