Anti Defection Law, Exceptions, Role of Speaker, 10th Schedule

The Anti Defection Law was introduced in India to discourage elected legislators from changing political parties for personal or political gain and to promote political stability, party discipline and the integrity of the electoral mandate. The law was added to the Constitution through the 52nd Constitutional Amendment Act, 1985, which inserted the Tenth Schedule.

It provides for disqualification of Members of Parliament (MPs) and Members of State Legislatures (MLAs) on specified grounds of defection. The law has subsequently been modified, particularly through the 91st Constitutional Amendment Act, 2003, which removed the earlier exception for a split in a political party.

Anti Defection Law Background

Defections in Indian politics have been a source of political instability and uncertainty. The phenomenon of changing political parties for non-ideological reasons became more prominent in the late 1960s. The term "Aaya Ram, Gaya Ram" was coined during this period to describe continuous defections by legislators.

• According to the Chavan Committee Report in 1969, there were numerous instances of party allegiance changes by legislators in several states between March 1967 and February 1968.
• In this short period, there were 438 defections out of a total of approximately 542 cases in the two-decade period between the First and Fourth General Elections.

• The lure of office played a significant role in legislators' decisions to defect. Out of the 210 defecting legislators in various states, 116 were included in the Councils of Ministers that they helped to form through defections.
  • This highlighted the influence of positions and power in motivating defections.

Anti Defection Law Constitutional Provisions

The Constitution provides for the disqualification of legislators on grounds of defection, mainly through the Tenth Schedule and amended Articles 101, 102, 190 and 191, which lay down the circumstances, exceptions and procedure governing such disqualification.

Anti Defection Law Articles

This Act led to amendments in Articles 101, 102, 190, and 191 of the Constitution, providing grounds for the vacation of seats and disqualification of members. It also inserted the Tenth Schedule, which specifically addresses defection-related issues.

• Article 102(2): Provides for disqualification of a Member of Parliament under the Tenth Schedule.
• Article 191(2): Provides for disqualification of a member of a State Legislature under the Tenth Schedule.
• Tenth Schedule: Contains the detailed provisions relating to disqualification on the ground of defection.
  • Paragraph 6: Deals with the decision on questions of disqualification.
  • Paragraph 7: Originally sought to bar courts from jurisdiction, but this provision was declared invalid by the Supreme Court in Kihoto Hollohan.

Anti Defection Law Schedule

The Anti Defection Law is contained in the Tenth Schedule, which was added to the Constitution by the 52nd Amendment in 1985. It covers:

• Disqualification of members on grounds of defection.
• Defection from political parties.
• Independent members joining political parties.
• Nominated members joining political parties.
• Exceptions to disqualification.
• Decision-making authority.
• Rules governing the procedure.

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Anti Defection Law Grounds for Disqualification

A member can be disqualified under the Tenth Schedule in specified circumstances. An elected member of parliament or state legislature faces disqualification under the Tenth Schedule for leaving their political party, voting against party directions, or breaking specific rules for independent and nominated members.

• Voluntarily Giving Up Party Membership: A member belonging to a political party may be disqualified if they voluntarily give up membership of that political party.
  • Importantly, this does not necessarily require a formal resignation from the party. Conduct can also be relevant in determining whether the member has voluntarily given up party membership.
• Voting or Abstaining Against Party Direction: A member may face disqualification if they vote contrary to the direction issued by their political party or abstain from voting without obtaining prior permission from the party within the prescribed period. The party direction is commonly referred to as a 'whip'.
• Independent Members: An independent elected member can be disqualified if they join a political party after being elected.
• Nominated Members: A nominated member can join a political party within six months of taking their seat without attracting disqualification on this ground. However, joining a political party after six months can attract disqualification.

Anti Defection Law Important Exceptions

The Tenth Schedule recognises limited circumstances in which defection does not result in disqualification. A member is protected where their original political party merges with another political party, provided that not less than two-thirds of the members of the legislature party have agreed to such merger.

• Originally, the Tenth Schedule contained an exception for a split, where one-third of the members of a legislature party could avoid disqualification.
• The 91st Constitutional Amendment Act, 2003, removed this provision.

Anti Defection Law Role of the Speaker and Courts

Under Paragraph 6 of the Tenth Schedule, the Speaker of the Lok Sabha or Legislative Assembly, or the Chairman of the Rajya Sabha or Legislative Council, decides questions of disqualification. The decision-making authority is therefore located within the legislature. The Supreme Court has described this function as quasi-judicial.

• The Speaker's decision is not completely beyond judicial scrutiny. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court upheld the constitutional validity of the Anti-Defection Law while allowing judicial review of the Speaker's decision.
• Courts can therefore examine the legality of the decision within the constitutional framework.

Anti Defection Law Amendment

The 91st Constitutional Amendment Act (2003) brought about changes to the Tenth Schedule of the Constitution to remove the loopholes and make the Anti defection Law more efficient.

