By NAGESHWAR PATNAIK in Bhubaneswar, July 9, 2023: Recent events in Maharashtra have raised important questions about anti-defection law and exposes glaring loopholes in a law aimed at bolstering political stability in India. Earlier also the country has seen mass defections in Goa, Karnataka, Madhya Pradesh, and Rajasthan. This clearly shows the dark side of circumvention of the anti-defection law, putting the ruling parties in crisis.

The fall of the democratically elected government led by the Uddhav Thackeray was the seventh such collapse since 2014 brought about by defections or rebellions. It has become standard operating procedure to subject duly elected governments to a vote of confidence after strategic mass resignations of their legislators, lured by monetary and professional considerations. This raises the most deep-seated questions—is the act of defection becoming a new norm for practising politics in India?

Defection in politics can be traced back to Independence when India started to choose its leaders for the first time in 1951, during the first general elections. From the first to the fourth general elections, 542 MLAs shifted their political loyalty for political benefits. The situation worsened in the year 1967 when Congress leader Gaya Lal changed his party from Congress to Janata Dal and back to Congress only in a time span of 24 hours.

Politics in India have revolved around partisan zeal with a focus on personal advancement. After long years of legislative meanderings, Parliament enacted the anti-defection law (10th Schedule) in 1985 to curb political defection. Defections not only caused the frequent fall of governments but also caused great instability in political parties with power-seeking politicians wreaking havoc on political parties. The Supreme Court of India in its first comprehensive judgment in the Kihoto Hollohan case characterised it as a political evil and upheld the right of Parliament to curb this evil through legislative mechanism.

However, the main objective of inserting the Tenth Schedule in the Indian Constitution—to prevent the high-jacking of people’s mandate through the sale and purchase of elected representatives—remains unrealised. The latest drama in Maharashtra serves as yet another reminder of how harmless this legislation is when faced with a determined and powerful bid to topple an elected government.

A Manipur MLA Okram Henry, who was elected on a Congress platform in 2017 was appointed to the BJP cabinet as a minister. The defection procedures against the MLA were postponed by the speaker for more than three years. The Supreme Court’s intervention led to the MLA’s disqualification. The court advised that defection cases be decided by speakers within three months.

Madhu Limaye, an outstanding parliamentarian, was the lone voice of principle dissent against the anti-defection law when it was first introduced in 1985. His argument was that parliamentary debates would become meaningless because the elected representatives would not be free to follow their conscience. Secondly, the institution of ‘whip’ would encourage the dictatorship of party leaders. Thirdly, while this law might curb ‘retail’ defection, it would keep the doors open for ‘wholesale’ defections.

Nearly, four decades later Madhu Limaye’s apprehensions have come true with the worst of both worlds. |The Anti-|Defection laws have successfully thwarted the freedom of MPs and MLAs, and at the same time have failed to prevent defections of the most brazen variety. The arguments against anti-defection laws are three-fold: first, the provisions of the Tenth Schedule do not specify a particular time frame for making decisions; second, the Speakers and Governors are not unbiased referees; third, contrasting interpretations of the law by Indian courts have created further uncertainty.

The third paragraph of the Tenth Schedule which effectively permitted a comprehensive defection of one-third of elected members of a party while curbing individual defections was replaced by The Constitution (Ninety-First Amendment) Act, 2003.

However, Paragraph (4) which validates mergers (where two-thirds of the members of a legislative party have consented) remains in effect as a tool of misuse as was seen in Eknath Shinde’s faction of 40 Shiv Sena MLAs defection. Paragraph (6) confers the task of resolution of an electoral dispute upon the Chairman or the Speaker of the House. There is an alarming trend of the Speaker acting against the Constitutional duty of being neutral. Since Speakers are nominees of political parties, their independence, fairness, and impartiality will always be doubted.

Extensive party-hopping inevitably leads to a precarious state of affairs and here the Governor’s discretion comes into play. The Chief Minister of a State can recommend to the Governor to dissolve the assembly (Article 174(2)(b)) before the end of its five-year term and announce new elections. A Division Bench of the Supreme Court in Shivraj Singh Chouhan & Ors v. Speaker stated that the Governor is within his right under Article 175(2) of the Constitution to summon the house and order a floor test when the Governor needs an assessment as to whether the government commands the confidence of the House.

However, this judicially reviewable discretionary power has been subject to irregularities and the political aspirations of the Governors cannot be overlooked. A pertinent illustration would be the tumultuous 2018 State Assembly elections in Karnataka which courted controversy when Governor Vajubhai Vala erred in giving 15 days to B.S. Yediyurappa to form the government in Karnataka. He invited the single largest party (104 seats) to form the government instead of the largest post-poll alliance.

Political defections wilt the very roots of democracy in India. The anti-defection law has seriously harmed constitutional offices, silenced the voices of our elected officials, and denigrated democracy. For 37 years, the anti-defection statute has been unable to guarantee stable administrations. It is high time that the existing anti-defection law must be reviewed or scrapped and a new full-proof law must be brought in to check the menace of defections in the country.