Anti Defection Law in India UPSC Notes: Features, Reforms & Amendments

The Anti-Defection Law in India was introduced to stop elected leaders from unfairly switching political parties after elections. It was added through the 52nd Constitutional Amendment in 1985, which introduced the 10th Schedule of the Indian Constitution. This law allows disqualification of MPs and MLAs who defect from their parties. To strengthen it further, the 91st Amendment of the Constitution in 2003 removed the allowance for group defections and limited the size of ministries. The law helps maintain political stability and party discipline.

Anti Defection Law is one of the most important topics for the UPSC IAS exam. It covers a significant part of the Polity subject in the Mains General Studies Paper-II syllabus and General Studies Paper-1 of the UPSC Prelims Syllabus.

In this article, let us look at the Anti Defection law in India, its history, its merits and demerits, major supreme court judgments, recommendations of various committees for the reformation, and the suggestions and the way forward for the UPSC IAS Examination in detail.

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What is Anti Defection law?

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Key Details on the Anti-Defection Law in India for UPSC
Aspect	Details
Constitutional Basis	Tenth Schedule of the Indian Constitution, added by the 52nd Amendment Act, 1985 (related to floor crossing).
Grounds for Disqualification	Voluntarily giving up membership of a political party.
	Voting or abstaining from voting contrary to the party's direction (whip) without prior permission or subsequent condonation.
	Independent members joining a political party after an election.
	Nominated members joining a political party after the expiry of six months.
Exemptions from Disqualification	Merger of a political party with another party, provided at least two-thirds of the members of the legislative party agree to the merger.
	Original defector being elected as Speaker or Chairman (until they resign that post).
Authority to Decide	Presiding Officer of the House (Speaker in Lok Sabha, Chairman in Rajya Sabha, Speaker/Chairman in State Assemblies).
Judicial Review	Initially, the Speaker's decision was final. However, the Supreme Court in Kihoto Hollohan vs. Zachilhu (1992) held that the Speaker's decision is subject to judicial review on limited grounds (mala fide, perversity, violation of natural justice).
Objectives	Curb political defections, ensure stability of governments, uphold party discipline, strengthen the party system.

The Anti-Defection Law is a rule in India that stops elected leaders, like MPs and MLAs, from switching political parties after getting elected. If they leave their party or vote against it without permission, they can lose their seat in the legislature. This law was added to the Constitution in 1985 through the 52nd Amendment to stop unfair party-hopping and to keep governments stable and honest.

History of Anti Defection law in India

In Haryana, in 1967, an MLA named Gaya Lal changed his party thrice a day, followed by which the phrase “Aaya Ram Gaya Ram” became prevalent in Indian politics. Due to frequent defections of elected and chosen party members, good administration became elusive, and an unstable environment was established for the operation of the state and central governments. It was realized that there was a requirement for an Anti defection law that would seek to ward off such political defections.

Rajiv Gandhi, the then Prime Minister of India (1984-1989), envisaged a bill to weed out the evils of defection. The 10th Schedule of Indian Constitution, widely described as the ‘Anti defection Law,’ was introduced by the 52nd Amendment of the Indian Constitution in 1985.

Check out the linked article on Judicial Review for the UPSC exam here.

How does defection impact the political system?

The defection has the following negative impacts on the political system of a country:

• Undermining Electoral Mandates: Defection involves elected legislators switching from one party to another, disregarding the electoral mandate they received. This often occurs due to inducements like ministerial positions or financial incentives.
• Disrupting Government Functionality: The infamous "Aaya Ram, Gaya Ram" phrase emerged in response to frequent legislator defections in the 1960s. Such defections disrupt government stability and hinder effective administration.
• Encouraging Unethical Practices: Defection also encourages unethical practices, such as the trading of legislators' loyalties, which contradicts the principles of a democratic system.

Need for the Anti-Defection Law in India

In India, we choose leaders to represent us. These leaders belong to different political parties. Sometimes, a leader gets elected from one party but later joins another party. This is called defection.

This is not fair because people vote for a leader based on the party they belong to. If that leader changes the party after winning, it is like breaking a promise made to the voters. It also causes problems in the government and creates confusion.

