India’s anti-defection law addresses instances of defection within the Parliament or state assemblies. This piece of legislation permits, under specific conditions, lawmakers to switch their party allegiance without the fear of losing their seats. The anti-defection law is an attempt to maintain political stability and integrity by preventing arbitrary party switching, thereby ensuring the smooth functioning of India’s vibrant democracy.
Anti-Defection Law At A Glance
- The anti-defection law deals with situations of defection in Parliament or state legislatures by: (a) members of a political party, (b) independent members, and (c) nominated members.
- In the political arena, defection refers to the act of a member leaving their political party to align themselves with another party.
- The act of ‘defection’ in Indian politics has perpetually served as a catalyst for political instability and uncertainty within the nation, casting a shadow over its governance.
- A Member could be disqualified:
- If he or she voluntarily gives up the membership of a political party or joins any other political party after the election, votes or abstains from any crucial voting contrary to the directive circulated by his/her respective political party.
- A nominated member if he/she joins any political party after six months from the date he/she takes his seat.
- If not less than two-thirds of the members of the legislature party have agreed to merge with the other party they are exempted from disqualification.
- The Chairman or the Speaker of the House wields complete authority in adjudicating cases related to the disqualification of members on grounds of defection.
- While the law has achieved some level of success, it has fallen short of its full potential due to certain loopholes.
Origins Of The Word ‘Defection’
Defection is a term synonymous with revolt, dissent, and rebellion, usually describing an individual or group abandoning their current association to align with another. A typical context for defection is within politics, where a member of a political party severs ties with their original party to ally with a different one.
This act is historically termed ‘floor crossing,’ a phrase that originated in the British House of Commons. The term describes the act of a legislator crossing the floor of the House to switch their loyalty from the Government to the Opposition party, or vice versa.
Defections In India
Defections have become a common occurrence in Indian politics. The act of defection has long been a catalyst for political instability and uncertainty in the country, diverting attention from governance to governments.
The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s. The tradition of defections in India dates back to the days of the Central Legislature, when Shri Shyam Lai Nehru, a member of the Congress Party, switched his allegiance to the British side. This historical event marked the beginning of a trend that has persisted over the years.
As another example, in 1937, Shri Hafiz Mohammed Ibrahim, originally elected to the Uttar Pradesh Legislative Assembly as a member of the Muslim League, crossed the aisle to join the Congress party.
During the late sixties, the political landscape in India witnessed a phenomenon where party affiliations were changed for reasons other than ideology. The Chavan Committee Report (1969) highlighted that after the Fourth General Elections, there were numerous cases of legislators switching party allegiance within a short period from March 1967 to February 1968.
Out of approximately 542 cases spanning two decades from the First to the Fourth General Elections, a staggering 438 defections took place within a mere 12 months. Notably, among the 376 Independents elected, 157 opted to align themselves with different political parties during this specific period.
It was evident that the allure of power and influence heavily influenced the decisions of legislators to defect. This was apparent when examining the statistics: out of the 210 legislators who defected from various states, 116 were appointed to the Councils of Ministers that they had contributed to forming through their defections.
Evolution Of Anti-defection Law In India
The journey towards enacting legislation in India to address the issue of defections can be traced back to a significant moment in history. On August 11, 1967, Shri P. Venkatasubbaiah presented a resolution as a private member in the Fourth Lok Sabha.
This resolution underwent thorough discussions in the Lok Sabha on November 24 and December 8, 1967. Ultimately, the resolution was unanimously passed in its final form by the Lok Sabha on December 8, 1967. These steps marked a crucial milestone in the efforts to combat the malaise of defections in the Indian political landscape.
Shri Venkatasubbaiah’s resolution in Lok Sabha read as:- “This House is of opinion that a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard“.
In agreement with the resolution, the Government established a Defections Committee, headed by the former Union Home Minister, Shri Y.B. Chavan. On 18th February 1969, the Committee submitted its report, which was then presented to the Lok Sabha
Main Recommendations Of The Y. B. Chavan Committee
A Committee comprising representatives from Parliament and State Assemblies should be formed to develop a code of conduct for political parties, specifically addressing the issue of defections, and to oversee its implementation.