• The provision regarding splits within political parties was removed from the Tenth Schedule. It means that the members who leave his/her party have no more protection on the ground of splits. 
• However, a party can be merged with another political party after the consent of at least two-thirds of the members of the political party.
  • A merger is protected from disqualification when not less than two-thirds of the members of the legislature party agree to the merger.
  • Unfortunately, this became one of the most controversial clauses of the Anti-defection law. The reason for the criticism is that it penalises individual defections but allows mass (wholesale)  defections. 
• It introduced a disqualification clause stating that a member disqualified under paragraph 2 of the Tenth Schedule (I.e. under the Anti-Defection Law) would also be disqualified from being appointed as a Minister or holding a remunerative political post.
  • This disqualification would be in effect from the date of disqualification until the expiration of the member's term in office.

Anti Defection Law Judicial Pronouncements

Some of the important judicial pronouncements regarding the Anti-defection law are:

Anti Defection Law Significance

The Anti-Defection Law, introduced through the 52nd Constitutional Amendment Act, 1985, aims to curb political defections and promote political stability, party discipline and responsible parliamentary functioning.

• Political Stability: The law seeks to prevent defections that can alter legislative majorities and destabilise elected governments.
• Curbs Horse-Trading: It stops the corrupt buying and selling of political loyalties. Politicians cannot trade their votes for money or high-ranking ministerial jobs.
• Party Discipline: The law strengthens party discipline by requiring legislators to adhere to specified party positions in the legislature, subject to the provisions of the Tenth Schedule.
• Government Continuity: By reducing the possibility of legislators changing sides and altering the majority, the law supports continuity of parliamentary governments. This follows from its objective of strengthening political stability.
• Protects Voter Choice: Voters elect a candidate based on a party symbol and manifesto. The law ensures the elected person stays true to that choice instead of jumping to a rival party.

Anti-defection Law Limitations

Despite its objectives, the law has generated several constitutional and democratic concerns. The primary limitation of India's Anti-Defection Law is that it concentrates disqualification power in the Speaker of the House, leading to biased decisions and political delays, while failing to stop wholesale party splits

• Problem with Merger: The exception provided in Paragraph 4 for disqualification based on party mergers has a potential loophole. The exception is based on the number of members agreeing to the merger (two-thirds), rather than considering the reasons behind the defection.
  • This flaw allows members to defect for personal gains such as lucrative office or ministerial positions in the merged party.
• Expulsions: The law is silent on the expulsion of members from their political parties, which creates difficulties in implementing the Anti-defection Law.
  • This creates an anomalous situation where expelled members are subject to party discipline but may no longer have any rights under the party constitution.
• Voluntarily Giving up Membership: Paragraph 2(1)(a) states that a member is disqualified if they voluntarily give up party membership.
  • However, it is unclear whether actions such as working against the party's interests or supporting candidates from other parties, which do not technically amount to giving up membership, can be considered as such by the party.
• Wide Power of the Speaker: Paragraph 6 grants extensive and absolute power to the Chairman or Speaker of the House in deciding cases of disqualification due to defection. 
  • However, the Speaker often belongs to a political party and may not act impartially in cases involving their own party. The absence of a time limit for the Speaker to make a decision can further delay the process. 
• No Fixed Timeframe: The law sets no specific deadline for the Speaker to decide on a disqualification petition, allowing cases to drag on for years
• Lack of Individual Stand: Paragraph 2 restricts party members from opposing their party's actions, policies, leaders, or bills, curbing their freedom to dissent. This undermines the principle of representative democracy, as members are forced to obey party dictates rather than represent the wishes of the people.

Anti Defection Law Way Forward

Several reforms have been suggested by parliamentary committees, commissions, and constitutional experts to improve the functioning of the Anti-Defection Law. Some of the suggestions that can improve the functioning of the Anti-defection Law are:

• Redefine Grounds for Disqualification: There should be a clearer definition of what constitutes a violation of the party whip, and provisions should be made to protect lawmakers' right to vote based on their conscience without facing disqualification.
• Time-bound Disposal: Establish a time limit for the disposal of disqualification petitions. Delays in disposing of such cases can lead to political uncertainty and undermine the purpose of the law.
• Independent Tribunal: To ensure impartiality and avoid conflicts of interest, the responsibility of deciding disqualification cases could be transferred to an independent tribunal or an external body.
• Rights of Dissenting Members: It is essential to include provisions in the Anti-Defection Law that protect the rights of dissenting members within a political party. Members should have the freedom to express their views and engage in healthy debates without fear of disqualification.
  • Clear guidelines can be established to distinguish between dissent and defection, ensuring that genuine differences of opinion are not penalised under the law.
• Strengthening Intra-party Democracy: Encouraging regular elections for party leadership positions and ensuring transparent decision-making processes fosters a more democratic environment within parties; discontent and defections can be reduced.

Anti Defection Law UPSC PYQs

Q1: The role of individual MPs (Members of Parliament) has diminished over the years, and as a result, healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (UPSC Mains 2013)

Q2: With reference to the anti-defection law in India, consider the following statements: (UPSC Prelims 2022)
1. The law specifies that a nominated legislator cannot join any political party within six months of being appointed to the House.
2. The law does not provide any time-frame within which the presiding officer has to decide a defection case.
Which of the statements given above is/are correct? 
a) 1 only
b) 2 only
c) Both 1 and 2
d) Neither 1 nor 2
Ans: (b)

Q3: Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (UPSC Prelims 2014)
a) Second Schedule
b) Fifth Schedule
c) Eighth Schedule
d) Tenth Schedule
Ans: (d)