The Anti-Defection Law, encapsulated in the Tenth Schedule of the Indian Constitution, aims to curb political defections by legislators, ensuring stability in the government and upholding the sanctity of the electoral mandate.

MEANING, DEFINITION & EXPLANATION

Defection refers to the act of abandoning one’s political party to join another, often for personal gain or due to ideological shifts. The Anti-Defection Law, introduced through the 52nd Amendment Act of 1985, seeks to deter such practices by disqualifying defecting legislators from their parliamentary or assembly seats. This law applies to both Parliament and state legislatures, aiming to maintain the integrity of the political process.

HISTORICAL BACKGROUND / EVOLUTION

The phenomenon of political defections became prominent in the late 1960s, notably with the case of Gaya Lal, an MLA from Haryana, who changed parties thrice within a fortnight, giving rise to the term “Aaya Ram Gaya Ram.” Such rampant defections led to political instability, prompting the need for a legal framework to address the issue. Consequently, the Anti-Defection Law was enacted in 1985, adding the Tenth Schedule to the Constitution.

LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA

The Tenth Schedule outlines the grounds for disqualification:

• Voluntary Giving Up of Membership: A legislator who voluntarily resigns from their party is liable for disqualification. The Supreme Court, in Ravi S. Naik v. Union of India, interpreted that “voluntarily giving up” isn’t limited to formal resignation but can be inferred from conduct.

• Voting Against Party Directions: Voting or abstaining from voting contrary to the party’s directive (whip) without prior permission can lead to disqualification. However, if the party condones the act within 15 days, disqualification can be avoided.

• Independent and Nominated Members: An independent member joining a political party after the election, or a nominated member joining a party six months after taking their seat, attracts disqualification.

The decision on disqualification is made by the Speaker or Chairman of the respective House, and their decision is subject to judicial review.

AMENDMENTS / ADDITIONS / REPEALING

The Anti-Defection Law has undergone significant amendments:

• 91st Amendment Act, 2003: This amendment removed the provision allowing disqualification exemptions in case of splits, which previously permitted one-third of the members to split without disqualification. Now, only mergers involving at least two-thirds of the members are exempt from disqualification. Additionally, it restricted the size of the Council of Ministers to 15% of the legislative members, aiming to prevent jumbo cabinets formed to entice legislators.

CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS

• Kihoto Hollohan v. Zachillhu (1992): This landmark judgment upheld the constitutionality of the Anti-Defection Law but allowed for judicial review of the Speaker’s decisions, ensuring they are not absolute and can be challenged on grounds of malafides or perversity.

• Rajendra Singh Rana v. Swami Prasad Maurya (2007): The Supreme Court set aside the Uttar Pradesh Assembly Speaker’s decision, emphasizing that the Speaker’s powers under the Tenth Schedule should be exercised judiciously and are subject to judicial scrutiny.

DOCTRINES / THEORIES

• Doctrine of Necessity: This doctrine has been invoked to justify actions taken to maintain governmental stability, even if they involve bending certain rules. In the context of anti-defection, it underscores the need to prevent frequent defections that could destabilize the government.

MAXIMS / PRINCIPLES

• “Expressio Unius Est Exclusio Alterius”: This legal maxim, meaning “the express mention of one thing excludes others,” applies here to interpret that the specific grounds for disqualification mentioned in the Tenth Schedule exclude other grounds.

CRITICISM / APPRECIATION

While the Anti-Defection Law has been instrumental in curbing opportunistic party-switching, it has faced criticism for:

• Curtailing Freedom of Speech: Legislators are compelled to adhere strictly to party directives, potentially stifling dissent and genuine debate.

• Role of the Speaker: The impartiality of the Speaker in adjudicating disqualification petitions has been questioned, given their political affiliations.

• Judicial Delays: Though the law allows for judicial review, court proceedings can be protracted, delaying the resolution of defection cases.

FUTURE IMPLICATIONS

To enhance the effectiveness of the Anti-Defection Law, several reforms can be considered:

• Independent Adjudicatory Mechanism: Establishing a neutral body, possibly the Election Commission, to decide on disqualification petitions, reducing potential biases.

• Limiting the Scope of Whip: Restricting the issuance of whips to critical matters like confidence motions, allowing legislators greater freedom on other issues.

• Time-bound Adjudication: Mandating a specific timeframe for the Speaker or adjudicatory body to decide on disqualification petitions to prevent undue delays.

COMPARISON WITH OTHER COUNTRIES

Different countries have adopted varied approaches to address political defections:

• Bangladesh: The Constitution mandates that MPs vacate their seats if they resign from or vote against their party.

• South Africa: Initially, MPs lost their seats upon changing parties, but a 2002 amendment allowed for “floor-crossing” during designated periods.

• United Kingdom: There are no legal restrictions on MPs changing parties; however, such actions are often heavily criticized.