ANTI – DEFECTION LAWS IN INDIA

Author- Maghavatpriya HG, a Student at SASTRA Deemed to be University

Abstract

The Anti-Defection laws are present in the Tenth Schedule of the Constitution of India and these laws were added as a result of the 52nd Amendment of 1985. This law tries to curtail actions of political defection and keep the government stable by declaring elected representatives legally disqualified if they switch parties. This law has been aiding the construction of the dynamics of the Indian party politics from the time it was framed in 1985. The law aims at preventing the members of Parliament from switching from one political party to another during the political term in order to enhance stability. Nevertheless, the understanding about its operation or enforcement has been an issue of debate, especially concerning relation to democracy, autonomy, and politics of the parties. This article aims to give an overview of the Anti-Defection law together with its historical background, developments through judicial pronouncements, and the effect of such party-switching on the multifaceted party politics and the Indian democracy. Methods for reformation and future directions with regard to the anti-defection laws are also discussed.

Introduction and Historical Context of Anti-Defection Laws

The Anti-Defection Law in India came into being to check the problem of political instability relating to switch over by elected representatives, which is termed as ‘crossing over’ or ‘desertion’. Such practice which was rife in the 1960s and 1970s, it destabilized governments and weakened the faith of the public on democracies. Understanding that such tendency jeopardises political stability and, therefore, must be stopped, the Anti-Defection Law was introduced to the Indian Constitution, according to the 52nd Amendment Act, 1985, introducing the Tenth Schedule. The law effectively aims to penalize members of Parliament and State Legislatures, who voluntarily switch from their party’s support or cross-vote on important decisions by getting a legal strike by disqualifying them from being an elected representative. Anti-Defection Law depicts the degree of stability that needs to be achieved alongside level of immediate freedom in a democratic system. Despite the goal of avoiding scenarios in which many individuals will switch from their parties, the use of the anti-defection strategy has raised a lot of controversy. Some critics have said the law violates the rights of the parliamentarians and erodes sovereignty of Parliament by accentuating party authority at the expense of personal freedom in the expression and voting. In addition, the change in the trifling direction of the judicial system whereby justice has gradually been meted out according to the dictates of the law has also help in determining the law and its implications on the multi-party democracy of India. However these challenges can be said to exist, the law retains a central place as the means of dealing with the issue of defections and defending the democracy in India. This article seeks to illustrate historical landscape, features and implications of the Anti-Defection Law when determining the political and democratic system of India.

Structure and Provisions of the Anti-Defection Law

The Tenth Schedule of the Constitution of India contains the Anti-Defection law which outlines the conditions under which a member of a legislature can be disqualified for defection. The key provisions are: Article 102 (for MPs) and Article 191 (for MLAs) of the Indian Constitution. These provisions deal with disqualification of the member from the House if a member defects from a political party. The Tenth Schedule which was introduced by the 52nd Amendment in 1985, gives the specific conditions under which a legislator may be disqualified for defection.

The Tenth Schedule defines defection in two main contexts:

1. Voluntary Disqualification: A member displays voluntary resignation and is thus considered to have defected if he/she gives up membership of the party that elected him/her.
2. Votes against Party Directive: If a member votes against or abstains from voting in the House contrary to a direction given by his/her party, without obtaining prior permission, this is yet another reason for that member to be deemed to have defected.

However, there are exceptions to these rules:

• Merger: Just by leaving the political party due to a merger with another party, a member is not disqualified but only if two-thirds or more of the members of that party agree to such merger.
• Presiding Authority: If a member, having been elected as the House’s presiding officer, willingly leaves his party or re-joins it after leaving office. This exception has been granted in consideration of the dignity and impartiality of this position.

Amendments Made to the Laws

Over the years, the Anti-Defection Law has made over several amendments to make it effective against the scourge of defection. A few of the most striking such Amendments have been: 

• The 91st Constitutional Amendment Act, 2003: This Amendment made provisions which further strengthened the Anti-Defection Law against floor-crossing. An exception for disqualification was made for members of a legislative party merging with another party provided at least two-thirds of the members do the same.
• The 52nd amendment (Tenth Schedule): The amendment provided for disqualification of members who would be termed “defectors” for either having defected from their political parties or for voting contrary to the official line of their party.

