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ABSTRACTS

This abstract delves deep into the Indian political landscape's evolution since the introduction
of the anti-defection law in 1985. It covers various aspects such as the law's impact on legislative
autonomy, accountability mechanisms, and democratic decision-making processes. It also discusses
attempts at curbing defections, challenges associated with the law's implementation, and gaps in
addressing corruption within Parliament. The abstract touches on judicial reviews of decisions
related to defections, highlighting the complexities and debates surrounding this legal framework.
Overall, it provides a comprehensive overview of the anti-defection law's role in shaping India's
parliamentary dynamics and the ongoing discussions surrounding its efficacy and implications.

INRODUCTION

In 1985, the 52nd Amendment to the Indian Constitution introduced the anti-defection law,
incorporating the Tenth Schedule, aiming to combat the negative impact of political defections. This
law outlines provisions that can disqualify legislators from their House membership if they abandon
their party after election or disobey party directives during voting. While initially meant to deter
defections and maintain political stability, questions have emerged regarding its impact on
legislators' autonomy and the democratic process.

One of the primary concerns is whether the anti-defection law restricts a legislator's ability to vote
based on their conscience and undermines their independence. Additionally, critics argue that it
could stifle healthy intra-party debates and dissent, essential elements for robust decision-making
within legislative bodies. Moreover, the law's enforcement raises questions about representatives'
ability to voice constituents' concerns contrary to their party's official stance.

The mechanism for adjudicating defections under this law has also drawn scrutiny. Currently, such
decisions are often left to the Speaker, who is typically aligned with the ruling party or coalition.
This raises doubts about impartiality and fairness in handling defection cases. Some suggest
involving an external neutral body like the Election Commission for a more unbiased approach.

India's experience with the anti-defection law over three decades reveals its limitations and failures.
While it aimed to curb defections driven by political ambitions and material gains, it has been
criticized for contradicting core democratic principles. These principles include a legislator's
representative role, their capacity to hold the government accountable, and the importance of
inclusive decision-making processes in legislative bodies.

Furthermore, instances have been noted where the anti-defection law failed to prevent defections,
leading to defection-prone members being rewarded with ministerial positions, raising ethical and
political concerns. This highlights the need for a balanced approach that upholds political stability
without compromising democratic values and legislative effectiveness.

ROLE OF ANTI DEFECTION LAW ON PARLIAMENT

 The anti-defection law, enacted through the 52nd Amendment to the Indian Constitution in
1985, outlines the conditions under which a legislator may face disqualification for voting against
their party's whip. This legal framework has profound implications for the role of legislators, the
accountability between elected representatives and voters, the balance of power within the legislative
and executive branches, and the overall decision-making process in the House.

Firstly, the anti-defection law has constrained the traditional role of legislators in a parliamentary
system. Rather than exercising independent judgment based on a combination of public interest,
constituency concerns, and party affiliations, legislators are often compelled to toe the party line on
every issue. This restriction undermines the representative nature of democracy, as elected officials
may be forced to vote against their conscience or the interests of their constituents to avoid
disqualification.

Secondly, the law has significantly impacted a legislator's ability to hold the government
accountable. In a parliamentary democracy, one of the fundamental mechanisms for ensuring
government accountability is through robust debates, questioning of ministers, and the ability to vote
freely on matters of national importance. However, the anti-defection law limits a legislator's
capacity to dissent from their party's position, thereby weakening the checks and balances essential
for executive accountability to the legislature.

Furthermore, the anti-defection law has disrupted the link of accountability between citizens and
their elected representatives. In democracies like India, voters expect their representatives to voice
their concerns and interests in legislative debates and decisions. However, the mandate to follow
party directives often overrides this accountability, as legislators may justify their actions solely
based on party orders rather than engaging with constituents' viewpoints.

Moreover, the anti-defection law has centralized decision-making within political parties,
particularly in major legislative matters. Instead of fostering inclusive debates and consensus-
building among all legislators, the law empowers party leaders to dictate voting outcomes, reducing
the role of individual legislators and diminishing the deliberative nature of parliamentary
proceedings.

