Anti-Defection Law – Indian Polity Study Notes

Historical Context and Genesis

The Anti-Defection Law was introduced in 1985 through the 52nd Constitutional Amendment Act. Before this, the Indian political landscape was frequently destabilized by the phenomenon of “Aaya Ram, Gaya Ram,” where legislators would switch parties frequently for personal gain or ministerial berths, leading to the collapse of governments.

The primary objective of the Tenth Schedule is to ensure parliamentary stability and maintain the integrity of the electoral mandate. By compelling members to adhere to their party’s line, the law seeks to uphold the sanctity of the party system in a parliamentary democracy, ensuring that the government remains stable and accountable to the people who voted for a specific party platform.

Grounds for Disqualification

Disqualification under the Tenth Schedule is triggered by specific actions. An elected member of a House (Parliament or State Legislature) is disqualified if they:

• Voluntarily give up their membership of the political party on whose ticket they were elected.
• Vote or abstain from voting in the House contrary to any direction (whip) issued by their political party without obtaining prior permission.
• If an independent candidate joins any political party after the election.
• If a nominated member joins a political party after the expiry of six months from the date they took their seat in the House.

The power to decide questions of disqualification on the ground of defection is vested with the Presiding Officer (Speaker or Chairman) of the House. Their decision is final and, as per the Kihoto Hollohan v. Zachillhu (1992) judgment, is subject to judicial review.

Exceptions to the Law

The law provides certain safeguards to prevent it from becoming an instrument of suppression. A member will not be disqualified if their party undergoes a merger with another party, provided that at least two-thirds of the members of the legislative party have agreed to the merger. This specific threshold was increased from one-third to two-thirds by the 91st Constitutional Amendment Act (2003).

Additionally, if a person is elected as the Speaker or Chairman, they are permitted to resign from their party and rejoin it upon demitting office. This is to ensure that the office of the Speaker remains impartial and neutral, as they are required to act above party politics while presiding over the House.

Role of the Presiding Officer and Judicial Review

Initially, the law stated that the decision of the Speaker regarding disqualification was final and could not be questioned in any court. However, the Supreme Court struck down this provision in the Kihoto Hollohan case, ruling that the Speaker acts as a tribunal while deciding on defection cases. Therefore, the decision is subject to judicial review on grounds of mala fides, perversity, or violation of constitutional mandates.

Despite this, critics often point out that the Speaker is usually a member of the ruling party, which leads to allegations of bias in handling defection cases. There have been instances where Speakers have delayed decisions on disqualification petitions for years, effectively allowing “defectors” to continue as members or even hold ministerial positions during the pendency of the case.

Key Points to Remember

• Constitutional Amendment: 52nd Amendment Act, 1985.
• Schedule: Tenth Schedule of the Indian Constitution.
• Authority: The Presiding Officer (Speaker/Chairman) holds the power to decide.
• Judicial Review: The Supreme Court (Kihoto Hollohan case) ruled that the Speaker’s decision is subject to judicial review.
• Merger Threshold: Two-thirds of the legislative party members must agree to a merger for the exception to apply.
• Nominated Members: Have a 6-month grace period to join a party.
• 91st Amendment (2003): Removed the “split” exception and restricted the size of the Council of Ministers.

Recommendations for Strengthening Parliamentary Discipline

To enhance the efficacy of the Anti-Defection Law, various committees and legal experts have suggested several reforms. The Dinesh Goswami Committee and the Law Commission have argued that the power to disqualify should not rest with the Speaker alone, as it creates a conflict of interest.

Proposed reforms include:

1. Transferring Authority: Vesting the power of disqualification in the Election Commission of India or a separate independent tribunal to ensure impartiality.
2. Time-bound Decisions: Mandating that the Presiding Officer must decide on a defection petition within a fixed timeframe (e.g., 3 months).
3. Limiting the Whip: Restricting the issuance of a “whip” only to no-confidence motions or critical policy matters, rather than every single vote, to protect the independence of legislators.

Quick Revision Summary

• The Tenth Schedule was added to prevent political instability caused by frequent defections.
• Disqualification applies to both elected party members and independent/nominated members under specific conditions.
• The 91st Amendment (2003) made the law more stringent by requiring a two-thirds majority for a valid merger.
• The Presiding Officer is the sole authority to decide on disqualification, though this is reviewable by the judiciary.
• The law does not apply to a merger where two-thirds of the members leave the party.
• The Speaker’s role in disqualification remains a subject of intense debate due to potential political bias.
• Reformers suggest moving the decision-making power to the Election Commission to ensure transparency.