Anti-Defection Law: Significance & Drawbacks

• MP Manish Tewari introduced a bill to amend the Anti-Defection Law, allowing MPs to vote independently on non-confidence matters. The move raises the question of democratic primacy, whether power lies with the voter or the party whip.

About Anti-Defection Law

• Anti-defection law lays down the process by which legislators may be disqualified on the grounds of defection based on a petition by any other member of the House.
• The decision regarding disqualification is referred to the Chairman or the Speaker of such House, and their decision is final.
• The law applies to both Parliament and State Assemblies.

Relation between Anti-Defection Law and the 10^th Schedule

• The 52nd Constitutional Amendment Act, 1985, was brought in the name of the ‘Anti-Defection Bill’ and inserted the 10th Schedule in the IC.
• This Act Amended Articles 101, 102, 190 and 191 of the IC regarding vacation of seats and disqualification from membership of Parliament and State legislatures.
• These articles are for the disqualification of MPs under Article 102(2) and MLAs under Article 191(2).

Features of Anti-Defection Law

Foundation Courses

Grounds for Disqualification

• If the Legislator voluntarily gives up their membership of a Political Party.
• If The Legislator voluntarily joins any other Political Party.
• Violation of Instructions: If the legislator votes or abstains from voting in the House contrary to a direction issued by the political party he belongs to, they are deemed disqualified.
• An Independent legislator can be disqualified if they join a political party.
• A nominated legislator will be disqualified if they join any political party six months after the day they become a legislator.

1. Exceptions under the Law
   • The law allows a party to merge with another party if at least two-thirds of the party’s legislators favour such a merger.
     • Neither the members who decide to merge nor those who stay in the original party will face disqualification.
   • The law exempts the presiding officer of the House (speaker, chairman, and deputy chairman) who voluntarily gives up their party membership or rejoins it after they cease to hold that office.
     • This exemption has been provided, given the dignity and impartiality of the office.
   • Anti-defection laws do not apply to violations of party whips during presidential polls.

Powers to disqualify

• The Chairman or the Speaker of the House decides to disqualify a member.
• If a complaint is received concerning the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

2. Role of Speaker as Quasi-Judicial Authority
   • The decision of the presiding officer is subject to the Judicial Review.
     • The law initially stated that the decision of the Presiding Officer is not subject to judicial review.
   • Kihota Hollohon vs. Zachilhu and Others (1992): SC held that the office of the Speaker is a quasi-judicial authority whose decisions are amenable to judicial review.
   • It is also incumbent upon the Speaker of the House to follow the principles of natural justice while adjudicating proceedings under the 10^th Schedule.
   • However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
   • Shrimanth Balasaheb Patil vs Honble Speaker Karnataka (2019): SC laid down grounds for review of the decision of the speaker-
     1. If it violates constitutional mandate.
     2. If it is made in a mala fide way.
     3. If the decision of the speaker is perverse.
     4. If it is non-compliance with the rules of natural justice.
3. Changes after the 91st Constitution Amendment Act, 2003
   • The provision about exemption from disqualification in case of a split by one-third of legislature party members was deleted. (Only a Merger was possible; a Split was not possible).
   • Earlier, a defection by one-third of the elected members of a political party was considered a ‘merger’. The amendment changed it to at least two-thirds.
   • It limited the size of the Council of Ministers to debar defectors from holding public offices and preventing defecting legislators from joining the Council of Ministers until their re-election.
   • An MP/MLA disqualified for being a member under the 10^th Schedule shall also be disqualified from being appointed as a Minister
     • From the date of their disqualification till the expiry of the membership of Parliament/Assembly,
     • If they contest any election to Parliament/Assembly before the expiry of such period, till the date they are elected.

Significance of the Anti-Defection Law

• Stability: Prevents government collapses caused by legislators switching parties. E.g., Gaya Lal, Haryana, 1967, who switched parties three times in a day.
• Party Discipline: Ensures legislators vote in line with party directives, preserving cohesion. E.g., Rahul Gandhi, LS 2019, followed the party whip during crucial confidence votes.
• Electoral Integrity: Protects the mandate given by voters from being undermined by defection. E.g., Himanta Biswa Sarma, Assam, 2016, switching allegiances would have affected the voter mandate.
• Reduced Corruption: Discourages horse-trading and the lure of ministerial positions for personal gain. E.g., in J. Jayalalithaa, Tamil Nadu, in the 1980s, attempts to buy legislators’ loyalty were curtailed.
• Democratic Strength: Judicial review ensures fairness & checks misuse of anti-defection provisions. E.g., Kihoto Hollohan Case, 1993, where the SC upheld the Tenth Schedule & allowed judicial oversight.

