The Impact of Anti–Defection Law on the Legislatures
Authored by Abhishek Bhushan Singh, a 5th-year student at Christ (Deemed to be University) Bengaluru
The tenth Schedule of the Constitution, popularly known as the Anti- defection law, was added by the 52nd constitutional amendment act of 1985. Defection is defined as "desertion by one member of the party of his loyalty towards his political party, his duty towards his party or to his leader." Switching political parties to get positions in ministry and offices was popularly known as horse-trading. Many horse-trading and corruption are prevalent amongst the political leaders and political parties. One of the significant incidents that hit India's political history and left a mark on it happened after the 1967 elections, where about 142 MPs and 1900 MLAs switched their political parties. To curb such an evil practice, the Rajiv Gandhi government in the year 1985 introduced anti-defection laws in the Indian Constitution. The introduction of the 52nd constitutional amendment, often known as the Anti-defection statute, introduced the tenth Schedule into the Constitution. This amendment restricts the ability of elected members of a political party to leave or switch to another political party in Parliament.
The 52nd Constitutional Amendment
The 52nd Constitutional Amendment Act of 1985 added the Tenth Schedule to the Indian Constitution, amending Articles 101, 102, 190, and 191. The following are the objectives and reasons for the amendment as indicated in the declaration of objects and reasons: -
Based on the Tenth Schedule of the Constitution, Articles 101, 102.190, and 191 were revised to give grounds for the vacation of seats on disqualification of a member, both in the Union executive and in the State executive.
Rule 2 of the Tenth Schedule provides the following grounds for the disqualification:
If a member of a house belonging to a political party:
(a) Has voluntarily given up his membership of such political party, or
(b) Votes or abstains from voting in such House, contrary to the directions of his political party.
However, the member will not be disqualified if they have obtained prior approval or are excused by the party within 15 days of the vote or abstention.
After the election, an independent candidate joins a political party.
If a nominated member of a house joins a political party after the six months following his election to the legislature has expired.
Rule 4 and Rule 5 highlight the exemptions from disqualification. These are:
A member of the House is not disqualified if he or any other member of their political party unites with another political party, and he or any other member of their political party:
have joined the other political party or a new political party created as a result of the merger
have not accepted the merger and opted to function as a separate group.
In addition, the original Act of 1985 provided for an exemption from disqualification in the event of political party splits. Members will not be disqualified if they represent a fraction of the original political party that has arisen owing to a split in the party, according to Rule 3. It was deemed a split if one-third of a political party's members defected, and it was not actionable.
The Dinesh Goswami Committee on Electoral Reforms (1990) recommended that disqualification should be limited to cases where a member voluntarily gives up the membership of his political party or abstains from voting or votes contrary to the party. The Committee recommended deletion of the provision regarding exemption from disqualification in cases of a split. Also, the Law Commission in its 170th report of 1999 on "Reform of Electoral Laws" and the National Commission to Review the Working of the Constitution (NCRWC) recommended that provisions that exempt splits and mergers from disqualification must be deleted. Following the recommendations, this provision relating to split into parties was omitted by the Constitution 91st amendment Act enacted in 2003.
In the event of a dispute over the occurrence of disqualification, Rule 6 of the Schedule establishes the deciding authority. It gives the Chairman or Speaker of the House enormous power in the event of a disagreement over whether or not a member of the House has been disqualified. The Speaker's power is absolute and immense in the sense that Rule 7 of the Schedule precludes courts from having jurisdiction over any matter relating to the disqualification of members of a house.
Advantages and Disadvantages of The Law
Anti-defection laws, like every other law, have advantages and disadvantages. On the plus side, the law tries to provide stability to the government by punishing members who change their party affiliation. Anti-defection legislation also aims to instil in members a sense of loyalty to their own party. This is accomplished by ensuring that members chosen in the name of the party, its support, and the party platform remain faithful to the political party to which he belongs and its policies.
In terms of the disadvantages, anti-defection laws tend to limit members' freedom of speech and expression by prohibiting them from expressing any dissident views on party policies. However, numerous rulings have found that the freedom of speech guaranteed by Articles 105 and 194 is not absolute. It is bound by the Constitution's provisions, one of which is the Tenth Schedule. Another flaw in the law is that it limits the government's accountability to Parliament and the public by barring members of political parties from switching parties.
Broad Power to the Speaker
As is evident from Rule 6 of the Tenth Schedule, the Chairman or the Speaker of the House is given broad and absolute power in deciding the cases pertaining to disqualification of members on the ground of defection. It should be noted, though the Speake is still a member of the party that nominated them for Speaker. It's difficult to expect the Speaker to behave impartially in issues involving their political party in such a situation. "By making the Speaker the single repository of all judgment, you are inviting him to play havoc," said Mr. K.P. Unnikrishnan, a member of the Congress party in the Lok Sabha. A solution to the problem could be that the power to decide such cases be given to High Court, Supreme Court, or the Election Commission. But looking at the current backlog of cases pending in the courts and the controversies surrounding the Commission, the solution seems to be untenable.
Another charge levelled against the Speaker is that he may lack the legal knowledge and skill necessary to rule on such cases. In reality, two Speakers of the Lok Sabha, Mr. Rabi Ray in 1991 and Mr. Shivraj Patil in 1993, have both raised reservations about their abilities to decide on matters involving defections.
The Dinesh Goswami Committee on Electoral Reforms, appointed by the V.P. Singh government in 1990, and the Election Commission recommended that the power to decide on the issue of disqualification under the Tenth Schedule should be given to the President or the Governor of the State, who shall act on the advice of the Election Commission. However, it can be seen that no amendments have been made in the Act giving effect to these recommendations.
