CRITICAL ANALYSIS OF THE ANTI-DEFECTION PROVISIONS UNDER

CONSTITUTION

Defection means either voluntarily abandoning the membership of his party or abstaining or
voting against the political whip of the party leadership on a vote in legislature. The Tenth
schedule- The Anti-defection Law, sets the provisions for disqualification of elected members
on the grounds of defection to another political party.

Dwight D. Eisenhower- 'If a political party does not have its foundation in the determination to
advance a cause that is right and moral, then it is not a political party; it is merely a conspiracy
to seize power.'

BACKGROUND-

The evil of political defections if not combated, it would undermine our democratic foundation.
Therefore, on December 8, 1967, Lok sabha established a "Committee on Defection" after the
infamous instance of horse trading in Indian politics ('Aaya Ram, Gaya Ram'), when Gaya Lal
(MLA of Haryana), defected thrice during a fortnight.

Therefore, the Rajiv Gandhi government in 1985 introduced the Bill, which was enacted into the
Constitution (Fifty-second Amendment) Act, 1985. The said Act made alterations in Articles
101, 102, 190 & 191, besides adding the Tenth Schedule within the Constitution.

THE OBJECT OF THE LAW-

1. To make sure loyalty of the legislatures to political parties.

2. To curb the evil practice of unprincipled floor-crossing for non-public benefit.

PROVISIONS UNDER THE TENTH SCHEDULE IN THE CONSTITUTION-

Tenth Schedule [Article 102(2) & 191(2)] comprises of 8 paragraphs about disqualification on
the basis of defection with certain exceptions.

∆ Heart Of The Anti-defection Law.

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Para 2provides that a member of a House belonging to any political party shall be disqualified
for being a member of the House-

a) If he voluntarily gives up his membership of such political party; or

b) If he votes or abstains from voting contrary to any direction issued by the political party,
without obtaining the prior permission of such political party and such voting or
abstention has not been condoned within 15 days from the date of such voting or
abstention.
Moreover, An independent member be disqualified for being a member of the House if
he joins any political party after election. And a nominated member shall be disqualified
for being a member of the House if he joins any political party after the expiry of 6
months from the date he takes oath as a member of the House.

∆ The Exemption from disqualification in case of splits as contained in Paragraph 3 has been
omitted through the Constitution (91st Amendment) Act, 2003 because of its destabilizing effect
on the Government.

∆ Exceptions.

i. Paragraph 4- A member shall not be so disqualified if his original political party has
merged with another political party, provided that not less than two thirds of the members
of the legislative party concerned, have agreed to such merger or keeps away from the
merged party. This exception was 1/3rd members before the Constitution (Ninety-first
Amendment) Act, 2003.
ii. Paragraph 5- provides exemption for officers of the House. It says that a member of a
political party having been elected as an officer of the house, shall not be disqualified, if
he gives up membership of his party by reason of such office or he rejoins his original
party after he ceases to hold such office.

∆ Paragraph 6 provides that if any question arises as to whether a member of the House, has
become subject to disqualification, it shall be dealt by Chairman/Speaker of such House & his
decision shall be final.

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In Kihota Hollohon v. Zachilhu 1993, The majority of the Supreme Court ruled that the power
to resolve such disputes vested in the Speaker or Chairman, is a judicial power, not immuned
from judicial scrutiny under Article 122 or 212.

∆ In Kihota Hollohon case, the Supreme Court declared para 7 unconstitutional and invalid as it
affected the jurisdiction of the Supreme Court & the High Court under Articles 136, 226 & 227.

∆ Paragraph 8 empowers the Presiding Officer of the House to make Rules for giving effect to
the provisions of this Schedule.

LOOPHOLES OF THE LAW

The Speaker/Chairman are not impartial and invariably take decisions to suit their party's interest
and there is abnormal delay in their adjudication. The law does not fix any timeframe within
which to determine a disqualification case. Finally, in Keisham Megha Chandra Singh v.
Speaker, Manipur Legislative Assembly, 2020 the Supreme Court has fixed a timeframe of
three months within which the Speaker is required to dispose of the case.

