Author: Samriddha Ray, a student of St.Xavier’s University, Kolkata
To the Point
The Anti-Defection Law, introduced through the 52nd Constitutional Amendment, 1985 by inserting the Tenth Schedule in the Indian Constitution, was hailed as a revolutionary step to curb political defections and maintain stability in governments. However, over time, the law has revealed its limitations. While it ensures political stability and party discipline, it has also been accused of stifling intra-party democracy, suppressing legislators’ conscience, and empowering party leadership excessively.
Use of Legal Jargon
Defection – Abandoning one’s political party for another, often for personal or political gain.
Whip – A directive issued by political parties to their members to vote in a particular manner.
Quasi-judicial powers – Powers of the Speaker/Chairman in deciding disqualification, resembling judicial authority but exercised in a political environment.
Constitutional morality – Adherence to democratic principles and values enshrined in the Constitution, even beyond its text.
Judicial review – Power of courts to review the legality and constitutionality of the Speaker’s decisions under the Tenth Schedule.
Intra-party democracy – Internal democracy within political parties, ensuring members’ participation in decision-making.
The Proof
The problem of defections, popularly known as “Aaya Ram, Gaya Ram” politics, emerged in the 1960s and 1970s, leading to frequent toppling of governments and political instability. Legislators switched parties frequently, often motivated by ministerial positions, monetary benefits, or political survival. According to reports, over 50% of legislators in some state assemblies defected during this period, destabilizing governance.
The Tenth Schedule was thus enacted to curb this menace. It provides:
1. Grounds of Disqualification:
If an elected member voluntarily gives up party membership (even without a formal resignation letter).
If they vote/abstain against the party whip without prior permission.
If an independent member joins a political party after election.
If a nominated member joins a party after six months of being nominated.
2. Exceptions:
A legislator shall not be disqualified if a merger occurs between two political parties, provided at least two-thirds of the members of the original party agree.
3. Decision-Making Authority:
The Speaker/Chairman of the House decides on disqualification petitions. However, this raises concerns of bias, since Speakers often belong to ruling parties.
4. Judicial Review:
Initially, the Speaker’s decision was final. But after judicial intervention in Kihoto Hollohan (1992), such decisions became subject to review by High Courts and the Supreme Court.
Despite its objectives, the law has been criticized as it restricts free debate, weakens legislators’ independent role, and centralizes power in party high commands.
Abstract
This article critically examines the Anti-Defection Law in India and its constitutional journey. Though designed to eliminate political horse-trading and promote governmental stability, the law has curtailed free speech of legislators and undermined the democratic ideal of dissent. Judicial interventions have tried to balance its implementation, but ambiguities remain. By analyzing key cases and constitutional debates, this paper highlights the paradox of the Anti-Defection Law—a stabilizer of democracy on one hand and a suppressor of democratic freedom on the other.
Case Laws
1. Kihoto Hollohan v. Zachillhu (1992)
Supreme Court upheld the constitutionality of the Tenth Schedule.
Speaker’s decisions are not immune from judicial review.
Established a balance by protecting stability while preserving constitutional checks.
2. Rajendra Singh Rana v. Swami Prasad Maurya (2007)
Court struck down the Speaker’s inaction in deciding disqualification petitions.
Held that delays by Speakers undermine democratic accountability.
3. Manipur Legislative Assembly Case (Keisham Meghachandra Singh v. Speaker, Manipur, 2020)
Supreme Court directed Speakers to decide disqualification petitions within a reasonable time (ideally 3 months).
Recommended creation of an independent tribunal to decide such cases.
4. Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly (2019)
Related to the disqualification of 17 MLAs during the Karnataka political crisis.
SC upheld the Speaker’s power to disqualify but allowed MLAs to contest fresh elections, thereby limiting Speaker’s punitive powers.
These cases illustrate the judiciary’s effort to prevent misuse of the Tenth Schedule while ensuring the law’s democratic legitimacy.
Political and Constitutional Implications
Curb on Freedom of Speech: Legislators cannot vote against party directions, undermining parliamentary debates.
Centralization of Power: Party leadership gains undue influence, reducing individual representatives to mere numbers.
Erosion of Accountability: Legislators fear disqualification more than public opinion.
Speaker’s Bias: Since the Speaker belongs to a political party, neutrality in disqualification proceedings is questionable.
Judicial Burden: With every disqualification subject to court scrutiny, the judiciary has become the final arbiter of political disputes.
Comparative Perspective
Globally, very few democracies have anti-defection laws as stringent as India’s. In the UK, MPs may defy party whips without losing their seat, reflecting parliamentary independence. In the US, party-switching is allowed, and accountability is left to the electorate. India’s model thus appears unique but overly rigid, prioritizing stability over representation.
Conclusion
The Anti-Defection Law has undoubtedly curbed the culture of rampant defections that once destabilized Indian politics. However, its sweeping restrictions on dissent have come at a cost. Legislators often act as agents of party leadership rather than representatives of the people. This undermines deliberative democracy and reduces parliamentary debates to mere formalities.
Suggested Reforms:
Limit application of the law to confidence motions and money bills to safeguard government stability while preserving freedom in other debates.
Ensure time-bound decisions by Speakers to avoid political manipulation.
Establish an independent tribunal headed by a retired judge to decide disqualification cases impartially.
Strengthen intra-party democracy through legal mandates for internal elections and decision-making processes.
Only by balancing stability with liberty can the Anti-Defection Law fulfill its constitutional purpose.
FAQS
Q1: Does the Anti-Defection Law apply to independent candidates?
Yes. If independent legislators join a political party after election, they are disqualified.
Q2: Can the Speaker’s decision be challenged in court?
Yes. Since Kihoto Hollohan (1992), Speaker’s decisions are open to judicial review.
Q3: Why is the law criticized?
Because it curtails legislators’ freedom of speech, reduces debate, and strengthens party leadership at the expense of grassroots democracy.
Q4: What reforms are proposed?
Experts suggest restricting the law to votes that determine government survival, while allowing free voting in other matters.
Q5: Is the law successful?
Partially. It has prevented frequent defections but has also undermined representative democracy by weakening the role of elected members.
