All about the Anti-defection law

Coverage of this Article

Key Takeaways-

• Historical background of the Anti-Defection Law in India.
• Impact of defection by legislators on the stability of the government.
• Supreme Court’s judgments in various cases including a recent judgment on Maharashtra’s political fallout of ‘Shivsena’ between two clans under Uddhav Thackeray and Eknath Shinde.

Introduction

The Anti-Defection Law was passed in India in 1985 as a part of the Tenth Schedule of the Indian Constitution. It was enacted to prevent elected representatives from switching parties after they are elected. The law was intended to curb political instability and promote party discipline. The Anti-Defection Law is a crucial element in India's parliamentary democracy, and it has had a significant impact on the political landscape of the country. It also sometimes leads to Horse-Trading. The necessity of the Act arose after the ‘Aaya Ram, Gaya Ram’ scene in Haryana. This became a popular phrase in Indian politics after this 1967 incident, referring to legislators who frequently change their political allegiance and jump from one political party to another.

What is the Anti-Defection Law?

The Anti-Defection Law aims to prevent elected representatives from switching parties after being elected. It states that if an elected representative voluntarily gives up their membership of a political party or votes against the party's directives, they will be disqualified from being a member of the House. The law also applies to nominated members of the House who join a political party after their nomination.

The law also provides for the disqualification of a member if they violate the whip issued by their party on a particular vote. A whip is an order issued by the party leadership to its members directing them to vote in a particular way. The Anti-Defection Law, therefore, ensures that elected representatives vote in accordance with their party's decisions and policies.

The Anti-Defection Law applies to both the Lok Sabha (Lower House of Parliament) and the Rajya Sabha (Upper House of Parliament) as well as State Legislatures.

The Process of Disqualification:

Under the Anti-Defection Law, a complaint can be made to the Speaker or the Chairman of the House (in the case of the Rajya Sabha) by any member of the House. The complaint should be in writing and should be signed by the member making the complaint. The Speaker or the Chairman, as the case may be, then examines the complaint and decides whether or not to disqualify the member.

The decision of the Speaker or the Chairman is final and cannot be questioned in any court of law. However, the member who has been disqualified may challenge the decision in the High Court or the Supreme Court. The courts can only examine whether the decision of the Speaker or the Chairman was in accordance with the law and the Constitution.

Exceptions to the Law

The Anti-Defection Law provides for certain exceptions. A member can defect without attracting disqualification if:

• The member and at least one-third of the members of the party they belong to, join a new party.
• The member joins a new party after their original party merges with another party.
• The member refuses to abide by the party whip in the event of a split in the party.

These exceptions were added to the law to ensure that members are not penalized for events beyond their control.

Constitutional amendment

The 1985 Act defined a "merger" as the "defection" of one-third of an elected political party's members. Nevertheless, this was changed by the 91st Constitutional Amendment Act of 2003, and now at least two-thirds of a party's members must support a "merger" in order to get around the anti-defection provision.

Expected Impact of the Anti-Defection Law

The Anti-Defection Law at certain extent helped to stabilize governments and promote party discipline. Before the Anti-Defection Law, elected representatives would often switch parties to gain political power or influence. This led to political instability and a lack of accountability. It has ensured that elected representatives vote in accordance with their party's policies and decisions. The law has also helped to somewhat prevent horse-trading and the buying of votes.

Criticism of anti-defection law

The absurdity of anti-defection law has reduced legislators to being accountable to the party and failed to preserve the stability of government. Recently, MLAs in Puducherry resigned leading to lowering the numbers of no-confidence motion to succeed. Somewhat scenarios are seen in Madhya Pradesh and Karnataka. The recent political turmoil in Maharashtra has also led to rise of talks about the Anti-defection law.  The purpose of this law was to prevent elected representatives from switching parties for personal gain, thereby destabilizing the government. However, the law has faced criticism for various reasons, including violation of the freedom of speech and expression and the right to dissent.