Supreme Court Judgments on Anti-defection Law

• Kihoto Hollohon vs. Zachilhu (1992): The 10^th Schedule is constitutionally valid & does not violate legislators’ freedom of speech. Courts can review the Speaker’s or the Chairman’s decisions under the Schedule.
• Dr Kashinath G. Jhalmi vs. Speaker, Goa (1993): The Speaker cannot review their own decision to disqualify a member. Such power is neither provided nor implied under the 10^th
• Vishwanathan vs. Speaker, Tamil Nadu (1996): A member who joins a new party after being expelled is regarded as having voluntarily resigned from their previous party. Expelled members continue to be associated with their original party for 10^th Schedule purposes.
• Ravi S Naik vs. Union of India (1994): “Voluntarily giving up membership” includes conduct, not only formal resignation. Procedural irregularities in the 10^th Schedule rules are generally immune from judicial review.
• Rajendra Singh Rana vs. Swami Prasad Maurya (2007): If the Speaker ignores complaints or accepts splits/mergers without proper findings, it violates constitutional duties. Courts can review such failures.
• Keisham Meghachandra Singh vs. Speaker, Manipur (2020): Disqualification petitions must be decided within three months, except in exceptional cases. Courts can direct the Speaker to act within a reasonable period.

Drawbacks of the Anti-Defection Law

• Restricts Dissent: Legislators are unable to vote against the party whip even if it conflicts with their conscience. E.g., in Tamil Nadu (1996), G. Vishwanathan was compelled to follow the party whip.
• Delays in Justice: There is no fixed time frame for the Speaker to decide on disqualification, leading to prolonged cases. E.g., the K. M. Singh case highlighted delays in the Manipur Assembly.
• Speaker Bias: The presiding officer’s discretionary power may be influenced by party affiliation. E.g., Kihoto Hollohan (1992) raised concerns regarding the Speaker’s partiality in disqualification decisions.
• Group Defections: The two-thirds merger rule facilitates opportunistic mass defections. E.g., the 52^nd Amendment loophole resulted in large-scale party mergers in the 1980s.
• Electoral Weakness: Legislators often follow party directives rather than the voter mandate, thereby diminishing individual responsibility.

Various Recommendations to Overcome the Drawbacks

Dinesh Goswami Committee on Electoral Reforms,1990

• Disqualification should be limited to the following cases:
  • A member voluntarily gives up the membership of his political party
  • A member abstains from voting or votes contrary to the party whip in a vote of confidence or motion of no-confidence.
• Political parties could issue whips only when the government was in danger.
• The President/Governor should decide on the Election Commission’s (EC) advice on disqualification.

Halim Committee on Anti-defection Law, 1998

• The words ‘voluntarily giving up’ political party membership’ be comprehensively defined.
• Restrictions like the prohibition on joining another party or holding offices in the government be imposed on expelled members.
• The term political party should be defined clearly.

Current Affairs

Law Commission 170th Report, 1999

• Provisions that exempt splits and mergers from disqualification are to be deleted.
• Pre-poll electoral fronts should be treated as political parties under anti-defection.
• Political parties should limit the issuance of whips to instances only when the government is in danger.

Election Commission

• President/Governor should make decisions under the Tenth Schedule on the binding advice of the EC.

NCRWC/Venkatchalliah Committee, 2002

• Defectors should be barred from holding public office or any remunerative political post for the remaining term.
• The vote cast by a defector to topple a government should be treated as invalid.
• ‘Block vote’ proposal to correct lacunae in the concept and implementation of the anti-defection law.
  • A group of parties registering itself as a pre-election coalition shall have one block vote during the term of the House.
• Deletion of the 10th Schedule provision regarding exemption from disqualification in case of a split.

SC, 2020

• Speakers, members of a particular political party, and insiders in the House should not be the “sole and final arbiter” in disqualification cases.
• The SC suggested amending the IC to redefine the Speaker’s role as a quasi-judicial authority in handling disqualification petitions under the anti-defection law.
• A mechanism outside Parliament or Legislative Assemblies should adjudicate disqualification petitions under the 10th schedule.
• A permanent tribunal headed by a retired SC judge or a former HC CJ as a new mechanism.

Suggested Reforms to Strengthen the Law

• 2^nd ARC Recommendation: Transfer decision-making authority to the President or Governor based on Election Commission advice.
• Limit Whip Use: Issue only for confidence, no-confidence motions, or money bills.
• Independent Tribunal: Establish a permanent tribunal led by a former Supreme Court or High Court judge.
• Limited Defection: Permit defection only in cases such as mergers or expulsion.
• Time-Bound Disposal: Enforce a 3-month deadline for all disqualification petitions.

The Anti-Defection Law strengthens stability but often suppresses debate and autonomy, echoing Ambedkar’s warning that “constitutional morality is not a natural sentiment.” Reforming whips and ensuring impartial, time-bound decisions are essential to restore democratic balance.

Reference: The Hindu

PMF IAS Pathfinder for Mains – Question 455

Q. Discuss the significance of the Anti-Defection Law in fostering stability within India’s parliamentary democracy. Evaluate its role in upholding the basic structure doctrine, including democratic and federal principles enshrined in the Constitution. (250 Words) (15 Marks)

Approach

• Introduction: Write a brief introduction about the Anti-Defection Law.
• Body: Discuss the significance of the Anti-Defection Law, its role in upholding the basic structure doctrine, mention concerns and suggest reforms to strengthen the law.
• Conclusion: Emphasis on a strict Anti-defection law with whip reform and time-bound decision making to restore democratic balance.