Anti Defection Law Article

What Is Anti Defection Law In India (Tenth Schedule)

The Anti Defection Law, enacted by Indian parliament is a constitutional provision in India that was introduced in 1985 to address the menace of political defections. With its enactment, the Constitution of India was amended through the 52nd amendment Act 1985 and the 10th Schedule was added. This was during the Rajiv Gandhi regime. The law aims to prevent elected representatives from switching their party affiliations. Party affiliations are changed for personal monetary gain or a ministerial berth that may harm the stability of the government. The most important part is, when a legislator switches sides he/she betrays the mandate of the voters. 

The Anti-Defection Law is one of the most important salient features of the Constitution of India. At the same time it has been the subject of much debate and discussion since its introduction. In this Anti Defection Law article, we will discuss the history, background and prospects of the Anti-Defection Law, along with its provisions, criticisms, and implications for Indian politics. The law is all set for an overhaul as the Supreme court of India is on the verge of giving a landmark judgment by a division bench of 5 judges (at the time of writing this article) on the issues created by the defection of 40 MLAs of Shiv Sena in the state of Maharashtra.

History And Background Of The Anti Defection Law

Before the introduction of the Anti-Defection Law in 1985, political defections were a common phenomenon in Indian politics. This threatened the very essence of democracy. Before the enactment of this law and the subsequent constitutional amendment, elected representatives would often switch parties freely. This was for various reasons, such as the lure of power i.e. ministerial berths and money, or due to differences with the party leadership. These defections often led to political instability, and the governments were often in danger of being toppled by the opposition. 

1960 onwards, India witnessed an era of coalition governments at the provincial level. With the rise of regional political parties, the Congress party could not get a clear majority in many states, even though it emerged as the single largest party. In the later years, the defection menace grew beyond proportion. A legislator by the name Gaya Lal switched 3 political parties in a single day giving rise to the infamous expression ‘Aaya Ram Gaya Ram’ politics.

Some Other Aspects

• In the late 1950s and throughout the 1960s the Congress party was a major beneficiary of defections. During this period, the Congress party lost 98 MLAs while it gained 419 MLAs. 
• Many non Congress legislators who left their parent parties did not join Congress and formed separate parties. This was done with the view that they would play a key role in the future coalitions. But this again inadvertently benefited the Congress.
• In the 1967 elections 550 out of 3500 legislators elected to legislative assemblies of various states and Union Territories defected from their parent parties. Some of them switched sides more than once.
• It was thus decided to tackle the menace of defections. During the 4th Lok Sabha, in 1967 a committee was formed under Y.B.Chavan. The committee submitted its report in 1968. This paved the way for the introduction of the first Anti Defection Bill in the Parliament.
• The opposition parties supported the bill. But the Indira Gandhi Government referred it to a joint select committee in which nothing happened.
• In 1977 when the Janata Party government (1st non-Congress government) was formed, the menace of defections creeped into Parliament in a big way.
• The Morarji Desai government fell because 76 MPs defected leading to his resignation.
• A rising public opinion and nationwide outcry led the Congress government under Rajiv Gandhi to introduce a new Anti Defection Bill in 1984.
• After marathon debates in the Parliament, the bill was passed in both the houses and accented to by the President on 15th February 1985.
• The Constitution of India was amended. The Tenth Schedule was added as a result of the recommendations of the Dinesh Goswami Committee, which was set up to suggest measures to curb political defections. 
• For the first time the word ‘Political Party’ was added to the Constitution of India.

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Provisions Of The Anti-Defection Law

The Anti-Defection Law lays down certain provisions that need to be followed by elected representatives. The following are the key provisions of the Anti-Defection Law:

• Disqualification: According to the law, if an elected representative voluntarily gives up the membership of his or her political party, or votes against the party’s directives or joins another political party he or she will be disqualified from being a member of Parliament or the state legislature. Also if a nominated member joins a political party after 6 months of joining the house shall be disqualified.
• Merger: The law allows for the merger of a political party with another party, provided that at least two-thirds of the members of the party agree to the merger.
• Split: The law also allows for a split in a political party, provided that one-third of the members of the party decide to form a separate party.
• Exemption: Speaker, Chairman and Deputy-Chairman of various legislative Houses are exempted from disqualifications under the 10th schedule.
• Timeframe: The law specifies a timeframe of 15 days within which a decision has to be taken by the presiding officer of the legislature regarding the disqualification of a member who has defected.
• Decision-making: The decision to disqualify a member has to be made by the presiding officer of the legislature, who is usually the Speaker or the Chairman.
• Bar On Judiciary: The judiciary was exempted from reviewing decisions of Speakers and Chairmen. This provision was struck down by the Supreme Court in the Kihoto Hollohan vs Zacillu, 1992 case. In this judgment it was held that the decision regarding disqualification by the Speaker or the Chairman is subject to judicial review under Articles 32 and 226 of the Indian Constitution.
• Framing Of Rules: The provisions of 10th schedule allow the Chairman and the Speaker to frame rules concerning their respective legislative houses to deal with the disqualification of members of their various houses of the legislature.

