Understanding the basics : India’s Anti Defection Law

In 2018, Arunachal Pradesh experienced a political upheaval when 33 MLAs defected to the BJP, resulting in the fall of the INC government, justified under the two-thirds merger clause. Similarly, in June 2022, Maharashtra’s Maha Vikas Aghadi alliance collapsed as nearly 30 MLAs, led by Eknath Shinde, withdrew support, claiming to be the “real Shiv Sena.” Additionally, the Supreme Court’s involvement in the 2019 Karnataka political crisis, where MLAs’ defections changed the government, highlights the judiciary’s increasing role in upholding democratic norms and the demand for accountability in political processes.

In another recent development in 2024, the Telangana High Court in BRS MLAs defection case ruled that the Speaker’s inaction on disqualification petitions is subject to judicial review, emphasizing the necessity for accountability. The court granted the Speaker one month to resolve a defection case; if no action was taken, the matter would be taken up by the judiciary.

These instances collectively highlight the complexities surrounding the anti-defection law, the Speaker’s authority, and the judiciary’s role regarding the Tenth Schedule. They raise critical questions about the resilience of electoral democracy in India, the ethical implications of political manoeuvring, and the urgent need for reforms to strengthen democratic institutions.

Background:

A situation when a member of a political party leaves his party and joins hands with other parties is called Defection. It is also known as ‘floor crossing’ (origin-British House of Commons where a legislator changed his allegiance when he crossed the floor and moved from the Government to the Opposition side, or vice-versa)

The debate surrounding the Anti-defection law has been a significant issue in Indian politics since 1968, when Shri P. Venkatasubbaiah introduced a private member’s resolution in the Fourth Lok Sabha on August 11, 1967, aimed at addressing the problem of defections. This initiative led to the establishment of the Chavan Committee, which recommended the implementation of an anti-defection law. Although the Constitution Amendment bills proposed in 1973 and 1978 faced opposition and could not be passed, the law was ultimately enacted in 1985 through the 52nd Constitutional Amendment Act.

Anti-defection Law:

• Article 101 and Article 190 address the vacation of seats by Members of Parliament and Members of State Legislatures, respectively.
• Article 102 and Article 191 outline the disqualification criteria for membership in Parliament and State Legislatures, respectively.
• The Tenth Schedule was added to the Indian Constitution to provide specific provisions regarding disqualifications related to defection.

Provisions of the Anti-defection Law in India (Tenth Schedule)

1. Disqualification: A member of a House belonging to any political party becomes disqualified if:
   • He voluntarily gives up his membership of the political party.
   • He votes or abstains from voting contrary to any direction issued by his political party without prior permission, and such an act is not condoned by the party within 15 days.
2. Independent Members: An independent member of a House is disqualified if he joins any political party after the election.
3. Nominated Members: A nominated member of a House becomes disqualified if he joins any political party after the expiry of six months from the date he takes his seat.
4. Exceptions:
   • Merger: Disqualification does not apply if a member leaves their party due to a merger with another party, provided that two-thirds of the members of the original party agree to the merger (93rd CAA 2003; previously it was one-third).
   • Presiding Officer: A member who is elected as the presiding officer of the House can voluntarily give up party membership or rejoin after leaving the office. This exception ensures the dignity and impartiality of the presiding office.
5. Deciding Authority: The Speaker of the House or the Chairman of the Legislative Council has the authority to decide on questions related to defection. Their decision is final and cannot be challenged in court. ( Howerer, The SC mentioned that the Speaker’s rulings may be open to judicial scrutiny if found to involve malafide actions, a breach of constitutional obligations, or a failure to observe natural justice.)
6. Rule-Making Power: The presiding officer of a House is empowered to make rules to implement the provisions of the Tenth Schedule. Defection cases can only be taken up when a complaint is received from a member of the House.
7. Role of Whip: The whip is responsible for communicating the party’s stance to its members and ensuring they vote accordingly. Members who defy the whip and vote against the party’s position may face disciplinary action under the anti-defection law.

