The Anti-Defection Law Was Written to Stop Horse-Trading. It Mostly Rewards It Instead

Rajiv Gandhi's government introduced the Tenth Schedule to the Constitution in 1985 with a specific, narrow target in mind: the phenomenon of "Aaya Ram Gaya Ram," a phrase coined after a Haryana legislator named Gaya Lal switched parties three times in a single day in 1967, that had become shorthand for the routine buying and selling of legislators' loyalties that destabilised state governments throughout the late 1960s and 1970s. The law's mechanism was straightforward: a legislator who voluntarily gives up membership of the party that got them elected, or who votes against a party whip on key matters, can be disqualified from the House. Four decades on, defections have not stopped. They have simply moved to forms of engineering that the law, as drafted, does not clearly reach.

The split clause that used to make everything legal

For its first fifteen years, the Tenth Schedule contained a provision that made a mockery of its own purpose: if one-third of a party's legislators defected together, this counted as a legitimate "split" rather than a defection, and none of them could be disqualified. This single clause turned the anti-defection law into, in effect, a minimum-headcount instruction manual for engineering defections legally — recruit at least a third of a legislative party, and the law's central prohibition simply does not apply to you. The 91st Amendment in 2003 finally removed the split exception and raised the threshold for a legitimate "merger" to two-thirds of a party's legislators, tightening the loophole considerably. But raising the number required for a lawful mass defection did not eliminate the underlying incentive; it simply raised the price of executing one, and Indian political finance and horse-trading capacity have shown themselves entirely capable of meeting a two-thirds threshold when the stakes are a state government.

Karnataka and Maharashtra: the same script, better lawyers

The Karnataka crisis of 2019, in which more than a dozen Congress and Janata Dal (Secular) legislators resigned en masse rather than defecting outright, illustrates the current workaround with clarity. Resignation is not defection under the Tenth Schedule's text, and a legislator who resigns cannot be disqualified for defection because they are, formally, no longer a member of the House to be disqualified from. The mass resignations collapsed the Kumaraswamy government's majority just as effectively as outright defection would have, while sidestepping the law's disqualification mechanism entirely; several of the same legislators were re-elected on the rival party's ticket in the subsequent bypolls, having in the interim been inducted as ministers, a sequence the Supreme Court itself criticised without being able to reverse the underlying political outcome. The Maharashtra crisis of 2022 pushed the workaround further still: Eknath Shinde's faction of the Shiv Sena did not resign or formally defect but instead claimed, with eventual Election Commission backing, to be the "real" Shiv Sena, converting what looked functionally identical to a defection into an intra-party leadership dispute that the Tenth Schedule was never designed to adjudicate at all.

The speaker problem, which no amendment has touched

Underlying both episodes is a structural flaw that has proven far more durable than any individual loophole: the Tenth Schedule assigns the power to decide defection disqualification petitions to the Speaker of the House, who is, in virtually every practical instance, a member of the ruling party or coalition and therefore has an obvious political stake in the outcome. The Supreme Court held in Kihoto Hollohan in 1992 that the Speaker's decision is subject to judicial review, which prevents the worst abuses from going entirely unchecked, but it did not remove the Speaker's role as first decision-maker, and Speakers across states have used the resulting discretion to delay rulings for months or years, well past the point at which the delay itself determines the political outcome regardless of what the eventual ruling says. The Maharashtra Speaker took the better part of a year to decide disqualification petitions arising from the 2022 split, by which point the government the petitions concerned had already changed and the practical question the ruling was meant to answer had been overtaken by events.

The counter-argument for keeping some discretion in the chamber

There is a reasonable case, made by parliamentary scholars and some former Speakers themselves, against simply stripping the Speaker of this role and handing it to the Election Commission or the judiciary outright, which is the most commonly proposed fix. The chamber's presiding officer, the argument runs, is institutionally positioned to understand internal party dynamics, whip issuance procedures and the specific factual record of a legislature in a way that an external body would have to reconstruct from scratch, and removing all decision-making from the legislature itself risks further judicialising a fundamentally political question. This argument would carry more weight if Speakers had, on the whole, exercised the role with visible neutrality; the empirical record of delay correlating almost perfectly with whichever outcome benefits the ruling party makes it a difficult argument to sustain in its strongest form, even though the underlying institutional-competence point is not baseless.

What a functioning fix would actually require

The two changes most consistently recommended by committees and former Election Commissioners — an independent tribunal, perhaps headed by a retired judge, to decide defection cases, and a strict statutory time limit within which any disqualification petition must be decided — would address the two failure points that Karnataka and Maharashtra both exposed: partisan delay and workaround engineering around the law's literal text. Neither reform has been enacted despite two decades of recommendations, largely because whichever party controls a state legislature at any given moment benefits from precisely the discretion and delay that reform would remove, and no party has been willing to give up a tool while it might need it, regardless of what it argued while in opposition.

A law measured by its exceptions rather than its rule

The Tenth Schedule has not been a total failure; individual legislators who openly vote against a whip on a straightforward party-line matter are still disqualified with reasonable regularity, and the law does impose real friction on casual, low-stakes defection of the 1967 Gaya Lal variety. What it has manifestly failed to prevent is defection at scale, when a government's survival is genuinely contested, because that is precisely when political actors have the resources and motive to engineer around resignation clauses, split thresholds and sympathetic Speakers. A law judged by how well it handles its highest-stakes cases, rather than its routine ones, has to be called what the record shows it to be: a deterrent against small defections and a fairly permeable barrier against the large, coordinated ones that actually topple governments.