One of the criticisms of the anti-defection law is that it curtails the freedom of speech and expression of the elected representatives. Under the law, a member of a political party can be disqualified if he or she votes against the party whip, which means that the member is required to vote in accordance with the direction of the party leadership. This puts the members in a difficult position as they are unable to vote according to their conscience, and are forced to toe the party line even if they disagree with it. Instead of being accountable to the voters who have elected them, the legislator becomes accountable to the party. The law in practice has also encouraged legislative horse-trading, which is against the principles of a democratic system.

Another criticism of the law is that it prevents elected representatives from changing their party affiliation if they feel that their current party no longer represents their views or if they feel that the party has become corrupt. This can result in a situation where the elected representative is forced to remain with a party that he or she no longer believes in, or to resign from their position.

Furthermore, the law has been criticized for being arbitrary and discriminatory. It provides for disqualification of members who voluntarily give up the membership of their party, but not for those who are expelled from the party. This means that a member can be disqualified even if he or she resigns from the party voluntarily, but not if he or she is expelled from the party.

Landmark Cases related to Anti-Defection Law

One of the landmark cases that highlighted the problems with the anti-defection law was the case of Kihoto Hollohan vs Zachillhu (1992 SCR (1) 686), In this case, the Supreme Court upheld the constitutionality of the anti-defection law but also stated that the law should not be used to stifle dissent or prevent elected representatives from voting according to their conscience. The court also emphasized that the law should be used sparingly and only in cases where it is necessary to maintain the stability of the government. 

Recent: The Speaker will continue to be the deciding authority as long as the 1992 ruling of the SC, wherein a Constitution Bench upheld the validity of the 10th schedule, is not reversed, was upheld by Justice P S Narasimha, who was a member of the five-judge bench hearing a batch of petitions arising from last year's political fallout in Maharashtra following differences in the ‘Shiv Sena’ between the Uddhav Thackeray and Eknath Shinde clans.

In the 1994 case of Ravi S. Naik v. Union of India (1994 AIR 1558), the Supreme Court ruled that the expression "voluntarily gives up membership in a political party" had broader meanings and was not the same as resignation.

The Supreme Court ruled in the Kihoto Hollohan case (1993) that the decision of the speaker on disqualification is subject to judicial review on the grounds of sanctity, absurdity, etc.

In the 2007 case of Rajendra Singh Rana v. Swami Prasad Maurya (4 SCC 270), the Supreme Court ruled that the Speaker is in violation of the Tenth Schedule if he ignores a complaint or accepts claims of splits or mergers without making a findings. He is also thought to have broken his constitutional obligations.

Now that we know, the Governor cannot ignore the Cabinet's request to convene a House session for legislative purposes or to allow the chief minister to demonstrate his majority. In reality, the court has repeatedly made it clear that a floor test must be held as soon as possible when the majority of the ruling party is in doubt, including in the 2016 Uttarakhand case. The Supreme Court explicitly said in Nabam Rebia and Bamang Felix v. Deputy Speaker (2017) 13 SCC 332) in 2016 that the Governor does not have sole authority to call a special session of the House.

CONCLUSION

In conclusion, while the anti-defection law was introduced with the intention of preventing instability in the government, it has been criticized for being arbitrary and discriminatory, and for curtailing the freedom of speech and expression of elected representatives. The law needs to be re-examined to ensure that it strikes a balance between preventing defections and allowing elected representatives to vote according to their conscience. However, the law has also had some unintended consequences. It has led to a lack of independent thinking among elected representatives, who are often forced to vote according to their party's directives. The law has also led to a decrease in the number of independent candidates contesting elections, as they are often unable to win without the backing of a political party. The Law Commission of India recommends an appropriate amendment to the Tenth Schedule of the Constitution in its Report No. 255 on "Electoral Reforms," which would have the effect of giving the President or the Governor, as the case may be, (instead of the Speaker or the Chairman), who would act on the advice of the ECI, the authority to decide on questions of disqualification on the basis of defection. The Speaker's office's integrity would be preserved as a result. 

The solution for parties is to enhance their internal mechanisms if the stability of the government is a problem as a result of people defecting from their party. There would be a higher barrier to leaving the party if they drew individuals in based on their ideologies and had processes in place that allowed members to rise in the party hierarchy based on their ability (instead of inheritance).