These amendments have only enhanced the effectiveness of the Anti-Defection Law in reducing defections; however, the laws are still riddled with such problems, especially with regard to the Speaker’s position in deciding cases of defection.

Judicial Decisions made with regard to Anti-Defection Law

The courts have been instrumental in shaping the legal regime regarding anti-defection laws in India over the years. While they have been resilient to invalidating the constitutionality of the law, they have extensively spelt out the decisions and limitations in some leading judgments..

Kihoto Hollohan v. Zachillhu (1992):

In this landmark judgment, the constitutional validity of anti-defection law of India was upheld by the Supreme Court of India. However, decided that the Speaker’s or Chairman’s decision on disqualification is subject to judicial review. This marks a significant move toward making the disqualification transparent and accountable, particularly when allegations of political bias are invoked.

The Court has clarified that while the Speaker or Chairman has the principal authority to determine whether a member qualifies as a defector, their decision can equally be subjected to challenge in the courts. This essentially reinforces the doctrine of separation of powers and shows that even constitutional authorities such as the Speaker are not beyond judicial scrutiny.

Rajendra Singh Rana v. Swatantra Dev Singh (2007):

This is a case in which the Apex Court turned its gaze towards the limits of judicial intervention in the disqualification process. It was held that if a Speaker or a Chairman does not decide a disqualification petition within a reasonable time, the courts will step in and pass an order of disqualification.

This has brought into light the timeliness within which the disqualification process must be carried out, having significant implications on the stability of legislative bodies. The decision reaffirmed that the anti-defection law must not be invoked to be an impediment or a time obstacle for the legislative institution in performance. Further, it was underscored by the court that disqualification proceedings ought to be brought to a quick closure so that defectors do not manage to hold office during long durations.

L. Chandra Kumar v. Union of India (1997):

The Supreme Court had put on record that the judiciary is not controlled by either Parliament or the Speaker with respect to the power of review of constitutional amendments.

Although this case did not deal directly with defection laws, the implications of the ruling held vital importance as far as constitutional validity of laws passed by Parliament, including the anti-defection law, were concerned. This ruling highlighted the integrity of reviewing judicial process as an essential part of the constitutional framework to cement the principle of the rule of law.

Nabam Rebia vs. Deputy Speaker & ORS (2016):

This case underscored the importance of respect for the constitutional balance between the Speaker and the legislature. The Supreme Court held that the decision of a Speaker disqualifying a member for defection cannot be said to have been made whimsically in an arbitrary manner and would have to follow due process.

Jagjit Singh vs. State of Haryana (2006):

This case pertained to the question whether the ruling of the Speaker could be set aside by the court. The judgment upheld the independence of the legislature but also held that judicial review was possible when the Speaker was found to act with respect to questions of defection.

B.S. Yeddyurappa v. Union of India (2010):

The Supreme Court held that the Speaker must use careful restraint in making a decision on a defection case without any exertion by the political atmosphere. This case shows safeguarding for impartiality and fairness in the law’s application.

Through the years, there have been instances of political defections, especially in the form of floor-crossing during critical votes, like the formation of coalition governments. As a matter of public health and safety, the judiciary has to prove that this doesn’t work as an arbitrary or partisan instrument. An instance in this regard is the 2019 Karnataka Political Crisis, which forced a large number of MLAs to cross over from the ruling coalition, resulting in the collapse of the state government. The Supreme Court had to intervene to reinforce the ruling that these disqualified legislators would not be permitted to contest elections until after the expiry of the current term but also directed the Speaker on expeditious disposal of cases concerning disqualification.

Implications for Party Politics and Democracy

The Anti-Defection Law has had a very great impact on party politics in India. It has, in some measure, blocked opportunistic defection, as well as dragged the party strategy on more welfare-oriented developmental lines with respect to individual freedom. The critics argue that it adds to strengthening the powers of the party leaderships; it muzzles dissent and reduces democratic representation in India. Therefore, questions arise, which concerns whether or not the law is limiting political freedom and whether or not it is due for reform to allow greater independence for elected representatives.

The Anti-Defection Law has taken a central place within the stability of Indian legislate bodies. But a larger issue has emerged: stability vs. freedom in the political sphere. The application of the law will continue to spark debate, although it is constitutionally valid; its future will depend on judicial reforms and an evolving political climate. Reform is needed: it must a little more closely conform to the changing dynamics of Indian democracy.