This law does not disqualify a defector from contesting election during the remainder of the term
of the House. So, a defector can come back to the same House within six months. The
appropriate punishment would be disqualification from contesting again in the tenure of that
House.

Because of these lacunas, Indian politics is witnessing various political turncoats.

Jyotraditya Scindia created crisis, where On 10 March 2020, a senior leader of INC,
Jyotiraditya Scindia suddenly went to meet Mr.Narendra Modi and Amit Shah. After meeting
them, he resigned from the Congress party. On 11 March, he joined BJP. After joining the party,
Shivraj Singh Chouhan has given him ticket to Rajya Sabha from MP. On 21 March, all the 22
rebel ex-Congress MLAs joined BJP. It ultimately led to the drop down of the Kamal Nath
government and later formation of Shivraj Singh Chouhan government. Then in Rajasthan-
Sachin Pilot and 19 members from Rajasthan Legislative Assembly, flew to delhi after disputes
over different offices between rival factions of the Rajasthan Pradesh Congress Committee,
starting a governmental crisis Rajasthan. And the most noticed one is of Karnataka. In July
2019, several government members of the Karnataka Legislative Assembly in India submitted

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their resignations to the speaker, which led to the fall of the then United Progressive Alliance
government in Karnataka

SOLUTIONS

 Individual MPs and MLAs need to be empowered to think indepentdly.

 Anti-defection law should be applied only to confidence and no-confidence motions
(Dinesh Goswami Committee on electoral reforms, 1990) or only when the government
is in danger (Law Commission (170th report, 1999).
 The rationale that a representative is elected on the basis of the party’s programme can be
extended to pre-poll alliances.
 Instead of making Speaker the authority for disqualification, the decision should be made
by the president or the governor on the advice of the Election Commission. This would
make the process similar to the disqualification procedure as given in Representation of
Peoples Act (RPA).
 There can be additional penalties for defectors as well.

INTERNATIONAL POSITION ON ANTI-DEFECTION

 In Nigeria, the political parties have formulated the arrangement of procuring undated
letters of resignation from the candidates, approving and authorizing the leader to place
them in the hands of the Speaker in case the Member of Parliament crosses the floor.
 In United States, The legislator is more or less free from inflexible party whips. Each
congressman or a Senator in the U.S. is a legal commandment unto himself. Party lines
get distorted over every major parliamentary action and party associations are no
controller to his decision or action as replicated in his voting.
 In Australia, the Australian Labor Party requires its members to pledge their support for
the collective decisions of the caucus, which theoretically prohibits them from "crossing
the floor".

CONCLUSION

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The Anti-defection law was expected to check party hopping or floor crossing by elected
representatives for ulterior consideration and personal benefits. But, it has failed to contain the
menace. It has become totally outdated in view of the increasing complexities of the polity. It's
blanket application is contrary to the spirit of democracy. The law is silent as regards floor
crossing arising out of ideological differences.

REFERENCES

1. https://www.drishtiias.com/daily-updates/daily-news-analysis/need-for-changes-in-anti-
defection-law
2. https://www.google.com/amp/s/www.newindianexpress.com/nation/2018/apr/12/anti-
defection-law-hurdle-for-joint-poll-law-commission-of-india-report-1800308.amp
3. http://archive.indianexpress.com/news/antidefection-law/339606/
4. HTTPS://EN.M.WIKIPEDIA.ORG/WIKI/ANTI-DEFECTION_LAW_(INDIA)
5. HTTPS://WWW.GOOGLE.COM/AMP/S/WWW.DECCANHERALD.COM/AMP/OPIN
ION/MAIN-ARTICLE/LACUNAE-IN-ANTI-DEFECTION-LAW-1000777.HTML