Anti Defection Law [Explained and Its Implications]

Author : Yogricha

January 31, 2024

Overview: The Tenth Schedule of the Indian Constitution, commonly referred to as the Anti-defection law, aims to deter political defections driven by the allure of positions, material gains, or similar motivations. This law was enacted by Parliament in 1985 and strengthened in 2002.

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Free Notes for Anti Defection Law
Important topics relavent for Judiciary and other law exams
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Important topics for Judiciary (prelims and mains):

For Prelims: Schedules of Indian Constitution, Tenth Schedule, Anti-Defection Law, Constitution of India

For Mains: Legality of Tenth Schedule, Process of disqualification, Remedies against anti-defection law

Introduction:

The anti-defection law addresses instances of defection in Parliament or state legislatures involving: (a) Members of a political party, (b) Independent members, and (c) Nominated members.

In the political context, defection occurs when a member of a political party leaves their party and aligns with other political groups. This practice of 'defection' has historically contributed to political instability and uncertainty in India.

Members can face disqualification under the following circumstances:

Voluntarily relinquishing their political party's membership or joining another political party after the election.
Voting against or abstaining from crucial votes contrary to their respective party's directives.
Nominated members face disqualification if they join a political party after six months from assuming their seats.

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However, if at least two-thirds of the members of a legislature party agree to merge with another party, they are exempted from disqualification.

The Chairman or the Speaker of the House holds absolute authority in deciding cases related to members' disqualification due to defection.

While the law has had some success, certain loopholes have limited its effectiveness. The government may consider recommendations from various committees and introduce appropriate amendments to enhance the law's effectiveness to its fullest potential.

Elections play a pivotal role in a democratic system of governance, where the emergence of political parties with varying ideologies is a natural occurrence. The healthy competition among political parties during elections to gain control of the country reflects the vitality of a democracy.

These political parties translate diverse ideologies into concrete policies and are integral to the success of any democratic system. However, defections within the party system raise concerns. The anti-defection law addresses defection scenarios in Parliament or state legislatures involving

(a) members of a political party,

(b) independent members, and

(c) nominated members. In specific situations, this law permits legislators to switch parties without facing disqualification.

History of Anti-Defection Law

Origin of the Term 'Defection' The term 'defection' denotes an act of rebellion, dissent, or disagreement by an individual or a group. In a general context, defection signifies the act of leaving one organization to join another. In the realm of politics, it refers to a situation where a member of a political party departs from their party to align with other political groups.

Traditionally, this practice was known as 'floor crossing,' which can be traced back to the British House of Commons. In this context, a legislator would change their allegiance by physically crossing the floor from the Government side to the Opposition side or vice versa.

Defections in India Indian politics has not been immune to the phenomenon of defections. The practice of 'defection' in Indian politics has often led to political instability and uncertainty, diverting attention from 'governance' to 'governments.'

The infamous slogan "Aaya Ram, Gaya Ram" emerged during the continuous defections by legislators in the 1960s. The history of defections in India dates back to the days of the Central Legislature when Shri Shyam Lai Nehru, a Central Legislature member, shifted allegiance from the Congress Party to the British side.

Another instance occurred in 1937 when Shri Hafiz Mohammed Ibrabim, initially elected to the Uttar Pradesh Legislative Assembly on the Muslim League ticket, defected to join the Congress.

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In the late sixties, the trend of changing political parties for reasons unrelated to ideology became prominent in Indian politics. According to the Chavan Committee Report (1969), following the Fourth General Elections, there were numerous instances of legislators changing party allegiance in several States within a short period.

Out of approximately 542 cases spanning two decades from the First to the Fourth General Elections, at least 438 defections occurred in just 12 months. Among Independent candidates, 157 out of 376 elected joined various parties during this period.

The lure of holding office played a significant role in legislators' decisions to defect, as evidenced by the fact that 116 of the 210 defecting legislators from various States were included in the Councils of Ministers they helped form through defections.

