A recent surge in defections of state legislators across India has raised questions on the effectiveness of the country’s anti-defection law. The law, meant to check the ills of unethical defection that destabilizes elected governments, is not strong enough to stop lawmakers from jumping ship for political gain, say experts.

For over a month the southern state of Karnataka went through a highly-charged political drama with more than a dozen members of the ruling coalition of Congress-Janata Dal (Secular) resigning from their parties. The situation enabled the Bharatiya Janata Party to grab power and topple the coalition government.

In recent months, several defections have also taken place in states such as Goa and Maharashtra where opposition parties’ lawmakers have switched over to the ruling BJP, which also runs the federal government. Many opposition leaders have slammed the BJP, accusing it of disrespecting the popular mandate by poaching members of legislative assemblies.

“The Anti-Defection Law was introduced with the intention of protecting the democratic system which was otherwise being affected by legislators moving from one political party to another,” said former Supreme Court justice Santosh Hegde. “They were affecting the majority of the ruling party in the House and thereby causing political instability in various states.”

The anti-defection law was introduced as the Tenth Schedule in the Indian Constitution in 1985 to prevent rampant defections that might be inspired by the reward of office, money or other  considerations.

Under the law, a legislator is deemed to have defected if he either voluntarily gives up the membership of his party to switch to another or disobeys the directives of the party leadership on a vote. Political parties generally issue whips– strict directives to their members to be present during a vote or to vote the party line – when the issues are particularly important, as when a confidence motion is moved.

Karnataka turmoil

Karnataka Speaker KR Ramesh Kumar on Sunday disqualified 14 lawmakers from the state assembly. The lawmakers, disqualified under the Anti-Defection Law, had resigned en masse from the Congress and the JDS which was in power of the government. Kumar had earlier disqualified three other rebel legislators on similar grounds.

With the disqualification, the strength of the House was reduced which led to BJP gaining majority and staking claim to form a new government.
On the other hand, the disqualified legislators who were accused of defecting and being bought off by BJP, would not be able to contest by-elections or become ministers in the new government. They could only contest if fresh assembly elections were held.

Political parties including the Congress have raised concerns that any party with access to large amounts of money could topple an elected government by buying off a sufficient number of legislators to reduce the ruling side to a minority.

“Only a group of above one-third of the party members could defect together without being disqualified, as per the law,” said Brijesh Kalappa, Congress spokesperson and a lawyer qualified to practice at the Supreme Court.

“BJP came and made this provision stricter by raising the required number to two-thirds in 2008. But the same party adopted a new policy of getting the said person to resign, bringing down the House strength, and then he will join BJP and contest on their ticket. Even if their resignation is not accepted and they are disqualified, the House strength comes down and BJP acquires power.”

“Perhaps mere disqualification is not deterrent enough,” said Ahmed Ali, professor at Symbiosis Law School. “For the incentive is always greater, given that most defections are engineered by the party in power at the center. And that is an issue the law fails to address altogether.”

Three of the disqualified MLAs have challenged the Speaker’s action, claiming it violated their fundamental rights and was contradictory because he held their resignations to be “not voluntary and genuine” even after they had testified to the contrary. Speaker Kumar for his part took cognizance of public perception that BJP was engineering the defection.

“In my opinion, unless there is material evidence to show that these members have made false statements before the speaker, it is not open to the speaker to make inferences,” said Justice Hegde. But Speaker Kumar “has done it, and now the matter will go to the Supreme Court.”

Controversial defections

In Goa assembly, 10 out of 15 Congress MLAs defected to the BJP last month, effectively merging the state arm of their former party with BJP. Three of the defectors were accommodated as ministers in the state government. It has been dubbed by the Congress “one of the most heinous” political horse-trading gambits facilitated by the BJP.

The ruling BJP did not have a majority after the state election so had to form the government by creating a coalition with allies. But with the latest defection, it has gained the majority with 27 members among the 40 members of the chamber.

The anti-defection law states that, in case two-thirds of the members of a party in a legislative body defect to another party, they can merge their original party with the party they defected to.

But the case is complicated when the original party is a national party with state branches – such as the Congress in this case. A Supreme Court judgment says that a qualified split in the party has to take place at the national level, creating a new bloc or faction. Under that precedent, a national party couldn’t be merged with another at the state level.

One of the worst cases of mass defection hit Congress in 2016 in Arunachal Pradesh when 44 of its 45 legislators, led by the then chief minister Pema Khandu, left and joined the People’s Party of Arunachal. Two months later, 31 of the PPA legislators left the PPA along with Khandu and joined BJP, bringing the nationally ruling party to state power.

Other opposition parties are also struggling with defection and the law appears to be giving them no respite. Numbers of lawmakers and leaders of the Nationalist Congress Party in Maharashtra have also defected to the BJP and the Shiv Sena, both of which run the coalition government of the state.

In the recently held general elections, Congress was the top party for turncoats, having 22 party switchers. It was followed by BSP and BJP. But numbers from Trivedi Centre for Political Data show that the success rate of turncoats did not differ much from party loyalists in the elections as the Indian mass tends to vote for parties and not individual candidates.

Professor Ali spoke of the “absurdity of the law: do it alone and you’re a turncoat, but do it en masse and you’ll probably end up a minister.”

The 10th Schedule, he said, “has proven counter-intuitive in more ways than one. It addresses the symptoms and not the malady. In a multi-party, first-past-the-post system, governments with slim majorities in states will always run the risk of manipulation by the party in power at the center. Not only does that undermine democracy but makes complete mockery of the federal nature of our polity. The law fails to address this issue entirely.”