India’s anti-defection law didn’t stop power politics. It just moved from farmhouse to resort

Rajiv Gandhi’s most mesmerising line may have been “I too have a dream”. But it was what he said in Parliament when passing the anti-defection law that shaped Indian politics for decades to come.

“This bill is the first step towards cleaning our public life,” Gandhi said in the Lok Sabha on 30 January 1985, arguing in favour of the 52nd amendment to the Indian Constitution.

On that day, at least 47 MPs debated the Bill for more than seven hours – even skipping their lunch break — before it was unanimously cleared, records of parliamentary debates show.

Rajya Sabha cleared the Bill the next day and the President approved it two weeks later. On 18 March 1985, it was officially enacted. India now had its own law against what is popularly used to describe chronic defectors as: Aya Ram Gaya Ram. In New Zealand, such a legislator is called a waka-jumper — waka being a large Maori canoe — while Nigerians call the act ‘carpet-crossing’.

The recent political turnaround in Maharashtra has put this law back in focus. Rebel Shiv Sena leader Eknath Shinde might have succeeded in toppling the Uddhav Thackeray-led Maha Vikas Aghadi (MVA) government, but he has to cross a few hurdles before he can comfortably settle in his chair as Maharashtra’s new chief minister.

Importance of 1967 — and Aaya Ram Gaya Ram

Today, it’s called resort politics. Legislators are flown into high-end resorts in chartered flights. Back in the day, former Haryana chief minister, who also served as the sixth deputy prime minister, Chaudhary Devi Lal, used to huddle MLAs in his “fortress-like farmhouse surrounded by 1,000 acres of family land at Tejakhera, 250 km from Chandigarh”.

Political defections had become common by the time Devi Lal’s farmhouse became ‘homestay’ to defectors. Between 1957 and 1967, as many as 97 MPs and MLAs had defected from the Congress and 419 defected to it, wrote former law professor Paras Diwan. In fact, defections have been a part of India since independence. In 1948, the Congress Socialist Party broke away from the Congress and its members resigned from assemblies. In 1950 Uttar Pradesh, 23 Congress MLAs defected and formed the Jana Congress. In 1953, Praja Socialist Party leader Prakasam joined the Congress to form the government in Andhra Pradesh.

Then came 1967 and the Indian story of defections changed for the worse.

The Congress returned to power at the Centre — but with less than two-thirds majority in the Lok Sabha. Moreover, it was facing challenges in many states it ruled then, eventually losing power in several of them.

Haryana, Uttar Pradesh, Bihar, Punjab, Madhya Pradesh and West Bengal witnessed multiple instances of government forming and governments falling over the next five years — caused majorly by rampant defections.

Interestingly, the phrase ‘Aaya Ram Gaya Ram’ also came about in 1967, with its origin in the political drama that unfolded in Haryana that year. Four months after the state was formed in November 1966, Congress won a thin majority of 48 seats in the 81-member House. Independent candidates, including Gaya Lal, formed the second-largest bloc, with 16 seats.

Within a week, 12 Congress MLAs defected and formed ‘Haryana Congress’, while the Independent MLAs formed ‘Navin Haryana Congress’. Together, they created a ‘United Front’. The process of switching sides continued until the United Front’s numbers had swelled to 48 MLAs. Eventually, Rao Birendra Singh took oath as CM under the banner of Samyukta Vidhayak Dal (SVD).

Gaya Lal stood out. After helping the defectors form a government in March, he was back at work in November. The second time, he himself went in and out of the Congress within a few hours, and then left the SVD again two weeks later. His son Udai Bhan currently heads Haryana Congress.

But why Haryana, of all states? The answer, according to author Prem Chowdhry, lies in the state’s origin.

“Haryana was formed by partitioning Punjab on the linguistic basis… Ideologically bereft, the elected members came to exhibit certain extremely regressive trends in politics. Of the 81 members elected to the [first] Assembly, as many as 44 defected: one defected five times, two four times, three thrice and four twice and 34 once,” Chowdhry wrote in The Tribune.

Also Read: Lok Sabha Speaker to hold discussions on Anti-Defection Law with presiding officers of state legislatures

Harakiri in Haryana sowed the seeds

On the surface, it was Haryana and the events of 1967 that sowed the seeds of the anti-defection law. In reality, it was the changing fortunes of the Congress.

