[Ed Note– This is a two-part series on anti-defection law by our Senior Analyst, Shanthan Reddy. Part I introduces defection law to the readers and explains how the merger exception has been misused to facilitate defection. Part II specifically looks into the examples of Telangana and Goa to argue how the merger exception is being misused in state level politics. The first part can be found here.]
The influence of the merger exception on state politics can be analysed by looking at the states of Telangana and Goa. In both these states, the merger exception has been misused to promote behaviour which goes against the core ideals of democracy, However, the consequences of the misuse in both states are different.
In Telangana, the Telangana Rashtra Samithi (“TRS”) has been in power since 2014. In 2014, the party came into power winning 63 out of 119 seats, and in 2018 it retained its power by winning 88 of the 119 seats. However, a constant feature of both these terms is the frequent influx of defected members into the party. Specifically, the merger exception has been used to allow the defection of 12 Indian National Congress (“INC”) members into the TRS, as 12 out of the 18 total members in INC met the 2/3rd threshold that has been constitutionally imposed. More recently, the last two remaining TDP MLAs defected into TRS, and were again protected by the merger exception.
The use of the merger exception in Telangana shows how a party that already has a huge majority can use its power to orchestrate mass defections from numerically smaller opposition parties and completely wipe them out. TRS merely had 63 seats six years back and weak support in major parts of Telangana, but currently it has 101 members and has gained a support base in all parts of the state. It has achieved this on the back of mass defections, thereby killing major opposition parties like the INC. It is important to remember that such systematic dismantling of the opposition was partly facilitated under the harbour of the merger exception.
Further, the case study of Telangana exemplifies another unique feature present in India’s political party systems. It is usually assumed that parties with a thumping majority would not want to encourage defections, as more defections would mean a more diverse group of party members and thus, increased intra-party conflict. However, in India, intra-party conflict is not a matter of great concern because of two reasons. First, largely, no rules govern the internal decision-making powers of the party and thus the decision-making powers can be vested in the hands of influential members. In fact, in national parties like the Bhartiya Janta Party (“BJP”) and INC, the decision-making power indirectly rests in the hand of a few members of the party. Second, cross voting is not allowed under the anti-defection laws and if a member cross votes, they would be disqualified. Thus, even if a member disagrees with the party’s positions, they are obligated to vote in accordance with it.
In Goa, the merger exception was used to change the mandate of the people. The total strength of Goa’s legislative assembly is 40, with the INC emerging as the single largest party with 17 seats in the 2017 Assembly Elections. However, in 2019, 10 out of the 15 MLAs from Congress party defected to the BJP. Since the defection met the merger exception threshold, the MLAs were saved from disqualification. Currently, Congress has only 5 MLAs, while the BJP is the largest party now with 27 MLAs. Thus, while the number of congress MLA’s fell from 17 to 5, that of BJP’s rose from 13 to 27. This is a direct reversal of the mandate of the people because they had elected Congress as the largest party in Goa via a democratic election. Such mass defections also set a bad precedent of politicians deciding which party holds power and which party doesn’t hold power.
The example of Telangana shows us how dominant majorities in state legislatures can use the merger exception to systematically eliminate opposition parties. On the contrary, the example of Goa shows us how in states with small legislative assemblies, the merger exception can be used to completely reverse the mandate of the people. Conclusively, events of Telangana and Goa can easily transpire in other states with dominant majorities or small legislative assemblies and thus, the merger exception in practice works against democratic ideals both at national and state level politics.
What can be done to remedy the situation?
The above section clarifies the point that the merger exception, like the split exception, is being exploited or at least has the potential to be exploited, both at national and state-level politics. It also brings home the point that the merger exception can be used to thwart democratic ideals and principles by hindering federalism, wiping out opposition parties and making legislative assemblies less representative of the popular will. Since it is working against such core principles of democracy it seems fair to seek the removal of such a provision. In fact, the 170th Law Commission Report also recommended the same. However, the removal of the merger exception is only the first step.
All members belonging to a political party may support an overarching and broad ideological goal. However, there will be differences among party members on the different pathways to achieve this broad goal. Intra-party conflicts arise in such contexts. However, if the merger exception is removed, factions within the parties lose political influence against the party leaders. When read in conjunction with the aspect of there being no internal democracy within parties in India, it is a death knell on intra-party conflict. Members would not be able to influence the decisions makers in the party in any manner i.e. through threats of cross-voting or mass defection. Put simply, the removal of the merger exception cuts down the scope for intra-party conflicts. Legislators have only two options at their disposal – obey party orders or be disqualified from the assembly.
To counter these effects, disqualification for cross-voting should be limited to only certain exceptional situations such as that of no-confidence motions, wherein the term of the government is at stake, and money bills where a crucial financial policy is being put to vote. It is clear that that the disqualification based on cross-voting is based on the misconception of equating dissent with defection. When members are not allowed to vote based on their own choice, they tend not to voice their disagreement because it leads to an absurd situation where despite arguing against something a member has to vote in favour of it. Consequently, there is little or no intra-party debate. Thus, if disqualification based on cross-voting is limited, it will lead promote intra-party debates. It has to be kept in mind that party cohesion and intraparty conflict have to be balanced. Without intra-party debates, it is likely that the viewpoints and needs of only a few members may be considered as the viewpoints and needs of all the members.
The above-given solution is optimal because it tries to restore the balance between the need for a stable government and the freedom of legislators to dissent against the party. It allows for a better balancing exercise. As can be noted from the aforementioned examples of Goa and Telangana, the merger exception has the potential to disturb party cohesion and de-stabilize governments. However, since cross-voting is not allowed in cases of no-confidence motions, such a reform ensures that the need for a stable government is fulfilled along with the grant of freedom of expression to legislators. Further, the option to influence decisions via cross voting also removes the need for defecting. This is because it creates a scenario wherein members of a party can en masse disagree with the party and still not be disqualified from the house. As a result, they need not go looking for a new political home every time they differ with the party’s mandate.
Lastly, the merger exception is inherently contradictory in nature. Let us assume that such an exception is used only in cases where serious ideological differences have led to a split in the party. Even when this happens, it means that the party splitting no longer adheres and supports the goals and policies on which its members were elected i.e. goals and policies of the original party. In such situations, it seems valid to demand that the members of the new party gain electoral legitimacy for their new ideology and policy goals.
The merger exception has often gone under the radar without receiving enough attention from scholars. However, in recent times it has been the primary tool in the hands of political leaders, especially the numerically small ones, to defect without being disqualified, as has been demonstrated above. The Parliament had perceived that due to the high threshold (2/3rd requirement) the merger provisions will be scantly used and will not cause the same problems that spilt exception had created. However, in the case of parties with a smaller number of members or small legislative assemblies, the higher threshold does not act as a hindrance. Rather, it acts as a facilitator for defecting. Certain core democratic values and principles have been disturbed as a result of such untoward use of the law. Thus, it becomes important that this provision is removed before it is further exploited.
However, the removal of the merger exception tilts the balance completely in favour of party cohesion and stability while disregarding the freedom of expression of legislators. To restore this balance, it is suggested that the prohibition on cross voting be limited only to certain exceptional circumstances. Such a measure ensures that party members have the power to influence decision making within the party.