Evolution of Anti-defection Law in India Efforts to introduce legislation in India to address the issue of defections can be traced back to a private member's resolution presented in the Fourth Lok Sabha on August 11, 1967, by Shri P. Venkatasubbaiah.

The resolution underwent discussions in the Lok Sabha on November 24 and December 8, 1967. The final version of the resolution received unanimous approval from the Lok Sabha on December 8, 1967. In line with the sentiments expressed in the resolution, the Government established a Committee on Defections, chaired by the then Union Home Minister, Shri Y.B. Chavan, which submitted its report on February 18, 1969.

The Committee's report was subsequently presented in the Lok Sabha.

The Constitution (Thirty-second Amendment) Bill, 1973 In response to the inadequacies of the Y.B. Chavan Committee's recommendations in addressing the issue of defections, the Constitution (Thirty-second Amendment) Bill, 1973 was presented in the Lok Sabha on May 16, 1973.

The purpose of this bill was to constitutionally establish disqualification criteria for defections. A motion to refer the bill to a Joint Committee of both Houses of Parliament was approved in the Lok Sabha on December 13, 1973, and in the Rajya Sabha on December 17, 1973. However, with the dissolution of the Fifth Lok Sabha on January 18, 1977, the Joint Committee became defunct.

The Constitution (Forty-Eighth Amendment) Bill, 1978 Another attempt to address the issue of defections was made on August 28, 1978, when the Constitution (Forty-eighth Amendment) Bill, 1978 was introduced in the Lok Sabha. At the introduction stage, several members from both ruling and opposition parties opposed the bill.

They raised objections to the alleged misrepresentation of facts in the Statement of Objects and Reasons, as members were not consulted on the provisions of the bill, contrary to what was stated in the statement. Faced with strong opposition, the Minister withdrew the motion to introduce the bill.

The Constitution (Fifty-second Amendment) Bill, 1985 (Anti-defection Law) To address the issue of defections effectively, the government introduced the Constitution (Fifty-second Amendment) Bill in the Lok Sabha on January 24, 1985.

This bill led to amendments in Article 101, 102, 190, and 191 of the Constitution, providing grounds for the vacation of seats due to member disqualification, and the insertion of the Tenth Schedule.

The Tenth Schedule laid down provisions related to disqualification on the grounds of defection. The bill was passed by the Lok Sabha and the Rajya Sabha on January 30 and 31, 1985, respectively. The Act came into effect on March 1, 1985.

The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985, framed by the Speaker, Lok Sabha, in accordance with paragraph 8 of the Tenth Schedule, became effective on March 18, 1986.

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Key Provisions of the Anti-defection Law (Tenth Schedule) Rule 2 - Specifies grounds for the disqualification of members, including:

Voluntarily giving up the membership of a political party.
Voting or abstaining from voting in a manner contrary to the party's directive. However, if a member obtains prior permission or is condoned by the party within 15 days from such action, disqualification does not apply.
Independent candidates joining a political party after the election.
Nominated members joining a political party after six months from becoming a member of the legislature.

Rule 3 - Addresses disqualification exceptions for members representing a faction resulting from a split in the original political party. The provision allowing a split of at least one-third members as a non-actionable split was deleted by the 91st Amendment in 2003.

Rule 4 and 5 - State exemptions from disqualifications, such as when a member's original political party merges with another political party, and the member either joins the other party or a new party resulting from the merger or chooses to function as a separate group.

Rule 6 - Empowers the Speaker or Chairman of a House to decide on member disqualification questions, with their decision being final.

Rule 8 - Grants authority to the Chairman or Speaker of a House to establish rules for implementing the provisions of the Tenth Schedule.

The Constitution (Ninety-first Amendment) Act, 2003 The Government introduced the Constitution (Ninety-seventh) Amendment Bill, 2003, in the Lok Sabha on May 5, 2003. After the Standing Committee on Home Affairs, to which the Bill was referred, presented its report, the Bill, with some committee-suggested amendments, was passed by both the Lok Sabha and the Rajya Sabha on December 16, 2003, and December 18, 2003, respectively.

