To,

The Honourable Law Minister of India

4th Floor, A-Wing, Shastri Bhawan, New Delhi, Delhi 110001

To,

The Honourable Chief Justice of India

5, Krishna Menon Marg, Sunehri Bagh, New Delhi, India

Respected Sir,

In the past decade, the anti-defection law has been particularly misused by the central government in power to bring down elected governments in Goa, Karnataka, Madhya Pradesh, and Maharashtra by using money power or fear of criminal/civil cases filed by government agencies. The bizarre case of Manipur legislators in 2018 joining the government without even resigning from the party on whose ticket they were elected, shows the extent to which the law is being used and abused. The merger exception is routinely resorted to, as evidenced by the 2016 merger of 43 Congress MLAs in Arunachal Pradesh with the People’s Party of Arunachal, or the 2021 merger in Meghalaya of 12 Congress MLAs with the All-India Trinamool Congress. There have been defections in West Bengal, Jharkhand, Rajasthan, which have been challenged in courts by respective parties. Such defections have undermined the stability of democratically  elected governments, and also amounted to betrayal of the people’s mandate.

Para 4 of the 10th Schedule of the Indian Constitution provides electoral representatives an immunity from disqualification, if their political party merged with another political party. A merger is considered valid if at least two-thirds of the members of a legislative party agreed to such a merger. In such cases, if any member refused to be part of the new political party and continued to function as a separate group along with other members, they too would not be disqualified.

Though the introduction of the Tenth Schedule was aimed at curbing political defections, and the law has succeeded in a reasonable way, but due to some of its loopholes, it has not been able to achieve the best in terms of curbing defections for political gains. Over the years the law has been examined by various committees and several recommendations have been given in their reports: Dinesh Goswami committee report (1990), Hashim Abdul Halim committee report (1994), 170th report of the Law Commission of India (1999), Report of the National Commission to review the working of the Constitution of India (2002), Hashim Abdul Halim committee report (2003) and 255th report of the Law Commission of India (2015). 

The Law Commission of India, in its 170th report on Electoral Reforms submitted in 1999, had recommended the deletion of both the split and merger provisions. Acting on the Commission’s report, Parliament in 2003 passed the Ninety-first Amendment to the Constitution thereby deleting Clause 3 to the Schedule, which exempted members from disqualification in case of split by one-third of members of the legislature party. This amendment's statement of objects and reasons admitted that the anti-defection law “has also been criticised on the ground that it allows bulk defections while declaring individual defections as illegal. The provisions for exemption from disqualification in case of splits as provided in paragraph 3 of the Tenth Schedule to the Constitution of India has, in particular, come under severe criticism on account of its destabilising effect on the Government.” However, no government has found the political will to implement any of the recommendations of the appointed committees. 

Elections in a democratic country allow people to assert their will and defections amount to subversion of that will by undermining that assertive act.  Before elections, during campaigning, the candidate and her party make certain promises to the voter in their party manifesto, based on which voters cast their votes. A vote based on promises made in an election manifesto is a social contract, where voters delegate their right to govern themselves to a candidate of their choice based on the political, social and economic philosophy of that candidate.  But, once elected, it’s all too common to see politicians leave all loyalty and ideology and jump ship to the highest bidder in lust for power and position without taking the consent of the voter. By enabling the elected representatives to defect as a group by way of splitting a party, para 4 of the Tenth Schedule is a clear breach of the contract the elected representatives enter into with the voters. This goes against the very root of democracy and the Preamble to the constitution which begins with the words “WE THE PEOPLE.” 

Defections lead to loss of voter faith in the electoral process, which weakens and destroys democracy. Thus, keeping in mind the way defections have been engineered to enable a party to grab power or stay in power, it has become imperative that civil society takes the lead in demanding abolishment of the anti-defection law, which encourages mass defection enabling those who have not received the people’s mandate to circumvent the contract with the people. 

It is essential that people's trust in the electoral process is not damaged. People must be assured that the party and the government they wish to bring into power is not destabilised by mass defections. Since this has already been recommended by various committees set up in the past, it is high time Parliament abolishes the Tenth Schedule altogether and works on a new framework that discourages defection and imposes strict penalties for defection by individuals or by groups of individuals together. This is the only way we can ensure that the contract with the voter is abided by and people are once again able to repose their trust in the electoral process. 

Your sincerely,

Blaise Costabir

Cassandra Nazareth

Daniel David

Geeta K