Anti-defection law needs teeth to bite

EARLIER this month, Congress MP Manish Tewari introduced a Private Member’s Bill to amend the Tenth Schedule — his third attempt after 2011 and 2020. The proposal is simple and attractive: legislators should be free to vote independently on most business, with the party whip carrying anti-defection consequences only on votes that directly affect a government’s survival — confidence/no-confidence motions, adjournment motions, money Bills and core budgetary matters. The motive is democratic: revive free debate and stop turning MPs and MLAs into headcount.

But any reform to “relax the whip” risks missing India’s deeper crisis. In our ecosystem, defections are rarely about principled dissent. They are often engineered through inducements, intimidation, timing and arithmetic, so that the voter’s mandate can be converted into a different government after the election.

The phenomenon is not new. India coined “Aaya Ram, Gaya Ram” after Haryana MLA Gaya Lal changed his party three times in a single day in 1967. What began as a scandal became a technique; what was once exceptional is now routine.

Parliament responded in 1985 by inserting the anti-defection law through the 52nd Amendment. It disqualifies MPs/MLAs who voluntarily give up party membership or vote/abstain contrary to a party direction without permission and timely condonation. Independents cannot join a party after elections, and nominated members face consequences depending on when they join. The constitutional promise was straightforward: stability and integrity.

Yet the law carried a design flaw that has only grown sharper: it placed decisive power in the hands of the Speaker. The original scheme also sought to insulate the Speaker’s decision from judicial review. The Supreme Court corrected that in the Kihoto Hollohan case verdict, holding that when the Speaker decides disqualification, he acts as a tribunal and the decision is subject to judicial review. That safeguard matters because Speakers — regrettably — have increasingly behaved as political actors rather than neutral constitutional authorities, their fortunes often tied to the ruling side.

This is why the anti-defection regime fails India in two distinct ways. First, conceptually: broad whip enforcement reduces legislators to numbers and hollows out deliberation. Tewari’s Bill responds to this real concern by narrowing whip consequences to survival votes. Second, practically: the law has proved weak against the betrayal it was meant to prevent. It has generated escape routes that legitimise mandate theft.

Three routes dominate the abuse. The first is the “two-thirds merger” shield: engineer the arithmetic so a mass switch is presented as a protected merger. The second is the resignation workaround: instead of “defecting” and risking disqualification, legislators resign in a bloc, reduce the House’s effective strength, bring down a government and then contest again under a new banner. The third is process manipulation: disqualification petitions are delayed or selectively expedited to suit the ruling side’s interests.

The events of 2019 — widely reported and litigated — captured the template we still live with. In Goa, two of the three MLAs of the Maharashtrawadi Gomantak Party moved to the BJP after the polls, invoking the two-thirds route. In Karnataka, 17 MLAs resigned and two independents withdrew support, shifting the arithmetic and enabling a new government to win a trust vote. In Sikkim, legislators switched in bulk, making a regional Opposition collapse overnight. In 2022, Maharashtra witnessed similar engineering when the Shiv Sena split triggered prolonged litigation over legitimacy and party symbols. These are not aberrations; they are the new norm.

Since then, the pattern has become systemic. Deep pockets and incumbent advantage determine outcomes. Money is the magnet; office is the price. Legislators are moved across states, kept in hotels, negotiated through intermediaries and rewarded with ministerships, chairmanships, tickets or protection. Not every allegation can be proven beyond reasonable doubt, but democracies run on trust, not merely on convictions. When defections become routine, politics turns into an MLA market, and elections become only the first step in government formation.

So, where does that leave Tewari’s Bill? It is right to challenge whip-driven tyranny. But in today’s India, relaxing the whip without simultaneously creating deterrence risks spreading horse-trading into ordinary legislation. In a system where inducement is endemic, appeals to ‘conscience’ become a cover for transactional voting.

The Bill’s strength is that it tries to separate two questions India has wrongly fused: party stability and free legislative debate. If the whip is confined to survival votes, MPs/MLAs may finally speak and vote on ordinary Bills without fear of losing their seats. The Bill’s weakness is that it does not touch the two engines of contemporary defections: the two-thirds merger loophole and the resignation route. Nor does it solve the Speaker problem. Without independent adjudication and strict timelines, the presiding officer can still decide when a petition is heard and when it is buried.

Reform must therefore do three things at once. First, confront the Speaker’s conflict of interest: defection adjudication should move to an independent tribunal or authority, with transparent procedure, reasoned orders and judicial review. Second, impose a hard statutory deadline — 90 days is a workable benchmark — for deciding petitions, so that delay cannot launder illegality into fait accompli. Third, make the deterrent real: a defecting MP/MLA should be barred from contesting for six years.

This six-year bar is not arbitrary. It spans at least one full electoral cycle — the period between two general elections. It ensures that defection is not a short detour to higher office but a genuine political cost. Currently, defectors resign, trigger byelections and return on their new party’s ticket within months, sometimes with ministerial berths as reward. A six-year disqualification breaks this cycle. It tells legislators: if you betray your mandate, you cannot simply re-contest and claim renewal. You sit out an entire term. That is the minimum price for switching sides after an election.

Equally important is government formation in hung Assemblies. Too often it becomes a race to the Governor, whose discretion remains excessive and partisan. The single-largest-party rule should be the constitutional default, with coalition claims tested by immediate floor tests within 48 hours. Discretion must be constrained by guidelines recommended by the Sarkaria and Punchhi Commissions. Delay and opacity in government formation invite manipulation.

Tewari has done a service by triggering a debate. But India’s crisis is not merely about legislative freedom; it is about the purchasability of mandates and the partisan handling of disqualification. A rich party should not be able to treat post-poll engineering as a cheaper substitute for fighting elections honestly. The anti-defection law was meant to protect stability and integrity. We must now protect it from manipulation — and restore the simplest principle of representative democracy: a voter’s mandate is not transferable property. Changing sides mid-term must carry a cost heavy enough to make the transaction unviable — because without that, we do not have elections; we have auctions.