It received presidential assent on January 1, 2004, becoming the Constitution (Ninety-first Amendment) Act, 2003, and was published in the Gazette of India on January 2, 2004.

This Act omitted the provision regarding splits from the Tenth Schedule to the Constitution and added a disqualification preventing members disqualified under paragraph 2 of the Tenth Schedule from being appointed as Ministers or holding remunerative political posts during the disqualification period, until the expiry of their term or their election to another legislative body, whichever occurs earlier.

Shortcomings and Issues:

Problem with Merger: Rule 4 of the Tenth Schedule may create a loophole in cases related to mergers, as it seems to safeguard members based on their number rather than the reason behind the defection. This exception is contingent on the two-thirds majority of members agreeing to the merger, potentially allowing those who are motivated by lucrative office or ministerial positions to exploit this provision.
Expulsions: The Anti-defection Law does not address the expulsion of members from their political parties, creating a legal vacuum. While parties can still expel members based on their party constitution, the Tenth Schedule does not provide provisions for such expelled members, leaving them subject to party discipline and whips without enjoying any rights under the party constitution.
Voluntarily Giving Up Party Membership: Rule 2(1)(a) of the Tenth Schedule does not clearly define whether actions like working against the party's interests, supporting candidates from other parties, etc., which technically do not constitute voluntary membership abandonment, can lead to disqualification.

The practice of legislators switching political parties during their term persists in Indian legislatures despite the introduction of the Tenth Schedule into the Constitution in 1985, commonly known as the 'Anti-Defection Law.' This law aimed to curb the trend of legislators changing their political affiliations during their tenure.

The recent political crisis in Maharashtra and previous instances serve as stark reminders of the limitations and capabilities of the Tenth Schedule.

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What Does the Anti-Defection Law Entail? The anti-defection law imposes penalties on individual Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) for switching from one political party to another.

It was incorporated into the Constitution as the Tenth Schedule in 1985, with the goal of enhancing governmental stability by discouraging legislators from switching parties.

The Tenth Schedule, also known as the Anti-Defection Act, became part of the Constitution through the 52nd Amendment Act, 1985. It outlines the provisions for disqualifying elected members due to defection to another political party. This law was a response to the destabilization of several state governments by party-switching MLAs following the 1967 general elections.

However, it permits a group of MPs/MLAs to join (i.e., merge with) another political party without facing defection penalties. Furthermore, it does not penalize political parties for either encouraging or accepting defectors.

Under the 1985 Act, a 'defection' by one-third of a political party's elected members constituted a 'merger.' However, the 91st Constitutional Amendment Act in 2003 changed this requirement, stipulating that at least two-thirds of a party's members must favor a "merger" for it to be legally valid.

Members disqualified under this law can still contest elections from any political party for a seat in the same legislative body.

The decisions regarding disqualification on the grounds of defection are referred to the Chairman or Speaker of the respective House and are subject to judicial review. Nevertheless, the law lacks a defined timeframe for the presiding officer to decide a defection case.

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What Are the Grounds for Defection?

Voluntary Give Up: When an elected member voluntarily relinquishes their membership in a political party.

Violation of Instructions: If a member votes or abstains from voting in the legislature contrary to the directives issued by their political party or an authorized representative without obtaining prior permission.

The abstention from voting must not be condoned by the party or authorized person within 15 days of the incident.

Elected Member: If an independently elected member joins a political party.

Nominated Member: If a nominated member joins a political party after the expiration of six months.

How Does Defection Impact the Political System?

