What is anti-defection law?

What is anti-defection law?

Date : 02 Sep, 2020

Post By Preeti Tanwar

The Anti-defection law was enacted in 1985 to deal with this problem of political instability created by the elected legislators. For addressing the perceived problem of instability caused by democratically elected legislators in India's Parliamentary System of Government shifting allegiance from the parties they supported at the time of the election, or disobeying their parties' decisions at critical times such as during voting on an important resolution, the Tenth Schedule to the Indian Constitution was enacted. Such shifting of allegiance was considered to be a symptom of endemic political corruption, which in turn provided some legitimization for corruption prevalent in other aspects of life in the country.

The anti-defection law was legislated to deter MLAs from defecting from their political parties. They can lose their seats in the legislature for defying their party. And once they are declared as a defector, they cannot become a minister in a government for six months. 

However it is also said that MLAs and political parties have become adept at using and bypassing the anti-defection law, Law cannot change the nature of politics. Political parties will always find a way of bypassing the intent of the best of laws


The primary intentions of the law were:

  1. The necessary first step to addressing other forms of corruption in the country is to curb political corruption. According to the then Central Vigilance Commissioner, U. C. Aggarwal, the political arena, has to be corruption-free to motivate other lower levels to free themselves from corruption.

  2. This law is necessary in order to strengthen democracy by bringing stability to politics and ensuring legislative programmes of the Government do not get jeopardised by a defecting parliamentarian.

  3. The party allegiance plays a key role in the election success of MPs. This is imperative to make members of parliaments more responsible and loyal to the parties from whose ticket they contested.

Note: The Chavan committee suggested that a member who changes party allegiance for monetary benefit or other forms of greed, such as a promise of the executive office, should not only be removed from parliament but also barred from contesting elections for a specific time period. 

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Legal provision 


Article 102 prescribes the disqualification for membership of either house of parliament as:

  1. If he holds any office of profit under central or state government other than the office declared by the parliament by law not to disqualify its holder 

  2. If he is of unsound mind and a competent court has declared him to be of unsound mind 

  3. If he is an undischarged insolvent 

  4. If he is not the citizen of India or that he has voluntarily acquired citizenship of any other country or under any allegiance or adherence of a foreign state

(2) If he is so disqualified under any law made by the parliament ( Parliament has prescribed the necessary disqualifications in the Representation Of People’s Act, 1951 )


91st Constitution Amendment Act-2003

  1. It aimed at limiting the size of the Council of Ministers to debar defectors from holding public offices, and to strengthen the anti-defection law.

  2. 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.


DISQUALIFICATION ON GROUND OF DEFECTION 


52nd Amendment Act 1985 added the Tenth Schedule to the constitution which specifies the disqualification on the ground of defection. 

The Amendment added a new clause (2) to Article 102 and 191 which provides that a member shall be disqualified for being a member of either house of the parliament or of the state legislature if he incurs the disqualifications specified in the tenth schedule.

  1. If he voluntarily gives up the membership of the political party on whose ticket he is elected on the house or

  2. If he votes or abstains from voting in the house against any direction of the political party or by any person or authority authorised by it in this behalf, without the prior permission of such party and unless it has been condoned by the party within 15 days from the date of voting or abstention or 

  3. If any nominated member joins any political party after the expiry of six months from the date on which he takes his seat in the house. 


Exception - The above disqualification will however not apply 

(1) if a member goes out as a result of a merger of his original political party with another political party provided ⅔ of the members of the legislature party have agreed to such merger, or

(2) if a member after being elected as the presiding officer gives up the membership of the party to which he belonged or does not rejoin that party becomes a member of another party 


If the question arises as to whether a member of a house has become subject to any of the disqualifications under the tenth schedule, the question shall be referred to the chairman or the speaker of such house, whose decision shall be final. The decision of the presiding officer shall not be called in any court of law.


  1. Kihoto Hollohon vs Zachillhu (1992) 1 SCC 309 - The Supreme Court struck down the para 7 of the anti-defection law which laid out that the decision of the speaker cannot be questioned. The court held that the function of the speaker while applying anti-defection law is like that of a tribunal and therefore is open to judicial review. The court by 3:2 majority held that the schedule 10 is not violative of the right to freedom of speech and expression, freedom of vote and conscience of members of parliament and legislature of states. By curbing unprincipled and unethical political defection these provisions are intended to strengthen the fabric of Indian parliamentary democracy.


