With the general election 2024 inching closer, the spate of political defections across the country is no cause for surprise. In Bihar, MLAs from the Congress and the Rashtriya Janata Dal have moved to the Bharatiya Janata Party (BJP) while the elections to the Rajya Sabha that were held recently saw cross-voting in favour of the BJP in Himachal Pradesh. The MLAs concerned have now been disqualified under the anti-defection law. In the Andhra Pradesh Assembly too there have been disqualifications under this law.
However, an adjudicatory development from more than a fortnight ago makes one doubt the perceived need and utility of India’s anti-defection law. On February 15, 2024, the Maharashtra Legislative Assembly Speaker delivered his verdict on the split in 2023 within the Nationalist Congress Party (NCP). No MLA from either faction of the NCP was disqualified, and the Ajit Pawar faction was recognised as being the “real” NCP. Unsurprisingly, the order appears to be similar to the Speaker’s decision in the split in the Shiv Sena where neither faction was disqualified, and one of the competing factions (in that case, the Eknath Shinde faction) was recognised as the real Shiv Sena.
Transgressions that pass muster
While official copies of both these decisions are unavailable, the reasoning that went into the decision can be discerned from the livestreaming of the Assembly proceedings. Relying on the test of legislative majority, the Speaker noted that the Ajit Pawar-led faction of the NCP had the support of 41 out of 53 NCP MLAs, making it the real NCP. More intriguing was the Speaker’s observations on the applicability of the anti-defection law to these proceedings.
What transpired between June 30 and July 2, 2023, when the NCP split vertically, is termed as an expression of “intra-party dissent”. In uncritical terms, the Speaker has said that such intra-party dissent cannot be subject to the punitive provisions of the Tenth Schedule, and the dissenting MLAs cannot be disqualified from the Assembly. However, the soundness of this observation can be questioned on the ground that if any dissenting group within a political party wishes to distance itself from such a party, it must ideally merge with another party so as to be able to claim protection under the Tenth Schedule. Under the anti-defection law, a faction that splits from its original party cannot claim exemption from disqualification on its own, given that the “split” exception was deleted from the Tenth Schedule in 2003.
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The only exemption available now to legislators moving in groups is that of mergers, which mandatorily require a minimum of two-third members to separate from their political party and merge with another. As is well-known, in both the Shiv Sena and NCP splits, the splitting factions (led by Eknath Shinde and Ajit Pawar, respectively), did not opt to either merge with an existing political party or establish an altogether new party. Instead, each of the two factions claimed to be the original political party themselves, and formed an alternate government with other political parties. In neither of these cases was there a merger within the strict terms of the Tenth Schedule.
It would have been interesting to see the Speaker contend with this issue in both these cases purely in terms of the language of the law. Instead, the Speaker made a rather worrying observation to the effect that it is in the very nature of politics for leaders to forge new alliances, undo old relations, and make or break into new forms, and that such political movements cannot qualify as defections under the Tenth Schedule. Why have the anti-defection law in the Constitution when even the most manifest transgressions of the law are allowed to pass muster with the adjudicating authority?
The Speaker’s concern for preservation of inner-party dissent is laudable, especially when he says that the Tenth Schedule cannot be used to silence party members. The Speaker had to go by the legislative strength of each faction to determine the real NCP, because reliable information to that end could not be sourced from the party’s constitution, leadership and organisational structure.
The issue of inner-party democracy
Undeniably, this highlights the need for better thought-out reform of the political party system — one which accounts for adequate democracy within parties. Defections are often engineered on the premise of an absence of inner-party democracy in the original political party of a turncoat legislator. To systematically remedy this concern, it is time to first conduct a thorough study of how robust democratic structures and processes are within parties, and, second, usher in statutory regulation that compels political parties to ensure greater inner democracy. The 255th Report of the Law Commission of India proposed amendments to the Representation of the People Act, 1951 which could mandate that besides having a constitution, political parties elect an executive committee (for the party), select candidates who are to contest elections to Parliament or State Assemblies, and conduct regular elections within the party at every level. The Law Commission also proposed granting the Election Commission of India the powers to impose monetary penalties or withdraw the registration of a political party in case it failed to comply.
The Law Commission’s recommendations have yet to see the light of day. Evidently, in the absence of more robust means to ensure inner-party democracy, the Tenth Schedule had to be circuitously put into disuse in the Shiv Sena and NCP verdicts — both instances where the anti-defection law could well be applied! The Maharashtra Legislative Assembly Speaker is now presiding over a committee which will review the anti-defection law. Given his recent encounters with this law in two high-profile matters, there could not be a better opportunity than now for India to get an anti-defection law best suited to its felt needs and realities.
Ritwika Sharma is a Senior Resident Fellow at the Vidhi Centre for Legal Policy and leads Charkha, Vidhi’s dedicated constitutional law team. Vidhi recently published a report titled ‘Anatomy of India’s Anti-Defection Law: Identifying Problems, Suggesting Solutions’