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Criticisms of the Anti-Defection Law 

The Anti-Defection Law has been a subject of much criticism since its introduction. Some of the criticisms are as follows:

• Violation of Freedom of Speech: Critics argue that the Anti-Defection Law violates the freedom of speech of elected representatives. The law forces elected representatives to vote according to the party’s whip, even if they have a different opinion on the matter.
• No Stopping of Defections: The law failed to halt political defections. It in fact legitimized defections owing to the provision of split. In 1990 Chandra Shekhar along with 61 MPs defected and did not receive any penalty. Chandra Shekhar went on to become Prime Minister of India with external support from the Congress Party.
• Dubious role of Speakers: When it came to disqualification on the basis of defections, the Speakers have been found to be acting in an extremely partisan manner.
• Nominated members: The rationale for allowing nominated members to join a political party after 6 months of nomination is not clear.
• Exemption: Why no provisions of the 10th schedule are not applicable to the Speaker of Lok Sabha and Chairman of Rajya Sabha is not well laid out.
• Violation of Democracy: Many critics and political thinkers argue that the Anti-Defection Law goes against the principles of democracy. The law prevents elected representatives from exercising their free will and independent judgment.
• Quality of Debates:  The Anti Defection Law  has led to a decline in the quality of parliamentary debates and discussions. Critics argue that elected representatives are now less likely to voice their opinions and engage in meaningful debate, as they fear retribution from their party leadership. This has led to a decline in the quality of legislative proceedings and has reduced the effectiveness of the opposition.
• Minority Governments: With the rise of regional political parties, many times minority governments are formed. The Anti-Defection Law has also attracted criticism for its impact on minority governments. Critics argue that the law has made it difficult for minority governments to survive. This is because they are often dependent on the support of smaller parties and independent candidates who may pull their support anytime for dubious reasons. This law comes in the way when some members of a political outfit want the government to survive while their parent party has taken a contrary stand.
• Encourages Corruption: Critics and scholars argue that the Anti-Defection Law encourages corruption. This was recently seen in the Shiv Sena case in Maharashtra. Elected representatives who are threatened with disqualification may be tempted to accept bribes or other incentives.
• Misuse of Power: It is likely that the presiding officer who is a key figure in disqualifications, is influenced by political consideration. This is because he/she also belongs to a political party. Recently the disqualification of Rahul Gandhi from Lok Sabha is a totally politically motivated decision though it is not related to the Tenth Schedule.

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Implications of the Anti-Defection Law

The Anti-Defection Law has had several implications for Indian politics. Some of the key implications are as follows:

• Political Stability: Since the inception of the  Anti-Defection Law, a lot of political stability has been witnessed. This is especially seen in the State governments. Elected representatives are now less likely to switch parties. This has reduced the number of no-confidence motions and other attempts to topple the government.
• Party Discipline: The Anti-Defection Law has helped in maintaining party discipline. Elected representatives are now expected to vote according to the party’s whip, and this has helped in maintaining party unity.
• Minority Governments: The Anti-Defection Law has made it difficult for minority governments to survive. Minority governments are often dependent on the support of smaller parties or independent candidates. The Anti-Defection Law has made it more difficult for these smaller parties to switch their allegiances.
• Ineffective Opposition: The Anti-Defection Law has made the opposition less effective. The opposition is often unable to muster enough votes to bring down the government, as elected representatives are less likely to defect.
• Power of the Speaker: The Anti-Defection Law has given more power to the Speaker of the legislature. The Speaker is responsible for making the decision to disqualify a member. This has given the Speaker more influence over the proceedings of the legislature.
• Formation of Coalitions: The Anti-Defection Law has encouraged the formation of pre-poll alliances and coalitions. Political parties are now more likely to form alliances before elections, as this increases their chances of forming a stable government.

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Anti Defection Law Amendment

In order to make the existing Anti Defection Law more effective, a committee was appointed in 2003 under the chairmanship of Pranab Mukherjee to examine the issue of defections. The committee made the following observations:

• The provision of split by 1/3rd members of a political party was grossly misused and over exploited. This caused multiple splits in various political parties.
• The most conspicuous reason for political defections is the lure for personal gain and not ideological or national interests. This resulted in horse trading.

The 91st Amendment Act was enacted in January 2004. The Act provided for:

• The defections arising out of splits were excluded from the provisions of Tenth Schedule.
• It maintained that a defected member should not hold any ministerial berth for the remaining part of his term.

Recommendations For Anti Defection Law

The following are some recommendations to address the concerns and improve the effectiveness of the law based on the discussion of the implications and views on the Anti-Defection Law

• Reducing the power of party leadership: The power of party leadership must be reduced as India has adopted a Parliamentary model based on the British system. For this the representatives must be given adequate freedom to express their views and engage in debates. The Anti Defection Law can also be amended to enable elected representatives to vote on their own conscience on certain issues while toeing the basic party ideology.
• Strengthening the role of the Speaker: Speaker must rise above partisan politics and must act autonomously in making decisions related to disqualifications.
• Revising the criteria for disqualification: The disqualification criteria must be revised in order to address the issue of unfair disqualifications. The subjectivity in disqualification must be removed and the entire process must be made more objective.
• Reviewing the impact on parliamentary proceedings: There should be a periodical review of the impact of Anti Defection Law on parliamentary proceedings. For this the quality of debates and discussions in the parliament.
• Reviewing the impact on minority governments: The impact of the Anti-Defection Law on minority governments should also be reviewed periodically. This can be done by assessing the survival rate of minority governments and taking measures to address any decline in their ability to survive. This could include measures to incentivize the formation of stable alliances and coalitions before elections.

Conclusion

Ever since its inception in 1985, the Anti Defection Law has been a subject of debate and controversy. Though it controlled the menace of defections but could not completely stop it. The law has had several implications for Indian politics. This is related to ensuring political stability, maintaining party discipline, and making it more difficult for minority governments to survive. There are differing perceptions about Anti Defection Law. Though it was amended in 2003, the changes made had limited impact. Despite all this the Anti Defection Law is a key feature of the Constitution of India. Its impact on Indian politics cannot be overstated.

Anti Defection Law UPSC

Given the political situation in India, the Anti Defection Law is an important topic for UPSC CSE preparation. The topic is important from both Prelims as well as mains point of view. The Supreme Judgement in the Shiv Sena case may provide some valuable points for curbing menace of defections. The defections must be controlled as it may lead to murder of democracy in the long run.

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