Blog

Introduction

The inception of the Anti-Defection Law in 1985, as embodied in the 52nd Amendment Act and integrated into the Tenth Schedule of the Indian Constitution, was a pivotal development aimed at ensuring the unwavering commitment of party members to their party's principles.

This legislation, widely recognized as the Anti-Defection law, is designed to safeguard against deviations from a party's objectives. Violation of these party principles could lead to the forfeiture of House membership for a Member of the Legislative Assembly or Member of Parliament. Essentially, the Anti-Defection Law delineates the specific circumstances under which an elected representative may lose their status and be excluded from their political party. This legal framework stands as a cornerstone for preserving the coherence of party ideologies and fostering discipline among elected representatives, thereby upholding the democratic fabric of the Indian political landscape.

Evolution of the Anti-Defection Law (10th Schedule) in India

• Emergence of the Term "Aaya Ram Gaya Ram": In 1967, a notable incident in Haryana involving MLA Gaya Lal changing his party three times in a single day led to the popularization of the phrase "Aaya Ram Gaya Ram" in Indian political circles.
• Escalating Defection Issues: Frequent party defections, both from elected and nominated members, created a tumultuous environment that impeded good governance at the state and central levels.
• Need for Legislation: Recognizing the destabilizing impact of political defections, there arose a pressing need for legislation to curb such practices and establish a more secure political environment.
• Rajiv Gandhi's Initiative: In response to the challenges posed by rampant defections, Rajiv Gandhi, the Prime Minister of India from 1984 to 1989, took the initiative to address the issue. He proposed a bill to counter the negative repercussions of political defections.
• 52nd Amendment Act of 1985: The solution to the issue materialized with the 52nd Amendment Act of 1985, which introduced the 10th Schedule to the Indian Constitution. This schedule is widely recognized as the 'Anti-Defection Law,' aiming to regulate and discourage defections.
• Inclusion of the Anti-Defection Law (10th Schedule): The Anti-Defection Law, embedded in the 10th Schedule, became a pivotal addition to the Indian Constitution in 1985. Its primary goal was to maintain the stability and integrity of political parties by curbing arbitrary party-switching by members.
• 91st Amendment Act of 2003: The Anti-Defection Law underwent a modification through the 91st Amendment Act of 2003. This amendment eliminated an exemption provision that previously stated disqualification for defection would not apply in the case of a split within a party.

Provisions Under the Anti-Defection Law (Tenth Schedule)

• Disqualification of Members of Political Parties
• A member of a House affiliated with any political party can face disqualification under the following circumstances:
• Voluntary renunciation of party membership.
• Voting or abstaining in the House against the party's directive without prior permission, and the party failing to condone the action within 15 days.
• Adherence to party rules is mandatory for members elected on a party ticket.

• Independent Members

• If an independent member aligns with a political party post-election, or if a nominated legislator joins a political party after six months from their initial entry into the legislature,

• Nominated Members

• Nominated members of a House are subject to disqualification if they join any political party after six months from assuming their position.
• Within the initial six months, joining a political party does not lead to disqualification.

• Power to Disqualify

• The authority to decide on disqualification matters related to defection rests with the Speaker or Chairman of the House, and their decision is deemed final.
• If there is a complaint against the Chairman or the Speaker, a member of the House, elected within the House, makes the disqualification decision.
• All proceedings regarding disqualification under the Tenth Schedule are treated as proceedings in Parliament or the Legislature of a state.

• Rule-Making Power

• The presiding officer of a House holds the power to formulate rules that facilitate the implementation of the Tenth Schedule.
• These rules must be presented before the House for a period of 30 days, during which the House can approve, modify, or reject them.
• Any intentional violation of these rules by a member may be treated as a breach of House privilege by the presiding officer.
• Taking up a defection issue is contingent upon the receipt of a complaint from a member of the House.
• Prior to making a final judgment, the presiding officer is obligated to provide the member in question with an opportunity to explain their actions.
• The matter may be referred to the privileges committee for investigation, ensuring that the consequences of defection are not immediate or automatic.

Exceptions Under the Anti-Defection Law

• Party Merger Exception: If two-thirds of the elected members of a political party decide to merge into another party, neither those who join the new party nor those who remain with the original party will face disqualification.
• Resignation from Party and Rejoining Exception: Any person elected as Chairman or Speaker can resign from their party and rejoin the party if they abandon that post.
• No Splitting of Political Parties Exception: While splitting of political parties was allowed in the past, currently, it is not permitted.
• Nominated Members Exception: Nominated members who are not affiliated with any party can choose to join a party within six months, after which they are treated as a party member or an independent member.

