Anti-Defection Law

Table of Contents

Context: Once again, as Maharashtra grapples with another political crisis, the application of the Anti-defection law on rebel MLAs has come into the spotlight.

About the Anti-Defection Law

The Anti-Defection Law in India refers to a set of constitutional provisions enacted to prevent political defections by elected representatives.
The law aims to maintain stability in the democratic system by discouraging elected officials from switching parties after being elected.
It was first introduced through the 52nd Amendment Act of 1985 and is enshrined in the Tenth Schedule of the Indian Constitution.

What is ‘Defection’?

The term ‘Defection’ has been derived from a Latin word ‘Defectio’ which means to abandon a position or association, often to join an opposing group.
Defection covers the change of party affiliation both from the opposition to the government side or vice versa as also change as between the parties on the side of the house.
Traditionally this phenomenon was known as ‘floor crossing’ which had its roots in the British House of Commons, where the legislator could change his allegiance when he crossed the floor and moved from the side of the government to the side of the opposition or vice-versa as the case may be.

History behind the Anti-Defection Law

The phenomenon of defection despite the fact that it was acute became apparent after the fourth general election in 1967.
Up to 1967 the cases of defection were 400 which subsequently rose to a figure of 500 odd cases of defection, in which 118 were by the Ministers or Ministers of State.

Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.

Therefore, in 1967, a committee was formed to deal with the issue of defection. There were several recommendations made by the committee on defection.
Those recommendations were considered and were introduced in the form of a bill in 1973 that was later passed as Anti Defection law in 1985.

Key Provisions under the Anti-Defection Law

The Anti-Defection Law (or the Tenth Schedule) includes the following provisions with regard to the disqualification of MPs and MLAs on the grounds of defection:

Grounds for disqualification	If a member of a house belonging to a political party: Voluntarily gives up the membership and affiliation to a political party or If he votes or abstains from voting in the House, contrary to any direction issued by his political party. However, if the member has taken prior permission on the particular issue, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified. The other grounds for disqualification of a member are: If an independent candidate joins the party after the election. If a nominated member joins a party six months after he has become a member of the legislature.
Power to disqualify	The Chairman or the Speaker of the House has been conferred with the power to take the decision to disqualify a member, and his/her decision is final. If a complaint is made with respect to the defection of the Chairman or the Speaker, a member of the house elected by that House shall have the right to take the decision. All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case. Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House. However, there is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification.
Exceptions under the Anti Defection Law	Merger: In the situation where two-thirds of the legislators of a political party decide to merge into another party, neither the members who decide to join nor the ones who stay with the original party will face disqualification. Split: Earlier, the law allowed parties to be split, but at present, this has been outlawed. If at least one-third of the members of a legislative party decide to form a separate group, it is considered a split. Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.
Scope for Judicial Review	Originally, the Act provided that the presiding officer’s decision was final and could not be questioned in any court of law. But, in Kihoto Hollohan case (1992), the Supreme Court declared this provision as unconstitutional. The court held that while deciding a question under the 10th Schedule, the presiding officer should function as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of malafides, perversity, etc.

Advantages of Anti-Defection Law

Prevents Political Instability: Defections can lead to political instability, as governments may lose their majority and struggle to function effectively. The Anti-Defection Law prevents such situations by discouraging elected representatives from defecting or switching parties.
Upholds Party Discipline: The law encourages party discipline among elected representatives. It emphasizes that elected members should adhere to the policies, principles, and ideologies of their respective political parties.
Safeguards Public Mandate: The Anti-Defection Law protects the interests of the electorate by ensuring that the elected representatives do not betray the trust of voters. When citizens vote for a candidate, they do so based on the party’s agenda and the promises made during elections.

Disadvantages of Anti-Defection Law

Limited Freedom of Speech: Members being forced to obey party whips restricts their freedom of expression and goes against the principle of representative democracy.
Reduced Accountability: By preventing parliamentarians from changing their allegiance or voicing dissent, the law limits their ability to hold the government accountable for its actions.
Potential Misuse: There is a risk of the Anti-Defection Law being misused by political parties or leaders for their own advantage. They may use the threat of disqualification or other punitive measures to suppress dissent within their party or to force compliance with party decisions, even if they are against the best interests of the public or the elected representatives.
Other challenges with the Anti-defection Law:
- Time Limit for Presiding Officer: The lack of a specified time-period for the Presiding Officer to decide on a disqualification plea leads to unnecessary delays, allowing defected members to continue in their positions while still being part of their original parties.
- Ambiguous Nature of Split: The ambiguity arises when MLAs defect in small groups to join the ruling party, and it is unclear whether they will face disqualification if the Presiding Officer’s decision is made after a significant number of opposition members have already defected.
- Defecting to party forming Government after election: Winning candidates resigning from their elected party immediately after election results and joining the party that forms the government raises concerns of fraud and goes against the democratic spirit.
- Power to the Speaker: Granting the Speaker the power to make decisions on disqualification raises criticism regarding their legal knowledge and expertise to handle such cases impartially.
- Problem with merger provision: The provision focuses on the number of members involved in a merger rather than the underlying reasons for defection, potentially allowing for opportunistic and questionable mergers to escape disqualification.

Recommendations by Various Committees

Dinesh Goswami Committee on Electoral Reforms (1990)	Disqualification should be limited to cases where a member voluntarily gives up party membership or votes against party whip in a motion of confidence or no-confidence. The President/Governor, on the advice of the Election Commission, should decide on disqualification cases.
Law Commission (170th Report, 1999)	Provisions exempting splits and mergers from disqualification should be deleted. Pre-poll electoral fronts should be treated as political parties under the anti-defection law. Political parties should limit the issuance of whips to instances where the government is in danger.
Election Commission	Decisions under the Tenth Schedule (Anti-Defection Law) should be made by the President/Governor, based on the binding advice of the Election Commission.
Constitution Review Commission (2002)	Defectors should be prohibited from holding public office or any remunerative political post for the remaining term. Votes cast by defectors to topple a government should be treated as invalid.