Scope of Judicial Review
Rule 7 prohibits courts from having jurisdiction over any matter relating to a member of the House's disqualification, which means that no court, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution, can review the Speaker's decisions in this regard. Given the challenges listed above, this could have disastrous results. In a way, the legislature attempted to limit the power of the judiciary granted by the Constitution, which is unsustainable. Judicial review was deemed to be an essential aspect of the Constitution in Keshavananda Bharati and Others v. the State of Kerala and Others, and the Constitution could not be altered to contradict its basic structure. The norms relating to anti-defection statutes, on the other hand, have been determined in Ravi S Naik v. Union of India to be essentially procedural, and any infringement of them, as a procedural irregularity, is exempt from judicial scrutiny.
The rule banning courts from exercising jurisdiction has been challenged several times, with the Court ruling in Kihoto Hollohon v. Zachilhu and Others that the law is legal in all aspects except for judicial review, which was found to be unconstitutional. Article 368(2) of the Constitution requires the States to ratify any measure that affects Articles 136, 226, or 227 of the Constitution. The Supreme Court found the rule unlawful since the required number of state legislatures had not ratified it. The Court also stated that when the Speaker decides issues involving party defections, the Speaker functions as a tribunal and nothing more and that their rulings are subject to the High Courts' and Supreme Court's review powers. The Supreme Court cautioned against using the judicial review power before the Speaker made any judgement, citing a norm of caution. On the matter of review of the decision of the Speaker by the Speaker himself, it was held in Dr. Kashinath G. Jhalmi v. Speaker, Goa Legislative Assembly that the provision does not provide for any such power on the part of the Speaker and thus, the Speaker cannot review his own decision.
However, despite multiple judicial pronouncements in support of the Courts' authority of judicial review, no adjustment to the Tenth Schedule has been made in this regard.
What Amounts to 'Voluntarily Giving Up'
The Tenth Schedule's Rule 2(1)(a) states that a member of the House is disqualified from the political party if he freely gives up his membership; however, the Schedule does not define "voluntarily giving up." Is it limited to the member's resignation from the party, or does it have a broader meaning? In Ravi Naik v. Union of India, the Supreme Court addressed this issue, holding that the word has a broader meaning than might be inferred from the members' actions. The phrases "voluntarily give membership" and "resignation" was not used interchangeably. It was decided that a person might freely give up their membership in a political party without offering their resignation.
The question in G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly was whether or not joining another political party after being ousted from the previous one was voluntary participation. In this instance, it was decided that even if a member is expelled from a political party, they remain a member of the former party for the purposes of the Tenth Schedule. If an expelled member joins another political party after being expelled, he is regarded to have freely given up his old political party membership.
Another case, Rajendra Singh Rana v. Swami Prasad Maurya and Others broadened the meaning of the words' voluntarily giving up membership.' A letter from an elected party member to the Governor urging that he call on the leader of the opposing party to form a government was found to be an act of willingly giving up membership in the party of which he is an elected member in the case.
Problem with Merger Provision
While Rule 4 of the Tenth Schedule appears to give an exception from disqualification of members in merger proceedings, there appears to be a legal loophole. The clause is intended to protect members of a political party in the event that the original political party merges with another party, provided that at least two-thirds of the members of the legislature party are involved in agreeing to the merger. The fault appears to be that the exception is based on the number of defections rather than the cause for them. Individual members' most typical reasons for defecting appear to be the offer of lucrative office or cabinet positions with the opposing party. It's reasonable to assume that the same explanation will be available to two-thirds of the members who have agreed to the merger. If a single member's desertion is unacceptable, it's tough to argue that the same is true in the case of mergers just because a large number of people are involved. As a result, the provision appears to be defective, as it tends to damage the nation's democracy. If the clause had taken into account the real cause for the merger rather than the number of members involved, it would have been more useful.
The Tenth Schedule was included in the Indian Constitution in order to prevent political defections. Though the law has succeeded in a reasonable manner, it has not been able to realize its full potential due to some of its flaws. Through their dishonesty, corrupt politicians have been able to exploit legal flaws to fit their purposes to the greatest extent feasible. The following legal amendments may aid in its development to the greatest extent possible:
The party whip's power should be curtailed so that only those members who vote against the party manifesto are disqualified, not those who vote against the party on a minor issue or one that is not fundamental to the party program. This will, in some ways, assist the members in developing their own unique perspectives on many subjects. To avoid any misunderstanding, the law must define what is meant by the terms "voluntarily giving up membership." The provision relating to mergers, which exempts members from disqualification if they defect in large numbers (two-thirds), must be amended to make the reason for defection the basis for exemption from disqualification rather than mere numbers. According to Rules 6 and 7 of the Schedule, the legislation must be reviewed to resolve any disagreements between the legislative and the judiciary.
 INDIA CONST., arts. 101, 102, 190, 191  G.C. MALHOTRA, ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH (Lok Sabha Secretariat, 2005).  Javed M. Ansari, Anti-defection law: The great divide, INDIA TODAY (Jun. 20, 2013),  Keshavananda Bharati and Others v. State of Kerala and Another, AIR (1973) 4 SCC 225.  Ravi S Naik v. Union of India, AIR 1994 SC 1558  Kihoto Hollohon v. Zachilhu and Others, AIR 1993 SC 412  Dr. Kashinath G. Jhalmi v. Speaker, Goa Legislative Assembly, (1993) 2 SCC 703.  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.