Anti-Defection Law, Origin, Provisions, Importance and Challenges

Context: The Supreme Court has questioned the Telangana Speaker for delaying action on the disqualification of BRS MLAs who defected to Congress, highlighting concerns over constitutional duties and anti-defection law.

Anti-Defection Law

The 52nd Amendment Act of 1985 added the 10th Schedule to the Indian Constitution, which includes the Anti-Defection Law. In democracies, it is common for legislators to switch parties, which can destabilise the ruling government. To address this, India introduced the anti-defection law in 1985, added to the Constitution as the Tenth Schedule. The main goal of this law is to promote stability by discouraging lawmakers from changing parties, especially during critical times. The law disqualifies elected members who join another political party, helping to maintain government stability.

• Defection: It refers to an elected representative switching allegiance from one political party to another or becoming independent, often for personal gain or political advantage.
• Origin of Anti-Defection Law in India
  • Introduced: By the 52nd Constitutional Amendment Act, 1985
  • Inserted in: Tenth Schedule of the Constitution
  • Purpose: To curb political defections and bring political stability, party discipline, and accountability.

Anti-Defection Law Origin

The Indian Constitution’s 10th Schedule, which penalises individual Members of Parliament (MPs)/MLAs who defect from one party to another, serves as an example of the anti-defection law. The phrase “Aaya Ram Gaya Ram” became well-known in the Indian political sphere in 1967 after Gaya Lal, a Haryana MLA, switched parties three times in a single day.

Frequent defections of elected and nominated party members made good governance hard and made it difficult for the state and federal governments to function. The need for an anti-defection measure was critical to preventing similar political resignations.

Therefore, Rajiv Gandhi, the Prime Minister of India at the time, proposed a plan to reduce the risks of desertion. The Constitution was amended to include it by the Fifty-Second (Amendment) Act of 1985. The 52nd Amendment to the Indian Constitution, which took effect in 1985, included and put into effect the Anti-Defection Law, also known as the 10th Schedule of the Indian Constitution.

Key Provisions of the Tenth Schedule

The Indian Constitution’s 10th schedule contains a number of suggestions for new laws. Under the anti-defection law, MLAs and MPs can be disqualified for the following reasons:

• If they voluntarily leave their party.
• If they vote or abstain against their party’s position.
• If a nominated member joins another party after six months.
• If an independent member joins a political party.

The Speaker or Chairman of the House decides on disqualification, and their decision is final. However, the Supreme Court of India has stated that legislators can challenge their disqualification in higher courts.

Disqualification Grounds

• Voluntary resignation from a party by an elected member.
• Voting/abstaining against party directions (whip) without prior approval and not being condoned within 15 days.
• Independent members: Disqualified if they join any political party after the election.
• Nominated members: Disqualified if they join a political party after 6 months from taking their seat.

Exceptions

• Merger Provision: If 2/3rd members of a party agree to merge with another, it is not considered defection.
• Presiding Officers: Exempted if they resign from their party after being elected Speaker/Chairman, and rejoin after leaving office.

Authority to Decide Defection

• Who decides?: The Speaker/Chairman of the House
• Rule-making Power: The presiding officer can frame rules to implement the Tenth Schedule.
• Trigger for Action: Requires a formal complaint by a House member to initiate proceedings.

Role of Whip in Anti-Defection

• Whip: A directive issued by political parties to ensure members vote in line with party positions.
• Defiance: Violating a whip may lead to disqualification under the Tenth Schedule.

Features of Anti-Defection Law

Three situations in which a member of parliament or the legislature switches political parties are covered by India’s anti-defection law:

Voluntary surrender

The first occurs when a representative elected on the platform of a political party “voluntarily” leaves that party or votes in the House against the wishes of that party. These individuals are removed from their seats.

Independent participants

When an independent candidate wins a seat in the legislature and then joins a political party. Every time a legislator joins (or leaves) a political party, their seat in the legislature is forfeited.

MPs who have been nominated

They are legally allowed to join a political party six months after being selected. They risk losing their position in the House if they join a party afterwards.