Advantages of Anti-Defection Law

• Promoting Political Stability: The Anti-Defection Law serves as a crucial mechanism in promoting political stability by curbing the tendency of politicians to frequently switch parties. This ensures a more consistent and stable political landscape.
• Democratic Realignment Through Party Merger: The law facilitates democratic realignment within the legislature by allowing for party mergers. This enables a more orderly process for parties to come together or undergo transformations.
• Elimination of Political Corruption and Non-Development Expenditures: By discouraging frequent defections, the Anti-Defection Law contributes to the elimination of political corruption and reduces non-development expenditures associated with irregular elections prompted by party-switching.
• Constitutional Recognition of Political Parties: The law marks a significant milestone by establishing the recognition of political parties within the constitution. It formalizes the role and significance of political parties in the democratic framework.
• Ensuring Stability in Government: The primary objective of the Anti-Defection Law is to provide stability to the government. By penalizing members for party switches, it contributes to the maintenance of a stable and functional government.
• Instilling Allegiance to Party: Anti-defection rules aim to foster a sense of allegiance among members to their respective parties. This is achieved by ensuring that members elected under the party banner and its support, as well as those aligning with the party manifesto, remain loyal to their political party and its principles.
• Upholding Party Manifesto and Principles: Members elected under a party's name and support are expected to uphold the party manifesto and adhere to its principles. The Anti-Defection Law reinforces this commitment, promoting consistency and coherence in political ideologies.

Drawbacks of Anti-Defection Law

• Lack of Distinction Between Disagreement and Defection: The Anti-Defection Law fails to distinguish between disagreement and defection, limiting the legislator's freedom to dissent and act according to their conscience. Critics argue that it reinforces party dominance and legitimizes party dictatorship under the guise of discipline.
• Illogical Distinction Between Individual and Collective Defection: The law's distinction between individual and collective defection is seen as illogical. It prohibits retail defections but allows wholesale defections, creating inconsistencies.
• Absence of Provision for Removal Based on Activities Outside the Legislature: The law does not provide for the removal of a member from their party based on activities outside the legislature, limiting its scope and effectiveness.
• Illogical Distinction Between Independent and Nominated Members: The distinction between independent and nominated members is considered illogical. If an independent member joins a political party, disqualification follows, while a nominated member is allowed to do so.
• Criticisms of the Presiding Officer's Decision-Making Authority: Criticisms are raised against the presiding officer's authority to make decisions, citing potential political constraints that may affect impartiality. Additionally, concerns about the lack of legal expertise and experience required for handling defection cases are highlighted.
• Concerns Raised by Lok Sabha Speakers: Some Lok Sabha Speakers, such as Rabi Ray in 1991 and Shivraj Patil in 1993, have expressed reservations about their abilities to impartially handle cases involving defections, raising questions about the efficacy of the presiding officer's role.

Revitalizing the Anti-Defection Law

• Strategic Application: Targeting the essence of governance, the law could be tailored to apply selectively, honing in on pivotal votes that wield substantial influence over government stability. Picture a focused approach, concentrating on high-impact decisions like budget approvals or no-confidence motions.
• Election Commission Empowerment: Elevate the decision-making process by involving higher authorities – the President (for MPs) or the Governor (for MLAs) – in collaboration with the Election Commission. This ensures a fair and impartial evaluation, bringing a heightened level of credibility to the defection adjudication process.
• Redefined Independence: Propose a paradigm shift by championing the establishment of an independent body to handle defection cases. Move away from the Speaker's precarious position, tied to continuous majority support. Imagine a fresh approach with an independent authority ensuring unbiased decisions.
• Intra-Party Democracy Drive: Inject vitality into political parties by promoting robust intra-party democracy. Envision a scenario where parties foster internal debates, listen to diverse opinions, and cultivate a democratic ethos. This transforms parties into vibrant platforms for free expression and discussion.
• Supreme Court's Thoughtful Reassessment: Envision a comprehensive review of the Tenth Schedule by the Supreme Court, providing a thoughtful roadmap for the Anti-Defection Law's future. Picture an academic revisit, offering insights and refinements that enhance the law's relevance and effectiveness.

Landmark Supreme Court Judgements Shaping Anti-Defection Law

• Kihoto Hollohan vs Zachillu and Others (1992)

• Significantly altered the landscape by holding that judicial review is not permissible before the Speaker/Chairman makes a decision.
• Prior to this case, decisions of the Speaker/Chairman were deemed final and immune to judicial review, a stance overturned by the Supreme Court.
• Interference at an interlocutory stage of proceedings was also ruled out.

• Ravi S Naik vs Union of India (1994)

• Clarified the broader implications of the term "voluntarily gives up membership of a political party."
• Emphasized that this phrase goes beyond a mere resignation, expanding its scope and implications.

• Rajendra Singh Rana vs Swami Prasad Maurya (2007)

• Asserted that the Speaker's failure to act on a complaint or acceptance of claims related to splits or mergers without a proper finding is a violation of the Tenth Schedule.
• Highlighted that such inaction represents a breach of constitutional duties by the Speaker.

Conclusion

The Anti-Defection Law in India, delineated in the Tenth Schedule of the Constitution, has evolved significantly through legislative amendments and pivotal judicial decisions. Initially designed to curb party-switching and enhance political stability, the law has undergone refinements, notably with the 52nd and 91st Amendment Acts. Judicial interventions, exemplified by cases like Kihoto Hollohan vs Zachillu and others, have contributed to shaping its interpretation. Despite commendable progress, challenges such as the Speaker's role and impacts on intra-party democracy persist, prompting suggestions for further reforms. The law's journey reflects India's commitment to preserving democratic values, necessitating ongoing adaptation to the dynamic political landscape.