It was recommended by the Committee that only members of the lower House should be appointed as Minister/Chief Minister. To achieve this, the Committee suggested a Constitutional amendment while ensuring the incumbents remain unaffected.
The Committee also suggested that a defector should be disqualified for one year, or until they resign their seat and get re-elected, from being appointed to the positions of Minister, Speaker, Deputy Speaker, or any other post that entails receiving salary and allowances from the Consolidated Fund of the Union or the States, or from the funds of Government Undertakings.
The Constitution (Thirty-second Amendment) Bill, 1973
Since the recommendations of the Y.B. Chavan Committee failed to offer a satisfactory solution to the issue of defections, the Lok Sabha introduced the Constitution (Thirty-second Amendment) Bill, 1973 on 16 May 1973. The purpose was to establish constitutional provisions for disqualification in cases of defection.
On 13th December 1973, a motion was passed in the Lok Sabha, followed by the Rajya Sabha on 17th December 1973, to refer the bill to a Joint Committee of the Houses of Parliament. However, with the dissolution of the Fifth Lok Sabha on 18th January 1977, the Joint Committee ceased to exist.
The Constitution (Forty-Eighth Amendment) Bill, 1978
On 28th August 1978, a renewed effort was made to pass an anti-defection law through the introduction of the Constitution (Forty-eighth Amendment) Bill, 1978 in the Lok Sabha. At the very outset, many members from both the ruling party and opposition parties voiced their opposition to the Bill.
The members strongly objected to the alleged misrepresentation of facts in the Statement of Objects and Reasons. They were not consulted on the provisions of the Bill, despite the Bill’s own Statement of Objects and Reasons claiming otherwise.
Given stiff opposition, the Minister withdrew the motion for leave to introduce the Bill.
The Constitution (Fifty-second Amendment) Bill, 1985 (Anti-defection Law)
On January 24, 1985, the Constitution (Fifty-second Amendment) Bill was introduced by the Government in the Lok Sabha. This bill led to amendments in Articles 101, 102, 190, and 191 of the Constitution, outlining the terms for the disqualification of members and the grounds for vacating seats.
The Tenth Schedule, providing details about disqualification due to defection, was also added. The Lok Sabha and the Rajya Sabha passed the Bill on January 30 and 31, 1985, respectively.
The legislation officially came into effect on March 1, 1985. The Members of Lok Sabha (Disqualification on ground of Defection) Rules, 1985 framed by the Speaker, Lok Sabha (in terms of para 8 of the Tenth Schedule) for giving effect to the provisions of the Tenth Schedule came into force w.e.f. 18 March 1986.
Key Provisions of the Anti-defection Law (Tenth Schedule)
Rule 2- lays the grounds for disqualification of the member’s i.e.:
- If a member of a House belonging to a political party:
- a. Has voluntarily given up his membership of such political party,
- or b. Votes, or abstains from voting in such 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.
- If an independent candidate joins a political party after the election.
- If a nominated member of a house joins any political party after the expiry of six months from the date when he becomes a member of the legislature.
Rule 3- It states that there will be no disqualification of members if they represent a faction of the original political party, which has arisen as a result of a split in the party. A defection by at least one-third members of such a political party was considered as a split which was not actionable. This provision was deleted by the 91st Amendment in 2003.
Rule 4 and 5- They state the exemption from disqualifications i.e.:-
- A member of the House shall not be disqualified where his original political party merges with another political party, and he and any other member of his political party:
- a. Have become members of the other political party, or of a new political party formed by such merger
- b. Have not accepted the merger and opted to function as a separate group.
For the purposes sub-paragraph (a) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
Rule 6- It confers power on the Speaker or the Chairman of a House, before which the question of disqualification of a member has arisen, to answer on the question of disqualification of such member, with the decision of such Chairman or Speaker being final.
Rule 8- It confers power on the Chairman or Speaker of a House to make rules for giving effect to the provisions of the Tenth Schedule.
