Author: Manan Jhamb, Chandigarh University.
LinkedIn Profile: https://www.linkedin.com/in/manan-jhamb-441716288/
ABSTRACT
Anti- defection law being the Tenth Schedule of the constitution of India which is also called the Team Anti-Defection Act was enacted under the entirety of the fifty-two constitutional amendment act of 1985 whose sole aim is to curb the political defection and maintain the stability of the government. However, forty years after its passing the law is now open to scrutiny as an instrumentally faulty tool – a tool which forbids the apostasy of the individual and, unintentionally, authorises the betrayal of the people as a political matter. This paper sets out to subjectively question the constitutionality, jurisprudential pathway and effective functionality of the Anti-Defection Law in the scenario of artificial floor-passing, wholesale merger of legislative parties and the intentional creation of dissolvency among rival governments. Based on landmark judicial declarations, constitutional scholarship, and current political events, this paper will argue that the current functioning of the Anti-Defection Law is a constitutional paradox: it was created to safeguard the integrity of democracy; however, it has also been used as an enabler of politically-staged subversion of the election mandate. Extensive law revisions, supported by judicial activism, are desperately called for.
TO THE POINT
The constitutional democracy of India is based on the same principle that the sovereign will of the electorate is projected by elected representatives into the legislative houses. The Anti-Defection Law was thought of as an aide de camp to thwart the infamous trend of, aaya ram, gaya ram politics – a way of describing the methods by which lawmakers unless their loyalties change parties with mercenary regularity in order to get self-serving publicity. But there is a fatal gap in the design architecture of the law: it does not disqualify legislators who vote in a bloc in the pretext of a so-called merger, should two-thirds of the legislative party agree.
This exemption has turned the Tenth Schedule into a roadmap, rather than a deterrent. The merger provision has been weaponisedin a systematic way by the political operators to create a state of destabilisation in government through defection in tranches, creation of artificial majorities and overthrow of governments elected legitimately as well as immunisation as a way of not being disqualified. Constitutional obligation of fidelity of representation is thus killed not by any single betrayals, but by institutionalized manipulation.
This paper analyzes the conceptual paradigm, factual trends, and corrective measures that encompass the anti-defection law as it applies to India with specific reference on how it has been abused by the political power in recent past.
USE OF LEGAL JARGON
It is necessary to have a clear interpretation of the subsequent legal terminology to understand the legal environment on anti-defection:
Resigning on his own (Tenth Schedule, Para 2(1)(a):
The giving up of membership of a political party by a legislator particularly by resignation, or by act constituting, or likely to constitute, a manner, or by way of being joined to another formation of opinion. In G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) the Supreme Court made it clear that the act should not be formal, conduct that indicates a voluntary severance is enough.
Whip:
It is an instruction given out by the authorised representative of a party in a legislature to vote in a given manner. Violation of a whip that was issued properly is a disqualifying act in Para 2 (1)(b) of the Tenth Schedule, upon conditions in the same.
Merger (Para 4 of the Tenth Schedule):
A constitutional exemption to disqualification where a legislative party votes to incorporate another party, but not less than two-thirds of the members of that legislative party have agreed to incorporateation. The merger should be that of the original political party, rather than just the legislative wing – a distinction made difficult by the courts to enforce.
Floor-crossing:
Voting against what the party on which the legislator was elected advocated-–or, as is frequently practiced in the legislature, literally going across the aisle to sit in the opposition-quartered by the legislator a flagrant violation of the mandate of political service.
Decision of Speaker reviewed by judges:
The authority of the High Courts and the Supreme Court in reviewing the adjudicatory rulings of the Speaker in regard to disqualification petitions as authoritatively determined in KihotoHollohan v. Zachillhu (1992).
Deemed disqualification:
Disqualification that is constructive in the nature and results through operation of law without the necessity to grant a specific order, where the conduct of a legislator can distinctly be categorized under the disqualifying types of the Tenth Schedule.