To stop this unfair practice, India made a rule called the Anti-Defection Law. This law helps to keep leaders loyal to the party from which they were elected. It also keeps the government stable and fair.

Check out the linked article on the Difference between de facto and de jure for the UPSC exam here.

The Anti-Defection Law was added to the Indian Constitution in 1985 through the 52nd Amendment. It tells us what happens when a leader changes their party.

Here are the simple rules under this law:

• If a Member of Parliament (MP) or Member of Legislative Assembly (MLA) leaves their party, they can lose their seat in the House.
• If a member votes against their own party, or does not vote when the party asks them to, they may be disqualified.
• If two-thirds of the members of a party join another party together, it is not considered defection. This is allowed by the law.
• The Speaker of the House decides if a leader should be removed for defection. The Speaker’s decision is final in most cases.

Disqualification on Grounds of Defection

The 10th Schedule comprises the below provisions with respect to the disqualification of MPs and MLAs on the grounds of defection:

• If an elected member willingly gives up his membership in a political or legislative party.
• If he votes or refrains from voting in such a house, opposed to any guidance issued by his political party or anyone approved to do so, without getting prior permission.
• As a pre-condition for his disqualification, his refraining from voting must not be tolerated by his party or the authorized person within 15 days of such incident.
• If any independently elected member joins any legislative party.
• If any nominated member joins any political party post the expiry of six months.

Check out the linked article on the State legislature for the UPSC exam here.

Recommendations for Reforming the Anti Defection Law

Some of the key recommendations related to reforming the anti defection law in India include:

Dinesh Goswami Committee on Electoral Reforms (1990)

• Disqualification must be restricted to cases where
  • A member willingly gives up the membership of his / her legislative party,
  • A member refrains from voting, or votes in contrast to the party whip in a motion of vote of confidence or motion of no-confidence.
• The President/Governor must decide the matter of disqualification under the guidance of the Election Commission.

Halim Committee on Anti defection law (1998)

• The words ‘willingly giving up membership of a political party’ must be thoroughly outlined.
• Limitations like the prohibition on joining another party or holding offices in the government may be enforced on expelled members.
• The term political party must be outlined clearly.

Law Commission (170th Report, 1999)

• Provisions or regulations that exempt splits and mergers from disqualification need to be removed.
• Pre-poll electoral fronts must be addressed as political parties under Anti defection law.
• Political parties must cut back the issuance of whips to occasions only when the government is in danger.

Election Commission

The President/Governor must take decisions and rulings under the Tenth Schedule on the binding advice of the Election Commission.

Constitution Review Commission (2002)

• Defectors need to be prevented from holding public office or any lucrative political post for the duration of the remaining term.
• The vote cast by a defector to overthrow a government ought to be treated as invalid.

Check out the linked article on the Difference between act and law for the UPSC exam here.

The following provisions in accordance to the 91st Amendment of the Indian constitution were made to restrict the size of the Council of Ministers, to debar defectors from holding public offices, and to bolster the anti-defection law:

• The total number of ministers, including the Prime Minister, in the central Council of Ministers must not surpass 15% of the total strength of the Lok Sabha.
• A member of either house of parliament pertaining to any political party who is debarred on the ground of defection shall also be ineligible to be nominated as a minister.
• The total number of ministers, including the Chief Minister, in the Council of Ministers in a state must not surpass 15% of the total strength of the Legislative Assembly of that state. However, the number of ministers, including the Chief Minister, in a state must not be less than 12.
• A member of either house of a state legislature pertaining to any political party who is disqualified on the basis of defection shall also be disqualified to be nominated as a minister.
• A member of either house of parliament or either house of a state legislature pertaining to any political party who is debarred on the ground of defection shall also be ineligible to hold any lucrative political post.
• The phrase “remunerative political post” means:
  • Any office under the central government or a state government where the salary or remuneration for such office is paid out of the public earnings of the concerned government or,
  • Any office under a body, be it incorporated or not, that is entirely or partly owned by the central government or a state government and the salary or,
  • Remuneration for such an office is paid by such a body, except where such salary or remuneration paid is compensatory (Article 361-B).
  • The provision of the Tenth Schedule (anti-defection law) related to exemption from disqualification in case of split by one-third of personnel of the legislature party has been deleted. It means that the defectors have no further protection on the basis of splits.