Comparatively, many mature democracies like the US, UK, and Canada do not have strict anti-
defection laws that lead to disqualification solely based on defying party whips. While parties in
these countries issue whips and exert influence, legislators retain their membership despite diverging
from party directives. This allows for a more nuanced approach to decision-making and preserves the
autonomy of elected representatives while maintaining party discipline through internal mechanisms
rather than legal disqualification.

In essence, while the anti-defection law in India aimed to address political instability caused by
defections, its implementation has raised significant concerns regarding its impact on democratic
principles, legislative autonomy, accountability mechanisms, and decision-making processes within
the Parliament.

ATTEMPTS AT OUTLAWING DEFECTIONS IN INDIA

 Initially, the Indian Constitution did not address the issue of floor-crossing or party allegiance
changes among legislators. This omission can be attributed to the dominance of the Congress party
during the Constitution's framing, which may not have foreseen the rise of multiple political parties
and coalition governments in India.

The proliferation of unprincipled defections and party-switching practices led to the formulation of a
law to penalize such actions. The Tenth Schedule, commonly known as the anti-defection law, was
added to the Constitution through the Constitution (Fifty-second Amendment) Act of 1985.

Despite widespread condemnation of opportunistic party changes by Indian legislators, defections

continued to occur across political ideologies. This ongoing issue prompted discussions on the
necessity of regulating these defections more effectively.

In 1967, Congress legislator P. Venkatasubbaiah proposed a resolution in the Lok Sabha calling for a
committee to investigate the problem of defections. After thorough deliberations and amendments,
the resolution was adopted, leading to the formation of a committee in 1968 chaired by the then
Union Home Minister, Mr. Y. B. Chavan, also known as the Chavan Committee.

The Chavan Committee focused on various measures to address defection problems, emphasizing the
importance of political parties adhering to a code of conduct. The committee recommended that
legislators should remain loyal to the party that nominated them and proposed penalties such as
disallowing defectors from holding ministerial positions or continuing as members of Parliament or
state legislatures without resigning and seeking re-election.

In 1970, the Union Cabinet took a step towards legislation by approving a draft law based on the
Chavan Committee's recommendations. One significant proposal was to bar defecting legislators
from holding specific offices or positions within government-controlled bodies for a year unless they
resigned and were re-elected within that period.

Despite these efforts, consensus among MPs was not achieved during discussions in a Conference of
Opposition Leaders in Parliament in December 1970, leading to the Bill not progressing to the Lok
Sabha due to differing opinions among lawmakers. This historical context underscores the challenges
and debates surrounding the enactment of laws to curb political defections in India.

ADDRESSING CORRUPTION: FOCUSING ON THE INEFFECTIVE APPROACH

As previously discussed, the anti-defection law was introduced to enhance party unity within
Parliament. The prevalence of 'horse-trading' and the increase in corrupt practices aimed at
influencing loyalties underscored the necessity of such a law. While this paper does not delve into
the advantages of prohibiting floor-crossing, the effectiveness of addressing corruption through
Schedule X and specifically, Paragraph 2(1)(b) is debatable. To understand why Paragraph 2(1)(b) is
inadequate in combating corruption in parliamentary proceedings, it is important to grasp the issues
that Schedule X aimed to resolve. The latter part of the 1960s witnessed a surge in political
defections, with thousands of cases reported. For instance, the Committee on Defections established
by the Lok Sabha highlighted a significant increase in defection cases during the Fourth Lok Sabha,
nearly matching the combined numbers from the three preceding Lok Sabhas. The Janata
government of Moraiji Desai, for instance, enjoyed two-third support in the Lower House. This
safety net proved transitory when the Government fell owing to the defection of 76 MPs, mostly the
supporters of Charan Singh. Defections have resulted in positive consequences for parties as well.
The Congress (R) had managed to secure 57 seats in the Karnataka assembly prior to the 1971
elections. After it won the elections, this strength rose to 120, owing to defections from the Congress
(0) party.1

VIEWING THE TENTH SCHEDULE THROUGH THE LENS OF THE CONSTITUTION

The connection between a country's electoral system and the discourse surrounding defection
is intricate and impactful. Electoral politics operates within a framework of rules similar to those
governing sports, ensuring fair and impartial elections that lead to the formation of a democratic
government. These rules are enshrined in the Constitution and related statutes, covering various
aspects of election conduct.