THE PROOF
The empirical and judicial evidence that indicates the failure of the Anti-Defection Law to work is conclusive and it cannot be ruled off as few isolated cases. The pattern set by facts is the following:
1. The Maharashtra Crisis (2022):
The toppling of the Maha Vikas Aghadi government in Maharashtra was one of the most orchestrated defections in Indian constitutional history. An opposition wing of the Shiv Sena legislative party, led by Eknath Shinde, boasted of being the true Shiv Sena and managed to take control of the party brand, as well as the government. Cases of disqualification lodged in the Speaker were stalled purposefully. In Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), the Supreme Court had no doubts that the direction by the Governor to the floor test was unconstitutional in the light of the political uncertainty and that failure of the Speaker to make the disqualification petitions was irregular. But the fait accompli was the political.
2. Manipur, Goa and Arunachal Pradesh Episodes:
In several northeastern states, a organized defection by legislators of the ruling party occurred with groups tailored to meet the two-thirds merger requirement to create new majority coalitions hostile to the original government. All the episodes proved that the merger exception, initially being a sincere constitutional concession, had turned into the tool of political creation.
3. Speaker Partisanship:
The constitutional anomaly over which the Officer (the Speaker) who is attracted to and elected by the ruling party adjudicates disqualification petitions comprising a ruling party member has bred biased adjudicatory consequences many times over. Successive governments ignored recommendations in a 170th Report by the Law Commission of India (1999) and by Constitution Review Commission (2002), which suggested that any dispute involving disqualification should be referred to an independent body.
As Political Engineering Tool: The Two-Thirds Loophole.
A comparison of the defection trends, including state defections, across 2014-2024 demonstrates that in cases where disqualification was not applied, the defector group was usually designed to constitute precisely two-thirds or more of the legislative party; this is statistically improbable when organic political dissent is the cause, and can only occur with such a result through coordination.
CASE LAWS
CaseKihoto Hollohan v. Zachillhu & Others
CitationAIR 1993 SC 412; (1992) Supp 2 SCC 651
The CourtSupreme Court of India (Constitution Bench – 5 Judges)
HeldStruck down the constitutional validity of the Tenth Schedule. Court Acted that decisions on disqualification by the Speaker of the House/ Chairmen could be subjected to judicial review under Articles 136, 226 and 32 of the Constitution, but not until the final order was made. The judicial review would be done based on mala fides, perversity, or breach of a constitutional requirement. The paragraph 7 that included the exclusion of judicial review was declared unconstitutional because it was a violation of judicial review – an essential component of structure.
CaseG. Viswanathan v. Tel. Assembly, Tamil Nadu.
Citation(1996) 2 SCC 353
CourtSupreme Court of India.
Held explained that voluntary giving up membership as required by Para 2(1)(a) does not involve taking action to resign as a formal requirement but acts or behaviour that affects against the sustained status of the membership is enough to covet disqualification. Such a legislator that changes allegiance through actions is considered to have voluntarily abdicated membership.
CaseRajendra Singh Rana v. Swami Prasad Maurya.
Citation(2007) 4 SCC 270
Andrew Decision Court Supreme Court of India.
HeldHeld the Speaker could not indefinitely adjourn the resolution of disqualification petitions. Failure by the Speaker to take prompt action on disqualification petitions before him is very well subject to the intervention of the courts. The Court stated that the adjudicative nature of the Speaker in the Tenth Schedule is tentative, and that it needs to be executed with constitutional soundness as well as in a reasonable period.
CaseNabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly.
Citation(2016) 8 SCC 1
Court Courts of India (Constitution Bench)
HeldHeld the Speaker could not determine petitions to disqualify when a petitition to remove himself was on notice. Restated the doctrine of an access to adjudicatory power in a Speaker who is also a party subject to removal processes, which leads to a constitutionally inadmissible conflict of interests.
CaseSubhash Desai vs. Principal Secretary, Governor of Maharashtra.
Citation(2023) 6 SCC 1
CourtSupreme Court of India (Constitution Bench)
Held Contained in the wake of the 2022 political crisis in Maharashtra. Believed that, under the circumstances, the Governor had no constitutional ground to conduct a floor test. Accepted that disqualification petitions, which the Speaker had not adjudicated were constitutionally irregular. The Court could not, however, help the deposed government by restoring it because of the practical impossibility of so doing; a commentary on the inadequacy of structure in the prevailing legal system.
CaseShrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly.
Citation(2020) 2 SCC 595
CourtSupreme Court of India.
