By Nethra Katikaneni

Abstract

The objective of this paper is to provide a comprehensive analysis of Anti-Defection laws in
India, focusing on their historical development, legal framework, and implications for
democratic governance. Anti-Defection laws were introduced to address the issue of political
defections, where elected representatives switch parties, often for personal gain, destabilizing
governments and undermining the electorate’s mandate. The need for such laws became evident
with the increasing frequency of such defections, which threatened the stability and integrity of
parliamentary democracy. The article delves into the intricacies of the Tenth Schedule,
examining its provisions, judicial interpretations, and its impact on the functioning of
parliamentary democracy in India.

Introduction

To address the problem of elected members defecting regardless of their intent, the Anti-
Defection laws were introduced during Rajiv Gandhi’s tenure. Defection refers to the act of
abandoning one’s country, cause, group, or political party in favour of an opposing one. In a
political context, it often means that an elected representative switches their allegiance from the
party they were elected with to another party. This can have significant political implications, as
it may alter the balance of power within a legislative body, undermine the trust of voters, and
destabilize the political landscape.  These laws were incorporated into the Constitution through
the Fifty-Second Constitutional Amendment, which established the provisions for disqualifying
members on grounds of defection under Articles 101, 102, 190, and 191. The amendment also
outlined the responsibilities of key figures, such as the Speaker of the House, who, as the
presiding officer of the legislature, is responsible for ruling on petitions for a member’s
disqualification.
As per the 10 th schedule of the Constitution, a member of a House belonging to any political
party can be disqualified for being a member of the House in the following circumstances:  

 
       i.Voluntary relinquishment of membership of the political party they are associated with
       ii. Voting in directions contrary to the party’s beliefs without prior permission of the party. 
        iii. Abstaining from voting without condonation from the party. 
        iv. Defection from the political party after being elected as a member of the party. 
        v.Joining a political party after the expiration date (about nominated members of a House). 
When a member voluntarily resigns from their political party, they are typically giving up their
membership and may lose their seat in the legislature. This action indicates that they no longer
wish to be associated with the party’s principles and policies, leading to disqualification.
Members of a political party are expected to vote in line with the party’s stance. Voting contrary
to the party’s official position without prior permission is seen as a breach of party discipline,
undermining the unity and coherence of the party. Consequently, such actions may lead to
disqualification.
Abstaining from voting when a party has issued a whip (a directive to vote a certain way) can
also lead to disqualification. If a member abstains from voting without the party’s permission, it
is viewed as a deliberate act of defiance. Failure to comply with these directives can weaken the
party’s position and is treated as a serious offence. Defection, or switching allegiance to another
political party after being elected, is considered a significant violation of trust. Voters elect
representatives based on their party affiliation. When members defect to another party, it betrays
the voters’ mandate and destabilizes the political landscape. Anti-defection laws are designed to
prevent such actions and maintain the integrity of the political system. For nominated members
of a legislative house, joining a political party after the specified expiration date is a grounds for
disqualification. Nominated members are expected to remain impartial. Joining a political party
beyond the allowed timeframe undermines this expectation and can lead to their disqualification,
ensuring their neutrality is maintained.
An exception to the grounds for disqualification is the coalition of political parties. If a member’s
original party merges with another party to which the member has defected, the member will not
face disqualification. This is contingent upon the merger involving at least two-thirds of the
members of the House, a threshold that was increased from one-third to two-thirds with an
amendment in 2003.

If a legislator elected on a political party ticket “voluntarily” gives up their party membership or
votes contrary to the party’s directives in the legislature, the party can initiate action against the
member under the Anti-defection law. The law also permits nominated legislators to join a
political party within six months of their nomination. If they join a party after this period, they
too fall under the anti-defection law. When Parliament enacted this law, it included two scenarios
where legislators could defect without facing penalties. The first scenario allowed a defection if
one-third of a party’s legislators split from the party. The second scenario permitted defection if
two-thirds of a party’s legislators merged with another party. In both cases, such actions would
not be considered defections. The law designates the presiding officers of legislatures to decide
on defection cases. If these officers determine that a legislator or group has violated the law,
those found guilty would lose their legislative seats.

Impact on political stability:

The Anti-defection law results in significant legislative decisions being made by a small number
of party leaders rather than the larger body of legislators. In India, political parties often issue
whips on matters that are put to a vote in Parliament. This means that whoever controls the party
leadership can direct all legislators on how to vote. Consequently, voting in the House aligns
with the preferences of a few party leaders rather than reflecting the individual beliefs of all
legislators.
This situation transforms Parliament from a deliberative body into one where party leaders can
unilaterally decide the outcome of votes without consulting their party members. Therefore, to
win a motion in Parliament, the government only needs to negotiate with the leaders of the major
political parties. This need for consensus can be further minimized if a single party holds the
majority in the House. For instance, if the ruling party has a majority and the party leader issues
a whip for a vote on a particular issue, the government’s policy can be upheld without needing to
garner support from any other MPs, either within the party or outside it.