Defections and the anti-defection law significantly influence the dynamics among legislators, voters,
and political parties. It's essential to delve into how the Constitution approaches this three-way
relationship, analyzing India's chosen form of government, its practical functioning, and the
implications of the anti-defection law on these entities.

1. Relationship between legislators and constituents: India adopted a democratic form of

government post-independence, with popular elections based on the First Past the Post
(FPTP) electoral system. This system, also used in the UK and Canada, entails voters casting
a single vote for a candidate in their constituency. The candidate with the most votes, not
necessarily a majority, wins the seat and represents the constituency in Parliament or the state
legislature. Although discussions during the drafting of the Constitution considered
proportional representation, the FPTP system prevailed due to practical considerations and
concerns about potential fragmentation in a parliamentary setup.

2. Relationship between legislators and political parties: Political parties play a significant
role in India's electoral landscape. Despite the Constitution's initial silence on parties, their
influence was recognized during the Constituent Assembly debates. The Westminster-style
parliamentary government adopted by India inherently ties the executive to the legislature,
with the Prime Minister and cabinet drawn from the majority in Parliament. This system
reflects the influence of party dynamics on legislative functioning and executive
appointments. Over time, India's political landscape has evolved with the emergence of
multiple parties, highlighting the crucial role parties play in electoral processes and
governance.

Political parties are essential vehicles for representing diverse views, engaging with the public, and
holding the government accountable. They serve as conduits between citizens and policymakers,
maintaining a consistent engagement with the electorate and contributing to policy formulation and

1
See P.M. Kamath, Politics ofDefction in India in the 1980s, 25(10) ASIAN SURVEY 1039, 1041 (1985).
scrutiny. In a parliamentary system, opposition parties act as vigilant watchdogs, ensuring
transparency and checks on governmental actions through constructive criticism and debate.

The interplay between electoral systems, party dynamics, and legislative functioning underscores the
complex yet vital relationship among legislators, voters, and political entities in India's democratic
framework. Understanding these dynamics is crucial for ensuring democratic principles, effective
governance, and robust representation of diverse interests within the democratic process. Defections
are viewed as actions that undermine the democratic essence of Parliament. Betraying one's party,
which is the basis of a member's authority, is often perceived as a result of corrupt practices or
bribery. Take, for instance, the scenario where lawmakers contribute to overthrowing their own
government only to join another government as ministers afterward. It would be quite optimistic to
believe that such actions are driven purely by genuine disagreement rather than by unlawful
inducements.

Given this brief historical background, it's evident that Schedule X is perceived as a mechanism
aimed at addressing corruption as well. Nevertheless, we contend that Paragraph 2(1)(b) fails to
fulfill this goal and does not effectively address the issue of bribery within Parliament.

P V NARASIMHA RAO JUDGIENT

Forcing a Member of Parliament to vote a certain way in order to prevent corruption during voting is
considered an overbearing solution that exaggerates the problem it intends to solve. As mentioned
earlier, Paragraph 2(1)(b) is not only inadequate for addressing corruption but also introduces
additional challenges to the efficient functioning of Parliament.

Imagine a scenario where there is no anti-defection law in Parliament. In such a situation, it is

anticipated that the widespread practice of frequent defections would persist. The anti-defection law
not only prohibits changing parties but also restricts voting based on individual parliamentarians'
interests. Consequently, due to the risk of disqualification associated with such actions, the cost of
corruption to influence votes has risen significantly.

It is crucial to note that Paragraph 2(1)(b) has not effectively addressed the issue of corruption in
voting; rather, it has escalated the associated costs. This poses two main concerns. First, voting
should not fall under the jurisdiction of defection laws as it is beyond their scope. Second, defection
is not the appropriate deterrent against corruption in voting; instead, it requires suitable punitive
measures to completely eradicate corruption from Parliament.