Check out the linked article on Privilege Motion for the UPSC exam here.

Merits of Anti Defection Law Under 10th Schedule of Indian Constitution

The anti-defection law holds the following benefits:

• It offers improved stability in the parliament and state legislature by checking the tendency of legislators to switch parties.
• It curtails political corruption, which is a required first step to addressing other forms of corruption in the nation.
• It strengthens democracy by bringing stability to politics, ensuring a defecting member does not impact legislative programs of the government.
• It makes members of parliament more accountable and faithful to the parties with whom they were aligned at the time of their election, as many believe that party allegiance plays a crucial role in their election success.
• It offers, for the first time, a clear-cut constitutional acknowledgment of the existence of political parties.

Check out the linked article on the Difference between Legislature and Executive for the UPSC exam here.

Criticisms of the Anti Defection Law

The Anti-Defection Law was made to stop leaders from changing parties unfairly. But some people think there are problems with this law. Here are a few reasons why:

• Sometimes, leaders may not agree with their party on certain matters. But because of this law, they cannot speak or vote freely, even if they feel the party is wrong. This takes away their freedom to think and act as per their own beliefs.
• The Speaker of the House decides who is guilty of defection. But the Speaker usually belongs to a political party too. So, some people think the Speaker might make unfair decisions to help their own party.
• If one or two leaders change parties, they can lose their seats. But if a big group (two-thirds of members) changes parties together, it is allowed. This rule can be misused to break parties in a legal way.
• Some parts of the law are not very clear. Different people understand it in different ways. This creates confusion and makes it harder to apply the law fairly.
• A strong democracy means leaders should share their honest opinions. But this law sometimes stops them from doing that, even if they are doing what’s right. So, some people feel it weakens the role of elected leaders.

Check out the linked article on the Appellate jurisdiction of the supreme court for the UPSC exam here.

Major Supreme Court Judgments Related to the Anti-Defection Law

Some of the major judicial pronouncements related to the anti defection law include the following:

Kihoto Hollohan vs. Zachillu and others case of 1992

In the Kihoto Hollohan vs. Zachillu and others case of 1992, the Supreme Court stated that judicial review cannot be carried out at a stage prior to the making of a decision by the speaker or chairman, and no intervention would be allowed at an interlocutory stage of the trials carried by the speaker or chairman. However, before this case, the verdict of the speaker or chairman was considered final and was not subject to judicial evaluation. This provision was regarded as unconstitutional by the Supreme Court.

Ravi S Naik vs. Union of India case of 1994

In the Ravi S Naik vs. Union of India case of 1994, the Supreme Court cleared that the words “willingly giving up membership of a political party” had larger implications and was not synonymous with resignation.

Rajendra Singh Rana vs. Swami Prasad Maurya case of 2007

In the Rajendra Singh Rana vs. Swami Prasad Maurya case of 2007, the Supreme Court mentioned that if the speaker fails to act on an accusation or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. He is also considered to violate his constitutional duties.

Check out the linked article on the Difference between censure and no confidence motions for the UPSC exam here.

Enhancing the Effectiveness of the Anti-Defection Law

Some of the key measures that can be adopted to enhance the effectiveness of the law include:

• Targeted Application: Experts propose limiting the law's scope to critical votes affecting government stability, like budget approval or no-confidence motions.
• Election Commission's Role: Suggested by commissions like the NCRWC, the President (for MPs), or Governor (for MLAs), advised by the Election Commission, should decide disqualifications instead of the Presiding Officer.
• Independent Adjudication: Justice Verma argued for an impartial authority, distinct from the Speaker, to handle defection cases, ensuring fairness and upholding democracy.
• Intra-Party Democracy: The 170th Law Commission report emphasizes the importance of democratic practices within political parties, allowing members to express opinions and fostering inner-party democracy.
• Supreme Court Review: The Supreme Court should conduct a comprehensive reevaluation of the Tenth Schedule to guide future anti-defection law applications effectively.

Check out the linked article on the Polity Notes for UPSC Exams here.

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