Anti-defection Law & 10th Schedule Explained

Anti-Defection Law is contained in the Tenth Schedule of the Constitution, which was introduced by the 52^nd Amendment in 1985 during tenure of Rajiv Gandhi. Earlier, 10th schedule was related to association of Sikkim with India. Once, Sikkim became full fledged state, this schedule was repealed via the 36th amendment act.

Definition of defection

Defection is defined as “to abandon a position or association, often to join an opposing group” which essentially describes a situation when a member of a particular party abandons his loyalty towards that party and provide his support (in the form of his vote or otherwise) to another party.

Historical Background

Originally, the Constitution of India carried no reference to political parties and their existence. Since multi-party democracy had not evolved in 1950s and early 1960s, the heat of defections and their implications were not felt. Things however, changed after the 1967 elections. The 1967 elections are thus called a watershed moment in India’s democracy.

What happened in 1967 elections?

In 1967, some sixteen states had gone to polls. The Congress lost majority in them and was able to form government only in one state. This was the beginning of coalition era in India. This election also set off a large scale defections. Between 1967 to 1971, some 142 Mps and over 1900 MLAs  migrated their political parties. Governments of many states, beginning from Haryana, collapsed. The defectors were awarded with plum ministries in the governments, including Chief Ministership in Haryana. In Haryana, one legislator “Gaya Lal” changed party for three times and thus, all defectors used to be called “Aaya Ram-Gaya Ram”.

However, the issue was not addressed immediately. It took further 17 years to pass the anti-defection law in 1985. The 52th amendment of the Constitution in 1985 inserted 10th schedule in the constitution with Provisions as to disqualification on ground of defection.

52nd Amendment Act

In this amendment, articles 101, 102, 190 and 191 were changed. It laid down the process by which legislators may be disqualified on grounds of defection. As per this process, a member of parliament or state legislature can be disqualified on the following grounds:

Members of a Political Party

• When voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote.
• When does not vote / abstains as per party’s whip. 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.

Independent Members

If a member has been elected as “Independent”, he / she would be disqualified if joined a political party.

Nominated Members

Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

Exceptions

• If a person is elected as speaker or chairman then he could resign from his party, and rejoin the party if he demitted that post. No disqualification in this case.
• A party could be merged into another if at least one-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been made two-third.

As soon as this law was passed, it was met with severe oppositions on logic that it impinged on right to free speech of legislators. A PIL was filed in the Supreme Court in the form of famous Kihoto Hollohon vs Zachillhu and Others (1992). This PIL had challenged the constitutional validity of the law. But SC upheld the constitutional validity of 10th schedule. Court also decided that the law does not violate any rights of free speech or basic structure of the parliamentary democracy.

However, Supreme Court also made some observations on Section 2(1) (b) of the Tenth schedule. Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains from voting  contrary to any direction issued by the political party. The judgement highlighted the need to limit disqualifications to votes crucial to the existence of the government and to matters integral to the electoral programme of the party, so as not to ‘unduly impinge’ on the freedom of speech of members.

91st Amendment Act, 2003

Earlier, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’. The 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favor of a “merger” for it to have validity in the eyes of the law. The 91st Amendment also makes it mandatory for all those switching political sides – whether singly or in groups – to resign their legislative membership. They now have to seek re-election if they defect.

Summary of Provisions Regarding Tenth Schedule

Conditions of Disqualification

• If a member of a house belonging to a political party:
  • Voluntarily gives up the membership of his political party, or
  • Votes, or does not vote in the legislature, contrary to the directions 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 joins a party six months after he becomes a member of the legislature.

Power to Disqualify

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

Exceptions – Merger

A person shall not be disqualified if his original political party merges with another, and:

• He and other members of the old political party become members of the new political party, or
• He and other members do not accept the merger and opt to function as a separate group.

This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

Court’s Intervention

All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction. This was subsequently struck down by the Supreme Court. Currently, the anti-defection law comes under the judicial review of courts.

Various Supreme Court Judgments on Anti-defection Law

Beginning with Kihoto Hollohon vs Zachillhu And Others (1992) case, various provisions regarding anti-defection law have been challenged in the Supreme Court. The Key issues and Supreme Court observations are listed below:

Kihota Hollohon vs. Zachilhu and Others (1993)

• Issue: If the 10th schedule curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislatures.
• SC Judgement: The 10th schedule neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members. The 10th schedule is constitutionally valid.
• Issue: Is granting finality to the decision of the Speaker/ Chairman is valid.
• SC Judgement: This provision is valid however, High Courts and the Supreme Court can exercise judicial review under the Constitution. But the Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen.

Ravi S Naik v. Union of India (1994)

• Issue: If only resignation constitutes “voluntarily giving up” membership of a political party.
• SC Judgement: There is a wider meaning of the words “voluntarily giving up membership”. The inference can be drawn from the conduct of the members also.

G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996)

• Issue: If a member is expelled from old party and he joins another party after being expelled, will it be considered as having voluntarily given up his membership?
• SC Judgement: Once a member is expelled, he is treated as unattached member in the house but he continues to be a member of the old party as per the Tenth Schedule. If he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.

Critical Analysis of Anti-defection law

The anti-defection law has enabled the political parties to have stronger grip on their members which many times has resulted into preventing them to vote for the lure of money of ministerial birth. It also provides stability to the government by preventing shifts of party allegiance and ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party.  However, it is also resulted into its unintended outcome i.e. the curtailing to a certain extent the role of the MP or member of state legislature. It is culminated into absence of constructive debates on critical policy issues. The whip has become all the more powerful and has to be followed in all circumstances.

What reforms are needed in Anti-defection law?

Following are the key reforms needed in anti-defection law.

• The decision making power of speaker / chairman needs review
• The phrase “voluntarily giving up membership” is too vague and needs comprehensive revision.
• Political parties should limit issuance of whips to instances only when the government is in danger

The Election Commission had recommended that the decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.  A constitutional amendment vesting the power to decide matters relating to disqualification on the ground of defection with the President/Governor acting on the advice of the Election Commission would actually help in preserving the integrity of the Speaker’s office.