Subversion of Electoral Mandates:
- Defection involves elected representatives abandoning the party they were elected under and switching to another party, often driven by the allure of ministerial positions or financial benefits.
Disruption of Government Functionality:
- The infamous “Aaya Ram, Gaya Ram” phrase originated from continuous defections by legislators in the 1960s. These defections lead to governmental instability and hinder effective administration.
Encourages Horse Trading:
- Defection promotes the trading of legislators, undermining the essence of a democratic system.

Challenges with the Anti-Defection Law:

Paragraph 4 of the Law:

Paragraph 4 of the Anti-Defection Law creates an exception for mergers between political parties but introduces ambiguity by not clarifying whether the original party refers to the national or regional level. This ambiguity exists despite the Election Commission of India recognizing political parties based on this distinction.
It implies that a merger can be deemed to occur even without an actual merger of the original political party with another, as long as two-thirds of the legislature party members agree.

Undermining Representative & Parliamentary Democracy:

The law has curtailed the freedom of MPs and MLAs to vote based on their judgment, making them primarily accountable to their political party rather than their constituents. This undermines representative democracy.

Role of the Speaker:

The law does not specify a timeline for the House Speaker's or Chairperson's actions in defection cases. As a result, some cases remain unresolved for extended periods.

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Possible Improvements to the Anti-Defection Law:

Rational Use of the Law: The law could be limited to votes that determine government stability, such as the passage of annual budgets or no-confidence motions.
Involvement of Election Commission: Instead of the Presiding Officer, the President (for MPs) or the Governor (for MLAs) could decide on disqualifications based on the advice of the Election Commission.
Independent Authority: An independent authority, such as a retired judge from the higher judiciary, could handle defection cases impartially and expeditiously.
Promotion of Intra-party Democracy: Political parties should encourage intra-party democracy, allowing members to express their opinions and engage in discussions. This would foster freedom of speech and promote inner-party democracy.

Does the anti-defection law impact the decision-making abilities of legislators?

The anti-defection law aims to maintain a stable government by preventing legislators from changing their political allegiance. However, this law also limits a legislator's ability to vote according to their conscience, judgment, and the interests of their constituents.

Such restrictions hinder the legislature's role in overseeing the government, as members are compelled to vote in accordance with their party leadership's decisions rather than representing the preferences of their constituents.

Political parties typically issue directives to MPs on how to vote, regardless of the issue's nature. Some experts have proposed that the law should apply solely to votes that directly influence government stability, such as the passage of the annual budget or no-confidence motions.

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How have the Courts interpreted the law in relevant cases?

The Supreme Court has provided interpretations of various provisions within the law, and some of these are discussed below.

'Voluntarily gives up his membership' extends beyond formal resignation: The law disqualifies a member who 'voluntarily gives up his membership'. The Supreme Court has clarified that this can encompass situations where a member's conduct implies giving up membership, even without a formal resignation.

In certain cases, members who openly expressed opposition to their party or support for another party were considered to have effectively resigned. For instance, in the case of two JD(U) MPs disqualified from the Rajya Sabha, their engagement in anti-party activities, public criticism of their party, and participation in rallies organized by opposition parties in Bihar led to them being deemed to have 'voluntarily given up their membership.'

Presiding Officer's decision subject to judicial review: Initially, the law stated that the Presiding Officer's decision was not subject to judicial review. However, in 1992, the Supreme Court overturned this provision, allowing for appeals against the Presiding Officer's decision in the High Court and Supreme Court. Nonetheless, it clarified that judicial intervention would only occur after the Presiding Officer issued their order.

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Refusal of judicial intervention based on delay: In 2015, the Hyderabad High Court declined to intervene in a case involving alleged delays by the Telangana Assembly Speaker in taking action against a member under the anti-defection law. This decision illustrates that courts may refuse to intervene based on perceived delays in the Speaker's actions.

Conclusion:

In conclusion, it is essential to effectively regulate the Tenth Schedule while implementing clear and transparent directives that promote accountability in a democratic system. This provision should strike a balance by ensuring government stability, reducing corruption, and redirecting the focus of parliamentarians/legislators towards governance.

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