Anti-defection law explained: Why is it in focus again and what has Kapil Sibal proposed?

The Cockroach Janta Party (CJP) has backed senior advocate and former Union Law Minister Kapil Sibal's proposal to impose a ban on MPs and MLAs who defect from their political parties. CJP's national convener Abhijeet Dipke called the suggestion a ‘need of the hour.’

Sibal, while delivering a talk on 'Horse Trade and Democracy' in Kochi, Keralam, recently called for changes to the Tenth Schedule of the Constitution so that party mergers don't act as "loopholes for mass walkouts".

Sibal highlighted that, under current law, a defection does not lead to disqualification if two-thirds of the legislative party members cross over to another party, treating it as a merger.

Sibal emphasised the need to amend the Tenth Schedule to close this "loophole" and ensure that "a merger is a merger of political parties and not a collective walkout by legislators".

Sibal, an independent member of Rajya Sabha, suggested scrapping the Tenth Schedule of the Constitution and replacing it with a provision under which any legislator who changed parties mid-term would be disqualified from holding public office or any constitutional position for 10 years. Sibal also argued that resignation or merger should not provide an exemption from such disqualification.

Saurav Das, the co-convener of CJP, supported the proposal, pointing out that it aligns with their first demand charter.

"Senior Advocate Kapil Sibal's proposal to ban any MP and MLA who gets elected on Party X's symbol and later defects to Party Y for money or under pressure should be welcomed. He calls for a 10-year ban," he said.

Kapil Sibal served as the Union Minister for Law and Justice from May 2013 to May 2014 under the United Progressive Alliance (UPA) government.

Das added that point 5 of CJP's first demand charter, released by Abhijeet Dipke, proposed even stricter measures: banning individuals from holding any public office or contesting elections for 20 years.

"Breaking political parties, bribing MPs with 50-100 crore, toppling governments is a fraud committed on the country. Such fraud should never happen. The Anti-Defection law is outdated. The ruling party has ensured its misuse in its lust for eternal power. The young will change this," he said.

The CJP's proposed 20-year ban goes beyond Sibal's suggested 10-year disqualification and seeks to bar defectors from both contesting elections and holding public office for a substantially longer period.

Dipke reiterated the demand as the "need of the hour," stating in a post on X, "Any elected representative who switches parties after being elected should be barred from holding public office."

Why is defection in focus again?

Defection has been in focus many a times before. And this time the issue gained renewed focus amid the ongoing split in the Trinamool Congress in the Lok Sabha and the West Bengal Assembly.

In the Lok Sabha, 20 of the TMC's 28 MPs have announced that they are leaving the party and joining the Nationalist Citizens Party of India (NCPI), while extending support to the BJP-led NDA.

This situation has brought the anti-defection law and its two-thirds merger provision into sharper focus.

What is the case from West Bengal?

In West Bengal, the faction led by Ritabrata Banerjee is seeking recognition as the TMC, staking claim to the party's name, organisational control, assets and election symbol. The faction has claimed the support of a majority of the party's newly elected ML's

The Election Commission has begun to assess the competing claims of both the Ritabrata and Mamata Banerjee factions.

The developments have put the spotlight on the provision in the Tenth Schedule that protects legislators from disqualification when two-thirds of a legislature party is deemed to have merged with another political party.

The TMC developments follow the decision of seven Aam Aadmi Party Rajya Sabha MPs to join the BJP earlier this year, with the group also invoking the two-thirds merger provision.

This issue also echoes previous splits within the Shiv Sena and the Nationalist Congress Party in Maharashtra.

In 2022, Eknath Shinde led a majority of Shiv Sena MLAs away from Uddhav Thackeray, resulting in a government change, while in 2023, Ajit Pawar split the NCP and joined the BJP-led government with a group of party legislators.

What is the anti-defection law?

The Tenth Schedule of the Constitution, popularly known as the Anti-Defection Law, lays down the process by which Members of Parliament (MPs) and State Legislatures (MLAs/MLCs) may be disqualified from holding their seats on the grounds of defecting to another political party.

An elected member can be disqualified from the House, according to the law if:

1-Members voluntarily give up membership in the political party they were elected on.

2- If a legislator votes or abstains from voting in the House contrary to the written directive (whip) issued by their party, and the party does not pardon them within 15 days

Exceptions: A defection does not apply when a political party merges with another party if at least two-thirds of the legislators in the legislature party vote in favour of the merger.

In the present TMC case, the approval of two-thirds of the MPs will come into play only after the merger of the entire party, that is, the TMC and not just a bloc of the TMC, according to experts. So, rebel MPs cannot take any independent action under the law, unless their party, that is the TMC, merges with another party, they said.

What do the experts say?

Under the anti-defection law, it is not enough for two-thirds of the MPs to say they want to form a separate bloc or align with the NDA, experts said, adding that just two-thirds of Lok Sabha MPs seeking a separate bloc might not amount to a merger and will not shield them from disqualification.

“They can’t do that because 20 MPs out of 28 MPs have left the party and have defected. They are liable to be disqualified under the tenth schedule,” former Lok Sabha Secretary General PDT Achary told Mint earlier.

Breaking political parties, bribing MPs with 50-100 crore, toppling governments is a fraud committed on the country. Such fraud should never happen.

“The law will treat them as defectors as long as there is no merger,” he said.