Anti-Defection Law: Meaning, Provisions, and Cases

ANTI-DEFECTION LAWS

The 52nd Amendment Act of 1985 introduced provisions for the disqualification of Members of Parliament and State Legislatures on the ground of defection from one political party to another. To achieve this, amendments were made to four Articles of the Constitution—Articles 101, 102, 190, and 191, which relate to the vacation of seats and disqualification from membership—and a new Schedule, namely the Tenth Schedule, was added. This legislation is popularly known as the Anti Defection Law. Subsequently ,the 91st Amendment Act of 2003 amended the Tenth Schedule by removing the exception that previously permitted disqualification not to apply in cases of party split.

Provisions of the Act

The Tenth Schedule outlines specific rules regarding disqualification on grounds of defection.

1. Disqualification:

• Members of Political Parties: A member belonging to a political party is disqualified if (a) he or she voluntarily gives up the membership of the party, or (b) votes or abstains from voting in the House contrary to any direction of the party without prior permission. If the act is not condoned by the party within 15 days, the disqualification applies. This implies that a member elected on a party ticket must continue to remain in the party and adhere to party directives.

• Independent Members: An independent member, elected without the support of any political party, becomes disqualified if he or she joins a political party after the election.

• Nominated Members: A nominated member of a House becomes disqualified if he or she joins a political party after six months from the date of taking the seat. However, within the first six months, a nominated member is permitted to join any party without attracting disqualification.

2. Exceptions: The law recognizes two exceptions to disqualification. First, if a member leaves the party due to a merger, he or she is not disqualified. A merger occurs when at least two-thirds of the members of a party agree to it. Second, if a member, after being elected as the Presiding Officer of the House, voluntarily gives
up the membership of the party or rejoins the party after ceasing to hold that office, such an act does not attract disqualification. This exemption is intended to protect the dignity and impartiality of the Presiding Officer’s office. Importantly, the earlier provision that permitted exemption in cases of split by one-third of members has been deleted by the 91st Amendment Act, 2003, leaving defectors without this protection .

3.Deciding Authority: Any question regarding disqualification on the ground of defection is decided by the Presiding Officer of the House. Although the Act originally made the Presiding Officer’s decision final and beyond judicial review, the Supreme Court in Kihoto Hollohan vs. Zachillhu (1992) held this unconstitutional. The Court declared that the Presiding Officer, while deciding on defection, acts as a tribunal, and hence, his or her decision is subject to judicial review on grounds such as malafides or perversity. However, the Court upheld the vesting of adjudicatory powers in the Presiding Officer, emphasizing that the Speaker or Chairman holds a pivotal role in parliamentary democracy.

4. Rule-Making Power: The Presiding Officer is authorized to frame rules for implementing the provisions of the Tenth Schedule. Such rules must be placed before the House for 30 days, after which the House may approve, modify, or reject them. Further, willful contravention of these rules may be treated as a breach of the privilege of the House. According to these rules, the Presiding Officer can act only upon receiving a complaint from a member. Before arriving at a final decision, the accused member must be given an opportunity to explain. The matter may also be referred to the Committee of Privileges for inquiry, ensuring that defection does not operate automatically and requires due process.

Evaluation of the Act

The anti-defection provisions in the Tenth Schedule were intended to curb the menace of political defections motivated by lure of office, material gain, or other similar inducements. The law sought to strengthen parliamentary democracy by discouraging unprincipled political shifts. At the time of its passage, Prime Minister Rajiv Gandhi described it as the “first step towards cleaning-up public life.” The then Law Minister also hailed the unanimous passing of the 52nd Amendment Bill as a testament to the maturity and stability of Indian democracy.

Advantages

The Act is credited with ensuring greater political stability by discouraging legislators from frequently changing parties. It has facilitated democratic realignment of parties through mergers, reduced corruption and wasteful expenditure arising from irregular elections, and, for the first time, conferred explicit constitutional recognition upon political parties.

Criticism

Despite these advantages, the law has faced significant criticism. It fails to distinguish between dissent and defection, thereby curtailing legislators’ freedom of speech and conscience. It has been argued that the law promotes party bossism and enforces party discipline at the cost of democratic debate. Further, while banning individual defections, the law allowed group defections until 2003, leading critics to argue that it only outlawed “retail defections” but legitimized “wholesale defections.” Additionally, the Act does not address the expulsion of legislators for activities outside the legislature. The differential treatment of independent and nominated members has also been
questioned as illogical—while independents face disqualification for joining a party post-election, nominated members are permitted to do so within six months. The authority vested in the Presiding Officer has been criticized for potential political bias and lack of legal expertise, with even former Speakers Rabi Ray (1991) and Shivraj Patil (1993) expressing doubts about their suitability to adjudicate such matters.

91ST AMENDMENT ACT, 2003

Reasons

The 91st Amendment Act, 2003 was introduced to address growing concerns over the limitations of the original anti-defection law. Several bodies, including the Dinesh Goswami Committee (1990), the Law Commission of India (170th Report, 1999), and the National Commission to Review the Working of the Constitution (2002), recommended reforms. The exemption for splits by one-third of the members was seen as destabilizing governments and was heavily criticized. The NCRWC further recommended debarring defectors from holding ministerial or remunerative political posts and limiting the size of the Council of Ministers to curb excessive appointments.

Provisions

The 91st Amendment Act introduced significant changes:

1. It capped the size of the Council of Ministers at the Centre to 15% of the total strength of the Lok Sabha, including the Prime Minister.

2. Any disqualified member of Parliament on grounds of defection is also barred from being appointed as a minister.

3. In States, the size of the Council of Ministers, including the Chief Minister, is limited to 15% of the total strength of the Legislative Assembly, with a minimum of 12 ministers.

4. Any legislator disqualified for defection is also prohibited from being appointed as a minister at the State level.

5. A disqualified legislator cannot hold any remunerative political post, defined as
(i) any office under the Central or State Government where remuneration is paid from public revenue, or
(ii) any office under a government-owned or government controlled body where remuneration is provided, except in cases where the payment is compensatory in nature.

6. The provision for exemption in case of splits by one-third of legislators has been deleted, ensuring that defectors no longer enjoy such protection.

FAQs on Anti-Defection Law in India

1. What is the Anti-Defection Law in India?
The Anti-Defection Law, under the Tenth Schedule of the Indian Constitution (52nd Amendment, 1985), prevents elected legislators from switching parties or defying party voting directives to ensure political stability. Violators face disqualification.

2. Why was the Anti-Defection Law introduced?
Introduced in 1985, the law aims to curb political defections driven by personal gains, which destabilize governments and undermine voter trust in the democratic process.

3. Who can be disqualified under the Anti-Defection Law?
Members of Parliament or state legislatures can be disqualified if they voluntarily leave their party or vote against party directives without prior permission.

4. Are there any exceptions to the Anti-Defection Law?
Yes, disqualification does not apply if two-thirds of a party’s members agree to merge with another party, as per the Tenth Schedule.

5. Who decides disqualification cases under this law?
The Speaker of the House (or Chairman in the case of the Rajya Sabha) decides disqualification cases, but their decisions are subject to judicial review, as established in the Kihoto Hollohan case (1992).