Maha Bharat: Episode 21

What is the Anti-Defection law and why does it exist?

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It’s hard picking your elected representative, someone whose record and ideology you like and buy into. But how would you feel if once you’ve chosen them, cast your vote, and elected them to power, they just simply join a completely different party? This used to happen quite a lot in Indian politics. So much, that it required us to put in place an “anti-defection law”. But what is it actually? and what does trading horses have to do with politics?

Show Notes

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Links to clips used in this episode —

Full Transcript of Episode 21 –

[We hear a news clip about the disqualification of Sachin Pilot from the Rajasthan Assembly.]

In July, great political drama unfolded in the Rajasthan High Court. First, Sachin Pilot, a congress MLA did not attend an important Assembly meeting. He was supported by 18 other MLAs.

The Congress party asked for these MLAs to be disqualified from the assembly — the Rajasthan Speaker C.P. Joshi sent a disqualification notice to these MLAs. Once that happened, Sachin Pilot went to the Rajasthan High Court, to fight against this notice. 

But wait — can an MLA or MP be disqualified for simply not attending a meeting? 

Yes. 

This is possible under the Tenth Schedule of the Constitution, which is also called the Anti-Defection Law. In fact, it is a part of this law that Sachin Pilot has contested in the court. 

What the Anti-Defection Law is, what it means for political parties and why it is being contested in the court — these are some of the things we’ll find out today. 

Doston, during the elections — be it the legislative assembly or Lok Sabha elections — we vote for a candidate of our choice. And this candidate is usually a member of a political party that we support. But the important thing here is, you know when you cast your vote and selected the candidate, which party they belonged to, and what their ideology is.

Now, what if I tell you, that after winning a seat, something like this happens:

[We hear a news report about 10 MLAs defecting in the Goa State Assembly]

If a candidate leaves their party, and joins another political party, then what’s the point of voting for them, right?

The Anti-Defection Law or the Dal-Badal Virodhi Kanoon (दल्-बदल विरोधी कानून्) seeks to prevent this very situation. 

The Anti-Defection Law was added into the Constitution as the Tenth Schedule in 1985. According to this law, any legislator in the Legislative Assembly or Parliament can be disqualified for defecting from his or her political party. This decision of disqualification is taken by the speaker of the assembly. 

Defecting matlab? You could think of defection as ‘betraying’ your party! In Hindi, this is called dal-badalna(दल्-बदलना). 

According to the Anti-Defection law there are 2 definitions for this –

Pehla, is when a legislator voluntarily gives up his membership of the party. Aur doosra, is when a legislator abstains from voting yaani does not vote or votes against their political party’s direction in the assembly. 

However, it’s important to know that disqualification of a member can be avoided if the party leader approves of the resignation or the absence of the vote. 

Let’s try to understand this law a little better with Sachin Pilot’s example. 

Sachin Pilot is an MLA of the Congress Party. When Chief Minister Ashok Gehlot called an important meeting for the Congress members of the Rajasthan Legislative Assembly, Sachin Pilot and 18 other MLAs supporting him chose not to attend. 

The Speaker of the Assembly disqualified these members under the Anti-Defection Law.

Not attending a meeting does not mean that the MLAs voluntarily resigned from the Congress.

However, over the years, the Supreme Court has mentioned how the term “voluntary resignation” in the Tenth Schedule can be understood. It has said that even if a member of a political party does not formally resign from their position, their behaviour can be interpreted as resignation. 

For instance: if a member of the party expresses public opposition to his party’s beliefs or aligns with the beliefs of an opposing party, then it counts as a resignation. 

In 2017, two MPs of the Rajya Sabha were disqualified:

[We hear about the defection of two MPs]

Anti-party activities — what does mean? Sharad Yadav had publicly expressed support with the Rashtriya Janata Dal. He also issued press statements against JD(U). This proved that he had voluntarily given up his membership. 

In the case of Sachin Pilot, his absence from the party meeting was a sign of his disagreement with the Congress Party. The congress party filed a petition with the Rajasthan Assembly Speaker, saying that this means that Sachin Pilot and the other 18 MLAs have given up their membership — so, under the Anti-Defection Law, they should be disqualified from the assembly.

