THE 2022 POLITICAL crisis in Maharashtra saw 34 petitions under the anti-defection law filed by members of either faction seeking disqualification of more than 50 MLAs. Rather anticlimactically, no MLA was disqualified by Speaker Rahul Narwekar, who delivered a similar verdict in the NCP split in 2023.
Such occurrences have repeatedly exposed the inability of India’s anti-defection law to curb bulk defections. The law has infamously magnified the problem it was meant to solve, while defecting legislators escape disqualification. How did the law lose the plot so miserably?
The Tenth Schedule is poorly drafted and vulnerable to multiple interpretations. Sample Paragraph 4, which exempts legislators from disqualification if they cross the floor in a group to merge with an existing political party. So, while individual defections get punished, bulk defections can pass muster!
Paragraph 4 has two sub-paragraphs, which may be read either conjunctively or disjunctively. In a conjunctive reading, a merger is valid only when a political party merges with another political party and at least two-thirds of the members of the legislature party agree to this merger. In a disjunctive reading, a valid merger needs only two-thirds of the legislature party to agree to merge with another legislature party. Called a “deemed merger”, this does not require the coming together of the original political parties.
How these two sub-paragraphs are read has a bearing on the law’s performance. A disjunctive reading eases mergers, especially in smaller legislative assemblies such as Goa’s. In 2019, 10 MLAs of a 15-member Congress legislature party in Goa merged with the BJP. Disqualification petitions filed against them were dismissed by the speaker, and subsequently by the Bombay High Court (Goa Bench), both opting for a disjunctive reading and validating the merger of the legislature parties.
Simultaneously, conjunctive readings also exist. In the late 1990s, in petitions filed against Haryana MLAs Charan Dass Shorewala and Vinod Kumar Mariya for defecting from the Samata Party, speaker Chattar Singh Chauhan held that Paragraph 4 “...does not speak of split or merger in the Legislature Party but... in the original political party”, signalling a conjunctive reading.
Until 2003, the Tenth Schedule also exempted “splits” in political parties―a faction needed to first demonstrate a split in their original party, and then, one-third members of the legislature party had to agree to the split. In 2007, the Supreme Court held the two steps absolutely necessary for a valid split and overruled the argument that a split in the original party need not be separately established if one in the legislature party is shown. A similar conclusive observation for a valid merger remains elusive.
Meanwhile, disjunctive readings continue. For example, in 2021, petitions against 12 Congress MLAs in Meghalaya for joining the Trinamool Congress did not result in disqualification because they were two-thirds of the 17-member Congress legislature party.
Also Read
- India’s anti-defection law: Four decades of failure
- 'We have made an ass of the anti-defection law': Abhishek Singhvi
- 'Once you defect, you must resign': Venkaiah Naidu
- 'Anti-defection law has proved to be a complete failure': P. Chidambaram
- Why political bias should be kept out of anti-defection law
- 'We must leave political processes to politicians': O.P. Rawat
Therefore, the merger exemption needs either conclusive interpretation or complete removal.
Also, speakers must be replaced by an impartial authority to decide disqualification petitions.
However, while solutions abound, the political appetite to see these reforms through is still awaited.
Sharma is a senior resident fellow at the Vidhi Centre for Legal Policy and leads Charkha, Vidhi’s dedicated constitutional law team.