Author: Siddhika Chaudhary, Lloyd Law College
Introduction
The anti-defection law in India was introduced with the only purpose of preventing political instability which was caused by elected representatives when this which parties for their personal or political gains. This law added 10th schedule to the Indian Constitution through the 52nd Constitutional Amendment Act, 1985. The primary objective of this law was to strengthen party discipline, up hold the democratic mandate given by waters and ensure political stability. Before this law, many governments became unstable because of party defections which means legislators changed their parties for money, power or superior positions this law had a primary motive to prevent such an ethical practice by laying down strict conditions under which the member of parliament and the member of legislative assembly could be disqualified if there were found defected from their original political parties. Despite having a positive intent, the Anti-Defection law has been controversial ever since and debated for its impact on legislative freedom, decision-making and democracy. Although it ensures political and party stability it has been criticized for restricting freedom of speech of an individual in the legislature as a member bound to follow their parties’ directives.
Historical Background
Indian politics were witnessing frequent party defections which was leading to political instability. The problem became so intense in the time period of 1960s – 1970s, when the legislature often switched parties for their own personal motives which was causing government to collapse. The term “Aaya Ram, Gaya Ram” gain attention of the citizens in 1967 when MLA of Haryana Gaya Lal changed parties three times in a single day, which highlighted the need of a law that prevents such unethical practices. To curb this problem the 10th schedule was introduced in the constitution of India when 52nd constitutional Amendment Act, 1985 was passed. These laws lead provisions for disqualifying MPS and MLA’s if they were found voting against their own party whip, voluntary giving up their party membership or joining another party after being elected as an independent member. During the initial phase the law allowed party split as invalid exception but this was also not used rightly. In order to strengthen the law, the provision allowing party splits was removed during the 91st Constitutional amendment Act, 2003which permitted only mergers under specific conditions. Despite having these reforms many issues continue to be debated such as bias of the speaker, delays in decision making and misuse of loopholes which led to calls for further amendments.
Provisions of the Anti-Defection Law
- Grounds for Disqualification: A member of a legislature (MP or MLA) can be disqualified if a legislator voluntarily resigns or gives up membership of the political party on whose ticket they were elected or a legislator vote or abstains from voting in the House contrary to the party’s directions without prior permission an independent legislator joins a political party after being elected or nominated member joins a political party after six months from taking their seat.
- Exceptions to Disqualification: If at least two-thirds of the members of a political party merge with another party, they will not be disqualified. The Speaker (for Lok Sabha and State Assemblies) or the Chairman (for Rajya Sabha and Legislative Councils) has the power to decide on disqualification under this law.
- Authority to Decide Disqualification: The Speaker/Chairman of the House decides on disqualification under the law. The Supreme Court (as per Kihoto Hollohan v. Zachillhu, 1992) ruled that judicial review is applicable, meaning courts can intervene after the presiding officer’s decision.
- Criticism and Issues: Since the Speaker belongs to a political party, their decision may be biased. The law restricts legislators from voting based on their conscience. The two-thirds rule allows mass defections, weakening the law’s purpose.
- Recent Developments and Recommendations: The Law Commission and Election Commission have suggested that the President/Governor, instead of the Speaker, should decide on disqualifications with the advice of the Election Commission. The Supreme Court has emphasized the need for time-bound decisions on disqualification cases.
Exceptions to Disqualification
The law initially allowed for disqualification exemptions in cases of merger and split of political parties. However, the 91st Amendment removed the exemption for party splits, allowing only mergers under specific conditions.
Role of the Speaker in Anti-Defection Cases
The Speaker or Chairman of the House decides on disqualification petitions. However, this role has been criticized for being biased, as the Speaker is usually a member of the ruling party. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court held that the Speaker’s decision is subject to judicial review, ensuring a check on their powers. Recent cases, such as the Maharashtra political crisis in 2022, have further questioned the impartiality of the Speaker in adjudicating defection cases.
Judicial Interpretation of the Anti-Defection Law
- Kihoto Hollohan v. Zachillhu (1992): The Supreme Court upheld the constitutional validity of the Tenth Schedule but ruled that the Speaker’s decision is not beyond judicial review. It was held that the Speaker’s decision could be challenged in courts under judicial review on the grounds of mala fide intent, bias, or violation of constitutional principles. It established that while the Speaker has the power to decide on disqualification, their decision must adhere to constitutional principles and can be reviewed by courts.