The lawsuit of P.V. Narasimha Rao v. State stands out as the chief factor contributing to the ongoing
issue of corrupt practices during voting. This legal matter revolved around a no-confidence motion
brought against the coalition government led by P.V. Narasimha Rao in 1991. Despite facing the
challenge, the government managed to survive with a margin of 14 votes. However, following the
voting process, allegations emerged suggesting that bribes were offered to members of Jharkhand
Mukti Morcha and supporters of Janata Dal to influence the outcome and defeat the motion.

THE TENTH SCHEDILE’S IMPACT ON THE TRIPARTITE RELATIONSHIP AMONG

POLITICAL PARTIED, CANDIDATES, AND VOTERS
 While candidates represent the fundamental unit of representative democracy in India, it is
the political party that provides the necessary support for a candidate to participate in elections. The
First Past the Post (FPTP) system establishes a direct connection between candidates and voters, as
candidates become representatives in the legislature for all constituents in their respective
constituencies. It's crucial to acknowledge that a significant majority of candidates in parliamentary
or assembly elections are affiliated with political parties. Most candidates are members of a political
party and contest elections based on the party's symbol and manifesto. For instance, in the 17th Lok
Sabha elections, only 4 independent candidates won, while the remaining winners were from
political parties. This underscores the substantial influence political parties exert over legislators,
legislative proceedings, and government operations, a dynamic further reinforced by the provisions
and functioning of the Tenth Schedule.

A triangular relationship can be envisioned between the political party, the candidate (who
becomes the legislator), and the voter, as elaborated below:

The Tenth Schedule of the Constitution, which deals with the disqualification of errant
legislators, specifically addresses the context of political parties in determining the membership of a
legislator facing disqualification. Its primary objective is to regulate the behavior of legislators and
prevent unprincipled changes in party loyalty rather than regulating political parties themselves. This
law represents a shift from the traditional candidate-centric approach of Westminster-style
parliamentary democracy to a more party-centric approach in India's electoral democracy.

Under this party-centric approach, legislators are bound by their party loyalties, shifting power from
individual legislators to party leadership. This change has significant implications, as legislators must
align with their party's directives, even if it means compromising their legislative autonomy and the
interests of their constituents. The anti-defection law, through the mechanism of party whips,
enforces strict adherence to party lines, potentially limiting legislators' ability to influence legislation
and represent their voters effectively.

The influence of political parties over legislators has been underscored in legal cases such as
Narsinghrao Gurunath Patil v. Arun Gujarathi2, where the courts emphasized that members owe their
presence in the legislature to their political parties. This legal interpretation has reinforced the idea
that legislators must prioritize party loyalty over personal convictions, leading to a perception of
legislators being more accountable to their parties than to their constituents.

This shift has led to concerns about the diminishing autonomy of legislators and the growing
influence of political parties in legislative affairs. Instances like the 2012 Lok Sabha vote on foreign
direct investment highlight how party positions dictate legislative outcomes, often without individual
MPs having substantial input. This trend has raised questions about whether the anti-defection law,
intended to prevent opportunistic defections and maintain stable governments, has inadvertently
empowered parties at the expense of democratic principles.

2
2003(1) BOM CR363
Recent events, such as the issuance of notices to MPs for absenteeism during critical votes, further
highlight the party-centric nature of Indian politics. These incidents reflect how individual views can
be subordinated to party directives, reinforcing the perception that legislators prioritize party loyalty
over their constituents' interests.

Critics of the anti-defection law have voiced concerns about its impact on legislative independence
and democratic decision-making. The law's rigid enforcement of party discipline has been exploited
by some legislators to orchestrate strategic defections, leading to political upheavals and the downfall
of elected governments in various states. This phenomenon underscores the complex interplay
between party loyalty, legislative autonomy, and the broader functioning of democracy in India.