Current State of Anti-Defection Law

Thus, the Anti-Defection law continues to be a matter of intense debate today. It has succeeded in restricting rampant defections and has brought about some stabilizing effect on coalition politics; however, it has raised a few questions about the application of aversion. Many people believe that it violates the democratic principle of individual freedom and autonomy of elected representatives. Some critics pointed out that the instrument would help to maintain party discipline by the party leaders over their legislators, thereby diminishing the independence of the elected officials.

The reliance of the law on the Speaker to decide disqualification cases has also been a bone of contention. They argue that bias is bound to seep in their decisions since Speakers are, as the name implies, members of one political party. In recent years, there have been many instances of such use of the law, but most of these have not been outcome-wise sanctioning transparency and fairness in process.

Reforms for the Future

Independent Adjudication of Defection Cases:

The authority of the Speaker to decide disqualifications usually leads to accusations of bias. It should, therefore, ideally get this task delegated to an independent electoral tribunal, which will ensure impartiality and accountability in decision making.

Restricting the Merger Clause:

It is criticised that the provision for mergers by a two-thirds majority, is quite unconstructive since it is most often taken advantage of. It is valid that stricter scrutiny of mergers, coupled with transparency, can avert opportunistic being claimed and safeguard the mandate adopted by the electorate.

Encouraging Internal Party Democracy:

Members should be free to express discontent or vote against the party line on certain matters, such as non-confidence motions, without possible disqualification. This would encourage a much healthier democratic culture while fairly maintaining party discipline.

Limiting the Scope of Disqualification:

Disqualification ought to attach only on the intention and upon severe infringements of party loyalty such that small differences or lapse in procedures are not going to suffocate individual autonomy in parties.

Conclusion

Surely, in the long run, the Anti-Defection Law has ushered in quitting much delimitation in rampant defections and encouraging political stability in India. Its applicability, however, has rung critical challenges against almost total suppressing dissent, control through party strength, and the question of disqualification being harmless to the Speaker. These have shown that modification is necessary to strike a balance between highly political stability and healthy democratic values like free speech, party autonomy, and individual choice. 

The future amendments are to ensure transparency, impartiality, and speedy disqualification decisions while clarifying ambiguities in provisions such as the merger clause. The law will ensure adaptation to the prevailing political scenario and a fruitful functioning for the spirit of accountability within a vibrant democracy. With this equilibrium in balance, it would also ensure no public mandate is disrespected and it would continue to flourish in India’s democracy as per its constitutional ideals.

FAQ

1. What is the Anti-Defection Law?

The Anti-Defection Law formed by the 52nd Amendment Act of 1985 to the Constitution of India and added to the Tenth Schedule. It was introduced to prevent the elected representative from defecting from one political party to another within a term which is also assumed to have political stability and also shall minimize the opportunistic defections.

2. What are the provisions and the exceptions of the Anti-Defection Law?

• Voluntary Disqualification: A member is disqualified if he willingly resigns or abandons his membership in the party.
• Voting Against Party Directive: A member is also disqualified for voting against or abstaining from voting against a party directive without earlier permission from the party.
• Exceptions: A member is not disqualified if their party merges with another party, provided at least two-thirds of its members agree to the merger.

3. How does the law affect elected representatives?

It restricts their ability to act independently of their party, ensuring adherence to the party line but raising concerns  that the freedom of speech and personal autonomy are limited.

4. What is the role of the Speaker in the Anti-Defection Law?

The disqualification case will be settled by the Speaker or the Chairman of the House. However, these decisions have been hit by controversies as the speakers are usually biased toward one political party.

5. Can the decision of the Speaker be challenged?

Yes, the decision of the Speaker is open to judicial scrutiny, as held by the Supreme Court in Kihoto Hollohan v. Zachillhu (1992).

Sources

1. Constitution of India.
2. https://www.alliance.edu.in/ijls/ijls-2023/assets/documents/a-critical-analysis-of-anti-defection-laws-in-india.pdf
3. https://www.legalserviceindia.com/legal/article-9231-anti-defection-law.html 
4. https://www.drishtiias.com/daily-updates/daily-news-analysis/anti-defection-law-11
5. https://vajiramandravi.com/quest-upsc-notes/anti-defection-law/