Anti-defection law: Features, limitations and reforms

Some time back, the Election Commission of India allotted the name Shiv Sena and the party’s symbol – bow and arrow – to the Eknath Shinde faction, effectively acknowledging it as the original party that Balasaheb Thackerey founded. 

In another case, in March 2021, eight out of the 12 nominated members in Rajya Sabha joined the ruling party (BJP). Moreover, former nominated MP Swapan Dasgupta resigned from Rajya Sabha a year before the completion of his term after he was fielded as the BJP candidate in the West Bengal Assembly elections, prompting Trinamool Congress to raise the matter of his disqualification as per the Anti-Defection Law. 

There are numerous other examples available in the history of Parliament and State Assemblies where Members of Parliament (MPs) or Members of the Legislative Assembly (MLAs) have changed their party. These activities led to the frequent falling of governments. 

But what is the Anti-defection law? How effective it is. Is there a need to reform the law?

Anti-Defection Law

The 52nd Constitutional Amendment introduced the anti-defection law through the Tenth Schedule in 1985. According to this Schedule, a member of the State Legislature or the House of Parliament who voluntarily resigns from his/her political party or abstains from voting in the House contrary to the instruction issued by his/her party may be removed from the House. 

This voting instruction is issued by the party whip. A whip is a member of the parliamentary party nominated by the political party in the House. The legislature party includes only the members of a political party in a House of Parliament or State legislature, while the political party is the whole organisation of a party, including the lawmakers. 

The anti-defection law aimed at tackling political defections that have been destabilising governments for long, especially after the 1967 general elections.

But how does the law deal with the nominated and elected members?

Anti-defection law and nominated members

N. Gopalswami Ayyangar emphasised that nominating members to Rajya Sabha allows seasoned individuals to participate in debates with unique learning and importance. As a result, Rajya Sabha has 12 members nominated on the basis of their knowledge and expertise, with a general criterion being exceptional achievement in literature, science, art, and social service.

As per the anti-defection law, the nominated members in Rajya Sabha can join a political party within six months of their nomination. But if they join a party after the first six months, they may face disqualification from Parliament. In addition, they may face disqualification for defying the party’s whip.

Process of disqualification

Let’s understand the process of disqualification under the anti-defection law, which involves:

1. Petition: Any member of the House can initiate the process by filing a petition/complaint with the Speaker (Lok Sabha) or Chairman (Rajya Sabha) alleging defection by another member. This means that the Presiding Officer (Speaker of Lok Sabha or Chairperson of Rajya Sabha) cannot initiate disqualification proceedings suo moto. They can only take cognisance of a defection case when a member of the House files a formal complaint.

2. Deciding Authority: The Speaker of Lok Sabha, the Chairman of Rajya Sabha or the State Legislative Assembly decides disqualification petitions under the anti-defection law.

3. Timeframe: The law does not specify a strict timeline for the decision, which has led to criticism due to potential delays.

4. Judicial Review: The decision can be challenged in courts, ensuring a system of checks and balances. The landmark judgement in Kihoto Hollohan vs. Zachillhu and Others (1992) upheld the constitutionality of the anti-defection law, enshrined in the Tenth Schedule. The Supreme Court affirmed that the law does not violate legislators’ fundamental rights, such as freedom of speech and vote.

The Court also ruled that the decisions of the Speaker or Chairman regarding disqualification are subject to judicial review. However, judicial intervention is limited to cases involving malafide intention, perversity, or violation of natural justice.

Exceptions: There will be no disqualification of members if one-third members of the legislature party split to form a separate group. However, this provision was deleted by the 91st Amendment in 2003. 

Secondly, the law permits mergers of political parties when two-thirds of the members of a legislative party agree to merge with another party. In these instances, legislators are not considered to have defected. For example, 12 of 17 Congress MLAs in Meghalaya joined the All India Trinamool Congress in 2021. 

Similarly, in 2019, all six Bahujan Samaj Party MLAs in Rajasthan joined the Congress, and four out of the six Telugu Desam Party Rajya Sabha MPs joined the BJP. 

