Anti-Defection

The Anti-Defection Law in India is a constitutional mechanism designed to curb political defections by legislators and ensure stability, discipline, and integrity in the functioning of legislative bodies. It seeks to prevent elected representatives from switching political parties for personal gain or under undue influence, a practice that had become widespread in Indian politics during the 1960s and 1970s. The law is contained in the Tenth Schedule of the Constitution of India, which was added by the 52nd Amendment Act, 1985 and later modified by the 91st Amendment Act, 2003.

Background and Historical Context

In the years following independence, political instability in several states was exacerbated by frequent defections of legislators. Between 1967 and 1972, India witnessed over 2,000 cases of legislators switching parties, a phenomenon described by observers as “Aaya Ram, Gaya Ram” politics — a phrase originating from an incident involving a Haryana MLA, Gaya Lal, who changed parties three times in a single day in 1967.
These rampant defections undermined public confidence, weakened political parties, and led to instability in both state and central governments. To address this, successive committees and commissions, including the Y.B. Chavan Committee (1969), recommended the introduction of legal provisions to curb defection. Consequently, in 1985, under the government of Prime Minister Rajiv Gandhi, Parliament enacted the 52nd Constitutional Amendment, incorporating the Tenth Schedule into the Constitution.

Constitutional Provisions

The Tenth Schedule lays down the grounds for disqualification of members of Parliament and State Legislatures on the basis of defection. It applies to both Lok Sabha and State Legislative Assemblies/Councils.
Key provisions of the Anti-Defection Law include:

1. Disqualification on Grounds of Defection: A legislator is liable to lose his or her seat if:
   • They voluntarily give up membership of the political party on whose ticket they were elected.
   • They vote or abstain from voting in the House contrary to the directions (whip) issued by their political party without prior permission and without subsequent condonation by the party within fifteen days.
2. Independent Members: An independent legislator is disqualified if they join a political party after the election.
3. Nominated Members: A nominated member of a legislature can join a political party within six months of taking the oath of office. However, joining any party after that period leads to disqualification.
4. Exceptions – Mergers and Splits: Originally, the law provided that a split in a political party by one-third of its members would not attract disqualification. However, the 91st Amendment Act, 2003 abolished this provision to discourage opportunistic divisions.At present, mergers are recognised only when two-thirds of a party’s legislators agree to merge with another political party, and those who do not accept the merger have the option to function as a separate group.
5. Authority to Decide on Disqualification: The Presiding Officer of the respective House — the Speaker in the Lok Sabha or the Legislative Assembly, and the Chairman in the Rajya Sabha or Legislative Council — has the power to decide disqualification cases under the Tenth Schedule.

Procedure for Disqualification

1. A complaint of defection can be made by any member of the House.
2. The presiding officer examines the complaint and gives the concerned legislator an opportunity to present their case.
3. Based on the evidence, the presiding officer issues a decision either disqualifying the member or dismissing the petition.

The decision of the presiding officer is subject to judicial review, as established by the Supreme Court in the landmark judgment Kihoto Hollohan v. Zachillhu (1992). The Court upheld the validity of the Tenth Schedule but allowed judicial scrutiny of the Speaker’s decision to prevent misuse of authority.

91st Constitutional Amendment, 2003

The 91st Amendment strengthened the Anti-Defection Law by introducing several key reforms:

• It deleted the provision for exemption in case of splits, which had allowed legislators to form splinter groups.
• It retained the provision for mergers only if two-thirds of legislators of a party agreed to such a move.
• It limited the size of the Council of Ministers to 15% of the total strength of the legislature (both at the Centre and in states) to prevent large-scale inducement of defections through ministerial appointments.

Objectives of the Anti-Defection Law

The Anti-Defection Law was enacted with the following objectives:

• To ensure political stability by discouraging frequent party-hopping by legislators.
• To uphold party discipline and consistency in legislative voting.
• To preserve the integrity of the electoral mandate by preventing betrayal of voter trust.
• To strengthen the democratic process by reducing corruption and manipulation in politics.

Criticisms and Limitations

While the Anti-Defection Law has helped reduce political instability, it has also attracted significant criticism for its rigid and sometimes undemocratic implications.

1. Erosion of Legislative Independence: Legislators are bound by the party whip on almost all matters, leaving little room for individual judgement or conscience voting, even on non-confidence motions and policy debates.
2. Concentration of Power in Party Leadership: The law effectively empowers party leadership to control members’ actions, which may stifle dissent and weaken democratic deliberation.
3. Potential for Speaker’s Bias: Since the presiding officer belongs to a political party, their decision in defection cases can be influenced by partisan considerations. Delays in deciding such cases often allow defectors to retain their seats and political influence.
4. No Clear Timeline: The law does not specify a time limit for the presiding officer to decide on defection petitions, leading to delays and inconsistent implementation.
5. Weak Deterrence: In some instances, legislators have resigned before switching parties to contest elections again, thereby bypassing disqualification provisions.

Judicial Interpretation and Key Cases

• Kihoto Hollohan v. Zachillhu (1992): The Supreme Court upheld the constitutionality of the Tenth Schedule but made the Speaker’s decisions subject to judicial review.
• Ravi S. Naik v. Union of India (1994): The Court ruled that “voluntarily giving up membership” need not mean formally resigning; conduct indicating disloyalty to the party could also lead to disqualification.
• Rajendra Singh Rana v. Swami Prasad Maurya (2007): The Court held that the Speaker must act within reasonable time in deciding defection petitions.
• Manipur and Maharashtra cases (2020s): Recent Supreme Court interventions have stressed that the Speaker’s role must be neutral and that disqualification proceedings should be concluded swiftly to uphold democratic integrity.

Suggested Reforms

Scholars and commissions have recommended several reforms to make the Anti-Defection Law more effective and democratic:

• Independent Tribunal: Transferring disqualification powers from the Speaker to an independent authority such as the Election Commission.
• Time-Bound Decision: Imposing a mandatory timeline for ruling on defection cases.
• Restricting the Whip: Limiting the binding whip to votes that affect the survival of the government (confidence or money bills) rather than all legislative matters.
• Promoting Internal Democracy: Encouraging open debate and dissent within parties without fear of disqualification.