Anti-defection Law and Freedom of Speech and Expression
Updated: Dec 19, 2021
Authored by Prity Kumari, a student of Rajiv Gandhi National University of Law, Patiala.
Each Betrayal Begins with Trust
- Martin Luther
In this article, I discuss the Anti-Defection Law which is part of the Indian Constitution under the 10th schedule added by the 52nd Constitutional Amendment Act, 1985. The law lays down the provision for disqualification of elected members on grounds of defection to another party (Eg: if elected members of party X shift their allegiance to party Y). The Preamble envisages India as a Sovereign, Socialist, Democratic, and Republic nation. Defecting political members have always posed a threat to the very foundation of Indian Democracy and principles which helped it to sustain. This law aims to reduce political instability and has been successful to some reasonable extent to maintain political instability. The present article lays out a brief analysis of the grounds mentioned under the 10th schedule. As law gets older day by day, it is a prevalent corruption amongst politicians, their dishonest tactics to think more about their personal needs than about the people who elected them in the first place, by taking advantage of the loopholes existing in the law. So, this article also intends to highlight some of the merits and demerits of the law. The present article attempt to unearth the loopholes which hinder the 52nd Constitutional Amendment Act to achieve its aim and the requisite changes needed to make it effective legislation. It also looks at some of the changes in the law and the way forward.
Aaya Ram Gaya Ram is a popular phrase related to anti-defection law, emerged when an elected member from Haryana Gaya Lal switched parties several times in a fortnight.
The political crisis in Madhya Pradesh and Rajasthan has once again brought the anti-defection law into the limelight. Initially, the Indian Constitution had no mention of parties, but ever since our country evolved into a multi-party system, defection has been witnessed by the Indian parliamentary system in large numbers resulting in the breakdown of public confidence in a democratic government. However, the word defection has not been defined in the Indian Constitution, but it simply means desertion by one member of a political party from his/her party, its leader, and its duties as well. The practice of crossing the floor or switching parties to grab office and power is known as horse-trading. The frequent practice of horse-trading had left a mark on Indian Democracy in the year 1967 when 142 MPs and 1900 MLAs switched their party. In an attempt to curb such corrupt practice, the then Rajiv Gandhi Government introduced anti-defection law in 1985 in the Indian Constitution by way of the 52nd Constitutional Amendment Act which inserted the 10th schedule popularly known as “anti-defection law”. The amendment put a restriction on the elected member to leave a party or switch to another party.
Articles 101, 102, 190, and 191 were amended by the introduction 52nd Constitutional Amendment Act of 1985 and inserted the Tenth Schedule in it. The Objects and Reasons being stated:
“The evil of political defections has been a matter of national concern, if not curtailed or deter the evil, it may hamper the very foundation of our democracy and principles.”
The abovementioned articles were amended to provide the grounds for vacation of seats on disqualification of an elected member both in the Union Executive and State Executive as well as per the 10th schedule of the Constitution.
The grounds for disqualifications are mentioned under RULE 2 of the 10th schedule:
1. If a member of a house belonging to a political party:
i. Has voluntarily given his membership of the political party.
ii. Votes, or abstains from voting in such a house, contrary to directions issued by his/her political party.
However, if such a member has obtained prior permission from the party within 15 days from such voting or abstention, such member shall not be disqualified.
2. If an independent member joins any party after elections.
3. If a nominated member joins a political party after expiry of 6 months from the date when he/she becomes a member of the legislature. 
Exceptions to disqualifications are mentioned under Rule 4 and Rule 5:
These are: A member of a House shall not be disqualified if his original political party merges with another political party, and he and any other member of his political party:
a. have become members of the other political party, or of a new political party formed by such merger
b. have not accepted the merger and opted to function as a separate group.
Various Recommendations to overcome the challenges posed by the law:
1. Dinesh Goswami Committee on electoral reforms: Disqualification should
be limited to the following cases:
i. A member voluntarily gives up the membership of his political party
ii. A member abstains from voting or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. Political parties could issue whips only when the government was in danger.
2. Law Commission (170th Report)
Provisions that exempt splits and mergers from disqualification to be deleted. Pre-poll electoral fronts should be treated as political parties under anti-defection political parties should limit the issuance of whips to instances only when the government is in danger.
3. Election Commission:
Decisions under the Tenth Schedule should be made by the President/ Governor on the
binding advice of the Election Commission.
91st Amendment Act:
Earlier the issue of mass defection was limited to 1/3rd, but this rule was remedied through the 91st amendment act which increased the bar from one third to two-third. Thus to merge 2/3rd members of a party shall be in favour of it.
Merits and Demerits of the Law
Like every other law, anti-defection law also comes with certain disadvantages. The positive side depicts that the law aims to provide political stability to the government by punishing the elected members who for their gain cross the floor to get the power. It also attempts to bring a sense of loyalty to a member of its party. 
Turning to the downsides, anti-defection laws tend to restrict the freedom of speech and expression of members by preventing them to vote or abstain from voting in contrary to their party. Looking at various judgments it has been held that freedom of speech under Articles 105 and 194 is not absolute. It is subject to Constitutional provisions and the 10th schedule is one of them. Another demerit is it decreases the accountability of the government to the Parliament and to the people who elected the members by way of preventing them to change their parties. 
Loopholes in the Law
It is evident from Rule 6 of the 10th schedule, the chairman or the speaker is given not only wide but absolute power in deciding the cases pertaining to the disqualification of an elected member on grounds of defection. But we all know that Speaker remains the member of the party which nominated him/her for it. In such circumstances, it is difficult to believe or expect that Speaker will act impartially in cases pertaining to his/her party. Once Mr. K.P. Unnikrishnan a member of Congress party in the Lok Sabha said that making the speaker sole repository of all judgment, you are allowing him/her to play havoc.