The Constitution (Ninety-first Amendment) Act, 2003
On 5 May 2003, the Government introduced the Constitution (Ninety-seventh) Amendment Bill in the Lok Sabha. After careful consideration of the Bill by the Standing Committee on Home Affairs, it presented its report with suggested amendments. Subsequently, the Lok Sabha and the Rajya Sabha passed the Bill on 16 December 2003 and 18 December 2003, respectively.
- It was assented to by the President on 1 January 2004 as the Constitution (Ninety-first Amendment) Act, 2003 and was notified in the Gazette of India on 2 January 2004.
- The Act removed the provision concerning splits from the Tenth Schedule to the Constitution.
- It provided that a member who is disqualified under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed a Minister or hold a remunerative political post for the duration of the period commencing from the date of disqualification till the date on which the term of his office as such member would expire or where he contests an election to either House of Parliament or Legislature of a State, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.
Gaps And Weaknesses In The Anti-Defection Legislation
The Issue Surrounding Mergers
The Tenth Schedule’s Rule 4 appears to provide some protection against disqualification for members involved in mergers, though the legislation appears to have a loophole. This rule aims to protect the members of a political party involved in a merger with another party if at least two-thirds of the concerned legislature party members consent to the merger.
However, the loophole lies in the fact that the exception relies on the number of consenting members, rather than the underlying reasons for the defection.
Commonly, individual members defect due to the lure of attractive offices or ministerial positions within the other party. It’s quite plausible that these same incentives might appeal to those two-thirds of members who agree to the merger.
Expulsions
A significant gap in the Anti-defection Law lies in its lack of clarity regarding the expulsion of members from their respective political parties. This loophole presents hurdles in the execution of the law, as it fails to provide guidance for scenarios when a member is expelled from their political party.
Although political parties still have the authority to oust members under their party constitutional provisions, the Tenth Schedule does not address the status of such members. This omission paves the way for a paradoxical scenario in which an expelled member is still bound by the party’s discipline and orders, despite potentially lacking any rights under the party constitution.
Voluntarily Giving Up Of Membership Of A Party-
According to Rule 2(1)(a) of the Tenth Schedule, a member of the House will be disqualified from their political party if they willingly relinquish their membership. However, the paragraph lacks clarity on whether actions such as working against the party’s interests or supporting candidates from other parties, which do not technically constitute giving up party membership, can still be considered as voluntary resignation.
Wide Power To The Speaker
Rule 6 of the Tenth Schedule grants extensive and absolute authority to the Chairman or the Speaker of the House when it comes to determining cases of member disqualification due to defection. However, it is important to note that the Speaker continues to be affiliated with the political party that nominated them for the position.
In such a scenario, it becomes challenging to anticipate impartiality from the Speaker when dealing with cases involving their own political party.
According to the Law, the Speaker’s decision is considered final. However, there is no specific time limit for the Speaker to arrive at a decision. It is only after the Speaker announces their decision that a party can seek recourse in court.
The Dinesh Goswami Committee on Electoral Reforms and the Election Commission proposed that the authority to determine disqualification under the Tenth Schedule be entrusted to the President or the Governor of the State, who would act upon the advice of the Election Commission.
Nevertheless, the Act remains unamended, failing to implement these recommendations effectively.
Scope Of Judicial Review
Rule 7 prohibits courts from having jurisdiction over matters related to the disqualification of a House member. This means that both the Supreme Court (under Article 136) and the High Courts (under Articles 226 and 227) are unable to review decisions made by the Speaker on this issue.
While the Supreme Court has upheld the validity of the law, it has deemed the lack of judicial review as unconstitutional. Despite various judicial rulings in favour of judicial review, no amendments have been made to the Tenth Schedule in this regard.
No Individual Stand By Members
The rule of the anti-defection law places party members in a position of obedience to the party’s whip and policies, restricting their freedom to oppose unjust actions, misguided policies, leaders, and bills. In this context, the political party acts as a dictator over its members, denying them the right to dissent.
This, to some extent, contradicts the principles of representative democracy, where members should be able to prioritise the will of the people over blind obedience to the party’s high command.