ANTI – DEFECTION LAW IN INDIA: A CRITICAL ANALYSIS

Introduction

Political defection refers to the act of elected members of a political party switching their
allegiance to another party or becoming independent. It involves an elected representative
changing their political affiliation or party loyalty after being elected to office. Some elected
members may leave their party due to ideological or policy differences with their party, while
others may leave for personal gains, such as getting a better position or financial benefit.

Political defection can have significant implications for the stability of the government and
the functioning of the democratic system. It can lead to the fall of governments and the
formation of unstable coalitions, which can have adverse effects on the policymaking process
and the effective functioning of the government. Moreover, political defections can
undermine the basic principles of democracy and representation by diverting elected
representatives' loyalty from the people who elected them to a political party or personal
interests.

To discourage and penalise political defections, many countries, including India, have
enacted laws that regulate defection by elected members. These laws aim to ensure that
elected representatives remain loyal to the party on whose ticket they were elected and follow
the party's directives on voting and other matters.

The Anti-Defection Law in India is a set of provisions under the Tenth Schedule of the
Constitution of India. It was introduced through the 52nd Amendment Act of 1985 to curb the
frequent and unethical practices of legislators switching political parties, which resulted in
instability and loss of confidence in the democratic system. The Anti-Defection Law applies
to both Houses of Parliament and the State Legislatures, and the Speaker or Chairman of the
House has the power to decide on a petition for disqualification of a member under the
provisions of the law.

While the law has helped in curbing the unethical practice of political defections to some
extent, it has also been criticised for being misused by political parties to stifle dissent within
their own ranks. Nonetheless, the Anti-Defection Law remains an important provision in
Indian jurisprudence to maintain the stability and integrity of the democratic system.

Provision under the 10th Schedule

The tenth schedule is divided into eight paragraphs. A brief summary of this Schedule is as
follows:

The first paragraph contains the interpretation section. It “defines the different terms that are
used in the legislation like the house, legislature party, original political party etc” 1. The next
paragraph provides for the “disqualification on the grounds of defection. A member of any
state legislature or parliament can be disqualified from being a member if:
1. Member voluntarily gives up his/her membership in such a political party.

1
Paragraph 1, Tenth Schedule, Added by the Constitution (Fifty-second Amendment) Act, 1985, s. 6 (w.e.f. 1-
3-1985).
 2. Member disobeys the directions of his/her political party or votes or does not vote in
the legislature.
3. After the election, Member joins another political party from which he/she got elected
4. If a nominated member joins any political party after six months from the date of his
nomination, he becomes a member of the legislature”2.

The Tenth Schedule also provides that “disqualification on the grounds of defection is not
applied in case of a merger of one political party with another. Provided that this merger with
or into another party shall be done with the consent of at least two-thirds of its legislators. In
such case, nor the member who decides to merge nor the member who stay in the original
party can be disqualified on the grounds of defection”3.

The schedule provides an “exemption to the speaker, chairman and deputy chairman of
various legislative houses from disqualification on the ground of defection” 4. And with
respect to the decision on the question as to disqualification on the grounds of defection, it
says that in case of any question arises related to the disqualification of the member, then it is
referred to the chairman or the speaker of the house respectively, and his decision shall be
final and binding.

The Schedule also “bars the jurisdiction of any courts in the case of disqualification of a
member”. It also empowers the Chairman and the Speaker to frame the rules related to the
disqualification of members of their various houses of the legislature.

Lacunae in Anti-Defection law

The Anti-Defection Law can be seen as a double-edged sword, as while it aims to prevent
political defections and maintain stability in the democratic system, it can also stifle dissent
and prevent elected representatives from expressing their views freely. Some general lacunae
in the anti-defection law are as follows

Position of Speaker: Though we follow the Westminster model of the parliamentary system,
the position of the speaker is different in India. In the UK, the speaker resigns from the
political party to which he/she actually belongs before taking up the position of the speaker.
Whereas in India, the speaker need not resign from the party before taking up the position as
the speaker. This brings the question of the impartiality and integrity of the position of the
speaker. In India, generally, the speaker is elected from the party which secures a majority in
the House; political favouritism is not completely ruled out.

