CHALLENGES IN ANTI-

DEFECTION LAW
 ANTI-DEFECTION LAW
Anti-defection law is contained in the Tenth schedule of the constitution ,which was
introduced by the 52nd Amendment in 1985 during tenure of Rajiv Gandhi .
Earlier ,10th schedule was related to association of Sikkim with India. Once , Sikkim became
full fledged state , this schedule was repealed via the 36th amendment act.
Defection is defined as “ to abandon a position or association ,often to join an opposing
group” which essentially describes a situation when a member of a particular party
abandons his loyalty towards that party and provide his support (in the form of his
vote or otherwise ) to another party.

HISTORY BACKGROUND:
Originally , the constitution of India carried no reference to political parties and their
existence . Since multi-party democracy had not evolved in 1950s and early 1960s,the
heat of defections and their implications were not felt. Things however , changed after the
1967 elections. The 1967 elections are thus called a watershed moment in India’s
democracy.

WHAT HAPPENED IN 1967 ELECTIONS?

• In 1967, some sixteen states had gone to polls. The congress lost majority in them
and was able to form government only in one state . This was the beginning of
coalition era in India.
• This election also set off a large scale defections. Between 1967 to 1971 some 142
Mps and over 1900 MLAs migrated their political parties.
• Governments of many states, beginning from Haryana, collapsed. The defectors
were awarded with plum ministries in the governments, including Chief Minister
ship in Haryana.
• In Haryana, one legislator “Gaya Lal ” changed party for three times and thus, all
defectors used to be called “Aaya Ram-Gaya Ram”.
• However, the issue was not addressed immediately. It took further 17 years to pass
the anti-defection law in 1985.
• The 52nd amendment of the Constitution in 1985 inserted 10th schedule in the
constitution with Provisions as to disqualification on ground of defection.
• Members of a Political Party When voluntarily resigned from his party or disobeyed
the directives of the party leadership on a vote. When does not vote / abstains as per
party’s whip.
• 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.
Independent Members
If a member has been elected as “Independent”, he / she would be disqualified if joined a
political party.

Nominated Members
Nominated members who were not members of a party could choose to join a party
within six months; after that period, they were treated as a party member or
independent member.

Exceptions
• If a person is elected as speaker or chairman then he could resign from his party,
and rejoin the party if he demitted that post. No disqualification in this case.
• A party could be merged into another if at least one-thirds of its party legislators
voted for the merger. The law initially permitted splitting of parties, but that has
now been made two-third.
• As soon as this law was passed, it was met with severe oppositions on logic that it
impinged on right to free speech of legislators.
• A PIL was filed in the Supreme Court in the form of famous Kihoto Hollohon vs
Zachillhu and Others (1992).
• This PIL had challenged the constitutional validity of the law. But SC upheld the
constitutional validity of 10th schedule.
• Court also decided that the law does not violate any rights of free speech or basic
structure of the parliamentary democracy.

• However, Supreme Court also made some observations on Section 2(1) (b) of the
Tenth schedule.
• Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains
from voting contrary to any direction issued by the political party.
• The judgment highlighted the need to limit disqualifications to votes crucial to the
existence of the government and to matters integral to the electoral programme of
the party, so as not to ‘unduly impinge’ on the freedom of speech of members.
 POINTS TO BE NOTED REGARDING ANTI-DEFECTION

• Articles 102 (2) and 191 (2) deals with anti-defection.

• The intention of the provision is to check the corruption/horse trading in
parliament/ to check the popular phenomenon “Aaya Ram Gaya Ram “ in the
Indian polity which started in 1960’s . Note: The intention was never “to bring
stability” to governments.
• The law disallows MPs/ MLAs to switch parties after elections, make the members
follow the whips issued by their party.
• It also applies to a nominated member if he/ she joins a political party after 6
months of nomination and to an independent candidate if he/she joins a party after
the election.
• Refer the parliament handbook if you need to know the detailed provisions of anti-
defection.
• Initially, the law allowed defections if it involved one-third members , ie. it had
provisions regarding exemption from disqualification in case of a ‘split’ in a
political party. But undesirably it resulted in mass defections instead of individual
defections.
 WHAT IS NOT DEFECTION?

• A split in a political party won’t be considered a defection if a complete political

party merges with another political party.
• If a new political party is created by the elected members of one party.
• If he or she or alternative members of the party haven’t accepted the merger
between the two parties and opted to perform as a separate group from the time of
such a merger.
 91ST AMENDMENT ACT,2003

• Earlier, a ‘defection’ by one-third of the elected members of a political party was considered a
‘merger’.
• The 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the
members of a party have to be in favor of a “merger” for it to have validity in the eyes of the
law.
• The 91st Amendment also makes it mandatory for all those switching political sides – whether
single or in groups – to resign their legislative membership.
• They now have to seek re-election if they defect.
Summary of Provisions Regarding Tenth Schedule
Conditions of Disqualification :

• If a member of a house belonging to a political party: Voluntarily gives up the membership of his political
party, or Votes, or does not vote in the legislature, contrary to the directions 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.
• If an independent candidate joins a political party after the election. If a nominated member joins a party six
months after he becomes a member of the legislature.
Pow er to Dis qu a lif y
Th e Chairman or th e S peak er of th e Ho u se tak es th e d ecis ion to d isq u alif y a memb er . If a co mp lain t is r eceived w ith resp ect to th e d efectio n of th e Chair man or S p eak er , a memb er of th e H ou s e elected by that H ou se sh all tak e th e d ecisio n .