A First Information Report (FIR) was also filed regarding these allegations. The Special Judge of the
CBI Court acknowledged the accusations of bribery and criminal conspiracy purportedly occurring
during the voting process. This determination was subsequently upheld by the Delhi High Court. 3

The Supreme Court was tasked with determining whether a parliamentarian could face criminal
prosecution in a court for voting based on a bribe, considering the privilege granted by Article 105(2)
of the Indian Constitution. The majority opinion concluded that under Art. 105, a parliamentarian
cannot be prosecuted under the Prevention of Corruption Act or the Indian Penal Code for
conspiracy or bribery related to their voting activities. This Article stipulates that members are
immune from legal liability in court regarding their speeches or votes in Parliament.4

The Court interpreted this provision expansively, applying it to encompass all instances of voting
within Parliament. Evidently, the intent behind this provision was to shield parliamentarians from
judicial censure based on their voting actions in the legislature. However, it should not have been
construed to exempt parliamentarians from liability for crimes linked to their voting conduct. 5

The Court's decision contained a flawed reasoning by asserting that voting, in all its forms, falls
within the internal workings of Parliament. However, acts of corruption and bribery are external to
these parliamentary functions and should be addressed through the country's penal laws. This
conclusion arises from the logical premise that a parliamentarian is shielded from any legal challenge
regarding their speech or vote as a member of the house. Naturally, this privilege does not extend to
situations where a parliamentarian engages in bribery, either by offering or accepting bribes to
influence voting on specific matters.6 A vote that is validly cast will be shielded from legal
challenges in a court of law due to Article 105.

The Court's interpretation poses a significant challenge to combating corruption in the legislature.
The most effective deterrent against criminal offenses is the imposition of penal sanctions. By
exempting parliamentarians from legal consequences for bribery, the option of defection during
voting remains viable. Such actions are only deterred when there is a real threat of criminal
prosecution. Relying on Paragraph 2(1)(b) to address bribery is ineffective and akin to using the

3
JAGDISH SWXARUP, CONSTITUTION OF INDIA 1840 (L.M. Singhvi ed., 2006).
4
Constitution of India, Art. 105(2): "No Member of Parliament shall be liable to any proceedings in any court in respect
of any thing said or any vote given by him in Parliament or any committee thereof….
5
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 5049 (2008).
6
P Aarasimha Rao v. State: A Critique, (1998) 8 SCC J- 1
wrong tool for the job. The judgment highlights that cash-for-votes could still subject a member to a
contempt motion in Parliament. However, this loophole in the law raises concerns, especially since
Parliament can only order prosecution in court when a member's conduct amounts to an offense.7
Depending solely on Parliament to serve as a watchdog against bribery during voting, as seen in the
court's ruling, is insufficient. The judgment needs to be countered by introducing an additional layer
of scrutiny to combat corruption in Parliament effectively and to strengthen accountability for
members engaging in such behavior.

In addition to compounding new challenges, only serves to increase the expense of influencing a vote
in Parliament. As we will elaborate while proposing a remedy, there could be advantages to
regulating voting during moments of governmental jeopardy in India. However, it is crucial to
recognize that the broad scope of Paragraph 2(1)(b) has led to more negative consequences than
positive outcomes.

“GAPS AND DEFICIENCIES

Challenges associated with consolidation

While Rule 4 of the Tenth Schedule appears to offer a certain exemption from
disqualification for members in cases related to party mergers, there appears to be a loophole in the
legislation. This provision aims to protect members of a political party when the original party
merges with another, provided that at least two-thirds of the members of the concerned legislative
party consent to the merger. The weakness lies in the fact that the exception is based on numerical
thresholds rather than the underlying cause of the defection. The primary motivations for individual
members defecting often revolve around gaining attractive positions or ministerial roles in the new
party. It is conceivable that these same motivations might influence the two-thirds majority that
agrees to the merger.

Dismissals

The implementation of the Anti-defection Law has encountered numerous challenges due to
its silence regarding the expulsion of members from their political parties. One of the major
drawbacks of the Anti-defection Law is its failure to address the scenario when a member is expelled
from their political party. Although political parties maintain the authority to expel their members
based on their party constitution, the absence of any provision in the Tenth Schedule regarding
expelled members creates a peculiar situation. Expelled members remain bound by the party's
discipline and directives, including whips, despite losing their rights under the party constitution.