I’ve been talking about disqualification so far — let’s look at what this means, exactly. 

When a member has defected from their party, they are not disqualified immediately. The party files a petition against them with the speaker of the house. The speaker looks at this petition and decides whether to disqualify the member or not. 

If an MLA or MP who has been disqualified held a political post as a minister, they will have to give it up. They cannot hold any political post until the end of their term. However, they can still remain a member of the political party. They can also run for by-elections.

Also, if the legislators can contest their disqualification in the high court or even the supreme court — the court has the right to review the Speaker’s decision. 

In fact, in 2019, the Supreme Court declared that MLAs who had been disqualified from the Karnataka Legislative Assembly can run for bypoll elections. Matlab, elections for the vacant seats of the legislative assembly. But just so you know, the Speaker of the house cannot be disqualified. 

There’s another obvious question here: if a party member is disqualified for joining another party, then how are mergers formed? 

The provision for this is also a part of the Anti-Defection Law. 

The law says that If more than 2/3rd members of a political party choose to resign and join another party, then they will not be disqualified — this would not be counted as a defection, because a majority of the party has agreed to take this decision. 

Originally, the law also allowed 1/3rd members of a party to resign and merge with another party, calling this a “split”. But in an amendment made to the Tenth Schedule in 2003, this provision was removed, since many politicians were using this clause to defect from their parties. 

Yeh ho gayi parties ki baat, but remember — it’s not just members of political parties that are a part of houses. Individual MLAs or MPs are also elected — so what are the rules for them? The Anti-Defection Law states that these MLAs or MPs can join any party of their wish after being elected — but only within six months. If they join a party after six months, then they can be disqualified under the Law. 

Doston, there is some interesting jargon / phrases (say this in english itself please) used in politics yaani, राजनीति में इस्तेमाल होने वाले कुछ दिलचस्प शब्दजाल हैं |

Did you know that when an MP or an MLA changes political parties, it’s called “crossing the floor”? Similarly, when the ruling party in a Legislative Assembly is asked to prove majority by voting, this is called a floor test. Interestingly, offering politicians bribes in the form of money or political positions so that they would switch parties is also called horse-trading!

Crossing the floor or horse-trading isn’t just an expression. Indian politics has a dramatic history of politicians crossing the floor! And this has especially been evident in State Assemblies, over the years. 

But the question is — why is this practice so common? To understand this, let’s spend a few minutes on how state and central governments are formed — and how defection can change the whole equation!

The Lok Sabha has 545 seats. We vote for members of the Lok Sabha every five years, in the General Elections. After the elections, the speaker asks the members of the assembly to show their support for a particular government — the party which wins the support of the majority of the seats forms the government!

In the case of Lok Sabha, this number is 272. Now, what if there is no majority? In this case, often, different parties come together and form a coalition government — and together, they form the majority in the Lok Sabha. A similar process is followed in the Rajya Sabha and State Assemblies, too. 

But, let’s say a government wins 265 seats in the Lok Sabha. While this is not the majority, it’s close enough! It is in cases like this, that in the past, members have defected their parties and joined a powerful party. Let’s say 7 members of another political party join this one — then it can form a majority. Similarly, if a party has already formed a majority and then members leave it to join another party, the ruling government can collapse.

I know this must sound strange — but what if I tell you, that once, an MLA (vidhayak) changed his political party three times in one fortnight?

I’m talking about Gaya Lal, a member of the Haryana Legislative Assembly . You must have heard of the popular saying “Aaya Ram, Gaya Ram”, in politics. This expression originated when Gaya Lal changed political parties twice in one day, and once again a few days later! 

This wasn’t the only “Aaya Ram Gaya Raam” event in 1967. In fact, let me tell you — in 1967, out of the 3500 legislators elected in the State Assembly Elections, 550 members defected from their respective parties! Some politicians crossed the floor two or three times, changing parties frequently. During this period, 17 governments collapsed in various states. This was because legislators changed their political parties, and as you can imagine, the majority in the assembly kept changing. 

This continued for many more years. This period of ‘Defection politics’ in the Indian government was no less dramatic than a bollywood film. 

