Anti-Defection Law
Red Book
Red Book

‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.  Defection in context of polity refers to a situation where a member of a political party gives up his position in the party from which he is elected to join an opposing party.

The anti-defection law was passed in 1985 through the 52nd Constitutional Amendment Act. It added the Tenth Schedule to the Indian Constitution and amended four articles in the Constitution. (It amended Articles 101, 102, 190 and 191 which are related to the vacating of seats and disqualification of MPs and MLAs. )

The Anti defection law lays down the process by which legislators may be disqualified on the grounds of defection by the Presiding officer of the house. The law applies to both Parliament and state legislative assemblies. The Presiding officer of the house decides on the question of the defection.

Need for Anti Defection Law

The Statement of Objects and Reasons of the Bill, which added Anti-Defection Law to the Constitution, mentioned that the evil of political defections was a matter of national concern and needed to be curbed. Political defections were causing instability in the political system and making it difficult to form a stable government.
The National Commission to Review the Working of the Constitution (2002) had also noted that since candidates get elected on the basis of the party that gave them the ticket, defecting flouts the very mandate on the basis of which a member was elected

Main features of Anti Defection Law:

  1. Disqualification: Article 102 (and 191) gives authority to the Tenth Schedule of the Constitution to disqualify any member.
    1. Members of Political Parties: ​A member of a house belonging to a political party becomes disqualified from being a member
      1.  If he voluntarily gives up the membership of his political party.
      2. Votes, or does not vote in the house, contrary to the direction of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
    2. Independent Member: ​An independent member (Member not belonging to any political party) of the house becomes disqualified if he joins a political party after the elections.
    3. Nominated member:​ A nominated member of the house becomes disqualified if he joins any political party six months after his nomination to the house.
  2. Exceptions
    1. Merger : ​A merger of a political party with another takes place when two-thirds of the members of the party have agreed to such a merger. Thus, if a member leaves the party due to the merger , he cannot be disqualified under the anti defection law.
    2. Presiding Officer : ​A member can give up the membership of a political party after being elected as the presiding officer of the house. He can later rejoin the party after his term as the presiding officer of the house ends. This exception is provided to ensure impartiality in the office of the presiding officer of a house.
  3. Deciding Authority:  The presiding officer of the house(Speaker in Lok Sabha, Chairman in Rajya Sabha) is the deciding authority in matters related to disqualifications due to defections.
  4. Rule Making Power: The presiding officer of the house(Speaker in Lok Sabha, Chairman in Rajya Sabha) has the power to make rules to give effect to the Tenth Schedule. However,it must be placed before the house for 30 days. The House can modify or disapprove the rules.

 

                           Merits                                   Demerits
Prevents Defection

  • It is a tool to prevent defection by providing punitive measures. For instance, disobeying a three-line whip can put the lawmaker’s membership of the House at risk.

 

 

Violates freedom of expression

  • The Anti defection Law forces the individual legislators to follow party whip.
  • It thus interferes with the individual members freedom of speech and expression by curbing dissent against party policies or party whip.

 

 Promotes stability of the government

  • It increases stability of the Government by ensuring the legislators do not defect to other party.

 

 

 

Lowers accountability of elected candidate towards his electorate:

  • Following party diktat every time, the legislator cannot vote in line with his conscience, judgements and interest of his electorate.
  • It lowers elected representative accountability towards his electorate. Thus, anti-defection law breaks the link b/w the elected legislator and his electors.
Promotes Party Discipline

  • It promotes party discipline as legislators have to stick to party policies and party whip.

 

Weak Oversight

  • The law weakens the legislator​’​s oversight on executive action as they are bound by party whip.
Reduces Political Corruption

  • It is expected to reduce political corruption by preventing horse- trading.
  • Indian Politics has been a witness to “Aya Ram Gaya Ram” form of politics which was premised on the fact that the loyalty of legislators could be bought and sold.

 

Against Internal Party Democracy:

  • The law removes the need for the govt. to build broad consensus for its decisions/ policy making.
  • The ruling party can ensure the support of each of its MP by issuing a whip. Thus, it works against internal party democracy.

 

 

Promotes citizen trust in elected legislators:

  • Voters exercise their preference for a set of policies espoused by contesting candidates of a party.
  • Anti-defection law ensures candidate is loyal to citizens voting for him.

 

Proliferation of Small political parties:

  • The law has led to the birth of small political parties out of existing ones, primarily in order to bypass the law.
  • This has further resulted in the formation of a number of unstable coalition government.
 

Improves Governance

  • It frees government from challenge of defection and instability.
  • Thus, the government can fully concentrate on governance and administration.

