Last Monday, Rajya Sabha chairman Venkaiah Naidu expelled Janata Dal (United) leaders Sharad Yadav and Ali Anwar Ansari from membership of the Upper House after finding them guilty of defection. Naidu serves as chairman of the Rajya Sabha since he is the country’s vice-president.

The Janata Dal (United) had in September sought the disqualification of the two leaders on the grounds that they had attended a rally of Opposition parties in Patna in violation of its directions. Yadav’s rebellion goes back to events in July, when the Janata Dal (United) walked out of the Mahagathbandhan or grand alliance with the Rashtriya Janata Dal and the Congress, which was in power in Bihar at the time. Chief Minister Nitish Kumar then went on to partner the Bharatiya Janata Party to retain power. Yadav and Ansari disagreed with this decision, leading to the present impasse.

On Thursday, Yadav said he would challenge his disqualification “in all forums, including court”.

What is defection?

The Tenth Schedule, better known as the anti-defection law, is a constitutional amendment passed in 1985 with the support of the Rajiv Gandhi-led Congress government that allows for a legislature to expel members who are guilty of defection. Defection is usually defined as the crossing of floor of a legislature, or voting against one’s own party. However, in this case, Yadav did not vote against the Janata Dal (United).

The anti-defection law also provides an expanded definition of defection whereby a member of a legislature can be disqualified if “he has voluntarily given up his membership of such political party”. It is under this rule that Yadav was expelled.

Defining voluntary

Yadav has maintained that he never gave up his membership of the Janata Dal (United) and that he remains a member of the party. This raises the question: how did Naidu decide that Yadav had “voluntarily given up his membership” of the party when Yadav insists he did no such thing? The Oxford dictionary defines voluntary as “done, given, or acting of one’s own free will”. Does Naidu claim to know Yadav’s own free will better than Yadav himself?

As it turns out, this might be a semantic riddle but not a legal one. In Ravi Naik versus Union of India, 1994, the Supreme Court noted:

“The words ‘voluntarily given up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from membership of that party. Even in the absence of a formal resignation from the membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

Two years later, in G Viswanathan versus Honourable Speaker, Tamil Nadu Legislative Assembly, the Supreme Court said, “The act of voluntarily giving up the membership of the political party may be either express or implied.”

Naidu used this precedent to conclude that Yadav had resigned from the Janata Dal (United). Since the Ravi Naik case makes the conduct of a member a legitimate source from which to draw inferences, Naidu took into account the fact that Yadav had disagreed with Nitish Kumar’s decision to ally with the BJP as proof of defection. That Yadav attended a rally of the Rashtriya Janata Dal was used as further proof.

Banning dissent

Naidu’s decision here raises questions about just how much dissent is permitted in the Indian political system. In his order disqualifying Yadav, Naidu argued that any dissent from the party line has to be internal and behind close doors – disagreement in public is a sign of defection:

“Here, I would like to mention that a political party, which is an essential part of the democratic set up, works through collective decisions. Though one might have differences with the decision of the party, he is ultimately to follow the collective decision of the party. He has every right to air his views in the meetings and forums of the party before a decision is taken and maybe even after that also. But if a member of any political party starts criticising the decisions of his own party publicly, after the decision has been taken, and goes to the extent of attending and addressing the rallies of the rival political parties, it will fall under anti-party activity and in case, the person concerned is a member of the state legislature or Parliament, this amounts to voluntarily giving up the membership of the party, thus incurring disqualification under the Tenth Schedule. In my considered opinion, a member gets elected as a candidate of a political party because of the policies and manifestos of the party and if the member criticises his party publicly, he will be deemed to have given up his membership of the political party voluntarily.”

This ruling is made more troubling by the fact that most political parties in India do not have internal democracy and do not allow internal dissent. So, Naidu’s decision makes it that much tougher for members to express dissent in public as it would attract charges of defection straightaway.

Will the real JD(U) please stand up

Sharad Yadav, a former president of the party, has claimed in his defence that his faction is the real Janata Dal (United) and it is the Nitish Kumar faction that has defected from him. In a press release, Yadav argued:

“It is also worth mentioning here that the Nitish faction violated the Constitution of the party by going out of the Mahagathbandhan formation of which was decided in the highest bodies of the Janata Dal (U). Therefore, they have left the party and not our group which is bound by the democratic principles and the Party Constitution.”

However, Naidu’s order strikes down the Mahagathbandhan argument:

“It [the anti-defection law] does not take cognisance of any political alliance made by political parties. The Mahagathbandhan was a political alliance of some political parties formed for the purpose of contesting the 2015 Legislative Assembly elections in Bihar and JD(U) was one of its constituents. As such, leaving or joining of any political alliance by political parties does not fall within the purview of the anti-defection law.”

Naidu is correct in law. The anti-defection law does not take into account pre-poll alliances.

Nevertheless, there is a problem here. The underlying logic of the law rests on the fact that people vote for a candidate on the basis of his or her party, hence the party controls the actions of the legislator. However, in the case of a pre-poll alliance, voters will also take into account the coalition while voting. For example, if the Mahagathbandhan candidate in a particular constituency happened to be a Janata Dal (United) candidate, then even Rashtriya Janata Dal and Congress supporters would have voted for him – not because he was a member of his party but because he was part of the grand alliance. This puts a strain on the underlying logic of the anti-defection law of limiting defection to the party.

Controversy not new

The anti-defection law has been controversial from the start. Defections are a part of every democratic system. Indeed, in a system in which legislators represent constituencies, to expect them to be constrained by law to vote as per the party is an anomaly. Bangladesh is the only other country that makes cross voting an offence. In advanced parliamentary democracies such as the United Kingdom, cross voting is seen as a legitimate way for MPs to express discontent with their parties or government. No law regulates how legislators vote.

Feeble attempts have been made in India to amend the anti-defection law. In 2010, Congress MP Manish Tewari moved a private member’s bill (a legislation not introduced by the government) to limit the law to only certain crucial matters such as a no-confidence motion, where the survival of a government may be at stake.

But these attempts at amending the law have seen little traction given that party high commands could hardly be expected to dilute their own powers. In fact, Naidu’s decision strengthens the anti-defection law, making even public dissent a reason to disqualify a legislator.