- Ravi S. Naik v. Union of India (1994): The Supreme Court held that “voluntarily giving up membership” is not limited to formal resignation but can be inferred from a legislator’s conduct, actions, and public statements. Even if a member does not formally resign, their behaviour can indicate a loss of allegiance to the party. Expanded the interpretation of defection to include implicit conduct, preventing legislators from bypassing the law by avoiding formal resignations.
- Rajendra Singh Rana v. Swami Prasad Maurya (2007): The Supreme Court held that the Speaker’s inaction on a disqualification petition can be subject to judicial review. If the Speaker fails to act within a reasonable time, courts can step in and make necessary interventions. Prevented the misuse of delays in defection cases, ensuring timely decisions and upholding democratic integrity.
- Manoj Narula v. Union of India (2014): The Supreme Court emphasized the importance of constitutional morality and good governance. While the law does not explicitly bar individuals with criminal records from becoming ministers, the court urged political leaders to follow ethical and moral standards in governance. While not directly related to defection, this case reinforced the principle that public representatives must uphold democratic values and that political morality plays a crucial role in governance.
- Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Assembly (2020): The Supreme Court ruled that the Governor has the power to direct a floor test if there is doubt about a government’s majority. The Speaker cannot indefinitely delay a floor test when the legitimacy of a government is questioned. The court ordered an immediate floor test in the Madhya Pradesh Legislative Assembly. Prevented ruling parties from manipulating legislative procedures to retain power, ensuring that majority support is tested on the floor of the House.
Criticism of the Anti-Defection Law
The law undermines the freedom of speech and expression of legislators, as they are bound to vote according to the party’s whip. Critics argue that it converts elected representatives into mere rubber stamps, stifling dissent within parties. The Speaker, often a party member, may act in a biased manner while deciding disqualification cases. The delay in decision-making can lead to political manipulation, as seen in several state assemblies. The merger provision is often misused to facilitate mass defections, making it a loophole rather than a safeguard. Example: In several cases, entire factions of political parties have merged to bypass the defection law. The law does not mandate a specific timeframe for the Speaker to decide on disqualification petitions, leading to delays and uncertainty. While courts can review the Speaker’s decision, they do so only after the decision is made, often rendering justice delayed and ineffective.
Recommendations for Reform
Instead of the Speaker, an independent tribunal or the Election Commission should decide defection cases to ensure neutrality. The phrase should be explicitly defined in the law to prevent arbitrary interpretations. A maximum time limit (e.g., three months) should be set for the Speaker or the deciding authority to resolve defection petitions. The party whip should apply only to confidence motions and budgetary matters, allowing legislators greater freedom in policy discussions. Stricter guidelines should be imposed on mergers to prevent its misuse as a legal loophole.
Conclusion
The Anti-Defection Law was introduced with noble intentions but has faced significant challenges in implementation. While it has helped curb political instability, it has also led to concerns regarding legislative independence and misuse by political parties. Judicial interpretations have sought to balance its application, but reforms are necessary to ensure its effectiveness in a democratic framework. By addressing the existing loopholes and introducing safeguards, the law can be made more transparent, impartial, and aligned with democratic principles.
FAQS
Q.1. What is the Anti-Defection Law?
A. The Anti-Defection Law was enacted to prevent elected representatives from switching political parties after elections. It aims to maintain political stability and prevent unethical political defections.
Q.2. Under which constitutional provision does the Anti-Defection Law exist?
A. The Tenth Schedule of the Indian Constitution, added by the 52nd Constitutional Amendment Act, 1985, contains provisions for disqualifying legislators on grounds of defection.
Q.3. What is the role of the Supreme Court in the Anti-Defection Law?
A. The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) upheld the validity of the Anti-Defection Law but ruled that the Speaker’s decision is subject to judicial review.
Q.4. Who decides on disqualification under the Anti-Defection Law?
A. The Speaker (for Lok Sabha and State Assemblies) or Chairman (for Rajya Sabha and Legislative Councils) decides on disqualification. Their decision is subject to judicial review by courts.
