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Law cannot change the nature of politics. Political parties will always find a way of bypassing the intent of the best of laws. So, in 1985, when the anti-defection law was made to end the malaise of defections, it was destined for failure. The law punishes Members of Parliament (MPs)/Members of Legislative Assembly (MLAs) for defecting from their party by taking away their membership of the legislature. It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.

Under the law, defection can take place in two ways. First, when a party’s legislator “voluntarily gives up” membership of their political party. The law does not define this phrase, which is essentially a euphemism for anti-party activities. Courts have held that the actions of MLAs can be used to determine whether they have given up their party’s membership. But this case-by-case interpretation gives political parties a wide ambit in initiating action against both errant and dissenting members of their organisations. It also means that many of these cases get caught up in legal proceedings. To bypass this provision now, MLAs resign from the legislature, as it happened in Madhya Pradesh earlier this year.

The second mechanism for dissuading MPs/MLAs from shifting their loyalties is by punishing them for voting, contrary to the party’s direction in the legislature. On the face of it, this is a more objective criterion for determining defection. But political parties don’t like it. Because, in this case, the punishment comes after defecting MLAs have already caused damage by either toppling or saving a government against the party’s wishes. Political parties want certainty in numbers before a vote deciding the fate of a government takes place on the floor of the legislature. Therefore, at the first hint of defections, parties start cloistering members loyal to them in hotels and resorts.

Over the last 35 years, the anti-defection law has had zero success. But it has been successful in severely damaging the legislative framework of the country. It has had a negative effect on the deliberations in the legislature. Our legislators are now afraid of expressing their viewpoints on laws and policy issues for fear of reprisal by their political parties. And since the office of the Speaker is the decision-making authority in anti-defection proceedings, the non-partisan constitutional office has been dragged into party politics. Last year, while hearing a case related to defections in the Karnataka legislature, the apex court observed: “There is a growing trend of Speakers acting against the constitutional duty of being neutral”.

Take, for example, the cases of defection in Tamil Nadu. The chair of the Speaker of the Tamil Nadu Legislative Assembly has an interesting history. Lord Willingdon, the then Governor of Madras (who went on to become the Governor-General of India) presented it to the Madras Legislative Council in 1922. His grandfather was Henry Brand, who presided over the House of Commons for over a decade. During the presentation ceremony, Lord Willingdon hoped that those who sit in the Speakers Chair conduct the affairs of the legislature with “good judgement and tact”.

It is the good judgment and tact of Tamil Nadu (and other states) that speakers have been questioned on multiple occasions. More recently, the Tamil Nadu Speaker’s three-year delay in deciding the defection petitions of 11 ruling party MLAs has been challenged before the Supreme Court (SC). The last Andhra Pradesh Speaker sat on the defection petitions of opposition MLAs, some of who went on to become ministers in the government. Their defection petitions remained undecided till the end of the term of the assembly in 2019.

Long delays in deciding defection petitions allow two things. One, it ensures the loyalty of the defecting MLAs to the party they defected to, as the sword of losing their seat in the assembly keeps hanging over their head. Second, until recently, this tactic prevented the judiciary from interfering in defection cases. Vice-President V Naidu has called for timely disposal of defection cases, a stand that the Supreme Court also took earlier this year by stripping a Manipur minister of his office as the Speaker did not decide the defection proceedings against the minister in the last three years. After the Manipur ruling, the Goa Speaker has also been taken to court for delaying the decision on defection proceedings.

But the blame does not always lie at the Speaker’s doorstep. The nature of defection proceedings is such that their ruling will impact the continuity of a government in power. Irrespective of their conduct, the neutrality of their office will be questioned and their decisions challenged in court. Lok Sabha Speaker Om Birla along with Speakers of state legislative assemblies have been discussing measures to uphold the prestige and dignity of the office of the Speaker.

In the political drama of defections, two fundamental questions are missed out. Can a law find solutions to issues of debate, dissent and ambition within a political party? And if not, shouldn’t the anti-defection law be scrapped before it does more damage to the legislative institutions and democracy?