No time limit is prescribed in the act for disqualification: Paragraph 6 of the 10th Schedule
deals with the decision on questions as to disqualification on the grounds of defection. Under
this provision, the power to disqualify members is given to the Speaker or the Chairman of
the respective houses, and it does not prescribe anytime limits for the same. Some cases take
more than six months, and a few others take more than one year.
2
Paragraph 2, Tenth Schedule, Added by the Constitution (Fifty-second Amendment) Act, 1985, s. 6 (w.e.f. 1-
3-1985).
3
Paragraph 4, Tenth Schedule, Added by the Constitution (Fifty-second Amendment) Act, 1985, s. 6 (w.e.f. 1-
3-1985).
4
Paragraph 5, Tenth Schedule, Added by the Constitution (Fifty-second Amendment) Act, 1985, s. 6 (w.e.f. 1-
3-1985).
For example- In Telangana Legislative Assembly, a member named T. Srinivasan Yadav,
TDS won the elections from the TDS party, but after getting elected, he defected to party
TRS, which was a ruling party at that time; various petition was filed before the Speaker for
disqualifying said member under the Anti-Defection Law, but the Speaker was not acting at
all because there was no time limit prescribed in the law. The judicial review is available only
after the decision of the speaker or the chairman is delivered.

Against Dissent: One of the ways in which the Anti-Defection Law can stifle dissent is by
limiting the independence of individual legislators. When legislators are aware that their
dissenting vote can result in their disqualification from their seat, they may be less likely to
speak out against their party's leadership or policies, even if they disagree with them. This
fear of disqualification can lead to a situation where legislators feel pressured to toe the party
line, even if it goes against their conscience or the interests of their constituents.

Furthermore, the law has been criticised for giving too much power to the party leadership, as
the fear of disqualification can make legislators overly cautious and less likely to challenge
the party's official line. This can make it difficult for dissenting voices to be heard within the
party, leading to a lack of healthy debate and discussion.

The Anti-Defection Law can also result in a situation where legislators prioritise their own
political careers over the interests of their constituents. Legislators may be reluctant to vote
against their party's official line on a given issue, even if it goes against the interests of their
constituents, as they fear being disqualified from their seat. Some critics even point out that it
is a violation of the fundamental right of speech and expression of the legislator. This makes
the legislator unable to represent the views and opinions of the electorate, and it is against his
conscience also.

Voluntary resignation: If a member voluntarily gives up his/her membership from the

political party from which he is elected, he may be disqualified under the anti-defection law.
Many members of parliament and state legislatures have resigned in recent years, leading to
the toppling of governments. These members get a party ticket from the rival political party
in the upcoming elections.

Some important Judicial Pronouncements with respect to Anti – Defection law

The following case laws are important in shaping the interpretation and implementation of
the Anti-Defection Law in India. They provide guidance on various aspects of the law, such
as the role of the Speaker in deciding on petitions for disqualification, the validity of the law,
and the scope of the law with respect to independent members of the legislature.