Anti-Defection Law and 10th Schedule of the Indian Constitution

The Anti-Defection Law seeks to maintain political stability by punishing officials who switch political parties. Anti-defection legislation also seeks to foster a sense of loyalty and connection among political party members. This is achieved by making sure that MPs are chosen based on a political party’s reputation, base of support, and platform upholds that party’s principles.

• 7th Schedule of the Indian Constitution
• 6th Schedule of the Indian Constitution
• 5th Schedule of the Indian Constitution

Challenges of the Anti-Defection Law

Challenges are also presented by restrictions on politicians’ access to other parties. Look at the issues below for a list of the difficulties with the Anti-Defection Law. By stifling disagreement among party members, it violates the members’ right to freedom of speech and expression.

The member’s ability to serve as a productive legislator is likewise hampered by this law. Restricts switching allegiances, which lowers the accountability of the government. An individual who has a party position as a senator of the parliament is reduced to a simple voting entity in the House of Representatives.

Anti-Defection Law Committees

The Anti-Defection Law has established a number of committees. Review the recommendations made by each committee to better comprehend the law.

Dinesh Goswami Committee on Electoral Reforms (1990)

Exemptions should only apply when a member (a) voluntarily resigns and leaves their political party, or (b) stops voting or votes against their party in a confidence or no-confidence motion. The Election Commission believes that the President or Governor should make the decision about disqualification.

Law Commission (170th Report, 1999)

Disqualifying provisions that are protected from mergers and splits should be eliminated. Pre-election electoral fronts should be recognised as political parties under anti-defection legislation. Political parties should reserve the use of whips for emergencies where the safety of the government is at risk.

Election Commission

The President or Governor should follow the Election Commission’s advice when making important decisions mentioned in the Tenth Schedule. People who switch parties should not be allowed to hold public office or any well-paying political job for the rest of their term. Additionally, any vote by a defector to remove the government should be considered invalid.

Haleem Committee (1998)

It asked that the phrases “political party” and “voluntarily giving up political party membership” be adequately defined. There will be some limitations put in place, such as maybe forbidding expelled members from taking posts in the government.

Constitution Review Commission (2002)

For the balance of their term, the committee proposed prohibiting the defectors from holding any public office or other political post. A defector’s vote to overthrow the government should be deemed invalid.

Anti-Defection Law Importance

The anti-defection law helps keep political parties stable and reduces corruption within them. It encourages parties to work together and avoid defections, which helps prevent political apathy. This law encourages lawmakers to act responsibly by fining and punishing those who leave their party. It promotes loyalty among party members and supports overall political stability. By preventing divisions and defections, the anti-defection law benefits the country’s development and governance.

Anti-Defection Law Amendments

A few changes could improve the Anti-Defection Law. The Election Commission of India suggested that the President or Governor should decide on disqualifying members, rather than the speaker. It was also recommended that an independent authority be created for this purpose. Additionally, political parties should practice democracy within their ranks to truly support democracy outside.

• In 2003, the anti-defection law was amended to allow for the merger of political parties. This means that if two or more political parties merge, the elected members of those parties will not be disqualified.
• In 2019, the anti-defection law was amended to allow for the expulsion of elected members from their political parties. This means that if a political party expels a member, the member will be disqualified from the House.

91st Constitutional Amendment Act, 2003 – Key Changes

• Ministerial Cap: Total ministers (including PM/CM) limited to 15% of the House strength.
• Disqualification of Ministers: Disqualified defectors cannot be appointed as ministers or hold remunerative political posts.
• No Split Provision: The one-third split clause was removed. Only a two-thirds merger is now valid.

Judicial Interpretations & Key Cases

• Kihoto Hollohan v. Zachillhu (1992): Upheld constitutional validity of the Tenth Schedule.
  • However, ruled that Speaker’s decision is subject to judicial review on grounds of malafide or perversity.
• Ravi S. Naik v. Union of India (1994): Even implicit resignation from a party (voluntarily giving up membership) can lead to disqualification.
• Viswanathan v. Speaker, Tamil Nadu Assembly (1995): Validated Speaker’s authority in defection cases; decision cannot be questioned in court unless proven biased.
• Supreme Court (2020 Judgment): Directed that defection petitions must be decided within 3 months to prevent indefinite delays.

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