The prolonged political crisis in Karnataka has demonstrated the ways in which nearly 35-year-old anti-defection law can be used and abused. There is further need to improve it, by debating and amending the existing law to make it foolproof to prevent Karnataka type of situation. The Karnataka developments manifested the tortuous working of India’s anti-defection law—and threw up a range of associated legal and constitutional questions.
Even though the seeds of anti-defection law were sown after the general election in 1962, the law was enacted in 1985 after the Congress under Rajiv Gandhi got biggest-ever majority in Lok Sabha. The fear then in the ruling dispensation was that the vested interests would soon engineer defection in the massive majority and destabilize Rajiv Gandhi government.
The Bill to amend the Constitution was introduced by the then Law Minister, Ashoke Sen. The statement of the 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 penalized 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 state Assemblies.
Two, it protected legislators from disqualification in cases where there was split (with 1/3rd of members splitting) or merger (with 2/3rd of members merging) of a legislature party with another party.
Three, it made presiding officers of concerned legislature the sole arbiter of defection proceedings.
During the debate in Parliament, Opposition MPs argued that the Bill would curtail freedom of speech and expression of legislators. MPs like socialist leader Madhu Dandavate expressed concern over the impact the amendment could have on 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 in the Rajya Sabha the following day.
No sooner was the law put in place than political parties started to stress-test its boundaries. The issue of what constitutes a split in a political party rocked both VP Singh and the Chandra Shekhar governments. The role of presiding officers also became increasingly politicized. LokSabha Speaker ShivrajPatil said in 1992: “The Speaker is not expected to dabble in keeping the political parties weak or strong or discipline the parliamentarians for the party purposes.”
The intervention of higher judiciary was sought to decide questions, such as what kinds of conduct outside the legislature should fall in the category of defection, and what was the extent of the Speaker’s powers 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 review.
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 Behari 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 division in the party, as a result of which the evil of defection has not been checked in the right earnest. Further, it also observed that the lure of office of profit plays dominant part in political horse-trading resulting in a 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 recommendations. 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 ministry until their re-election. However, as events in the years and decades since have demonstrated, these amendments have had only limited impact.
The removal of 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 position of parliamentary secretaries in states. The Speakers started taking active interest in political matters, helping built or break governments. The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings or delayed acting on them for years on end.
The long drawn-out events in Karnataka Assembly have shown that even after three decades, anti-defection law has not been able to stop political defections.
As stated, the seeds of anti-defection law were sown after the general election in 1962. The results of those elections were a mixed bag for the Congress. It formed the government at the Centre but its strength in the Lok Sabha fell from 361 to 283. During the year it lost control of seven state governments as MLAs shifted political allegiance.
In this backdrop, P. Venkatsubbiah, a Congress MP in the Lok Sabha who served in the cabinet of both Indira Gandhi and Rajiv Gandhi proposed setting up of a high-level committee to make recommendations to tackle the “problem of legislators changing their allegiance from one party to another”. (IPA Service)