1. G. Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly (1996)5: In this

case, the Supreme Court held that the Speaker's decision on a petition for
disqualification under the Tenth Schedule is subject to judicial review. The court also
held that the Speaker must act in a quasi-judicial capacity while deciding on such
petitions.
2. Kihoto Hollohan vs. Zachillhu (1992)6: In this case, the Supreme Court upheld the
constitutional validity of the Tenth Schedule and held that it is not violative of the
5
1996 AIR 1060, 1996 SCC (2) 353
6
1992 SCR (1) 686, 1992 SCC Supl. (2) 651
 basic structure of the Constitution. The court also held that the decision of the Speaker
on a petition for disqualification is subject to judicial review only on limited grounds,
such as violation of principles of natural justice.
3. Rajendra Singh Rana vs. Swami Prasad Maurya (2007) 7: In this case, the Supreme
Court held that an elected member can be disqualified under the Anti-Defection Law
even if he/she resigns from the membership of the political party. The court also held
that if the member has given up the membership of the party voluntarily, he/she can
be disqualified even if he/she has not joined any other party.
4. Jagjit Singh vs. State of Haryana (2006)8: In this case, the Supreme Court held that
the Tenth Schedule does not apply to independent members of the legislature as they
are not members of any political party. The court also held that the Anti-Defection
Law does not prevent an independent member from joining a political party during
the term of the legislature.

Few instances of from the past

In this section we will try to trace the constitutional crises that have recently occurred in
states where voters have handed back a divided legislature. What came after has put the
Tenth Schedule through its paces.

1) Maharashtra Political Crisis

For the fourteenth Maharashtra legislative assembly elections, the BJP and the Shiva Sena
party formed a prepoll alliance. But after the results, these parties couldn’t form a
government due to differences of opinion with respect to the post of Chief Minister.
However, the Leader of BJP took the oath of office with the alleged support of one leader of
the NCP party(Mr. Ajit Pawar). Soon controversy emerged that the NCP leader did not enjoy
the support of the party. According to Paragraph 4 of the Tenth Schedule, his alleged
insurrection could only be interpreted as a merger if he could show that he had the support of
a two-thirds majority of the NCP MLAs.

The opponents urged the Supreme Court to have a quick vote on the floor. In this case, the
applicability of the anti-defection law was called into question on the pretext that the can be
applied only to the members who took the oath. But this was rejected on the ground that as
soon as the Election Commission of India announces the results, a state assembly will be
formally established. The Supreme Court mandated a vote of confidence with the Speaker
pro-term.

If the Supreme Court hadn't ordered a quick floor test, Mr. Ajit Pawar might have issued a
whip before his party functionaries finished the paperwork to depose him as the legislature
party leader. The election of a new Speaker would have preceded a floor test under those
circumstances. In a close election, the NCP MLAs would have been afraid to break Mr.
Pawar's whip and vote against the party's platform. If the Speaker is biased against Mr.
Pawar, any legislators who vote against the whip could be promptly removed from office.

The Speaker election is effectively a vote of confidence in the incumbent leadership in that
situation. Even though the decision of the Speaker is open to judicial review, the political
7
Appeal (civil) 765 of 2007
8
Writ Petition (civil) 287 of 2004
situation on the ground might change so much due to the speaker’s decision. Thus the role of
the speaker in this situation is very crucial. The Supreme Court brought up similar
obsevarions about the Speaker's impartiality in the case Jagjit Singh v. State of Haryana9.

Similarly, in Kihoto Hollohan10 case one of the justices pointed out that since the Speaker is
elected and serves at the pleasure of the House's majority, the appearance of bias in the
position could not be discounted. The Supreme Court of India, in the case Union of India v.
Harish Chandra Rawat11, referred to itself as a “sentinel on the qui vive”, or a watchful
institution, to guarantee that constitutional functionaries ingest and exhibit constitutional
morals. If the floor test is postponed, the Supreme Court said, it could lead to horse trading in
the case of Maharashtra.

The apex court took precedence from Jagadambika Pal v. Union of India 12 and Anil
Kumar Jha v. Union of India13 to order an immediate floor test. The Court carefully
outlined the session's agenda and ordered live broadcasting without secret voting. A survey of
these decisions reveals that the Court has had to play a more proactive role in restoring public
trust.

2) Goa Political Crisis

Even though INC emerged as the single largest party after the 2017 Goa assembly elections,
the BJP managed to form the government with the support of independent MLAs and a few
defecting MLAs from the INC. The defectors were disqualified but they won re-elections
from BJP party ticket. Subsequently, in 2019, ten MLAs out of fifteen MLAs from INC
merged their party with the ruling BJP. The Speaker quickly gave his approval for this under
Paragraph 4 of the Tenth Schedule.

