Anti-Defection Law in India: Evolution, Challenges and Electoral Impact

Anti-Defection Law: Safeguarding Democratic Morality in Indian Politics #

“First step towards cleaning-up public life”- Rajiv Gandhi (the then Prime Minister)

To prepare for INDIAN POLITY for any competitive exam, aspirants have to know about Anti-Defection law. It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). This is an essential portion of the polity. As IAS aspirants, you should be thorough with the Anti-Defection law. In this article, you can read all about the Anti-Defection law for the Polity and Governance segments of the UPSC syllabus.

Anti-Defection law is intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. 

Evolution of Anti-Defection Law in India #

• The main intent of the law was to combat “the evil of political defections”.
• 52nd Amendment 1985: Added Tenth Schedule, which laid down the process by which legislators may be disqualified on grounds of defection.
• Amended 91st Amendment Act 2003: Omitted the exception provision, i.e. disqualification on grounds of defection, which is not applicable in a split.
• Grounds for Disqualification: Member of Parliament or State Legislature belonging to a political party is deemed to have defected
  • if he either voluntarily resigns or gives up the membership of his political party,
  • He disobeys the directives of the party leadership on a vote or abstains from voting without prior permission. However, he can seek the permission of the party before 15 days.
  • An independent candidate joins the party after the election. 
  • A nominated member joins a party six months after becoming an MP/MLA.

Exceptions in India’s Anti-Defection Law: A Critical Analysis #

• Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post, as practiced in Britain.
• A party could be merged into another if at least two-thirds of its party legislators voted for the merger.

Deciding Authority: Judicial Scrutiny and Constitutional Boundaries #

• Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House. (i.e. Speaker in Lok Sabha and Chairperson in Rajya Sabha.)
• Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.
• Kihoto Hollohan judgement (1993): Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the SUPREME COURT and the HIGH COURT.
• Further, SC held that the presiding officer, while deciding a question under the Tenth Schedule, functioned as a TRIBUNALS.
• Hence, his decision, like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.

Anti-Defection Law in India: Rule-Making Powers, Due Process and Legislative Mechanisms #

• The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule.
• According to the rules made, the presiding officer can take up a defection case only when he receives a complaint from a member of the House.
• Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation.
• He may also refer the matter to the committee of privileges for inquiry.
• Conclusively, defection has no immediate or automatic effect.

Anti-Defection Law and the 91st Amendment Act 2003: Strengthening Democratic Foundations #

• Total number of ministers, including the PRIME MINISTER, in the Central Council of Ministers shall not exceed 15 per cent of the total strength of the Lok Sabha.
• The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 percent of the total strength of the Legislative Assembly of that state.
  • However, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
• A member of either House of PARLIAMENT belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
• A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
• A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
• The provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third of the members of legislature party has been deleted.

Significance of the Anti-Defection Law in Indian Politics #

• Provides stability to the government by preventing shifts in party allegiance.
• Ensures that candidates elected with party support and on the basis of party manifestos remain loyal to the party policies.
• It facilitates the democratic and ideological realignment of parties in the legislature.
• Help in reducing non-developmental expenditure incurred on irregular elections.
• For the first time, it gave clear-cut constitutional recognition to the existence of political parties.
• It promotes party discipline.
• It prevents breaches of trust by people due to defection.

Can the Anti-Defection Law Resolve the Karnataka Political Crisis? #

• The Supreme Court recently upheld the former Karnataka assembly speaker’s decision to disqualify 17 rebel lawmakers but allowed the rebels to contest the by-polls.
• In 2019, a motion of no confidence was considered in Karnataka Assembly against the ruling party.
• As soon as the trust vote was not achieved during the floor test by the ruling party, the Speaker disqualified those rebellious members.
• Question 1: The disqualification of members under the Anti-defection law versus the role of the Speaker to accept their resignation.
  • The Speaker also barred those MLAs from contesting elections till the incumbent Assembly’s term gets over, i.e. by 2023.
• Question 2: Whether disqualification under the Tenth Schedule can lead to a bar on legislators contesting by-elections during the tenure of the incumbent Legislative Assembly?

Supreme Court’s Verdict on Disqualification: Anti-Defection Law and Re-contesting Elections #

• Anti-defection Law versus Re-contesting Elections: The SC upheld the disqualification of the dissident legislators.
• It also held that their ouster does not put any bar upon them from contesting by-polls.

