Anti-defection law in the Indian Constitution
Anti-defection law in the Indian Constitution.

Defection means the desertion (leaving, abandoning) of one’s cause in favour of an opposing one.

The Tenth Schedule of the Indian Constitution, popularly known as the ‘anti-defection law’, seeks to disqualify elected members of the parliament and state assembly for the act of defecting to other political parties.

Political defection means jumping from one political party to another after getting elected. By adding ‘anti-defection’ provisions into the Constitution, the 52nd Constitutional Amendment Act of 1985 intended to stop ‘Aaya Ram Gaya Ram’ politics, in which politicians switched their parties frequently for money and power.

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The 52nd Constitutional Amendment Act, 1985 amended Articles 101, 102, 190 and 191 regarding vacation of seats and disqualification from membership of MPs or MLAs. The amendment added the 10th Schedule to the Constitution, setting out the provisions of disqualification on the grounds of defection.

What Amounts to Defection Under the 10th Schedule?

These are the four instances whereby any elected member may be disqualified on the grounds of defection:

  1. If an elected member voluntarily gives up his party’s membership and joins another party.
  2. If the elected member abstains from voting in the House, going against the party’s direction.
  3. If any independently-elected member joins any political party.
  4. If a nominated member joins any political party after six months of the election.

Exceptions in Anti-Defection Law

The anti-defection law has two exceptions. The above disqualification will not apply:

  1. When a member abandons the party due to the merger of his original party with another party, provided, at least 2/3 of the members of the legislative party are in favour of the merger.
  2. If a member, after being elected as the presiding officer, gives up his party’s membership or does not join that party or become a member of another party; this voluntary giving up of membership does not fall within the ambit of defection under the 10th Schedule.

It is to be noted that when any question arises as to whether a member of a House has become subject to any of the disqualifications under the 10th Schedule, the question shall be referred to the Chairman or the Speaker of the House whose decision shall be final.

Important Case Laws on Anti Defection Law

Through its various judgments, the Supreme Court modified the anti-defection law. Here is the list of all significant judgments:

Kihoto Hollohan vs Zachillhu and Others (1992)

The Supreme Court’s judgment, paragraph 7 of the Tenth Schedule, was struck down as being unconstitutional because it stated that the Speaker’s decision regarding a disqualification was final, and no court could examine its validity. In interpreting the anti-defection law, the court held that the Speaker’s role is similar to that of a tribunal and thus open to judicial review.

Ravi S. Naik vs Union of India (1994)

The Supreme Court explained that the term ‘voluntarily giving up membership’ had a wider connotation than the term ‘resignation’. Here, the Supreme Court held that the presiding officer must accept the registration of a member who is willing to resign out of his free will. The court said that voluntary resignation is not a ground of defection if he does not join any party after resignation.

Rajendra Singh Rana and Others vs Swami Prasad Maurya and Others (2007)

The Supreme Court held that the act of giving a letter requesting the governor to contact the leader of the other party to form a government constituted voluntary giving of membership and thus amounts to defection from the former party.

Keisham Meghachandra Singh vs the Speaker Manipur Legislative Assembly and Others (2020)

The Supreme Court, in this case, gave a broad suggestion to enhance the accountability of anti-defection law. The court said,

  • Parliament should amend the Constitution to set up a permanent tribunal to decide cases of anti-defection.
  • To ensure democracy’s functioning, it is essential to ensure the purity of anti-defection laws under the 10th Schedule.
  • The Supreme Court sets 3 months as the outer limit for speakers to conclude disqualification proceedings against defectors.

Challenges in Anti-Defection Law

These are the challenges associated with the anti-defection law:

1. The role of the presiding officer in anti-defection cases attracted much criticism. There have been instances in which even blatant defections have been overlooked when the person is defecting to the ruling party.

2. There is no time limit in the Constitution for the presiding officer to decide on a disqualification plea. However, the Supreme Court in Keisham Meghachandra Singh vs Speaker, Manipur Legislative Assembly and Others (2020) held that a petition for disqualification of a member should be decided by the Speaker within three months of its filing.

3. A major loophole is that pre-poll alliances are not defined as ‘political parties’ under the 10th Schedule. The result is that there is a chance of shifting allegiances after elections, which leads to horse-trading and political instability that defeat the very intent of the anti-defection law.

4. In the wake of the anti-defection law, the MP or MLA is compelled to follow the party line blindly. As a result, they have no freedom to express their opinion on any issue.

Strengthening the Anti-Defection Law

Here is a list of reforms recommended to overcome the loopholes of the anti-defection law:

1. It is problematic to use the phrase voluntary giving up membership because it is too vague and requires a detailed definition.

2. Politicians should not issue whips except when the government is in danger.

3. As per the Election Commission’s recommendation, the president or governor should be responsible for making decisions under the 10th Schedule based on the advice of the Election Commission.

4. The National Committee on Constitutional Review recommended that a defector’s vote to topple the government be considered invalid. It will ensure that the member does not change his party only for money or power.

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