How Political Parties Exploit the Anti-Defection Law to Form Governments

The Anti-Defection Law has several loopholes that obstruct the democratic functioning of the electoral process.

After the assembly elections in October 2019, government formation in Maharashtra has been a roller-coaster ride that has stretched on for much longer than it should have. As the rift between long-term allies, Shiv Sena and Bharatiya Janata Party (BJP) became apparent, political parties renegotiated their positions, with the Congress dithering in declaring a position. At the centre of the myriad of controversies was the National Congress Party (NCP), with Ajit Pawar claiming deputy-chief ministership alongside Chief Minister Devendra Fadnavis, the BJP candidate, while NCP President Sharad Pawar remained allegedly ignorant. Following this event, Sharad Pawar warned the elected members of the legislative assembly (MLAs) from his party about switching sides, saying they would be penalised under the anti-defection law, even as he took no punitive action against his nephew Ajit Pawar. The Fadnavis-led government was subjected to a floor test ordered by the Supreme Court, after which Uddhav Thackeray of the Shiv Sena was invited to form the government. 

Government formation, especially in the states, has become a messy affair, with political parties frequently resorting to quarantining their MLAs in hotels to avoid horse-trading in a bid to retain their majority. Recent examples can be found in Karnataka, Telangana and Andhra Pradesh Defection was a problem that had cropped up in the early decades after independence, and the Tenth Schedule of the Constitution (or the Anti-Defection Law) was introduced to mitigate this problem. However, as the following articles in this reading list explain, there are several loopholes that continue which political parties exploit in order to capture power and form governments. In this reading list, we look at some of these loopholes. 

Mired in Controversy

The anti-defection law has invited controversy from the beginning, being challenged in court multiple times. Almost as soon as it was introduced, it was taken to the Supreme Court for being “unconstitutional.” An article published in the Economic and Political Weekly in 1991 pointed out that though the Tenth Schedule curbed the free movement of legislators between parties, its loopholes still enabled the misuse of its provisions for partisan ends. For instance, in 1987, paragraphs 6 and 7 of the Tenth Schedule came into question because they did not allow room for judicial review of cases of defection. 

In 1987 a full bench of the Punjab and Haryana High Court in the Prakash Singh versus Union of India case held paragraph 7 of Schedule X to be invalid on the ground that it sought to abrogate the power of the Supreme Court and the high court to decide on the matter. This ruling has now been followed by the ruling of a five-judge Constitution bench of the Supreme Court upholding the validity of Schedule X. However, the majority opinion in the 3-2 judgment holds that presiding officers of legislatures in exercising powers under Schedule X "act as tribunal adjudicating rights and obligations and their decisions in that capacity are amenable to judicial review". Reinforcing this is the majority view that statutory finality conferred by paragraph 6, sub-paragraph 1, does not abrogate 'judicial review' and that paragraph 6, sub-paragraph 2, provides protection to proceedings under the schedule "from mere irregularities of procedure" and not from alleged illegalities. 

An Epidemic of Defectors

The Tenth Schedule (or the anti-defection law) was introduced, as Alok Prasanna Kumar writes, to curb the so-called “aaya-ram-gaya-ram” practices of Indian legislators. Particularly in the 1960s, defection had reached “such epidemic proportions” that several state governments could not be considered stable, which came in the way of effective governance.  However, it was partially struck down by the Supreme Court in Kihoto Hollohan v Zachillhu and Others (1992). It was amended again in 2003 with the Constitution (Ninety-First Amendment) Act, 2003. Under this law, should an elected MLA choose to defect to another political party, they can no longer hold on to their seat in the assembly. However, recent developments in Telangana, Andhra Pradesh, and now Maharashtra, shows that newer ways of evading the law are being found. 

It [the evasion] comes from the simple refusal of speakers to perform their constitutional duties under the law by not taking a decision as to the disqualification of a member of legislative assembly (MLA) within reasonable time. This means that an MLA, who has otherwise violated the Tenth Schedule by “defecting” to another political party, will not suffer the legal consequence of disqualification for such “defection,” but instead will continue to enjoy her seat. This effectively renders the anti-defection law irrelevant, with terrible consequences for India’s constitutional democracy.

The Problem of Partisan Speakers

There are several loopholes in the Anti-Defection Act, and as Prashant Bhushan writes, there is no easy way to plug all of them. Writing in the context of the assembly elections in Uttar Pradesh in 1997, he argues that one of the primary problems with this ct, and the reason it does not function the way it should, is because the adjudicating power for defecting MLAs has been given to the speaker of the house, who will necessarily belong to a political party, and therefore, their judgment cannot be impartial. 

The sordid drama in UP assembly recently, in which all the MLAs from the Congress, the BSP or Independents who supported or joined the BJP have been rewarded with ministerial berths, has generated a fresh intense debate about the efficacy of the Anti-Defection Act and the need to amend it to stop such large-scale defections which have taken place despite the act. It is ironical that it is the Congress Party, now at the receiving end of such defections, which is making the maximum noise about it. It is this very Congress Party which has over the years taken advantage of large-scale defections and used partisan speakers to stall the disqualification of those legislatures who defected to join the Congress Party and who were liable to be disqualified even under the existing act. The Congress Party is now crying foul when the BJP, which has replaced the Congress Party as the single largest party, threatens to do what the Congress had been doing for so many years without any qualms of conscience. 

Plugging Loopholes

As recently as 2014, partisan speakers have been used by political parties to keep ministers on their berths illegally. Using the case of Talasani Srinivas Yadav, a Telugu Desam Party (TDP) MLA in Telangana, who served in the state cabinet without being re-elected, K Vijaya Bhaskara Reddy shows how there are several loopholes in the Anti-defection Act that are continuously exploited by political parties to hold on to power. 

The anti-defection law that was enacted by the 52nd constitutional amendment is indeed quite defective. The group defection opportunity provided by the third para of the Tenth Schedule was used by major political parties to wreak havoc for about 18 years. This opportunistic provision was removed through the introduction of the 91st constitutional amendment, which increased the required number of members to form a new group from one-third to two-thirds. Since then, the parties in power have started misusing the expansive powers of the speaker’s office in deciding matters of disqualification. 

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