India’s anti-defection law: Four decades of failure

Two states going to polls are integral to the story of the anti-defection law―Haryana and Maharashtra. While Haryana provides the historical backdrop for the enactment of the law, the large-scale defections and change of regime in Maharashtra that took place more recently is the peg on which the demand for an amendment in the law rests.

The Haryana politician Gaya Lal is legendary. His astounding political somersaults after the first assembly elections in the state in 1967 earned him notoriety that has long survived him. The Congress had won the election with a slim majority, getting 48 out of 81 seats, and the government had fallen less than a week after it was formed. Amid the political chaos, Lal, who was an independent legislator and in great demand, changed parties four times in one day―from the Congress to the Janata Party, back to the Congress, again to the Janata Party and then once again back to the Congress! Two weeks later, he had joined the rival United Front. In the intervening period, he had also joined the Arya Sabha and the Bharatiya Lok Dal.

At one juncture, when he was back in the Congress after having switched to the Janata Party, a party leader declared his return at a news conference, saying, “Gaya Lal is now Aya Lal!” Thus was born the phrase ‘Aya Ram, Gaya Ram’, which has often been used to describe the tendency of Indian politicians to switch parties frequently. Incidentally, Gaya Lal’s son Udai Bhan is the current president of the Haryana Congress and will be contesting from Hodal, which was earlier represented by Lal. He maintains his father never betrayed anyone, and that he was given a raw deal by the parties.

The year 1967 is regarded as a time when political instability hit several states and the era of defections and horse-trading began. Coalition governments were formed and as many as 32 governments collapsed one after the other because of legislators changing their allegiances. That same year, the first structured discussion on the need for a law to curb defections began, with P. Venkatasubbaiah, a Lok Sabha MP belonging to the Congress, moving a resolution seeking the appointment of a committee to recommend ways to deal with the problem of defections.

Congress ‘misleaders’: Candidates in Goa take an anti-defection oath in Rahul Gandhi’s presence ahead of the 2022 assembly elections. Later in the year, eight of the 11 Congress MLAs joined the BJP | Vishnu V. Nair

After some unsuccessful attempts to enact a legislation, in early 1985, emboldened by its colossal majority in the Lok Sabha, the Rajiv Gandhi government succeeded in passing in Parliament the Constitution (52nd Amendment) Bill, or the anti-defection legislation. With the enactment of the law, the Tenth Schedule was inserted into the Constitution that contained provisions regarding disqualification of an MP or an MLA on grounds of defection. Political opponents had derisively called the legislation a save-the-Congress endeavour as the ruling party had suffered from desertions on multiple occasions since 1967.

The Congress now wants it to be amended. In fact, in its manifesto for the Lok Sabha elections this year, it wanted an MLA or an MP leaving the party he or she got elected from to be a ground for automatic disqualification. In recent years, the Congress has lost governments in many states because of its legislators crossing over to the rival camp en masse.

It was indeed ironic that the Congress’s legal eagle Abhishek Manu Singhvi, who has been a lawyer in almost all the court cases that have to do with defections, should become a victim of defections himself. In early 2024, Singhvi was the party candidate to the Rajya Sabha from Himachal Pradesh, a state the Congress rules and where the numbers were heavily tilted in his favour. However, some Congress MLAs switched allegiance right before the election, and Singhvi, after three consecutive terms in the upper house, found himself out of it.

A shocked Singhvi had then said, “They have taught us a lot because they supped with us till 11pm last night and three of them had breakfast with us.” He was subsequently elected to the Rajya Sabha from Congress-ruled Telangana.

Statistics reveal that more defections have taken place after the anti-defection law was enacted. It is widely accepted that the law has allowed wholesale defections, and thus toppling of governments.

The developments in Maharashtra since 2022 become important here. While they have a huge bearing on the political dynamics in the state and will have an impact on how the state votes in the coming assembly elections, they also bring into sharp focus the problems in the implementation of the law. From the exception provided to two-thirds of the legislators crossing the floor to the role of the speaker to questions about the decision taken by the Election Commission in granting symbols and party names to the Eknath Shinde and Ajit Pawar factions, the big defection rush in Maharashtra gave rise to several pertinent questions about the law.

THE WEEK takes an in-depth look at the working of the anti-defection law four decades after it came into being.