Symbiosis Law School, Pune.

A constituent of Symbiosis International Deemed University, Pune.

Constitutional LAW
Internal Assessment

Topic- write up:

Analysis of the current anti-defection laws and need for reforms

NAME: AKSHATA WAGHMODE

PRN:19010126082.

CLASS: 2ND YEAR BBA LLB HONS. ‘A’

BATCH: 2019-2024
 Anti-defection laws-need for reforms
“TO DETER THE EVIL OF POLITICAL DEFECTIONS”
The gist of the current anti-defection law and its introduction into the constitution
Over the years, several contentious issues in relation to the working of the law have arisen. Does
the law, while deterring defections, restrict a legislator from voting as per his conscience and
erode his independence? Does the law lead to suppression of healthy intra-party debate and
dissent? Does it restrict representatives from voicing the concerns of their voters in opposition to
the official party position? Should the decision on defections be judged by the Speaker who is
usually a member of the ruling party or coalition, or should it be decided by an external neutral
body such as the Election Commission?

Introduced through the 52nd amendment in 1985 as the original constitution had no provisions
regarding the anti-defection act or the 10th schedule of the Indian constitution. The sole objective
of the provisions enacted by this law were to curb the dark political side of the legislators in the
quest for power money and other similar such considerations.

Grounds for disqualification under anti-defection law

1)if a person who has been elected voluntarily decides to withdraw his membership of a political
party

2) If he votes or refrains from voting in that House, without seeking prior permission, opposed to
any instruction provided by his political party or anyone allowed to do so

Articles-102(2) and 191(2) 1deal with the provisions entailed regarding anti-defection laws. The
intention of the provision was to not repeat the infamous “AAYA RAM GAYA RAM “incident
of 1960 2. The legislation initially permitted defections if one third of the members were
involved, i.e. In the case of 'split' in a political party, it had rules relating to exemption from
disqualification. But this undesirably led to mass resignations rather than individual resignations.

The failure of the law to curb defection

1
Section 102 and 192 of the Constitution of India, 1950.
2
P Deepak ,Politics of defection,the editorial times -1979-
However the issue relating to mass resignations because of the previously practiced 1/3rd rule
was reformed through the 91st amendment to the constitution which eventually raises the bar to a
majority of 2/3rd,thus 2/3rd members of the party have to support and back the merger for it to
be legitimate.
Exceptions to the rule-

If In case a complete political party decides to favor another complete political party, it will not
be considered unlawful in the eyes of law.

If another political party is formed by elected members of a political party, If the majority
members or a he /she hasn’t accepted a merger between two political parties and has since
decided to act as a separate entity/group .

The question of whether the disqualification under the grounds of defection can be a
matter of judicial review?

Speaker of the house is the member assigned to decide upon defection cases. A member tribunal
is set consisting of a speaker in defection cases. In the landmark case of Akihito Hollohan -
1992,3 the decision regarding the case of defection was brought to the court even when the courts
had no proper jurisdiction to govern the case and were thus carried as proceedings in parliament
or in the legislature of a state. However it has been set that the final overview is upto the appeals
of high courts and apex courts and thus the final decision reside upon the courts regarding anti-
defection laws4.

Concerns raised regarding the issues due to anti-defection laws

The anti-defection law has failed to meet its objective of curbing political defections and
ensuring political stability. Further, the law has unintended consequences which refrain
legislators from effectively carrying out their duties. The legislator is not able to exercise his own
conscience and judgement, and is unable to discharge his constitutional duty to hold the
government accountable. The law has also impacted the ability of voters to hold their elected
representative accountable. For these reasons, it may be pertinent to consider whether the anti-
defection law should be repealed. The 2008 Confidence Motion (Centre) A confidence motion

3
R. Kothandaraman, Ideas for an alternative Anti-Defection law, 2006.
4
“Speech to the Electors of Bristol”, Edmund Burke, November 3, 1774,
was moved by the United Progressive Alliance government in Lok Sabha in July 2008. The
motion was necessitated since the Communist Party of India (Marxist) withdrew support from
the government over the nuclear deal with the USA. Although the anti-defection law was in
force, 21 MPs defied the whips issued by their party while voting on the motion.5

There are certain concerns raised in opposition of the current anti -defection laws:

 It tarnishes majorly the independence of MPs/MLAs.

 In the whole of constitution of India it is only the 10th schedule included in the year 1985
-political parties were tended to be included in the constitution as a matter of fact the
drafters had no intention of serving control of members to parties. Members to the
parliament and legislators need to be given voice in order to represent their constituencies
in a much diverse country like India.
 the laws don’t provide proper incentives to members to reach and introduce beneficial
policies.

Suggestive reforms to the current anti -defection law:

Over the years, several amendments have also been suggested to reform various aspects of the
law. For instance, one of the main objectives behind the introduction of the law was to ensure
stability of the government. Therefore, several bodies have recommended that the application of
the law should be restricted to votes which affect the stability of government, i.e., votes on no-
confidence motions and money bills. 6This would also imply that the law would not apply to the
upper houses of the legislature, i.e., Rajya Sabha and the Legislative Councils of states. This
amendment was endorsed in a private member bill proposed by a Member of Parliament in
2010.15 Another area of reform has focused on the need for an independent adjudicating
authority to decide disqualifications under the law. Several experts have noted that the office of
the Speaker may not meet this requirement.Therefore, it has been suggested that decisions for
defection cases should be taken by the President (for the Centre), or Governor (for states), on the
binding advice of the Election Commission. This is similar to the practice that is followed for
deciding questions related to disqualification of legislators on other grounds such as holding an

5
Text of debates, December 5, 2012, Fifteenth Lok Sabha
6
Csaba Nikolenyi, “Keeping Parties Together? The Evolution of Israel’s Anti-Defection Law?”, Polish
Political Science Yearbook, Volume 47(2), 2018
office of profit under Constitution.7

1. Discussions regarding democracy of the country /major issues and the problems the
country is facing need to encouraged and discussed among members and MPs and MLAs
need to be empowered to think independently
2. The concept of a member being elected on the basis of a party’s agenda can be more or
less extended towards conduction of pre-poll alliances.
3. the election commission shall interfere in the matters of judicial review and not the
legitimate authority -speaker, even the president and governor shall be included while
reviewing a matter of such concern as it matches the procedure followed in the
representation of people’s act
4. hefty fine should be imposed upon defectors of a political party
5. The Speaker must rule on a dispute under the Tenth Schedule as expeditiously as
possible. For this, a period of six months for disposal of the petition has been
recommended.
6. however, political parties shall limit issuance of whips to instances only when a
government is in a critical position .
7. provisions which exempt mergers from disqualification should be deleted.

The speaker must rule on a dispute under the tenth schedule as expeditiously as possible. For this
,a period of six months for disposal of the petition has been recommended. It will open up the
legislative room to limit the rigors of the whip combined with the above initiatives and guarantee
that each government aims for not just the cross-party cohesion on legislation, but extends out to
individual legislators instead of just their leadership, enhancing participatory legislative
proposals in the process.

7
‘Speakers not time-bound to decide on anti-defection cases’, The Economic Times, May 17, 2018, Last accessed
November 21, 2019