Let me give you some background. 

In the 1970s, the Congress Party was so strong that when it came to power at the centre or the state, members of the opposition parties rushed to join in such large numbers that no opposition remained. In states where Congress did not come to power, members of other political parties joined Congress after elections and enabled it to form the government.

In 1977, the Janata Dal, led by Prime Minister Morarji Desai, was removed from power, even after it won a 2/3rd majority in the Lok Sabha. Why? 79 Parliamentarians defected from the party. This led to instability at the centre for two years, until Congress was elected to power.

So, you understand how common and powerful defection in politics was.

The kind of defection politics in the 1967 elections really caused a stir (halchal macha diya). The Congress government at the centre took notice of this. In 1969, a committee was set up under the Home Minister Y.B. Chavan to look into this. This committee actually revealed that the offer of ministry positions was common in defections. So, the committee suggested that any legislator who defected from a party should not be given any ministerial position. 

Attempts to make a law based on this report were made in 1973 and 1978 — but it wasn’t successful. 

In 1984, Rajiv Gandhi came to power. This is when the congress party introduced the Tenth Schedule in the Constitution as an amendment bill in the Parliament. This was called the Anti-Defection Law.

This bill was approved by the President in February in 1985, and came into effect the next month. 

In fact, passing the Anti-Defection Law was Rajiv Gandhi’s first action as the new Prime Minister of India! 

The Anti-Defection Law was passed more than 30 years ago, so why are we talking about it today? That’s because despite this law being in place, defection in politics has continued. 

You might remember the political crisis in the Karnataka government last year. 

[We hear a news report about the defection in the Karnataka Assembly]

Haan doston — in July 2019, 17 MLAs from Congress and JDS resigned from the Karnataka Legislative Assembly. 

Under the Anti-Defection Law, these MLAs were disqualified by the Speaker of the Assembly. After this case went to the supreme court, it upheld this disqualification — however, like I told you, these MLAs will be allowed to contest elections in the bypolls. 

The interesting fact is, that this is not the first time that the Karnataka Assembly has seen this dramatic floor crossing. During the Karnataka Elections in 2008, BJP was only 3 seats short of forming the government under BS Yediyurappa (बी यस येडियूरप्पा). At this point, 3 members of the congress and 4 members of the JDS resigned. 

It is said that former Minister G. Janardhan Reddy (जी जनार्धन रेड्डी) convinced these ministers to change their parties — and how, you can imagine for yourself. In defection politics, money, and a position in the ministry is often offered to legislators so that they switch parties. 

The MLAs contested the bypoll elections with a BJP ticket, and 5 of them won. This was enough for BJP to form a majority in the Karnataka Assembly.

In fact, people have given this event a name — and since then, used this name for more such defections. You may have heard it on the news:

[We hear a few news reports mention “Operation Kamala”]

“Operation Kamala” (कमला मतलब lotus या कमल) — this term has been used whenever legislators have defected from their political party and joined BJP. In fact, the political crisis in Karnataka last year came to be called Operation Kamala 2.0.

In Goa too, defection politics has shaken the congress. 

[We hear a news report about the defection in Goa Assembly] 

In 2017, when the Congress came to power, it had a clear majority with 17 seats. Now, after several members switched to BJP, only 5 MLAs remained. 

And perhaps, the most dramatic of defection politics and collapsing of governments happened in Madhya Pradesh, only a few months ago. 

In March, Jyotiraditya Scindia, a congress MLA in Madhya Pradesh, resigned from the party, which has a majority in the assembly. But — not just him. Along with Scindia, 22 other MLAs resigned from congress. In a matter of about 10 days, all of these MLAs joined BJP. The previous Chief Minister, Kamal Nath resigned and Shivraj Singh Chouhan was sworn in as the new Chief Minister of BJP-led Madhya Pradesh government. 

In 10 days, the government of a state completely changed!

I know what you’re wondering — why weren’t these MLAs disqualified under the Anti-Defection Law?

The fact is that in such cases, politicians find loopholes in the Anti-Defection Law.