• The SC also remarked that even the 91st Amendment Act, 2003 which did not allow a disqualified member to be appointed as a minister, did not give the Speaker the power to put a ban on them from contesting elections till the end of the term.

Resignation and Disqualification in Indian Politic s #

• A member may choose to resign for a variety of reasons, which represents an individual’s choice or will.
• Under 190(3) of the Constitution, the Speaker has to ascertain the voluntary and genuine nature of a resignation before accepting it.
• It is a limited inquiry process only to check if the letter is authentic and if the intent to quit is based on free will. Once it is clear, the Speaker has no option but to accept the resignation of the respective member.
• An elected member who chooses to resign cannot be compelled to continue in the office.
• However, a disqualification leads to the expulsion of the member from the office, irrespective of their will.

• The Court also observed that a pending disqualification action does not become non-functional by mere submission of the resignation letter.
• This would defeat the purpose of the Tenth Schedule if it was held that disqualification proceedings would become unfruitful upon tendering resignation.

Challenges and Critiques of Anti-Defection Law in Indian Democracy #

• Abridging the Right of Free Speech of the legislators: It seems to be reducing MPs from thinking lawmakers to mere numbers required for passing a Bill.
• Absence of Differentiation: Between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
• Irrational differentiation and distinction between individual defection and group defection.
• Provisions are not applicable to the activities outside the legislature.
• Illogical Discrimination: between an independent member and a nominated member.
• Role of Speaker: – The law states that the decision is final and not subject to judicial review.
  • However, the Supreme Court struck down this part and held that the final decision is subject to appeal in the High Courts and Supreme Court.
• Lack of Clarity: – Whether a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party is unclear.
• Applicability to only Pre-poll Alliance: The rationale that a representative is elected on the basis of the party’s programme can be extended to pre-poll alliances. This raises the issue of instability when an alliance is formed post-elections.
• Dictatorial Decisions: A member may be unable to express his actual belief or the interests of his constituents due to party whip even if the bill does not amount to no-confidence.
• Reduces Accountability: By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people.
• Decision-making authority in the presiding officer is criticised on two grounds-
  • He may not exercise this authority in an impartial and objective manner due to political exigencies and affiliations.
  • He may lack the legal knowledge, acumen and experience to adjudicate upon the cases.

Anti-Defection Law in India: Challenges and Reform Recommendations #

• Barring disqualified members from contesting by-polls by making relevant amendments to RPA 1951 and Anti Defection Law. As this was a major loophole observed by SC in the recent Karnataka disqualification vs resignation case.
• Providing Time bound Adjudication: The law does not specify a time- period for the Presiding Officer to decide on a disqualification plea. However, the Supreme Court asked the State Assembly Speaker to decide the disqualification petition in four weeks.
• Expedite Inputs Provided by SC: SC asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide on the matter of disqualification under the anti-defection law.

Anti-Defection Law: Challenges and Reform Recommendations in Indian Politics #

• Disqualification should be limited to cases where –
  • A member voluntarily gives up the membership of his political party.
  • A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
• The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.

Strengthening Anti-Defection Laws: Recommendations by Law Commission (170th Report, 1999) #

• Provisions which exempt splits and mergers from disqualification to be deleted.
• Pre-poll electoral fronts should be treated as political parties under anti-defection law.
• Political parties should limit issuance of whips to instances only when the government is in danger.

Role of Election Commission in Anti-Defection Laws #

• Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission

Constitution Review Commission’s Recommendations for Political Stability in India #

• Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term.
• The vote cast by a defector to topple a government should be treated as invalid.

Critical Examination of Politics Without Principle in India #

1. The emergence of Communalism for vote bank
2. Religious appeal and citations for voting
3. Lack of internal party democracy
4. No seats for women in the party
5. Political parties utilizing public fund are not under RTI
6. Poor parliamentary functioning and frequent disruptions (Parliament sittings have reduced from 120 days/year to 65-70 days/year due to various reasons including disruptions leading to adjournment.)
7. Criminalization of politics, 34% winners have declared criminal cases against themselves – ADR Report.
8. Perceived biases of the speaker in adjudication of disqualification under Anti-defection law. E.g. Karnataka ruling of speaker.