 

Individual vs Group Defection

  • The law allows group defection by providing exception in the law for merger between political parties . But ,it doesn’t allow individual defections. This distinction is irrational.
Realignment of parties in House

  • It promotes realignment of political parties in the House.
  • The law does it through a democratic process by allowing merger of political parties.

 

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Discrimination between a nominated and an independent member:

  • An independent member(Member not belonging to any political party) of the house becomes disqualified if he joins a political party after theelections .
  • But a nominated member of the house becomes disqualified if he joins any political party six months after his nomination to the house. This discrimination between the nominated and the independent member of the house is considered to be irrational.
 

Reduces expenditure on frequent elections

  • The anti-defection law reduces the scope of irregular defections by curbing political defections.
  • Thus, it prevents the non-essential expenditure on frequent elections.

 

Bias in decision making authority

  • The presiding officer may not be impartial due to political bias towards a political party.
  • Moreover, the presiding officer lacks adequate legal expertise to exercise quasi-judicial powers.
Constitutional recognition to Political Parties

  • Political parties play an important role in parliamentary democracy.
  • The anti-defection law gave recognition to the political parties in the Constitution for the first time.

 

 

Ambiguities in Anti-defection Law

AMBIGUITIESORDERS & JUDGEMENTS
Right to freedom of

speech and expression vs

Tenth Schedule

The question raised was whether the Tenth Schedule curbed the right to

freedom of speech and expression of the individual legislators. The Supreme

Court in​ Kihoto Hollohon vs. Zachilhu and Others, 1993 ​ruled that the

provisions do not violate a legislator’s right to free speech and expression.

Lack of complete claritySome provisions in the act lack clarity and can have multiple meanings.For example, the phrase“voluntarily giving up the membership of the party” can be interpreted in many ways and not just a formal resignation from the party. In Ravi S Naik vs Union of India, 1994​, the Supreme Court said that the conduct of the member can also be amounted to leaving the party.
Judicial ReviewInitially, the law made the decision of the Presiding Officer binding and not
subject to judicial review. This condition was struck down by the Supreme
Court in Kihota Hollohon vs. Zachilhu and Others, 1993 .The Supreme Court said that the Speaker while adjudicating under the Tenth Schedule functions as a tribunal. Therefore, it is subject to judicial review.However, the Supreme Court allowed partial judicial review (i. e, The judicial
intervention could take place only after the presiding officer has passed its final order).
Speaker’s review of its

own decision

The issue raised was whether the speaker can review its own decision to
disqualify a member under the tenth schedule.The Supreme Court in Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative
Assembly, 1993​ ruled that the law does not provide for such power.
Obeying party whipIn G Viswanathan versus Honorable Speaker, Tamil Nadu State Assembly, 1996 the Supreme Court ruled that an expelled member was bound by the party’s whip even after expulsion. His failure to adhere to it would result in his/her disqualification from the House.

 

 

Global Scenario:Anti-Defection Law

 

BANGLADESH
  • It has a law on defection Article 70 of the Constitution says that a member has to vacate his seat if he resigns from the party or votes against the direction of his party.
  • The dispute is referred by the Speaker to the Election Commission.
SOUTH AFRICA
  • It has a law on defection.
  • Sections 47 of the Constitution provides that a member has to vacate his seat if he ceases to be a member of the party that nominated him.
UNITED KINGDOM
  • There is no law on defection, in particular.
  • However, MPs can lose membership of the party on disobeying the party whip.
  • But they can keep their House seats as Independents.
AUSTRALIA, GERMANY
  • They have no laws on defection.

 

Scope of Reforms​

Dinesh Goswami Committee (1990)

  • It recommended that disqualification under the Tenth Schedule should take place only in the following situations :
    • If a member voluntarily gives up the membership of his political party.
    • If a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.
  • It further added that the President/ Governor should decide on the disqualification under the Tenth Schedule on the advice of the Election Commission.

Halim Committee on Anti-Defection Law (1998)

  • It recommended to clearly define the following phrases in the law :
    • Voluntarily giving up membership of a political party.
    • Political party
  • It prescribed to place certain restrictions(such as-prohibition on joining another party, prohibition on holding office is the government) on the defecting members.

Law Commission (170th Report,1999)

  • Exceptions to the law such as in the case of mergers should be deleted.
  • Pre-poll electoral alliances should be considered as political parties under the law.
  • Political parties should issue limited number of whips for important situations.

Election Commission

  • The President/Governor should decide on the disqualification under the Tenth Schedule on the advice of the Election Commission.

Constitution Review Commission (2002)

  • Prohibition of defectors from holding public office for the duration of the remaining term.
  • The vote cast by a defector to remove a government should be considered invalid.

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