An Analysis Report: How Does India’s Anti-Defection Law Work, its Shortcomings & Case Study

In India, there has been a long history of defections where Leaders of one political party defect to another by ditching the party through they got Name, Fame, Mandate & Identity, or, in many cases, the majority of the Elected Lawmakers defect from their party to another, shake up the power corridors and shock the people who elected them being a particular party candidate.

In the latest defection events, the Indians have witnessed the fall of the Maha Vikas Aghadi Government (Maharashtra’s ruling coalition of Shiv Sena – NCP – Congress) following the revolt by Shiv Sena Leader Eknath Shinde along with 40 Shiv Sena MLAs moved to BJP and formed the Government with BJP. And the most recent one, where Ajit Pawar led a rebellion against his party NCP led by Sharad Pawar by taking the Dy. CM oath with 8 other NCP MLAs as Ministers in the BJP – Eknath Shinde’s Shiv Sena-led Maharashtra Coalition Government. 

In recent history, India’s electoral politics has witnessed many defections across the States, leading to the fall of many State Governments. For instance: 

In 2016, the 2-year-old Congress government in India’s North-Eastern State of Arunachal Pradesh fell apart when Chief Minister Pema Khandu left the Congress party with a group of rebels and joined hands with the BJP.

Congress-JD(S) Government led by Kumaraswamy in 2018 was brought down by the BJP, attracting the defections of over 17 Congress MLAs. However, The Congress-JD(S) government itself was a patchwork of post-elections alliance to keep the BJP out of power, which had emerged as the single largest party with 104 winning MLAs in the 224 MLAs House in the 2018 Karnataka Assembly Elections.

In March 2020, 22 Congress Lawmakers loyal to erstwhile Congress Stalwart Leader Jyotiraditya Scindia resigned in Madhya Pradesh. They joined the BJP, which led to the fall of the Kamalnath-led Congress government in Madhya Pradesh within 13 months of coming into power. Later, 3 more MLAs resigned in 4 months. All 25 MLAs contested by-polls due to disqualifications, in which 18 managed to re-win their seats, and Shivraj Singh Chauhan became the Chief Minister of Madhya Pradesh for the 4th time. 

The Case Study of the Most Recent Defections – NCP’s Ajit Pawar Camp

Ajit Pawar, the nephew of Maharashtra’s Nationalist Congress Party (NCP) Chief Sharad Pawar, led a rebellion against his mentor and uncle – Sharad Pawar, which has shaken up the power corridors of the State’s and National Capital – Mumbai and New Delhi. It is a big jolt not only to Maha Vikas Aghadi – MVA (Grand Alliance of Maharashtra Opposition Parties) but also to the National Opposition, as NCP is one of the Key Opposition Parties at the Opposition Side on State and National Levels.

Ajit Pawar, with 8 NCP MLAs, revolted from NCP – Shiv Sena (UBT) – Congress – MVA Alliance in Maharashtra by joining the BJP – Eknath Shinde’s Shiv Sena-led Maharashtra Coalition Govt. Interestingly, after joining the BJP-Shiv Sena-led Shinde Government, Ajit Pawar claimed that his camp is the “real” NCP, similar to the incident that happened last year in Maharashtra Politics where Uddhav Thackeray’s Shiv Sena (SS) Leader Eknath Shinde turned rebel, along with 40 out of 55 SS Lawmakers switched their side to the BJP and formed the Government in Maharashtra and claimed that his camp was the real Shiv Sena which later got legitimized after ECI and Supreme Court verdict. 

Ajit Pawar, following the footprints of Eknath Shinde, rebels against his leader Sharad Pawar and now claims to be the real NCP and says he will get the Name and Symbol of the NCP and his faction of NCP as the “real NCP.” 

It looks like Ajit Pawar has done what Eknath Shinde did last year, but the case of Ajit Pawar is technically a little different than that of Eknath Shinde. Hence the road ahead for Ajit Pawar to enjoy the power like Eknath Shinde seems not going to be a cakewalk. 

The Sharad Pawar-led NCP camp has filed a disqualification petition against the 9 rebel MLAs to the Maharashtra Assembly Speaker as the matter of disqualification is under the jurisdiction of the Speaker or ECI as per the Law. Hence, yet to be decided. The NCP also expelled 2 NCP MPs and Other leaders who revolted with Ajit Pawar. 

The Anti-Defection Law under the 10th Schedule of the Constitution punishes MPs/ MLAs by disqualifying them for defecting from their party generally in 2 ways: 

– When a member elected on the ticket of any political party “voluntarily gives up,” membership of a party would be deemed disqualified.