• Exceptions – Merger
A person shall not be disqualified if his original political party merges with another,
and: He and other members of the old political party become members of the new
political party, or He and other members do not accept the merger and opt to
function as a separate group. This exception shall operate only if not less than two-
thirds of the members of party in the House have agreed to the merger.

• Court’s Intervention
All proceedings in relation to any question on disqualification of a member of a House
under this Schedule are deemed to be proceedings in Parliament or in the
Legislature of a state. No court has any jurisdiction. This was subsequently struck
down by the Supreme Court. Currently, the anti-defection law comes under the
judicial review of courts.
Various Supreme Court Judgments on Anti-defection Law
Beginning with Kihoto Hollohon vs Zachillhu And Others (1992) case, various provisions regarding anti-defection law have been challenged in the Supreme Court. The Key issues and
Supreme Court observations are listed below:

• Kihota Hollohon vs. Zachilhu and Others (1993)

Issue: If the 10th schedule curtails the freedom of speech and expression and subvert
the democratic rights of the elected members in parliament and state legislatures.
SC Judgment: The 10th schedule neither impinges upon the freedom of speech and
expression nor subverts the democratic rights of elected members. The 10th
schedule is constitutionally valid.
Issue: Is granting finality to the decision of the Speaker/ Chairman is valid.
SC Judgment: This provision is valid however, High Courts and the Supreme Court
can exercise judicial review under the Constitution. But the Judicial review should
not cover any stage prior to the making of a decision by the Speakers/ Chairmen.
 Ravi S Naik v. Union of India (1994)

Issue: If only resignation constitutes “voluntarily giving up” membership of a

political party.
SC Judgment: There is a wider meaning of the words “voluntarily giving up
membership”. The inference can be drawn from the conduct of the members also.
• G. Vishwanathan v. Speaker, Tamil Nadu Legislative
Assembly (1996)

Issue: If a member is expelled from old party and he joins another party after being
expelled, will it be considered as having voluntarily given up his membership?

SC Judgment: Once a member is expelled, he is treated as unattached member in the

house but he continues to be a member of the old party as per the Tenth Schedule.
If he joins a new party after being expelled, he can be said to have voluntarily given up
membership of his old party.
 CRITICAL ANALYSIS OF ANTI- DEFECTION LAW

 The anti-defection law has enabled the political parties to have stronger
grip on their members which many times has resulted into preventing them
to vote for the lure of money of ministerial birth.
 It also provides stability to the government by preventing shifts of party
allegiance and ensures that candidates elected with party support and on
the basis of party manifestoes remain loyal to the party.
 However, it is also resulted into its unintended outcome i.e. the curtailing
to a certain extent the role of the MP or member of state legislature.
 It is culminated into absence of constructive debates on critical policy
issues. The whip has become all the more powerful and has to be followed
in all circumstances.
 CONCERNS RAISED AGAINST THE CURRENT ANTI-DEFECTION
LAW

• It affects the independence of MPs/ MLAs.

• Constitution drafters didn’t intend to give the control of members to
political parties. Interestingly, it’s only in the 10 th schedule, which was
included in 1985 that political parties are mentioned in constitution. (Also
chief whip).
• Many members speak up their mind and conviction –more discussion and
thus better debates and solutions in parliament. Anti-defection law is
against this.
• In a diverse country like India, members also represent their
constituencies. Hence, every member needs to be given voice to all
regions and sections of the population.
• No incentive for MPs/MLAs to research and understand on policies.
POSSIBLE REFORMS THAT CAN BE MADE TO ANTI-DEFECTION
LAW

• Nowadays, no real democratic discussions happen inside political parties about

major issues affecting the country. Individual MPs and MLAs need to be
empowered to think independently.
• Anti-defection law should be applied only to confidence and no-confidence
motions (Dinesh Goswami Committee on electoral reforms, 1990) or only when the
government is in danger (Law Commission (170th report, 1999).
• The rationale that a representative is elected on the basis of the party’s programme
can be extended to pre-poll alliances.
• Instead of making Speaker the authority for disqualification, the decision should be
made by the president or the governor on the advice of the Election Commission.
This would make the process similar to the disqualification procedure as given in
Representation of Peoples Act (RPA).
• There can be additional penalties for defectors as well.
 What reforms are needed in Anti-defection law?

Following are the key reforms needed in anti-defection law.

 The decision making power of speaker / chairman needs review.
 The phrase “voluntarily giving up membership” is too vague and needs
comprehensive revision.
 Political parties should limit issuance of whips to instances only when the
government is in danger .
 The Election Commission had recommended that the decisions under the
Tenth Schedule should be made by the President/ Governor on the binding
advice of the Election Commission.
 A constitutional amendment vesting the power to decide matters relating to
disqualification on the ground of defection with the President/Governor
acting on the advice of the Election Commission would actually help in
preserving the integrity of the Speaker’s office.