‘A state of no regulation benefits everyone’

The anti-defection law was not applied to the split in the Shiv Sena that occurred in June 2022. Pic/Getty Images

India's anti-defection law was added to the Constitution by the 52nd Amendment act of 1985, which inserted a Tenth Schedule. The law was enacted against the backdrop of the political situation in the 1960s and 70s, which was volatile and saw frequent floor-crossing by legislators, from one party to another. The Indian National Congress had just returned to power after winning the eighth General Elections, with Rajiv Gandhi as Prime Minister. However, he had to contend with rebellions within the party and frequent defections and splits. To curb these defections, the 52nd Amendment Bill was introduced in the Lok Sabha.

However, scholars and legal experts later vocalised that the law caused more defections than it aimed to prevent. Ritwika Sharma and Mayuri Gupta are Fellows at the Vidhi Centre for Legal Policy, Delhi, and work in Charkha, Vidhi's dedicated constitutional law team. They break down the irregularities of this piece of legislation in their November 2023 report, Anatomy of India's Anti-Defection Law: Identifying Problems, Suggesting Solutions. Excerpts from mid-day's conversation with them:

What is the history of the anti-defection law in India?
Mayuri Gupta: Political defections are not a new phenomenon. They took place in India even before Independence. For example, after the massive win of the INC in the 1937 provincial elections, certain members of the Muslim League actually joined the Congress After Independence, defections continued to surge: between 1967 and 1971, around 2,000 of them occurred. After 1967, constructive discourse and discussion on the need to regulate defections in India began.
In 1968, the YB Chavan Committee was constituted to recommend measures to address them. Based on the Committee's recommendations, in 1970, the Union cabinet approved a draft legislation. In 1973, and 1978, there were two failed attempts at Constitutional Amendment bills, which were introduced in Parliament but did not see the light of day. Finally, in 1985, the 52nd Amendment Bill was passed, which inserted the 10th Schedule to the Constitution, which houses the anti-defection law.

Ritwika Sharma and Mayuri Gupta

What is the splits and mergers provision of the anti-defection law?
Ritwika Sharma: The law has two exemptions. One was given to splits between political parties, and the other relates to a merger between two parties. What is happening right now with the merger exception happened with the split exception also. People would form groups with one-third MPs/MLAs and then split from the original party to form new factions, misusing the split exemption. In 2003, the split exemption was done away by the 91st Amendment for this reason. Now, the only remaining exception is the one given to mergers between political parties. Under the merger exception, the strength required for a group to merge with another existing political party is two-thirds of the MPs/MLAs of the legislature wing of a political party.

How has the anti-defection law played out through the Maharashtra Shiv Sena split into the Uddhav Thackeray and Eknath Shinde factions?
Mayuri Gupta: If you look at the split through the lens of the anti-defection law, the splitting Shinde faction should have ideally merged with another political party, so as not to get disqualified under the Tenth Schedule. This is because after 2003, a simple split between parties is not allowed. If there is a split, the splitting faction cannot claim an exemption unless it merges with another political party. But in the case of Maharashtra, the Shinde faction did not merge with any other political party. They joined hands with the BJP, and formed a government, in what could be either called a coalition or an alliance. So, if we look at this split through the lens of the constitutional provisions, this faction should be made to answer why it was not be disqualified under the Tenth Schedule. The recent decision by Rahul Narwekar does not seem to say much about whether the splitting faction of the Shiv Sena party should have merged with another party or not. The decision of the Speaker is also not available for public access for a wholesome analysis.