Anti Defection Law: Things you need to Know

The Anti-Defection Law is a crucial topic for your IAS examination. In this article, we will cover all UPSC exam-worthy details of this law including its introduction into the constitution of India, its interpretation, limitations, as well as the reforms made to it.

The Anti-Defection Law has been a part of the Indian constitution since the year 1985. The underlying objective of this law is to provide legal provisions that deem any elected member disqualified in the event of their defection to another political party.

Let us understand this law in detail below: –

What is meant by anti-defection law?

• The Anti-Defection Law is also popularly known as The Tenth Schedule of Indian Constitution. The provision was added to the Indian Constitution in 1985. The Rajiv Gandhi government was the initiator behind this major law.

• The underlying objective of the law is to discourage “the evil of political defections” by legislators motivated by the immoral reasons, including that of office or other such considerations.

• Political defection, in simple terms, is the act of an elected member quitting the political group they’re a part of, and joining hands with another party.

• This law states the process through which legislators might be disqualified on the grounds of defection.

• Only the Presiding Officer of a legislature decides on a petition by any other member of the House can supervise this process.

• A legislator is considered to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.

• This means that any legislator defying (abstaining/voting against) the party due to any issue can lose his membership of the House.

• The anti-defection law applies to both the state assemblies and Parliament.

Are There Any Exceptions Under The Law?

Definitely.

Not every act of changing political parties by a legislator falls under the Anti-defection Law.

The law allows for a party to merge with/into another party in case this condition is fulfilled :-

• At least two-thirds of its legislators should favor the merger. In this case, neither the members who have decided to merge, nor the ones from the original party will face any disqualification.

• Multiple expert committees have recommended to replace the decision of the Presiding Officer to disqualify a member with the President (for the MPs) or the Governor (for the MLAs) on the advice of the Election Commission

• This process will be similar to the one followed for disqualification when the person holds an office of profit (i.e. the person holds an office under the central/state government which carries a remuneration, and has not been excluded in a list made by the legislature).

What Are The Grounds For Disqualification Under The Anti-defection Law?

There are two major grounds considered for disqualification under the Anti-defection Law: –

• In case any elected member will voluntarily give up their membership of a specific political party

• If, without obtaining prior permission, an elected member votes or restrains from voting in such House in opposition to the directions issued by their political party or anyone that has the authority to do so.

• As a pre-condition for their disqualification, their act of restraining themselves from voting should not be condoned by his party or the authorised person within 15 days of the act.

How Has The Law Been Interpreted By The Courts While Deciding On Related Matters?

According to the Supreme Court, there are different interpretations regarding the provisions of this law.  Let us discuss them in the points below: –

• The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation

• According to the law’s provision, a member is to be disqualified only if he ‘voluntarily gives up his membership’.

• But, the Supreme Court has interpreted that in case there is no formal resignation by the member, the giving up of membership can be concluded by his conduct.

• In some other judgments, those members who have publicly expressed their opposition to their respective party and showcased support for another party were deemed to have resigned.

Does The Anti-defection Law Affect The Ability Of Legislators To Make Decisions?

• The Anti-defection Law aims at providing a stable government by making sure that the legislators do not change their loyalties to their side

• But again, this also restrains any legislator from voting in accordance with his judgment, conscience, as well as the interests of his electorate

• This kind of situation delays the oversight function of the legislature over the government, by making certain that members vote not based on what their constituents would like them to vote for, but on the decisions taken by the party leadership

• The Political parties issue a direction to the Members of Parliament regarding how to vote on almost all issues. this is irrespective of the quality of the issue at hand.
• A majority of experts believe that the law should stand valid strictly for those particular votes that will determine the stability of the government (passage of the annual budget or no-confidence motion).

The Loopholes In Anti-defection Law

The major loophole observed under the law can be explained as below: –

• While earlier, the law allowed defections in case it involved one-third members.

• This means that it had provisions relating to exemption from disqualification in the case of a ‘split’ in a specific political party

• But instead of individual defections, it resulted in many mass defections

Reforms To Anti-defection Law: 91st Amendment

• Keeping in mind the crucial drawback of mass defections, the 91^st amendment was initiated to reform the Anti –defection Law.

• The clause of the “one-third rule” was rectified with the 91^st amendment.

• The amendment stated an increase in value from one third to two thirds.

• This means, now, at least two-thirds of the members of a specific party must be in favor of a ‘merger’ for it to possess legal validity.

What Is Not Defection?

The following actions are not considered as decfection under this law: –

• Any partition or split in a specific political party will not be considered a defection in case there is a complete merger of the political party in question with another political party.

• In case of  a new political party being created by the elected members of a specific party, the law will not apply

• In case they or alternative members of a specific party have yet not accepted the merger between the two parties, and have decided to operate as a separate group from the time such a merger occurs.

Is Disqualification Under Anti-defection Law Judicially Reviewable?

• No other person except the Speaker or the chairman of the house holds the authority to decide on any defection cases.

• The Speaker will sit as a tribunal while taking decisions regarding every defection case

• All such proceedings in regards to any question related to the disqualification of a member of a House under this Schedule are concluded to be proceedings in Parliament or in the Legislature of a state

• No court has any jurisdiction.

• But, the decision can be brought to court after the famous 1992 case of Kihoto Hollohan.

• According to the law, now, the decision taken will be final and not subject to any judicial review.

• Although, the Supreme Court struck down part of this condition.

• As per the Supreme Court, there may not be any judicial intervention until the presiding officer gives his order.

• Yet, the final decision is subject to appeal in the High Courts and Supreme Court.

To conclude, although many might feel that the law curtails the independence of the MPs and MLAs, it is important to understand that the Anti-Defection law in no way restricts the right of free speech of the elected members, or even the basic structure of parliamentary democracy.