Or 

– Votes in the House against the wishes of their party or Associate with the rival party in any way or go against the party lines. Such persons also lose their membership will also be deemed disqualified.

This way, as per the above section of the Law, the Ajit Pawar camp clearly stands disqualified as they have gone against the party line, and the Speaker should announce the lawmakers disqualified, which would eventually open the door for elections on the respective seats. 

But, a caveat in the Anti-Defection law does not let it apply and disqualify the Defectors if the number of MLAs who leave a political party constitutes 2/3 of the party’s strength in the legislature. These Lawmakers can merge with another party or become a separate group in the legislature. 

As per the last meeting organized by both factions, 32 out of a Total of 53 NCP MLAs were present at the party meeting convened by Ajit Pawar, while the Sharad Pawar camp meeting had only 15 legislators present while rest 6 are yet to decide which camp to join in. 

Besides, Ajit Pawar has claimed that he has the backing of 40 out of 53 MLAs, and if it turns out to be true in front of the Speaker or ECI depends on who hears the case first requested by both factions. Then, the Ajit Pawar camp will succeed in avoiding the disqualification proceedings and would be deemed the “real NCP,” and the Senior Pawar has to rebuild his leftover party. And, in case Sharad Pawar manages to retain more than 1/3 of the Total MLAs, at least around 19-20 MLAs in its camp, it would reduce Ajit Pawar’s camp to less than 2/3 of the Lawmaker’s strengths, which would push the Speaker or ECI to disqualify the Ajit Pawar camp, and would backfire Jr. Pawar his decision. 

The Caveat, Which Promotes Defections on Big Scale

A caveat in the Anti-Defection law gives an easy way for the defectors to escape the disqualifications and to enjoy power by eradicating the sanctity of the Constitution and Playing with the Mandate of the People for their immediate personal gains. The Caveat says that if the number of MLAs who leave a political party constitutes 2/3 of the party’s strength in the legislature. These Lawmakers can merge with another party or become a separate group in the legislature. 

It helps parties to detach from the Original party and announce themselves as the real party. Still, if analyzed in a way, it urges defections on Big Numbers to avoid disqualifications and facing the elections. In a Democracy, all powers and decisions should be taken by the People of the Republic, and that’s the True Spirit of Democracy. The ECI or the Supreme Court must revisit this clause as the Government would not want to do it (irrespective of any party, the BJP only not to be blamed) as Similar Incidents also took place in favor of the Congress Government during Congress rule from 2004 to 2014 as it is a common pattern seen in Indian Politics where the Centre’s Ruling party attracts defections. It helps the ruling party win state elections during its rule; this is why none of the ruling parties has strengthened the Anti-Defection law until now. 

The Main Issue – Speaker’s Discretion:

There are many situations where the Speaker of the assembly keeps the proceedings prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against the defectors. 

The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with.

In Manipur, for instance, seven Congress MLAs joined the BJP shortly after the 2017 Assembly election, and one of them became a Minister too. Still, the Speaker did not act on petitions to disqualify the Defector MLA turned Minister for over 2 years.

In 2017, the YSR Congress Party, which was in opposition, boycotted the Andhra Pradesh assembly since the Speaker was not taking a call on its disqualification plea against YSR Congress 21 MLAs who had defected to the then-ruling Chandrababu Naidu led Telugu Desam Party (TDP) Government in AP.

One recent case is of Mukul Roy, who left the BJP to rejoin the Trinamool Congress in June 2021. Since then, the BJP has been trying to get Mukul Roy disqualified from the West Bengal assembly. The BJP approached the Calcutta High Court and the Supreme Court also, but the Speaker did not take a call for almost a year, and later, Speaker Biman Banerjee rejected the plea to disqualify Mr. Roy.

It is because the Speakers are from the ruling parties to which the defectors usually join, and it widens the backing of the ruling parties. And this is mainly the case in all defections as the act of the ruling party’s Speaker is more like a party man rather than a neutral authority being in the position of the Speaker. 

Another Main Issue lies with Article 164(1B):

It stipulates that a member of the legislative assembly who is disqualified from being a member of the House shall also be disqualified from being a minister from the date of his disqualification, which is legitimate. Still, the shortcoming is that Law allows a legislator who is disqualified on account of defection to re-contest elections even during the same legislative term of the ongoing assembly. Then such a disqualification has no real effect. It is a provision that surpasses all canons of morality.