Has the anti-defection law failed?

The political scenario in Maharashtra, where several ruling party legislators revolted against the Chief Minister, has brought back the focus on the Anti-defection law.

The Tenth Schedule of the Constitution, commonly known as the anti-defection law, was introduced in 1985 with a view to curb the tendency among legislators to switch loyalties from one party to another and facilitate the toppling of regimes and formation of new ones.
It provides for the Presiding Officer of the legislature to disqualify any defector on a petition by another member.
The law contemplates two kinds of defection:
- by a member voluntarily giving up membership of the party on whose symbol he got elected
- by a member violating a direction (whip) issued by his party to vote in a particular way or to abstain from voting.
While voting contrary to the party’s whip is quite a straightforward instance of defection, the other mode of defection has proved to be a source of dispute and litigation. A member ‘voluntarily giving up membership’ does not refer to a simple resignation letter and formally joining another party. It is often an inference drawn by the party that loses a member to another based on the legislator’s conduct.
The Supreme Court has also ruled that ‘voluntarily giving up membership’ can be inferred from the conduct of a person.

Under Paragraph 4 of the Tenth Schedule, disqualification on account of defection will not apply in case of a merger of one party with another. However, there is a rider.
There is a deemed merger only if two-thirds of the party’s total strength agrees to the merger.
Originally, the 10th Schedule had spoken of a ‘split’ in a legislature party as an exception to the disqualification rule. That is if one-thirds of a legislature party leaves it or joins another party, it amounts to a ‘split’ and such members would not attract disqualification.
This proved to be an escape clause for legislators to form a group that amounted to one-third of the legislature party’s total strength and then cross over. Paragraph 3, which allowed the use of a split to avoid disqualification for defection, was deleted by the Constitution (91st Amendment) Act, 2003.

What was introduced as a panacea for the menace of floor-crossing and toppling of elected regimes by engineering defections has proved largely ineffective in many cases. Recent instances give an idea of the various ploys adopted by parties, legislators and Speakers to either evade the law against defection or to achieve partisan political ends.
The most common these days is for a ruling party with a big majority to poach the main Opposition parties without any regard for the anti-defection law. When the aggrieved party moves for disqualification, Speakers choose not to act, thus formalising the defection.
In 2019, one saw the spectacle of some members submitting resignation letters to escape disqualification proceedings, while the Speaker questioned the voluntariness and motive behind the resignations.
The Supreme Court ultimately ruled that the Speaker has the authority to verify if a resignation is voluntary and genuine, but it is constitutionally impermissible for the Speaker to take into account extraneous factors while considering the resignation. In other words, once it is clear that a member is resigning out of free will, the Speaker is bound to accept it.

As defections continue unabated and Speakers refrain from acting on these developments based on their political loyalties, there is a strong case to reform the anti-defection law.
Redefining the merger clause, shifting the adjudicatory power from the Speaker to some other credible authority and even dispensing wholly with the law are measures that jurists have suggested.
Some believe that the anti-defection law should be scrapped as it enslaves members to their party line, prevents them from representing their constituents and the people, and violates their freedom of expression.

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