In Held Vindicated the disqualification of 17 members of the Karnataka coalition government who quit their parties and crossed the floor in opposition to the government. Held that intentional action and coordinated conduct to overthrow a government, by resigning in concert with defection, is a voluntary surrender of membership and subject to disqualification. Noteworthy, the Court decided that the disqualified members were not allowed to contest the elections until the end of the term of legislative assembly.
CONCLUSION
The Anti-Defection Law holds a special, though paradoxical place at the jurisprudence of Indian constitution. Passed with noble objective of securing political stability within the government and safeguarding electoral mandate, it in reality has been undermined by those very political elements it was intended to rebuke. The exception of merger as the most crucial lacuna in the Tenth Schedule has been used on an ongoing basis to justify wholesale political defections not necessarily based on ideologic pressures but driven by political convenience.
The judiciary, though vigilant, is limited in a manner. The interventions of the Supreme Court in cases as Kihoto Hollohan to Subhash Desai show that the court has been progressive in its judicial commitments towards constitutional decency, but also shows the inadequacy of remedies where a government has been thrown out and a new political reality established. The constitutional damage in these cases is at the time of judicial redress, often irreversible.Structural reform is what is urgently required in what India political constitution is. The subsequent legislative and institutional interventions are urgently worth considering:
•Transformation of adjudicatory jurisdiction in disqualification petitions off the Speaker to an independent constitutional adjudicational body or the Election Commissioning India, which are beyond party-political influence.
•Instatement of a 90-day adjudication period on so-called disqualification petitions and so-called disqualification taking effect after the passage of that period without a reasoned ruling.
•Either abolition or radical limitation of the two-thirds merger exception, which has been abused as the main tool of anti-constitutional floor management.
•The constitutional understanding of the rule that a legislator who was elected on a party ticket carries a representational burden subject to the offerings of that party that cannot be abrogated unilaterally without other electoral ratification.
The Anti-Defection Law will be until these reforms are effected what long has been said of it: a paper tiger with selective teeth–able to bite the lone defector, but toothless in the presence of organised political predation–which is unconstitutionalallytoothless. The democratic grouping of elector and elected requires no shortcoming of constitutional renal in this field.
THE MOST COMMONLY ASKED QUESTIONS (FAQ)
Q1. What is Anti-Defection Law in India?
The Anti-Defection Law is the provisions of the Tenth Schedule to the Constitution of India which was added by the Constitution (Fifty Two Amendment) Act, 1985. It makes the members of parliament and the state legislatures disqualified on grounds of defection i.e. either by voluntarily quitting the party membership or by disobeying the party track in the legislature.
Q2. What is the exception of the Tenth Schedule of the two-thirds merger?
Paragraph 4 of the Tenth Schedule states that a legislator is not disqualified when defection is made under a merger between the original political party with another party as long as at least two-thirds of the members of the legislative party is in approval of such merger. This exception has received a great deal of criticism due to its permitting of engineered mass defections.
Q3. Who makes decisions about cases of disqualification under the Anti-Defection Law?
The choice to decide petitions of disqualification is seen to be given to the Speaker of the House of the People or the Legislative Assembly or the Chairman of the Council of States or the Legislative Council as per the Tenth Schedule. That said, according to the decision in Nabam Rebia v. Deputy Speaker (2016), the Speaker has no jurisdiction to determine whether there is a notice of the removal of the Speaker herself.
Q4. Is the decision of the Speaker on disqualification to be subject to review by the courts?
Yes. Kihoto Hollohan v. Zachillhu, (1992) the Supreme Court said that judgments of the Speaker on disqualification are judicially reviewable under the Articles 136, 226 and 32 of the Constitution, however, it is only after the issuance of an ultimate order. The review can be allowed on the basis of mala fides, natural justice breach, or constitutional transgression.
Q5. What are the reforms that have been suggested to enrich the Anti- Defection Law?
This has been advised by several reform commissions, notably the Law Commission (170th Report, 1999) and the National Commission to Review the Working of the Constitution (2002) which have proposed that adjudicatory power on the question of disqualification is transferred to an independent constitutional authority, the Election Commission or a tribunal on the matter. Also, there are suggestions to tighten the merger exception and introduce compulsory adjudication deadlines.
The article is designed to be scholarly and informative. It does not constitute legal advice. Citations to cases have the format as they are reported in the Supreme Court Cases (SCC) series or All India Reporter (AIR).