The original intent behind introducing the anti-defection law, as stated in the Statement of
Objects and Reasons of the Bill, was to curb political defections and maintain stability in
government by preventing abrupt changes in party allegiances. The law aimed to foster a
political environment where elected representatives would adhere to their party’s stance on
important legislative matters, thereby avoiding situations that could lead to government
instability. Orders from party leaders to make sure members vote a certain way are nevertheless
occasionally publicly disregarded during crucial votes at the federal and state levels. This
defiance of whips has sometimes resulted in unexpected outcomes that challenge the anticipated
stability envisioned by the anti-defection law. Such occurrences highlight the complex dynamics
within political parties and the broader parliamentary framework, where individual beliefs,
regional interests, or strategic calculations occasionally override party directives. Moreover,
these incidents underscore the ongoing debate surrounding the effectiveness and practical
implications of anti-defection laws in ensuring parliamentary discipline while balancing the need
for individual legislators to act independently in the interest of their constituents and conscience.

Assessing the gaps in implementation:

The Tenth Schedule carves an exception for “mergers” between political parties. These
exceptions were added to the Tenth Schedule to safeguard instances of defection based on
principles. In practice, however, they have often been exploited to circumvent the anti-defection
law entirely. Legislators defecting from their original parties gather sufficient support to achieve
a legitimate merger, allowing them to separate from their original parties without facing
disqualification.
India’s anti-defection law has been criticized for its fundamental flaws that can incentivize
legislators to defect. Currently, the law penalizes cross-voting, where legislators vote against
their party’s directives. This effectively binds individual legislators to their party’s stance on all
legislative matters, potentially infringing on their constitutional freedom of speech. The strict
consequences of deviating from the party line, such as disqualification from the legislature,
create a strong incentive for legislators to always align with their party’s positions. This constraint often pushes legislators to switch party allegiance when they perceive a conflict
between their personal convictions and party mandates. To avoid disqualification, legislators
sometimes defect in groups, often labelling themselves as ‘rebel MLAs/MPs,’ and utilize the
merger provision in the Tenth Schedule. This exemption allows groups comprising at least one-
third or two-thirds of a party’s legislators to defect without facing penalties, thereby
circumventing the individual disqualification clause of the law. In essence, while the Tenth
Schedule penalizes individual defections, its provisions are less effective in preventing group
defections, which critics argue undermines the law’s original intent to foster stability and
discipline within legislative bodies.
Furthermore, the reliance on the presiding officers of legislatures to adjudicate defection cases
introduces another contentious issue. The impartiality and independence of presiding officers,
who are typically affiliated with political parties, have been questioned, raising concerns about
biased rulings and inconsistent application of the law. Critics argue that these flaws weaken the
anti-defection law’s effectiveness in fostering genuine legislative discipline and stability. Instead
of encouraging principled governance and accountability, the current framework incentivizes
political manoeuvring and undermines democratic principles by curbing individual legislator
autonomy and fostering party hegemony over legislative decision-making. Moreover, the anti-
defection law has implications for the autonomy and integrity of legislative processes. By
reducing legislators to mere adherents of party directives, the law undermines the legislature’s
role as an independent and deliberative institution. Instead of fostering constructive dialogue and
compromise, it promotes a culture where decisions are dictated by party leadership rather than
reasoned debate or public interest. the role of presiding officers in adjudicating defection cases as
a potential source of bias and inconsistency. Given their political affiliations, presiding officers
may face pressures to favour certain outcomes, raising concerns about impartiality and fairness
in the application of the law.

Conclusion
In conclusion, the anti-defection law in India, embodied in the Tenth Schedule of the
Constitution, represents a complex balance between promoting political stability and potentially
limiting legislative freedom. While it aims to curb opportunistic defections that could destabilize
governments, the law has raised significant concerns regarding its impact on democratic
principles such as freedom of speech, independence of legislators, and the functioning of
parliamentary democracy. Legislative bodies should maintain their autonomy as forums for
debate and deliberation. Measures to reduce the overbearing influence of party whips and
empower legislators to engage in meaningful dialogue and decision-making could help restore
confidence in the integrity of parliamentary processes. Enhancing transparency in party
operations and decision-making processes could mitigate the pressure on legislators to conform
strictly to party directives. Public disclosure of party decisions and whip instructions could
promote accountability and reduce behind-the-scenes coercion. While the anti-defection law
plays a vital role in preserving governmental stability, its implementation should be balanced
with protecting legislative independence and ensuring democratic accountability. By addressing
its shortcomings through thoughtful reforms and reinforcing ethical standards, India can
strengthen its legislative framework and uphold the integrity of its democratic institutions.

About the author:

Nethra Katikaneni is a law student at Jindal Global Law School, OP Jindal Global University
and is a columnist at Nickeled and Dimed.

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