As frequent defections started to affect the party, Congress MP Pendekanti Venkatasubbaiah wanted the “problem of legislators changing their allegiance from one party to another” tackled legally for which he proposed setting up a committee. “Opposition members suggested renaming the proposal to “save Congress”,” wrote Chaksu Roy, head of outreach, PRS Legislative Research, in The Indian Express.

A committee headed by then-Union Home Minister Y.B. Chavan, with Jayaprakash Narayan and Madhu Limaye as its members, defined defection as the voluntary giving up of allegiance of a political party on whose symbol a legislator was elected. In its report, the committee cited how 116 of 210 defecting legislators in seven states were given ministerial berths, and recommended that such MLAs be not given ministerial positions for a year or until they got re-elected.

There were two unsuccessful legislative attempts — in 1973 and again in 1978 — to find a solution to defections, according to Roy.

In the first, made by Indira Gandhi’s home minister Uma Shankar Dikshit, a constitutional amendment bill was introduced in Parliament but kept hanging for about two years. It got a silent burial following Indira’s decision to impose Emergency. Later, Shanti Bhushan, then-minister for law and justice in the Janata Party government of Morarji Desai, tried but reached nowhere.

To be sure, in the years to come, Indira Gandhi herself was the main force behind crushing several non-Congress governments, mostly by engineering defections — a strategy which the Bharatiya Janata Party (BJP) seems to have adopted over the past few years.

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1967-1984: From Sharad Pawar to Bhajan Lal

It is said that ‘recognising something is a problem is half the battle won’. Not so much in the case of Indian polity wanting to weed out the problem of defections, which continued unabated until the law came about and then took on new forms — ‘wholesale’ defections instead of ‘retail’.

“Since the fourth general elections in 1971, from among 4,000 and odd members of Lok Sabha and Legislative Assemblies… there have been some 1,969 cases of defection,” wrote political scientist and former Secretary General of the Lok Sabha, Subhash C. Kashyap, in his 1974 book The Politics of Power: Defections and State Politics in India.

Between 1967 and 1983, according to an India Today report, “as many as 1,900 defected into the Congress or the Congress(I): and, of the 15 chief ministers who defected during this period to usurp the lofty chair, at least 10 were Congressmen.”

One of the benefactors was Sharad Pawar, now the chief of Nationalist Congress Party (NCP). Pawar toppled the Vasantdada Patil government in Maharashtra in 1978 to become India’s youngest chief minister at 38. But the coalition government collapsed in 1980, soon after Indira Gandhi returned to power at the Centre. Indira had reportedly asked Pawar to join the Congress which he refused.

Another notable figure in India’s defection saga is three-time Haryana chief minister Bhajan Lal, known for his persuasive skills who wove weaved alliances left right and centre. He was the only non-Jat leader to have ruled Haryana for a number of years by outwitting two iconic Jat leaders, Devi Lal (of the farmhouse fame) and Bansi Lal.

In 1979, Bhajan Lal and a group of MLAs switched to the Congress from the Janata Party and played a major role in installing a Congress government in Haryana.

India Today’s Sumit Mitra described him as a man “credited with superhuman powers of persuasion, extraordinary talent to spot purchasable legislators in the enemy camps, and a demonic flair for wrecking all opposition alliances.”

“His friends repose absolute trust in him as the mafiosi would trust the don. Like a shrewd merchant in a caravan-town bazaar — which he indeed was — he can weigh the worth of each man he intends to buy,” Mitra wrote. (Lal’s son Kuldeep Bishnoi recently quit the Congress and is speculated to join the BJP.)

Bhajan Lal is also said to have ended Devi Lal’s ‘farmhouse politics’. “Once power had moved to Bhajan Lal, the fences of Devi Lal’s farmhouse were not strong enough to hold the eager defectors,” wrote P.M. Kamath in an article in Asian Survey journal.

Also Read: Lok Sabha Speaker to hold discussions on Anti-Defection Law with presiding officers of state legislatures

1985: Anti-defection law — who said what

And then the defection debate changed again — with Rajiv Gandhi’s bill promising to punish defectors, with exceptions, by taking away their seat in Parliament or state legislature.

For seven hours on 30 January 1985, parliamentarians debated how the law would potentially punish lawmakers for choosing their conscience over party directions.

One of them was Madhu Dandavate of Janata Dal, a physicist who had served as railway minister in the Morarji Desai government. He cautioned the Lok Sabha, citing examples of Herbert Morrison’s adjournment motion and Winston Churchill’s national government in the UK.

“In our anxiety to see that defections are totally eliminated and their polluting influence on politics is totally destroyed, we should not allow the distinction between dissent and defection to be blurred completely,” Dandavate told the House.