  1. Ravi Naik Vs. Union of India, 1994--The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has held that in the absence of a formal resignation by the member, the giving up of membership can be implied from his conduct.


  1. G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras Or Another, 1996- Members who publicly expressed opposition to their party or support for another party were deemed to have resigned. 

What does voluntarily giving up party membership mean?

In a 1994 judgment( Ravi Naik vs. Union of India), the Supreme Court had held that voluntarily giving up membership does not necessarily mean that the legislator needs to formally resign It can be inferred from the member’s “conduct” as well. The court held that an inference can be drawn from the conduct of a member that one has voluntarily given up his party membership, even in the absence of a formal resignation from the membership.

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What are the Speaker’s powers?

The Speaker of the House enjoys vast powers on disqualification proceedings, with the Supreme Court consistently holding that it would not interfere in such proceedings until the Speaker actually makes a decision. 

One of the first cases in this regard was a 1992 judgment (Kihoto Hollohan vs Zachillhu) when the court asserted that “having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speaker or Chairman”.

As for the time requirement that the Speaker can decide the disqualification proceedings, the Supreme Court stated in January this year that the decision should ordinarily be taken within 3 months in absence of any exceptional circumstances.

The law does not specify a time period for the Presiding Officer to decide on a plea of disqualification of a legislator. Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.


Presiding Officer’s decision and judicial review:


The law initially laid down was that the decision of the Presiding Officer is not subject to any judicial review which was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it was held that there may not be any judicial intervention until the Presiding Officer gives his order.


Advantages of anti-defection law:

  1. This law, by preventing shifts of party allegiance provides stability to the government 

  2. Make sure that candidates remain loyal to the party to which they belonged as well as the citizens who voted for him.

  3. Promotes party discipline.

  4. Facilitates merger of political parties without attracting the provisions of Anti-defection

  5. Expected to reduce corruption at the political level.

  6. Provides for punitive measures against a member who defects from one party to another.


Various Recommendations to overcome the challenges posed by the law:


  1. Dinesh Goswami Committee on electoral reforms:

Disqualification should be limited to the following cases:

  1. If a member voluntarily give up the membership of his political party

  2. If a member abstains from voting, or votes against the party whips direction in a motion of vote of confidence or no-confidence.

  3. Only when the government finds itself in danger, political parties can issue whips.

  1. Law Commission (170th Report)

Provisions which exempt splits and mergers from disqualification to be deleted.

Political parties should limit the issuance of whips to instances only when the government is in danger.

  1. Election Commission:

Decisions under the Tenth Schedule should be made by the President/ Governor on the advice of the Election Commission which would be binding. 


Recent Challenges 


After the political turmoil in Rajasthan politics between CM Gehlot and the then deputy CM Sachin Pilot, Pilot and the rebel MLAs challenged first ground under clause 2(1)(a) in the court, asserting that the provision cannot be so widely construed that the very same fundamental freedom of speech and expression of a member of the House is jeopardised.

“Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to conduct falling within the clause 2(1)(a) of the 10th Schedule of the Constitution of India,” their petition had said.

They demanded that clause 2(1)(a) be declared ultra vires (outside the scope of) the basic structure of the Constitution, and the freedom of speech and expression under Article 19(1)(a). 

Key Challenges are:

  1. This law places a restriction on  the legislators from voting in accordance with their conscience, judgement and interests of their electorate

  2. This law in effect dilutes the separation of powers between the Executive and the Legislature and centralises power in the hands of the executive 

  3. Many instances have shown that presiding officers play a part with the vested interests of a political party or government in power

  4. It does not allow a differentiation between dissent and defection and weakens the Parliamentary deliberations on any law 

  5. Also, the tenure of the Speaker is dependent on the continuous support of the majority in the House does not satisfy the requirement of such independent adjudicatory authority

  6. There is a need for an independent authority to deal with the cases of defection 


Conclusion 

A lasting solution to the problem can only come from the adherence by political parties to a code of conduct that takes into account the fundamental priorities and decencies that ought to govern the functioning of democratic institutions. Aaya Ram Gaya Ram phrase became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.  Thus the anti-defection law seeks to prevent political defections which maybe because of the expectation of a reward of office or any other similar considerations. However keeping the recent political turmoil in India in mind, there is an immediate need for improvement.


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