What is the Anti-Defection Law and how will it shape the Maharashtra crisis?

Tuesday saw a repeat of a now-familiar sight in Indian politics: MLAs being herded to a secure holiday resort to prepare the ground for a government to be brought down. In this case, it was the Maharashtra government led by the Shiv Sena’s Uddhav Thackeray.

Thackeray had been undermined by his own chief whip, Eknath Shinde, who decamped to Surat in neighbouring Gujarat and then – just to make absolutely sure – fled 2,000 kilometres east to Guwahati in Assam. Shinde has with him an unknown number of MLAs. Speculation is rife about what this means for the survival of Maharashtra’s Maha Vikas Aghadi coalition government, of which the Shiv Sena is a key component.

The one thing the rebels will have to contend with, however, is India’s Anti-Defection Law, which is intended to prevent precisely the kind of action Shinde is plotting. Under the legislation, defections or legislators betraying their party is illegal – except under specific circumstances.

Why was the law introduced?

Defections have plagued Indian politics ever since Independence. However, the problem became especially acute after Nehru, as the Congress started to face real opposition in many states.

In the Westminster system of parliamentary democracy that India follows, defections are supposed to be legal since governments hold office at the pleasure of an elected legislature. MPs in the national parliament and MLAs in the state legislatures can decide to withhold their support to their own government by defecting.

However, this system in India was clearly being abused, with corruption driving defections rather than any high-minded political principles. In 1967, for example, a Haryanvi MLA Gaya Lal changed his party thrice – in the same day. So tired were Indians of such politicians that the incident ended up giving rise to a proverb in Hindi: Aya Ram, Gaya Ram, referring to someone that is undependable or present only for a short time.

What is the Anti-Defection Law?

In 1985, the Congress government of Rajiv Gandhi sought to end this practice by curbing the freedom given to legislators to defect under the original Westminster system. The law it introduced was placed into the Constitution as the Tenth Schedule, popularly called the Anti-Defection Law.

It states that a legislator will be disqualified if “he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs”.

It was also apply if “he has voluntarily given up his membership of such political party”. This, of course, refers to straight-up resignations but courts have ruled that this also has a “wider connotation”: “even in the absence of a formal resignation from the membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”.

For example, an MLA or MP attending public rallies for a rival party could be held to have “voluntarily given up his membership” and be charged with defection.

Are there any exceptions?

There are. As per the law, “a member of a House shall not be disqualified if “his original political party merges with another political party”. This merger, in turn, only holds “if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger”.

Therefore, if two-thirds of the MLAs (or MPs, in the case of Parliament) agree to defy the party leadership, they legally can. The Anti-Defection Law will not apply to them.

This is, of course, exactly what Eknath Shinde’s play is. So while he has a substantial number of Shiv Sena MLAs with him in Guwahati, he needs to wait till that number rises to 37 or more than two-thirds of the Sena’s raft of 55 MLAs. Shinde, of course, knows this and is enticing more and more Sena MLAs to make the journey from Mumbai to Guwahati.

On Wednesday night, four more MLAs joined him and on early on Thursday three more legislators arrived in Guwahati.

How successful has the Anti-Defection Law been?

Given that Shiv Sena MLAs are plotting their own government’s downfall as this article was being written, clearly the answer is not very.

Politicians have found ways to circumvent the law. In one ingenious solution, MLAs have started resigning their seats in order to bring down the total strength of the House. As the half-way mark of the House falls, the party that is aiming to replace the government has a better shot of forming the majority. In 2019, the Congress-Janata Dal (Secular) coalition government headed by Chief Minister HD Kumaraswamy was brought down using this strategy. Later, the Supreme Court endorsed this strategy as legal, further weakening the already weak Anti-Defection Law.

Increasingly, speakers also delay a decision on disqualifying a member under the law. While the Anti-Defection Law is clear that a member should be disqualified on defection, it has no mention of a timeline. Speakers have utilised this lacunae to award themselves a pocket veto on the process. While courts have pressured speakers to act, they have had limited success.

Has the law been opposed?

While there is broad support for the law, given general anger at political corruption, there has also been some opposition to it. Some have argued that this law limits democracy by reducing elected representatives to rubber stamps for parties rather than allowing them freedom of conscience.

One reform proposed suggests that the law should only apply to no-confidence motions, which decide the survival of governments. Over the past decade, both Congress and Bharatya Janata Party MPs have introduced private members bills to this effect. Of course, in India’s Westminster system, private members bills – that is, bills not introduced by the government – have little chance of being passed and these are mostly token measures. Parties are still committed to the Anti-Defection Law.