In the case of the Karnataka political crisis, the rebel MLAs were disqualified, like we discussed. However, they will be allowed to stand in elections again. Many people have questioned the purpose of this law, if the legislators are allowed to stand in elections again with a different ticket. 

In the case of Goa, the 10 MLAs who defected from congress claimed that they “merged” with BJP, since more than 2/3rd of the party resigned. As we know, the Anti-Defection Law allows this — but the Congress Party still filed a petition against the 10 MLAs. In fact, more than a year later, the Supreme Court is still waiting to hear from the Goa Assembly Speaker Rajesh Patnekar about the petition. But meanwhile, the BJP has formed the government in Goa. 

Because of these very political crises, the Anti-Defection Law has often been called weak. The purpose of the law was to prevent large-scale (bade paimane par) defection, but this is exactly what is happening. 

One of the most criticized loopholes that you can find in the Anti-Defection Law is pointed out by Satya Prakash, the Legal Editor of the Tribune: 

[We hear the voice of Advocate Satya Prakash speak on the Anti-Defection Law]

What Advocate Prakash means to say is that the power in the hands of the speaker is often misused. The decision to disqualify a member lies in the hands of the Speaker of the Assembly. You and I both know that the Speaker also belongs to a political party — and so, their decision is likely to be biased. In many cases, the speaker delays their decision for a long time. 

The other loophole can be found when legislators “resign” from their posts, without crossing the floor immediately. The argument here is that they are not defecting from their party, they are simply resigning, because they are unhappy with the party. The speakers allow this. The same MLAs then contest by-elections with another party ticket. Many experts agree that this is nothing less than defection.

Politicians have found loopholes in this law and continued to defect from their parties. The weakness of this law is a really important criticism — but it is not the only one. 

Doston, do you remember the second clause that defines defection in the law? Whenever the house has to vote on a matter, the party issues an official order with the vote it supports, and all the members must follow this order. This is called the “party whip”. If a party member votes against the “party whip”, they can be disqualified. 

The criticism against the Anti-Defection law has to do with this clause. Under the law, members are forced to follow the party’s ideology at all points, even if they personally disagree with a motion. Many people believe that encourages a one-dimensional government. No change is possible, because there is no space for individual opinion in a party. This also hinders the freedom of speech that is granted to every citizen by the constitution. 

Critics believe that an MLA or MP should have the power to vote in line with their belief. And this makes sense, if you think about it. In the UK, when the Parliament had to vote on Brexit, Prime Minister Boris Johnson supported the motion. However, as many as 38 MPs of his own conservative government voted against Brexit. Their individual votes made a difference. In India, the Anti-Defection law would not allow this. 

The matter of freedom of speech has come up repeatedly, when we talk about Anti-Defection Law. Like I told you, Sachin Pilot has contested the disqualification notice against him and the other rebel MLAs. Senior Advocate Harish Salve, who represents Pilot, stated the following reason:

[We hear a news report mention the question of “freedom of speech” raised by Harish Salve.]

We are still waiting to hear what the Supreme Court has to say about this.

There is no doubt that the Anti-Defection Law came into place to put an end to a dangerous practice. But, over the years, it has not achieved the kind of success that it aimed for, and this is evident in the examples we discussed today. 

Reforms to the Anti-Defection Law are necessary — and this is not my opinion alone. In 1999, the Law Commission suggested that party whips should be issued only if the government is in danger. It also mentioned that mergers and splits should be removed from the law completely. In 2010, an Election Commission report recommended that the disqualification of defectors should be decided by the president or the governor, instead of the speaker. 

Other experts have also suggested that defectors should not be allowed to run for by-elections or given positions in the Council of Ministers. 

We are still in the middle of India’s defection politics! We will have to wait and see if the defectors of Goa’s assembly are disqualified — or if the operation Kamala is executed in other states. Until then, I hope we were able to dig deeper into India’s political situation, and understand where the Anti-Defection Law stands in it. 

I’ll be back next week with a new episode of Maha Bharat!

Credits

Narrated by – Dhruv Rathee
Producer – Gaurav Vaz
Written by – Gaurav Vaz and Anushka Mukherjee
Title Track Design – Abhijith Nath
Audio Prouduction – Madhav Ayachit