Voluntary relinquishment of party membership

Rule 2(1)(a) of the Tenth Schedule stipulates that a member of the House faces
disqualification from the party if they voluntarily renounce their membership in the political party.
However, it lacks clarity regarding whether engaging in activities such as acting against the party's
7
KRISHNAN VENUGOPAL & V. SUDHISH PAI, RESTKTEMENT OF INDIAN LAW: LEGISLATIVE PRIVILEGE IN INDIA 117
(2011).
interests, endorsing candidates from other parties during elections, etc., activities that do not
necessarily constitute formal abandonment of party membership, could still be interpreted as the
member voluntarily relinquishing party affiliation.

Wide power to the Speaker

Rule 6 of the Tenth Schedule grants broad and absolute authority to the Chairman or the
Speaker of the House concerning cases related to the disqualification of members due to defection.
However, it is important to note that the Speaker remains affiliated with the political party that
nominated them for the Speaker's position. Given this situation, it becomes challenging to expect
impartiality from the Speaker when dealing with cases involving their own political party. According
to the law, the Speaker's decision is final, but there is no specific timeframe within which the
decision must be made. Although a party can challenge the decision in court, this can only be done
after the Speaker has announced their decision.

The Dinesh Goswami Committee on Electoral Reforms and the Election Commission proposed that
the authority to decide on disqualification issues under the Tenth Schedule should be transferred to
the President or the Governor of the State, who would act based on the advice of the Election
Commission. However, no changes have been implemented in the Act to implement these
recommendations.

Scope of judicial review

Rule 7 of the Tenth Schedule excludes the jurisdiction of courts regarding any issue related to
the disqualification of a member of a House. This means that all courts, including the Supreme Court
under Article 136 and High Courts under Article 226 and 227 of the Constitution, cannot review
decisions made by the Speaker on such matters. The Supreme Court has previously ruled that while
the law is valid in most aspects, the provision denying judicial review was found to be
unconstitutional. Despite several court rulings supporting the power of judicial review, no changes
have been enacted in the Tenth Schedule to address this issue.

No individual stand on part of members

Rule 2 of the anti-defection law establishes a framework where party members are obligated
to follow the directives and policies set by the party whip, limiting the freedom of legislators to
challenge inappropriate actions of the party, unfavorable policies, leadership decisions, and bills.
Consequently, political parties function as dictators to their members, restricting their ability to
express dissent. This situation contradicts the essence of representative democracy, where legislators
should prioritize the interests and desires of the electorate over blind obedience to party leadership.” 8

“COURTS ON JUDICIAL REVIEW OF DECISIONS OF SPEAKER/CHAIRPERSON

In Keshavananda Bharati and Others v. State of Kerala and Another, judicial review was held to be a basic
feature of the Constitution and the Constitution cannot be amended so as to violate its basic structure.

8
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In Ravi S Naik v. Union of India case it has been held that the rules relating to anti-defection laws are
merely procedural in nature and any violation of these, being a procedural irregularity, was immune from
judicial scrutiny.

In Kihoto Hollohon v. Zachilhu and Others case it was held that the law is valid in all respects except on
the matter pertaining to judicial review, which was held to be unconstitutional. Any law affecting Articles
136, 226 and 227 of the Constitution is required to be ratified by the States under Article 368(2) of the
Constitution. As the required number of State assemblies had not ratified the provision. The Court also held
that the Speaker, while deciding cases pertaining to defection of party members, acts as a tribunal and
nothing more than that, and that his/her decisions are subject to the review power of the High Courts and
the Supreme Court.

In Rajendra Singh Rana and Others v. Swami Prasad Maurya and Others case the Supreme Court held that
the power of judicial review can be used: (a) when the Speaker fails to act on a complaint of defection, (b)
When the Speaker accepts the claim of splits or mergers without any finding and reason, or (c) when the
Speaker fails to act as per the Tenth Schedule. It also held that ignorance of a petition for disqualification is
not a mere irregularity on the part of the Speaker but amounts to violation of a Constitutional duty.” 9

CONCLUSION

The anti-defection law in India aimed to stabilize politics but has faced criticism for stifling
legislative autonomy and democratic decision-making. It has centralized power within parties and
lacks clarity in handling defection cases and judicial oversight. Addressing these issues requires
revisiting the law's provisions for a more balanced and transparent approach that upholds democratic
values and legislative independence.

9
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