Three-test formula of the Supreme Court

The Supreme Court in Sadiq Ali versus Election Commission of India (1971) laid down the three-test formula for deciding which faction is to be recognised as the original political party by the Election Commission.

The three fundamental tests are i) the test of aims and objectives of the party, ii) the test of party constitution, which reflects inner-party democracy, and iii) the test of majority in the legislative and organisational wings. The first test is subject to competing claims by rival groups. However, the lack of inner-party democracy results in most defections. 

In the case of the Eknath Shinde faction, the Election Commission recognised the Eknath Shinde group as the legitimate Shiv Sena in February 2023 on the basis of the votes collected by lawmakers who backed Eknath Shinde in the 2019 Maharashtra Assembly elections.

Limitations of the anti-defection law

Some of the limitations of the anti-defection law are discussed below: 

Dictatorship of Party: While intended to maintain political stability, the anti-defection law has been criticised for undermining democratic principles. Restricting legislators’ freedom of speech makes them more accountable to party leaders (the party line) than their constituents, challenging the essence of representative democracy.

Limited Political Choice: The anti-defection law discriminates against independent members, who are elected by the people (democracy), by immediately disqualifying them if they join a political party. In contrast, nominated members have a six-month grace period. This raises concerns about the political choices of independent representatives.

Partial Law: The law needs a more precise timeline for resolving defection cases, and it allows large-group defections, fostering opportunistic mergers and “horse-trading”, destabilising the political system. It banned only retail defections and legalised wholesale defections.

Additionally, it fails to address root causes like intra-party democracy, corruption, and electoral malpractices and does not deter parties from accepting defectors. These issues have prompted calls for revising the law to balance party discipline with individual expression, ensuring it supports democracy and political stability. 

However, have any committees suggested reforms to address the above-mentioned limitations in anti-defection laws?

Recommendations on reforming the law

1. Dinesh Goswami Committee (1990) suggested that disqualification provisions should be made specifically limited to cases of a) voluntarily giving up by an elected member of his membership of the political party to which the member belongs, and b) voting or abstention from voting by a member contrary to his party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or Money Bill or motion of vote of thanks to the President’s address.

The power of deciding the legal issue of disqualification should not be left to the Speaker or Chairman of the House but to the President or the Governor, as the case may be, who shall act on the advice of the Election Commission, to whom the question should be referred for determination as in the case of any other post-election disqualification of a Member.

2. The Law Commission of India (2015) proposed to shift the power to decide disqualification petitions from the Presiding Officer to the President or Governor, based on the advice of the Election Commission of India.

3. The Supreme Court in K. M. Singh v. Speaker of Manipur case (2020) recommended that Parliament amend the Constitution to transfer the Speaker’s decision-making authority over disqualification petitions under the anti-defection law to an independent tribunal presided over by judges.

4. Lok Sabha Speaker Om Birla announced the formation of a committee led by Maharashtra Assembly Speaker Rahul Narwekar to review the nation’s anti-defection law. This announcement was made during the 84th All India Presiding Officers’ Conference. 

The Tenth Schedule of the Constitution aims to prevent defection by elected and nominated members from their political parties and includes strict measures to deter legislators from switching allegiances.

To sum up, the anti-defection law, a debatable topic in the political landscape, aims primarily to stabilise elected governments by preventing legislators from switching parties.

While it can be seen as a restriction on freedom of speech and expression for elected representatives, its primary purpose is to maintain the stability and integrity of the political system by curbing opportunistic party hopping. 

However, there are some questions to be pondered over such as a) How does the anti-defection law, while intended to promote stability, ironically pose a challenge for smaller political parties? b) Why are smaller political parties particularly vulnerable to horse-trading under the anti-defection law?, and  c) Could the legal distinction between “retail” and “wholesale” defections create loopholes for political manoeuvring?

Post-read question

What is the anti-defection law? Discuss its major features. 

What are the major limitations of the anti-defection law?

Discuss major recommendations of various committees on reforming the anti-defection law. 

The anti-defection law disqualifies independent MLAs if they join a political party, while nominated members enjoy a six-month grace period. Comment. 

(Dr. Madhukar Shyam is an Assistant Professor of Political Science at Christ (Deemed to be University), Delhi NCR.)

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