Anti-Defection Law (10th Schedule) - Indian Polity Notes

Anti-defection law was created to guarantee that a party member does not violate the party's objective, and if he does, he will lose his House membership. The anti-defection statute was enacted in 1985 as part of the 52nd Amendment Act. It was included in the Tenth Schedule of the Indian Constitution and is commonly referred to as the Anti-Defection law. It basically lays forth the circumstances for a Member Legislative Assembly or Member Parliament to lose his powers as an Elected Representative of a party and so be excluded from the party. This article explains the Anti-Defection Law (10th Schedule) which is important for UPSC IAS exam preparation.

Anti-defection Law (10th Schedule) - Background

• In Haryana, in 1967, an MLA named Gaya Lal changed his party thrice in a day, after which the phrase "Aaya Ram Gaya Ram" became popular in Indian politics.
• Due to frequent defections of elected and nominated party members, good governance became elusive and an insecure environment was created for the functioning of state and central governments.
• It was realised that there was a need for an anti-defection law which would seek to prevent such political defections.
• Rajiv Gandhi, the then Prime Minister of India(1984-1989), proposed a bill to remove the evils of defection.
• The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment of the Indian Constitution in 1985.
• Later, the 91st Amendment Act of 2003 made one adjustment to the Tenth Schedule provisions. It deleted an exemption provision, which stated that disqualification for defection would not apply in the event of a split.

Provisions Under the Anti-defection Law

The Tenth Schedule contains the following regulations regarding disqualification of members of Parliament and state legislatures for defection:

Disqualification Members of Political Parties

• A member of a House belonging to any political party is disqualified for membership in the House if;
  • he voluntarily gives up his membership in such political party; 
  • he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission from such party and such act has not been condoned by the party within 15 days.
• According to the preceding condition, a member elected on a party ticket must remain in the party and follow the party's rules.

Independent Members 

If an independent member of a House is elected without being nominated as a candidate by any political party, he is prohibited from continuing to serve in the House.

Nominated Members

• A nominated member of a House is disqualified from becoming a member if he joins any political party after six months from the day he takes his place in the House. 
• This implies that he is free to join any political party within six months after holding his position in the House without fear of being disqualified.

Power To Disqualify

• The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, whose decision is final.
• If a complaint is received regarding the defection of the Chairman or the Speaker, a member of the House who must be elected within the House, shall take the decision.
• All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.

Rule Making Power

• The presiding officer of a House has the authority to enact rules to carry out the requirements of the Tenth Schedule. 
• All such regulations must be laid before the House for a period of 30 days. They may be approved, modified, or rejected by the House. 
• Furthermore, he may require that any intentional violation of such regulations by any member be dealt with in the same manner as a breach of House privilege. 
• The presiding officer can only take up a defection issue if he receives a complaint from a member of the House, according to the rules. 
• Before making a final judgement, he must offer the member (against whom the complaint has been lodged) an opportunity to explain himself.
• He may also send the matter to the privileges committee for investigation. As a result, desertion has no immediate and automatic consequences.

Advantages of Anti-Defection Law

• The Anti-Defection Law promotes political stability by limiting politicians' proclivity to switch parties.
• It allows democratic realignment of parties in the legislature through party merger.
• It eliminates political corruption as well as non-development expenditures caused by irregular elections.
• It establishes the existence of political parties in the constitution for the first time.
• The law is intended to provide stability to the government by penalising members for any party switches on their part.
• Furthermore, anti-defection rules attempt to instil in members a sense of allegiance to their own party.
• This is attempted by ensuring that the members chosen in the name of the party and its support, as well as the party manifesto, stay faithful to the political party to which he belongs and its principles.

Exceptions

• If two-thirds of the elected members of a political party decide to merge into another party, neither the members who decide to join nor the ones who stay with the original party will face disqualification.
• Any person elected as Chairman or a Speaker can resign from his party, and rejoin the party if he abandons that post. 
• Earlier, the splitting of political parties was permitted, but currently, it is not allowed.
• Nominated members who are not members of any party can choose to join a party within six months; after which they are treated as a party member or an independent member.

Issues of Anti-Defection Law

• The Anti-Defection Law makes no distinction between disagreement and defection. It restricts the legislator's liberty to dissent and conscience. Thus, 'it plainly elevates party bossism and legitimises party dictatorship in the name of party discipline.
• Its difference between individual and collective defection is illogical. In other words, it prohibited just retail defections while permitting wholesale defections.
• It does not allow for the removal of a member from his party because of his activity outside of the legislature.
• Its distinction between independent and nominated members is illogical. If the former joins a political party, he is disqualified, but the latter is permitted to do so.
• The presiding officer's decision-making authority is criticised on two grounds. 
• First, due to political constraints, he may not be able to use this power impartially and objectively. 
• Second, he lacks the legal expertise and experience required to hear the cases. In reality, two Lok Sabha Speakers (Rabi Ray in 1991 and Shivraj Patil in 1993) have raised reservations about their abilities to hear cases involving defections.

