ANTI DEFECTION LAWS AND POLITICAL STABILITY

Author: Arsheya Aashna Sagar, 2nd Year, BBA LL.B., National Law University Jodhpur


The Anti-Defection Law in India, was enacted in 1985 through the 52nd Amendment to the Constitution, introducing the Tenth Schedule. Its primary purpose is to curb political defections motivated by personal gains, ensuring the stability and integrity of the democratic process. This law aims to discourage legislators from switching parties after elections, thereby safeguarding the mandate of the voters.
The law stipulates that any legislator, whether any Member of Parliament, or any Legislative Assembly member, consciously defects from his political party, then he may be disqualified on the grounds of defection. Now what amounts to defection.

There are two ways to identify defection:
Give up the party membership voluntarily and leaving the party
Voting against the party whip and directives or act in any manner which is anti to the directions given by the party
However, exceptions exist, such as when a party merges with another or if a substantial group (at least two-thirds of its members) chooses to merge with another party.


The cases of defection are decided by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, which is why this law becomes so controversial and a matter which often sparks allegations of unfairness and biasness. Although the law has been instrumental in reducing opportunistic defections, critics argue it limits free speech and dissent within parties. It also highlights the need for reforms, such as entrusting an independent body like the Election Commission of India with the power to adjudicate defection cases, to ensure fairness and transparency in the political system.


The WHAT & HOW: the law was introduced into the Indian Constitution as the Tenth Schedule through the 52nd Amendment Act in 1985. It was enacted to address the frequent toppling of state governments caused by party-hopping legislators, a phenomenon that became particularly rampant after the 1967 general elections. People might have heard about the “Aaya Ram Gaya Ram” as an example.
The Tenth Schedule, often referred to as the Anti-Defection Act, lays down provisions for disqualifying elected members who defect to another political party. The primary objective of this law is to ensure the stability of democratically elected governments by deterring legislators from betraying their party’s mandate for personal or political gain. Under the Act, a legislator can be disqualified on two main grounds: voluntarily giving up membership of their political party or violating the party’s directives during a vote in the legislature, commonly known as “defying the party whip.”
However, the law includes certain exceptions to disqualification. For instance, it permits a group of MPs or MLAs to join another political party without inviting penalties if their faction constitutes a valid “merger.” Initially, the 1985 Act allowed a merger if one-third of the members of a legislature party agreed to it. This provision was later amended by the 91st Constitutional Amendment Act, 2003, which raised the threshold to two-thirds of the party’s members. This change was introduced to prevent small factions within parties from exploiting the merger provision for personal or political gains.
The Criticisms: the key issue with the law is that it does not penalize political parties for encouraging or accepting defecting legislators, thereby allowing parties to benefit from such defections without accountability. Furthermore, members disqualified under the law are not barred from contesting elections again, which means they can immediately seek re-election from any political party, including the one to which they defected.


Another contentious aspect of the law is the role of the Speaker or Chairman of the House in deciding disqualification cases. These presiding officers, often affiliated with political parties, have been accused of bias in their decisions. Although their rulings are subject to judicial review, the lack of a fixed timeframe for deciding defection cases has led to significant delays, undermining the law’s effectiveness. In several instances, unresolved defection cases have allowed defectors to continue in office for prolonged periods, defeating the purpose of the legislation. The Speaker knows that the party needs the requisite majority in the house to continue its rule, but if the Speaker declares the defection from his own party, then at the time of the Floor Test, when the party will fall short on numbers, it would have to resign. This power here has been wrongly given to the Speaker of the House because it raises various concerns as such.


To address these concerns, various experts and committees have proposed reforms to the anti-defection law. One suggestion is to transfer the authority to decide disqualification cases from the presiding officers to an independent body, such as the Election Commission of India. This would ensure impartiality and expedite the decision-making process. Another recommendation is to impose stricter penalties on defectors, such as barring them from contesting elections for a specified period, to discourage opportunistic defections further.