According to Paragraph 4, for a merger between Parties A and B to be recognised by the law,
two-thirds of Parties A's members must approve the merger. What is disturbing part is that
two-thirds of the MLAs were willing to defect, and this was considered to be a merger. The
Supreme Court has also didn’t intervene and left it to the wisdom of the speaker.

However, there were earlier instances where the court gave sufficient guidelines in case of
split and mergers. For instance, the Court was requested to decide on the existence of split in
the case Rajendra Singh Rana v. Swami Prasad Maurya14 The necessary quota of people
had been reached for the split. The five-judge Constitution Bench ruled that the MLAs
alleging a split must provide evidence suggesting, at a minimum, that the original party was
actually split. In the above case gain the court relied on Jagjit Singh v. State of Haryana15.

3) Political crisis in Karnataka

The Karnataka state assembly saw a flight of defections from INC led coalition. Before the
Speaker could have disqualified them under the Tenth Schedule, the defecting MLAs
resigned. The Speaker belonged to INC led coalition; he used legal loopholes to delay or
9
Writ Petition (civil) 287 of 2004
10
1992 SCR (1) 686, 1992 SCC Supl. (2) 651
11
Writ Petition (M/S) No. 795 of 2016
12
Jagadambika Pal v. Union of India, (1999) 9 SCC 95
13
Anil Kumar Jha v. Union of India, (2005) 3 SCC 150
14
Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 274.
15
Supra 4
prevent the resignation of MLAs by not accepting the resignation letters from the MLAs and
not presiding over the house; parallelly, he also initiated the disqualification proceedings. If a
lawmaker loses her/his seat due to disqualification, she/he must wait until the next election to
accept a ministership or other paid political position. Knowing this, the defecting MLAs
resigned before disqualification so that they could join the rival party. The INC-led coalition
collapsed before the Supreme Court pronounced its ruling.

Few suggestions to improve the present law

Here are some recommendations to improve the Anti-Defection Law in India:

i. Conscience vote: A conscience vote should be allowed on issues of significant

importance where the legislators can vote according to their conscience and not face
disqualification. This will ensure that the legislators can freely express their opinions
and vote in the interest of their constituents without any fear of disqualification.

ii. More clear definition of defection: The definition of defection under the law should
be clarified to ensure that it is not misused to disqualify legislators for expressing
dissenting views. This can be achieved by specifying the circumstances under which a
legislator can be disqualified and by introducing a review mechanism to ensure that
the law is not misused.

iii. Introduce transparency in party funding: Transparency in party funding can help
reduce the power of money in politics and promote internal party democracy. This can
be achieved by introducing laws that require parties to disclose their sources of
funding and by increasing transparency in the electoral process.

iv. Prescribing a time limit for disposing of the case, which is before the speaker. A
three-month cap would be a good start in this regard.

v. Prescribe a standard operating procedure for the speaker while deciding on the cases
of defection, like the recommendation of the Election Commission of India for the
defection cases.

vi. Independent Tribunal for deciding cases with respect to defections so that political
influence can be curtailed.

These recommendations can help to improve the Anti-Defection Law in India and ensure that
it promotes political stability while also safeguarding the free expression and independence of
individual legislators.

Conclusion

In conclusion, the Anti-Defection Law in India was introduced to address the issue of
political instability caused by frequent defections by legislators from their respective parties.
While the law has certainly helped to curb political instability caused by defections, it has
also been criticised for its potential to stifle dissent within political parties

Balancing the need for political stability with the need for free expression and independence
within parties is an ongoing challenge for India's democracy. Ultimately, the Anti-Defection
Law must strike the right balance between promoting political stability and ensuring the free
expression and independence of legislators to uphold the democratic values of the Indian
Constitution.