Another criticism is that they might lack the legal knowledge to adjudicate such cases. Earlier two speakers of Lok Sabha one being Mr. Rabi Ray in 1991 and another being Mr. Shivraj Patil in 1993 themselves expressed doubts on their suitability to decide cases on defections. However, a solution to this problem could be that power to decide such cases given to the High Court, Supreme Court, or Election Commission. But looking at the present backlog of pending cases it seems to be untenable. 
Scope of Judicial Review
Speaker acts as a tribunal and nothing more while deciding the cases on the defection. Earlier judicial review was barred. But, now this could be brought to the court after the Kihoto Hollohan case of 1992. Before this judgment, the speaker's decision was not subject to judicial review. But Supreme Court struck this condition partially stating that no intervention by the court until the speaker gives his/her decision. However, the final decision is subject to appeal to the High Court and Supreme Court respective.
What amounts to voluntarily giving up: Landmark Judgments
i. The question arose in many cases starting from Ravi Naik v. Union of India where the Supreme Court held that the words voluntary give up membership and resignation are not synonyms. A member can give up membership even without resigning from the party.
ii. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly the court held that a member being expelled remains the member of that party however, he/ she is considered to be unattached.
iii. Rajendra Singh Rana v. Swami Prasad Maurya and Others it was held that a member by way of writing a letter to Governor to form the government with Opposition party ultimately amounts to giving up his member.
i. A congress member Jyotiraditya Scindia along with 22 people switched from Congress to the BJP. In this scenario, Jyotiraoaditya is not a defector under anti-defection law as he was not an MLA or MP at that particular time. But, the other 22 MLAs are subjected to the anti-defection law.
ii. Former Deputy CM of Rajasthan and Congressman Sachin Pilot along with 18 MLAs rebelled against the CM Ashok Gehlot. The notice of their disqualification was given by the speaker CP Joshi. Following, Sachin Pilot challenged the decision in the High Court and Supreme Court as well. They sought that neither they gave up membership nor did not attend party meetings results in their disqualification. The apex court held that dissent of an elected member cannot be suppressed, nobody can be shut down like this in democracy.
On a clear analysis, it is crystal clear that there is no individual member stand under the anti-defection law. Rule 2 of the 10th schedule puts a bracket of obedience upon members to the policies and party whips. Curbing freedom of speech and expression under Article 19(1)(a) of the Constitution. This restricts their right to oppose wrong acts of the party, bad policies, leaders, and so on. We can say the political party acts like a dictator, whose members are not allowed to dissent. Thus it violates the fundamental principle of representative democracy. This could have been useful if the real reason behind the dissent to be taken into consideration.
Secondly, there also lies a problem with merger provision. Though the number has been changed from 1/3rd to 2/3rd. This directly depicts the flaw to the exception which is based on quantity rather than quality. This could be of more help if the real reason behind the merger is to be known rather than the numbers of members.
The insertion of the 10th schedule in the Indian Constitution was done to curb the political instability of our country which imposes a threat to the very foundation of democracy. Though we cannot snub the success it has achieved reasonably to some extent, but at the same reference, we cannot deny the fact that due to existing loopholes, it has not been able to achieve the best it can. The dishonest and corrupt politicians have always found a way out of the loopholes to acquire their personal needs in the best possible manner. But we may suppose that some changes in the law might help it to develop to the best extent possible.
i. The power to the party whip should be reduced so that the only those members who vote against the party manifesto are subject to disqualification and not those who vote against the party in a not-so-important matter or a matter which does not core to the party manifesto. This will in a way help the members to have some individual viewpoints on various issues.
i. The law must explicitly set out what it means by the words ‘voluntarily giving up membership’ to avoid any confusion.
ii. The law must be reviewed to end any conflicts between the legislature and the judiciary based on Rules 6 and 7 of the Schedule.
References-  J. K. Mittal, Parliamentary Dissent, Defection and Democracy, 35 J. INDIAN L. INSTI. vii (1991).  2 Jenna Narayan, ‘Defect-Shun’: Understanding Schedule X to the Constitution of India, INDIA LAW JOURNAL (2007), http://www.indialawjournal.org/archives/volume3/issue_1/article_by_jenna.html.  INDIA CONST., arts. 101, 102, 190, 191. Id., Schedule X, ¶ 2  Id., Schedule X, ¶ 4.  PRS Legislative Research, The Anti-Defection Law – Intent and Impact (Nov. 23, 2009), http://www.prsindia.org/administrator/uploads/general/1370583077_Anti-Defection%20Law.pdf.  G.C. MALHOTRA, ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH (Lok Sabha Secretariat, 2005).  G.C. MALHOTRA, ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH (Lok Sabha Secretariat, 2005)  Id.  aved M. Ansari, Anti-defection law: The great divide, INDIA TODAY (Jun. 20, 2013), http://indiatoday.intoday.in/story/controversy-over-anti-defection-law-interpretation-puts-judiciary-and-executiveon-collision-course/1/306142.html.  Id.  Kihoto Hollohon v. Zachilhu and Others, AIR 1993 SC 412.  Ravi S Naik v. Union of India, AIR 1994 SC 1558  G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) SCC 353.  Rajendra Singh Rana v. Swami Prasad Maurya and Others, 2007 (4) SCC 270. https://www.thehindu.com/opinion/editorial/stealing-a-mandate-the-hindu-editorial-on-madhya-pradesh-political-crisis/article31136885.ece https://www.thehindu.com/news/national/other-states/rajasthan-political-crisis-governors-nod-for-assembly-session-but-with-riders/article32206592.ece