Grounds for Disqualification under the Anti-Defection Law:
The anti-defection law specifies several grounds on which an elected representative can be disqualified. These are:
1. Voluntary Resignation: If an elected member voluntarily resigns from the membership of their political party, they can be disqualified. The term “voluntarily giving up membership” has been interpreted broadly by courts to include actions that suggest an intention to leave the party, even without a formal resignation.


2. Voting Against Party Directives: A legislator can face disqualification if they vote or abstain from voting in the House contrary to the directives (whip) issued by their political party. However, this provision allows some flexibility. If the party condones such an act within 15 days, the legislator is not disqualified. This clause ensures party discipline while offering a grace period for reconciliation.


3. Independently Elected Members: An independent candidate, once elected, is barred from joining any political party. If such a member joins a party after their election, they are liable for disqualification. This provision seeks to respect the mandate of voters who elect a candidate based on their independent status.
4. Nominated Members: Nominated members of a House can join a political party, but only within six months of their nomination. If they join a party after this period, they are subject to disqualification. This provision is designed to allow nominated members to decide their political affiliations within a reasonable timeframe.


Challenges with the Anti-Defection Law:
1. Ambiguities in Paragraph 4 of the Law: Paragraph 4 of the Anti-Defection Law creates an exception for mergers between political parties, introducing three crucial concepts: the original party, legislature party, and deemed merger. The original party refers to the political party to which a member belongs, generally at a national or regional level, but the law does not clarify whether it pertains to the party at the national or regional level—a distinction recognized by the Election Commission of India.


The law states that a merger can occur only when an original party merges with another political party, provided at least two-thirds of the members of the legislature party agree to it. This provision creates a “legal fiction” where a merger of two-thirds of a legislature party’s members is deemed equivalent to a merger of the political parties, even if no actual merger occurs.


2. Undermining Representative and Parliamentary Democracy: The Anti-Defection Law undermines the independence of elected representatives. MPs and MLAs are compelled to follow the directives of their political parties and cannot vote based on their judgment or the interests of their constituents. This has broken the chain of accountability, making legislators more answerable to their parties than to the electorate.


3. Controversial Role of the Speaker: The responsibility of deciding defection cases lies with the Speaker or Chairperson of the House. However, there is no stipulated timeframe for these decisions, leading to significant delays. Some cases have remained unresolved for years, with rulings issued only after the legislator’s term has ended. This lack of clarity undermines the law’s effectiveness and raises concerns about the impartiality of the presiding officers, who often belong to the ruling party.


4. No Recognition of Splits: The 91st Constitutional Amendment Act, 2003, removed the provision recognizing splits within a legislature party and replaced it with a provision recognizing mergers. While this amendment aimed to discourage frequent defections, it has inadvertently allowed wholesale defection while barring retail defections. This loophole allows entire factions to defect without penalty, while individual dissenters face disqualification.


5. Impact on Debate and Discussion: The Anti-Defection Law has shifted the focus of Indian democracy from debate and discussion to party dominance and numerical strength. It fails to distinguish between legitimate dissent and defection, stifling meaningful deliberations in Parliament and state legislatures. This has weakened the role of legislative bodies as forums for robust policy discussions.


6. Lack of Prohibition on Post-Defection Benefits: The law does not prevent defectors from holding office in their new political party. Critics argue that legislators who leave a party should not be eligible for ministerial or other positions in the new party, as this incentivizes defections.


Recommendations for Reform:
To address these challenges, several reforms have been proposed. These include:
Independent Adjudicatory Body: Shifting the authority to decide defection cases from the Speaker to an independent body, such as the Election Commission, to ensure impartiality and timely decisions.


Stronger Penalties: Imposing stricter penalties, such as barring defectors from contesting elections for a specified period, to deter opportunistic defections.


Clarification of Paragraph 4: Providing clear definitions of terms like “original party” and “legislature party” to remove ambiguities.
Encouraging Internal Democracy: Allowing dissent within parties by distinguishing it from defection, thereby fostering a culture of healthy debate and discussion.

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