SC Order Emasculates Anti-Defection Law; Anyway, Its Time Was Up

The Anti-Defection Act, which is the Tenth Schedule to the Constitution, came about as a result of former Prime Minister Rajiv Gandhi’s efforts to revamp politics. He had taken over against a backdrop where the Aya Rams-Gaya Rams of YB Chavan’s memorable phrase had transformed into wholesale defections of the Bhajan Lal era.

The legislature party of the Janata Party, which was ruling at the Centre, had selected Bhajan Lal to replace Devi Lal as Chief Minister. When in 1980, Indira Gandhi returned to power at the Centre, Bhajan Lal migrated to the Congress party with the entire Janata legislature party. So, what was the Janata Party previously, now became the Congress legislature party.

The Rajiv Gandhi government believed that this kind of defection for power was antithetical to democracy. Therefore, they came out with the Anti-Defection Act, which did not allow individual legislators to migrate parties. The law required that at least one-third of the members of the legislature party should split and find another party. Hence, individual defectors would be disqualified. Also, it would be the Speaker of the House who would decide on questions of disqualification.

What the Act did was to outlaw retail defections while legitimising wholesale defections—so long as the Speaker of the House agreed. The Speaker became a very powerful person. In the smaller state Assemblies in particular, you had to get the Speaker on your side if you wanted to change the composition of the government. This made the Speaker so powerful that in the1990s in Goa, the then Speaker Luis Proto Barbosa, during a defection crisis, actually resigned as Speaker and then became the Chief Minister himself.

There were also instances of innovations by Speakers. The Speaker of the Uttar Pradesh legislative Assembly, when faced with defectors from the Bahujan Samaj Party who did not constitute one-third of the legislature party, proposed one such innovation. The senior advocate-turned politician-turned Speaker, Keshari Nath Tripathi (now Governor, Bihar) propounded the theory of a ‘continuing split’. The theory was that a split may start with only some legislators but, by and by, it would reach the required one-third mark.

So, Speakers started coming up with all kinds of refinements in order to circumvent the intent of the anti-defection legislation and these questions kept arriving before the courts, which ruled upon them based on the fact situations of each particular case.

To overcome these innovations, the anti-defection law was tightened to require a two-thirds majority. But the so-called ‘Operation Kamala’ subverted even that requirement, as happened in Karnataka in 2008. The BJP had emerged as the single-largest party, just short of a majority in the state. It secured a majority, not by getting people over to its side but making them resign. Those resigning legislators, elected on the tickets of the Congress or the Janata Dal (Secular), effectively brought down the strength of the House. Therefore, the BJP, whose numbers remained constant, moved ahead of the other parties in numeric strength and obtained a majority. Later, the Members of Legislative Assembly (MLAs) were re-elected on BJP tickets. This is another instance of how retail defections got legitimacy.

The question really is whether the Anti-Defection Act serves any purpose. It was subverted to allow retail resignations that amount to defections; but more seriously, the Act has politicised the role of the Speaker. The Speaker was supposed to be an independent, non-partisan elder whom everybody respected and who ran the House. But now the Speaker has effectively become a tribunal—one which leans toward and stabilises the ruling party or leans against and helps acts of defection.

Another problem is that the anti-defection law, as it stands, has led to possible conflicts between the legislature and the judiciary. Every decision of the Speaker sometimes ends up being challenged before the courts and then the courts start innovating. There is an instance, again from Uttar Pradesh, where the Supreme Court ordered what it called a ‘composite floor test’ in the Jagdambika Pal case. In that instance, two people had claimed to be chief ministers and the House then voted as to who the real one was. This was unprecedented in a parliamentary democracy.

The recent order in Karnataka, where the Supreme Court said that MLAs cannot be compelled to attend the Assembly, effectively put the question of disqualification on hold. That interim order has faced severe criticism from within the House itself. Courts and legislatures operate in separate, defined spheres and do not impinge on each other’s workings. The Anti-defection Act breaks down this wall of separation and makes both institutions permeable. To my mind, that is another reason why the anti-defection law has outlived its utility.

The most important reason is that it has killed dissent within legislature parties and subordinated individual thinking to the collective whole. Previously, an MLA or Member of Parliament who did not like a particular law could speak against it in Parliament and put his dissent on the record. Now, however, there is no such scope. People take the view that if they are going to be bound by a parliamentary whip and their party decides one way, then there is no point in speaking against it. This is why important legislation now tends to be passed without discussion. Consider one of the most significant Constitutional changes in recent times, where the economically weaker sections from the general category got 10% of the reservation quota. Parliament pushed this decision through within a day, with no significant discussion whatsoever on the social consequences it would have.

The Supreme Court order that a legislator cannot even be compelled to attend the Assembly effectively emasculates the Anti-defection Act. In fact, the Act is predicated on the Legislative Party having an enforceable whip. Once the whip is issued, the legislature party is bound to obey it on pain of being disqualified from his office as legislator. No doubt this was an interim order but it will also become a law that is binding upon the High Courts in India. I foresee a time when various High Courts, when addressing defections in future, will cite this order.

Effectively, this ruling has drawn the judiciary into a larger role in any political crisis in any part of the country. This is why the Speaker and the MLAs in Karnataka have expressed their concern about the order. There is a move also to ask the Supreme Court to review it. It is not possible to foresee what the Supreme Court will do, but the normal rule is that Supreme Court orders are not debated upon on the floor of the House—nor is the working of any House commented on by the Court. This wall that separates the working of the Legislature and the Court should be respected. If it becomes thin or permeable, unfortunate consequences can follow.

Therefore, when the Anti-defection Act has failed to prevent defections, it has stifled dissent, it has eliminated thinking and it sometimes brings the judiciary and the legislature into conflict with each other.

The objective of curbing the vice of paid defections can be achieved in a much better manner if we scrap this Act altogether and go back to the drawing board. We could possibly have a new legislation which requires that any member elected on a party’s ticket, if he wants to resign, should not be eligible for re-election for a fixed period thereafter. He or she should also not be eligible for any ministerial office or any office that is equivalent to a ministerial one.

One must keep the elected legislator away from the fruits of his defection and protect the institutions of parliamentary democracy, which rely on individual dissent and intra-party democracy.

Sanjay Hegde is Senior Advocate of the Supreme Court of India.