Others such as Amal Datta of CPI(M) questioned why Rajiv Gandhi was in such a rush to pass the law. A few warned that it could potentially lead to mass defections.

As political commentator Yogendra Yadav noted in an article in ThePrint, “Madhu Limaye…stood against the dominant public opinion and warned the country against going ahead with this cure worse than the disease.” According to Yadav, Limaye had three main objections. “One, parliamentary debates would become meaningless because the elected representatives would not be free to follow their conscience. Two, the institution of ‘whip’ would encourage the dictatorship of party leaders. Three, while this law might curb ‘retail’ defection, it would keep the doors open for ‘wholesale’ defections,” Yadav writes.

But Rajiv Gandhi was adamant. “It is better for us to tread cautiously than to make serious errors and repent for them later… We have been waiting seven years to have this Bill and a lot of damage has been done. This Bill should have come yesterday, it should have come last year, it should have come seven years ago… This Bill is the first step towards cleaning our public life,” he said.

Also Read: From AIADMK, Shiv Sena to JD(U) — how BJP is growing at the cost of its allies as well as rivals

Vajpayee govt-led change in the law

But the role of the presiding officers soon faced challenges. In 1992, the higher judiciary was called upon to determine the kind of conduct that could invite defection, and the extent of the Speaker’s power in deciding it.

While upholding the Speaker’s supremacy, the Supreme Court held that the decisions were subject to judicial review.

Then, in the Ravi S Naik vs Union of India case in 1994, the Supreme Court noted: “The words ‘voluntarily given up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. Even in the absence of a formal resignation…an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party.”

In the context of “wider connotation”, MLAs and MPs can face disqualification if they are seen lobbying with opponents, endorsing them or campaigning for them without resigning from the party.

The last step in the legislative journey of the anti-defection law came in 2003, when the Atal Bihari Vajpayee government passed a Constitution Amendment Bill. The one-thirds split provision, which offered protection to defectors, was deleted from the law. It meant that defectors could now avoid disqualification only by merging with another party with two-thirds legislative members.

“The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays (a) dominant part in the political horse-trading resulting in spate of defections and counter defections,” observed a panel which examined the Vajpayee government’s Bill.

The amendment also limited the size of the Council of Ministers, and prevented defecting legislators from joining until their re-election.

Also Read: Digambar Kamat calls for introspection within Congress citing defections, poll losses

Verdict: does the law work?

One look at the defections and counter-defections since 1985 shows politicians have successfully managed to find ways to circumvent the anti-defection law.

In March 2020, 22 Congress MLAs loyal to Jyotiraditya Scindia resigned in Madhya Pradesh and joined the BJP. This led to the fall of the Congress government. Three more MLAs resigned in four months. All 25 MLAs contested bypolls in which 18 managed to retain their seats.

Similar strategy was used in Karnataka in 2019, when the Congress-Janata Dal (Secular) government headed by H.D. Kumaraswamy was brought down by the BJP. In fact, the Congress-JD(S) government itself was a patchwork of post-poll alliance to keep the BJP, which had emerged as the single largest party with 104 seats in the 224-member House, out of power.

In 2016, the two-year-old Congress government in Arunachal Pradesh came undone when CM Pema Khandu left the party with a group of rebels and joined hands with the BJP.

“The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller ‘retail’ ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths,” writes Chakshu Roy. “The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end.”

One recent case is of Mukul Roy, who left the BJP to re-join the Trinamool Congress in June 2021. Since then, the BJP had been trying to get him disqualified from the West Bengal assembly. It approached the Calcutta High Court and the Supreme Court, but the Speaker did not take a call for almost a year. On 8 June, Speaker Biman Banerjee rejected the plea to disqualify Roy.

There have been several such instances in the past few years. In 2017, the opposition YSR Congress boycotted the Andhra Pradesh assembly since the Speaker was not taking call on its disqualification plea against 21 MLAs who had defected to then-ruling Telugu Desam Party. In the previous Telangana assembly, the Speaker sat on disqualification pleas concerning 26 defections that took place between June 2014 and June 2016.

Clearly, the law doesn’t work. Instead of putting any kind of stop to politicians switching for personal and political benefits, the anti-defection law, in the words of Yogendra Yadav, has left Indian polity “with the worst of both worlds”. The ease with which the MVA government in Maharashtra was toppled last month tells us that the 1985 law isn’t the answer. “In a democracy, the only answer is the people.”

(Edited by Prashant)

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