Need for the Anti-defection Law

• Mismatch in Electoral Structure: The National Commission to Review the Working of the Constitution (NCRWC) noted that while India adopted the Westminster model of First-Past-The-Post (FPTP) voting, this system is most effective in a two-party context.
• Impact of Coalition Politics: The rise of regional parties has normalized defection, leading to a decline in ethical standards among legislators, exemplified by the “Aaya Ram – Gaya Ram” phenomenon.
• Political Stability and Governance: Frequent defections have negatively impacted political stability and the quality of governance.
• Erosion of Ideological Politics: The emergence of Mandal and Kamandal politics has diminished the role of ideology within party politics.
• Combatting Money Influence: The law aims to reduce the influence of money in politics (often referred to as “horse trading”) and enhance public trust in democracy.
• Subversion of Electoral Mandates: Defections undermine the electoral mandates, as legislators who are elected on a party ticket switch allegiance to another party.
• Maintaining Law and Order: The anti-defection law is intended to uphold law and order and reduce corruption in the political system.

Issues with the Anti-defection Law

• Exploitation of the Exception Clause: The requirement for a merger to have the support of at least two-thirds of the party members in the House is often manipulated. For instance, in the 2018 Arunachal Pradesh assembly case, this loophole allowed for large-scale defections without restraint.
• Undermining Representative and Parliamentary Democracy: The law affects the independence of legislators, infringing on their right to freedom of speech. It shifts accountability from voters to the party, leading to injustice for constituencies. Legislators are often constrained by party whips, limiting meaningful deliberation and reducing them to mere agents of their parties rather than representatives of the people. This creates a political landscape focused on party numbers rather than constructive debate and discussion.
• Lack of Differentiation: The law does not distinguish between dissent and defection, weakening parliamentary deliberations on legislation.
• Role of the Speaker: The law lacks clarity regarding the timeframe for the Speaker or Chairperson to act on anti-defection cases. Additionally, the powers exercised by the Speaker are frequently perceived as arbitrary and biased in favor of the ruling party.

Supreme Court Judgments

• Kihoto Hollohan vs. Zachillhu (1992): In this landmark 3:2 majority ruling, the Supreme Court upheld the constitutionality of the anti-defection law. However, it also stated that the Speaker’s decisions could be subject to judicial review based on grounds such as malafides, violations of constitutional mandates, and non-compliance with principles of natural justice.
• Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020): The Court emphasized that the Speaker must not engage in delaying tactics and is required to decide disqualification petitions within a reasonable timeframe.
• Telangana High Court Ruling: The Telangana High Court directed the Speaker to resolve disqualification pleas against BRS MLAs who defected to the Congress within four weeks.

Way Forward

• The NCRWC suggests that the power to disqualify should rest with the Election Commission rather than the Speaker.
• The Dinesh Goswami Committee recommended that the Speaker should act on the advice of the Election Commission, similar to practices in Bangladesh.
• The Supreme Court has proposed establishing an independent tribunal, potentially including a retired Supreme Court judge, to handle defection cases.
• In Singapore, defection cases are resolved by Parliament rather than solely by the Speaker.
• The Law Commission has recommended enhancing intra-party democracy and limiting the use of whips.
• The Second Administrative Reforms Commission (2nd ARC) argues that disqualification on grounds of defection should be determined by the President or Governor based on the Election Commission’s advice.

The anti-defection law plays a critical role in maintaining political stability and integrity within India’s democratic framework. However, its current implementation raises significant concerns regarding accountability, representation, and the independence of legislators. To strengthen democracy, reforms are necessary to ensure that disqualification powers are managed transparently and equitably. By empowering independent bodies like the Election Commission and fostering intra-party democracy, we can enhance the accountability of elected representatives to their constituents. Ultimately, the anti-defection law should serve as a tool to uphold democratic values, ensuring that the voices of the people are effectively represented in governance