Anti-Defection Law

🏛️ Introduction — Why Anti-Defection Law Was Needed

Let’s start with a small background.

After India adopted democracy, political parties became the backbone of our parliamentary system. But as years passed, especially in the 1960s and 70s, politics started witnessing a new and dangerous trend — defection, or what we commonly call “Aaya Ram, Gaya Ram” politics.

This phrase comes from a Haryana MLA, Gaya Lal, who changed his party thrice within 24 hours! Such switching of sides by elected representatives became very common — not because of ideology, but for power, money, and ministerial positions.

To curb this unethical practice, the 52nd Constitutional Amendment Act, 1985 introduced what we call the Anti-Defection Law.

⚖️ Constitutional Changes

This amendment:

• Modified four Articles of the Constitution.
• Added a new Tenth Schedule — called the Anti-Defection Schedule.
• Therefore, this entire law is popularly known as the Tenth Schedule.

Later, the 91st Constitutional Amendment Act, 2003 further strengthened it by removing certain loopholes.

📘 Provisions of the Tenth Schedule

Now let’s understand this:

1. Disqualification on Ground of Defection

There are three categories of members who can face disqualification:

(A) Members of Political Parties

A member belonging to a political party is disqualified if:

1. He voluntarily gives up the membership of that party,
   (Note: “Voluntarily giving up” doesn’t only mean resigning — even actions like criticising the party, defying the whip, or supporting the opposition can be treated as giving up membership.)
2. He votes or abstains from voting in the House contrary to party directions (known as party whip) without prior permission, and the party doesn’t condone it within 15 days.

🟩 Interpretation: Once you are elected on a party ticket, you are expected to remain loyal to that party.

(B) Independent Members

If an independent member (who contested without party support) joins a political party after the election, he becomes disqualified.
🟩 Idea: The mandate was given to you as an independent; you can’t later join a party.

(C) Nominated Members

A nominated member can join a political party within six months of taking his seat.
After six months, if he joins a party, he faces disqualification.

2. Exceptions to Disqualification

There are only two exceptions where disqualification will not apply:

1. Merger of Political Parties —
   If two-thirds of the members of a legislature party agree to merge with another political party, they won’t be disqualified.
2. Presiding Officers —
   If a member is elected as Speaker, Deputy Speaker, Chairman, or Deputy Chairman, he may resign from his party to maintain neutrality.
   Once he leaves that post, he can rejoin his party without facing disqualification.

🚫 Note: Earlier, even a split by one-third members of a party was protected, but this exception was deleted by the 91st Amendment Act, 2003.

3. Deciding Authority

Who decides if defection has occurred?

➡️ The Presiding Officer of the concerned House (Speaker or Chairman).

However:

• The law doesn’t specify any time limit for the decision.
• Initially, the Speaker’s decision was final and not open to judicial review.

But in the landmark Kihoto Hollohan vs. Zachillhu case (1992),
the Supreme Court ruled:

• The Speaker acts as a tribunal, so his decision is subject to judicial review.
• Courts can interfere if the decision is mala fide (biased), perverse, or unfair.
• But merely having political background doesn’t make the Speaker’s role invalid.

4. Rule-Making Power

The Speaker/Chairman can frame rules for implementing the law.
These rules must be:

• Placed before the House for 30 days for approval or modification.
• Any violation can be treated as a breach of privilege of the House.

As per these rules:

• A complaint must be filed by any member.
• The accused member must be given a chance to explain.
• The matter can be referred to the Committee of Privileges.

👉 Hence, defection does not cause immediate disqualification — the process involves inquiry and adjudication.

🎯 Objective and Rationale

The main aim of the Anti-Defection Law is to:

• Prevent unethical political defections motivated by office, money, or favour.
• Stabilise governments and ensure loyalty to party policies.
• Uphold democracy by discouraging “political opportunism”.

Rajiv Gandhi, who introduced the law, described it as
“the first step towards cleaning public life”.

🌟 Advantages

1. Brings political stability by checking frequent defections.
2. Allows mergers — encouraging healthy realignment of political parties.
3. Reduces corruption and the cost of frequent elections.
4. Gives constitutional recognition to political parties for the first time.

⚠️ Criticism and Limitations

Despite good intentions, the law has several loopholes.

1. ❌ No distinction between dissent and defection
   • A legislator cannot freely oppose his party’s decision — it kills freedom of conscience.
   • Promotes party bossism and weakens internal democracy.
2. ❌ Legalised wholesale defection
   • Earlier, individual defection was banned, but large group defection (split/merger) was allowed — clearly inconsistent.
     (Though the 91st Amendment removed the “split” clause later.)
3. ❌ No control over extra-parliamentary activities
   • A legislator may oppose the party outside the House without facing consequences.
4. ❌ Discrimination between independent and nominated members
   • Independents are disqualified for joining a party, while nominated members get 6 months’ leeway.
5. ❌ Decision vested in the Presiding Officer
   • The Speaker may not always act impartially due to political pressure.
   • Even Speakers themselves (Rabi Ray, Shivraj Patil) have expressed doubts about this role.

🧩 91st Constitutional Amendment Act, 2003

Why was it needed?

Because:

• The Anti-Defection Law (1985) was not effective enough.
• It allowed group defections (splits by 1/3rd).
• Recommendations by:
  • Dinesh Goswami Committee (1990)
  • Law Commission Report (1999)
  • NCRWC (2002)

all called for tightening the law and limiting the size of the Council of Ministers.

Key Provisions of the 91st Amendment

1. Size of Council of Ministers
   • At the Centre: Cannot exceed 15% of Lok Sabha strength.
   • In States: Cannot exceed 15% of the Legislative Assembly strength.
     • But minimum number of ministers = 12.
2. Disqualification for Ministerial Posts
   • A defector is disqualified from being a minister (both at Centre and State).
3. Disqualification from Remunerative Political Posts
   • Defectors cannot hold any remunerative political post (i.e., any government-paid office except purely compensatory ones).
4. Deletion of “Split” Clause
   • Protection to defectors on grounds of split (1/3rd rule) was completely removed.

🧠 Conclusion — Spirit of the Law

The Anti-Defection Law was a landmark reform in Indian democracy — a sincere attempt to bring morality into politics.

However, while it succeeded in reducing blatant defections, it also:

• Weakened debate and dissent within parties,
• Made legislators answerable to party leadership rather than the people.

Hence, experts suggest it’s time for reform, not repeal — ensuring both stability and freedom of expression in our legislatures.