91st Amendment act (2003)

• The 91st Amendment Act of 2003 included the following changes to limit the size of the Council of Ministers, prohibit defectors from holding public office, and tighten anti defection legislation:
• The entire number of ministers in the Central Council of Ministers, including the Prime Minister, should not exceed 15% of the Lok Sabha's total strength.
• A member of either House of Parliament belonging to any political party who is disqualified on the premise of defection will likewise be ineligible to be appointed as a minister.
• The overall number of ministers in a state's Council of Ministers, including the Chief Minister, should not exceed 15% of the entire strength of that state's Legislative Assembly. However, the number of ministers in a state, including the Chief Minister, cannot be less than 12.
• A member of either House of a state legislature from any political party who is disqualified for defection is likewise disqualified for appointment as a minister.
• A member of either House of Parliament or either House of a State Legislature from any political party who is disqualified on the basis of defection is likewise barred from holding any remunerative political job. 
• The term "remunerative political post" refers to 
  • any office under the Central Government or a state government where the salary or remuneration for such office is paid out of the public revenue of the concerned government;
  • any office under a body, whether incorporated or not, which is wholly or partially owned by the Central Government or a state government and the salary or remuneration for such office is paid by such body, except where such salary.
• The clause in the Tenth Schedule (anti-defection statute) relating to exemption from disqualification if one-third of the legislature party separated has been removed. 
• It means that defectors are no longer protected on the basis of splits.

Suggested Reforms

Dinesh Goswami Committee(1990) on electoral reforms

• The current provisions of disqualification were recommended by this committee.
• The President/Governor( acting on the advice of the Election Commissioner) was recommended as the deciding authority.

Haleem Committee(1998)

• It asked for a comprehensive definition of the words “voluntarily giving up the membership of a political party” and the term political party.
• Certain restrictions like the future prohibition on holding government offices to be imposed on expelled members.

170th Law Commission Report(1999)

• It recommended treating pre-poll electoral fronts as political parties under the anti-defection law.
• The issuance of whips to be restricted to be used only if the Government is under a threat.
• It also recommended the deletion of the provision exempting splits and mergers from disqualification.

Constitution Review Commission(2002)

• It suggested the barring of the defectors from holding public offices or any other political post for the duration of their remaining terms.
• The vote cast by a defector to topple a Government must be considered invalid.

The Election Commission has proposed that it be the deciding authority in cases of defection.

Others have suggested that defection petitions should be heard by the President and Governors. The Supreme Court has recommended that Parliament establish an independent panel, led by a retired judge from the higher judiciary, to determine defection cases quickly and fairly. Some observers have stated that the law has failed and that it should be repealed. Former Vice President Hamid Ansari has claimed that it only applies in no-confidence motions to rescue governments.

Important Supreme Court Judgments

• In the Kihoto Hollohan vs Zachillu and others Case of 1992, the Supreme Court held that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman. Nor would interference be permissible at an interlocutory stage of the proceedings carried by the Speaker/Chairman. However, before this case the decision of the Speaker/Chairman was considered final and was not subject to judicial review. This provision was rendered unconstitutional by the Supreme Court.
• In the Ravi S Naik vs Union of India Case of 1994, the Supreme Court cleared that the phrase “voluntary gives up membership of a political party” had wider connotations and was not synonymous with resignation.
• In the Rajendra Singh Rana vs Swami Prasad Maurya Case of 2007, the Supreme Court stated that if the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. He is also considered to be in violation of his constitutional duties.

Conclusion

With the rising levels of corruption and cases of defection within the Indian political system, there is an urgent need for a watchdog to prevent them in the future. The Anti-defection law does try to mitigate such instances, but so far it has not been sufficiently successful. For example, it could not prevent the defection of Arunachal Pradesh chief minister PemaKhandu, along with 43 MLAs from the Congress Party to the People’s Party of Arunachal. There is also a need for building up a political consensus so that there is room for political expression in the Parliament for the members.

FAQs

MCQs

Question: Which one of the following schedules of the Indian Constitution contains provisions regarding anti-defection?

(a) Second Schedule

(b) Fifth Schedule

(c) Eighth Schedule

(d) Tenth Schedule