How SC’s freezing of the Anti-Defection Law allows BJP to undercut federalism

This Saturday, we have a special India Fix for readers, reacting to the extraordinary events in Maharashtra. As a result, we’ve moved up the newsletter by a couple of days.

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On Thursday, the Maha Vikas Aghadi coalition government in Maharashtra fell after Chief Minister Uddhav Thackeray resigned, besieged by a large number of his own MLAs who had raised the banner of revolt.

Defections are hardly a new feature of Indian politics. However, in 1985, a new constitutional amendment was passed by the Rajiv Gandhi government to outlaw defections that put the party high command in charge of a legislator’s vote in the house. The logic was that Indian voters vote mainly for the party, not the candidate and it should be the party that decides how legislators should vote in the legislature.

In this case, the Maha Vikas Aghadi did try to use the law to save itself. However, it was stymied by an surprising player: the Supreme Court of India.

Tying the speaker’s hands

On June 25, the deputy speaker of the Maharashtra Assembly issued a disqualification notice to 16 rebel MLAs (the speaker resigned in 2019 and no replacement has been announced since). They were told to reply by 5.30 pm on June 27. While they had technically still not defected – that is, voted against the party’s directions – under an (absurdly) expanded judicial reading of the Anti-Defection Law, even anti-party activities outside the legislature can now be penalised.

The rebel MLAs rushed to the Supreme Court, which delivered an unusual decision: it extended their deadline to reply to the speaker by 15 days, to July 12. This action ignored the Supreme Court’s own 1992 judgement, which makes it clear that courts cannot interfere in defection cases “at a stage prior to the making of a decision by the Speaker/Chairman”.

Two days later, the governor called for a floor test. In response, the Shiv Sena moved the Supreme Court, arguing that till the issue of the defections is decided, there cannot be a floor test, since the rebel MLAs cannot represent the “will of the people” as per the Anti-Defection Law.

Shiv Sena leader Eknath Shinde with rebel MLAs at a hotel in Guwahati on Thursday. Credit: PTI

SC’s three techniques to defect

The Supreme Court, however, ignored this argument. It gave the green signal for the floor test, directly precipitating Thackeray’s resignation.

In effect, the Supreme Court, by stalling the speaker’s defection proceedings, temporarily switched off, as it were, the Anti-Defection Law – and then allowed a floor test. The result: for the rebel MLAs, the clock had been turned back to before 1985 and they were free to defect and vote against their own party.

This is not the first time the Supreme Court has interfered in the working of a speaker before he has taken a decision. Back in 2020, in a case that involved the survival of the Congress-led Rajasthan government, the Supreme Court had also delayed the speaker’s defection proceedings, giving defectors from the Congress more time.

Delaying a speaker’s defection proceedings is not the only technique the Supreme Court has introduced to tamp down on the Anti-Defection Law. In 2016, it ruled that a speaker could not proceed with disqualification if there was a removal motion pending against him. If this judgement is followed to the letter, this means that all rebel MLAs have to do to avoid the Anti-Defection Law is to turn the tables on the speaker and file a notice seeking his removal.

Since then, this has become standard procedure every time the Anti-Defection Law is involved, including in this instance, where rebel Sena MLAs sent a notice to the deputy speaker, asking for him to be removed.

Anushree Fadnavis/REUTERS

A third tool was introduced in 2019, as the Supreme Court ruled that MLAs who had tendered their resignations to the speaker could not be compelled by their party’s whip to attend the Assembly. The context was the rebellion of 15 MLAs in Karnataka – 12 Congress and three Janata Dal (United) – who had attempted to resign in order to circumvent the Anti-Defection Law.

The logic of this crafty play: resignations, which do not attract the Anti-Defection Law, would bring down the total strength of the House, allowing the BJP to get past the halfway mark and pull down the government. While the speaker tried to undercut this rebellion by delaying a decision on their resignations, the Supreme Court’s decision blocked his efforts. The government was brought down a few days later, with the rebel MLAs, with the Supreme Court’s stamp of approval, successfully ignoring their party whip and staying away from the House.

Notably, in all the above instances instances, the Supreme Court’s actions have harmed the Opposition, by making it easier for disgruntled Opposition legislators to rebel against their party high commands.

Speakers also to blame

The Supreme Court, of course, is not the only institution that has weakened the Anti-Defection Law. The primary blame for that still lies with speakers. While the Anti-Defection Law makes the speaker the deciding authority on defections, they have abused this power by behaving as partisan actors, beholden not to the House but to their parties.

If legislators defect to the ruling party in India, speakers more often than not, simply sit on the matter, utilising a loophole in the Anti-Defection Law. The law does not contain a timeline by when speakers must decide on a case. By contrast, if legislators defect from the ruling party, the speaker’s action is lightning swift, as the current Maharashtra case illustrates.

While the Supreme Court has taken some steps to curtail this malpractice by speakers, ironically, it has itself, in its own way, significantly undermined the Anti-Defection Law.

Undermining federalism

The Anti-Defection Law was instituted by the Congress party at the fag end of its dominance in national politics – the age of coalition politics would just start four years after the legislation was passed. Through it, a declining Congress tried to artificially extend its dominance by freezing its legislative power, placing MLAs and MPs under the thumb of the party high command in order to prevent them from defecting to ascendant rivals.

Today the situation stands reversed and the central pole of national politics is an ascendant BJP that has enough charisma, money and ideological certitude to not need the crutch of a law to keep its legislators in place. Instead, the end of the Anti-Defection Law will greatly help the party, by ensuring that it can use all the tools of politics – from the pull of money to the push of central agencies – to wean away opposition leaders (as all the previous examples illustrate).

In effect, with the Anti-Defection Law hobbled by the courts, the BJP will use its hegemonic position at the Centre to undermine Opposition parties in the states, managing to take over states it had lost at the polls. This political strategy acquires even greater salience when we note that the only push back that the BJP has faced since 2014 is federalism. This is true in rhetoric – state identity is a direct challenge to Hindutva, ideologically – as well as in hard numbers: the BJP finds it difficult to replicate its national success in state elections.

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