Anti-Defection Law

The 52nd Amendment Act of 1985 introduced the anti-defection law into the Indian Constitution. It modified four Articles - Articles 101, 102, 190, and 191 (which govern vacation of seats and disqualification from membership of Parliament and state legislatures) - and added a new Tenth Schedule to the Constitution. This legislation is commonly referred to as the anti-defection law.

Later, the 91st Amendment Act of 2003 deleted an exception provision from the Tenth Schedule - specifically, the exemption from disqualification that had applied in cases of a split within a legislature party.

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1. Grounds of Disqualification

Members of Political Parties: A member of a House who belongs to a political party is disqualified if:

• (a) He voluntarily gives up membership of his political party; or
• (b) He votes or abstains from voting in the House contrary to any direction issued by his party, without obtaining prior permission from the party, and the party has not condoned such act within 15 days.

The core principle is clear: a member elected on a party ticket must remain loyal to the party and follow its directives.

Independent Members: An independent member (elected without being set up by any political party) becomes disqualified if he joins any political party after his election.

Nominated Members: A nominated member of a House is disqualified if he joins any political party after the expiry of six months from the date of taking his seat. Within the first six months, a nominated member may join a party without attracting disqualification.

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2. Exceptions to Disqualification

The disqualification provisions do not apply in the following two situations:

(a) Merger: If a member's party merges with another party, and at least two-thirds of the members of that legislature party have agreed to the merger, the members are not disqualified on account of defection.

(b) Speaker/Chairman exemption: If a member, after being elected as the Presiding Officer of the House, voluntarily gives up party membership or rejoins the party after ceasing to hold that office, they are not disqualified. This protects the dignity and impartiality of the Speaker's or Chairman's office.

Important: The earlier exception that protected members from disqualification in case of a split (when one-third of members defected) was deleted by the 91st Amendment Act, 2003. Defectors can no longer claim protection on the basis of a split.

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3. Deciding Authority

Any question of disqualification arising out of defection is decided by the Presiding Officer of the House (Speaker in the case of Lok Sabha/Vidhan Sabha; Chairman in the case of Rajya Sabha/Vidhan Parishad).

Originally, the Tenth Schedule made the Presiding Officer's decision final and non-justiciable (not open to challenge in any court). However, the Supreme Court in Kihoto Hollohan vs. Zachilhu (1993) struck this down as unconstitutional, holding that:

• The Presiding Officer, when deciding defection matters, functions as a tribunal.
• Therefore, his decisions are subject to judicial review on grounds of mala fides, perversity, etc.
• However, the Court upheld the vesting of adjudicatory power in the Presiding Officer itself - this was not found constitutionally invalid merely on grounds of potential political bias.

4. Rule-Making Power

The Presiding Officer is empowered to make rules to operationalise the Tenth Schedule. Such rules must be placed before the House for 30 days. The House may approve, modify, or disapprove them. The Presiding Officer may also direct that wilful contravention of the rules by a member be treated as a breach of privilege.

Under these rules:

• A defection case is taken up only when a complaint from a member of the House is received.
• The member against whom the complaint is made must be given an opportunity to submit an explanation.
• The Presiding Officer may refer the matter to the Committee of Privileges for inquiry.
• Defection does not have automatic or immediate effect - due process must be followed.

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Rajiv Gandhi, as Prime Minister, described the law as the 'first step towards cleaning up public life.' The then Union Law Minister called its unanimous passage by both Houses 'a proof of the maturity and stability of Indian democracy.'

Advantages

1. Political stability: It reduces the tendency of legislators to switch parties for personal gain, lending greater stability to governments.
2. Facilitates legitimate realignment: Mergers of parties in the legislature are permissible, allowing genuine democratic consolidation.
3. Reduces political corruption: By reducing the incentive to defect for ministerial positions or financial inducements, it curbs a form of political corruption and also reduces expenditure on unnecessary by-elections.
4. Constitutional recognition for parties: For the first time, the existence of political parties received explicit constitutional recognition through this law.

Criticisms

1. Suppresses dissent: The law does not distinguish between dissent and defection. A legislator who votes against the party on grounds of conscience is treated the same as one who defects for personal gain. Critics argue this places party supremacy above individual conscience and creates 'party bossism.'

2. Irrational distinction between individual and group defection: The law banned individual defections but originally protected group defections (mergers). Critics called this legalising 'wholesale defection' while criminalising 'retail defection' - a distinction that has since been partially corrected by the 91st Amendment.

3. No coverage for actions outside the legislature: The law only covers voting behaviour inside the legislature. It does not provide for disqualification based on a legislator's anti-party activities conducted outside the House.

4. Illogical treatment of independent versus nominated members: An independent member who joins a party after election is disqualified. But a nominated member can join a party within the first six months without disqualification. This distinction has been criticised as internally inconsistent.

5. Concerns about the Presiding Officer's role: Two grounds of criticism exist:

   • The Presiding Officer may not act impartially due to political considerations, since he belongs to a party.
   • He may lack the legal expertise needed to adjudicate complex defection cases.
   • Two former Lok Sabha Speakers - Rabi Ray (1991) and Shivraj Patil (1993) - themselves publicly doubted their suitability as adjudicators in defection matters.

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Reasons for the Amendment

1. Repeated demands were made to strengthen the Tenth Schedule as it had failed to prevent defections and had been widely criticised for permitting bulk defections while prohibiting individual ones.
2. The Dinesh Goswami Committee (1990), the Law Commission's 170th Report (1999), and the National Commission to Review the Working of the Constitution (NCRWC, 2002) all recommended deletion of the split provision.
3. The NCRWC also recommended that defectors be barred from public office - ministerial or otherwise - for the remaining duration of the legislature or until the next election, whichever is earlier.
4. The NCRWC observed that governments were forming disproportionately large Councils of Ministers and recommended a statutory ceiling of 15% of the lower house strength.

Key Provisions of the 91st Amendment

1. Cap on Council of Ministers at Centre: The total number of ministers, including the Prime Minister, in the Central Council of Ministers must not exceed 15% of the total strength of the Lok Sabha (Article 75).

2. Defectors barred from ministerial appointment at Centre: A Member of Parliament disqualified under the anti-defection law cannot be appointed as a minister (Article 75).

3. Cap on Council of Ministers in States: The total number of ministers, including the Chief Minister, in a state Council of Ministers must not exceed 15% of the total strength of the State Legislative Assembly. However, the minimum number of ministers (including CM) cannot be less than 12 (Article 164).

4. Defectors barred from ministerial appointment in States: A member of a state legislature disqualified on grounds of defection is ineligible to be appointed as a state minister (Article 164).

5. Defectors barred from remunerative political posts (Article 361-B): A member of either House of Parliament or a state legislature who is disqualified on grounds of defection cannot hold any remunerative political post. This term covers:

   • Any office under the Central or state government where the salary is paid from public revenue
   • Any office under a body (incorporated or not) that is wholly or partially owned by the Central or state government, and the salary is paid by that body - unless the remuneration is merely compensatory

6. Deletion of the split exception: The provision that protected defectors when one-third of a legislature party split was deleted. No protection is now available on grounds of a split.

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• The 52nd Amendment (1985) introduced the Tenth Schedule; the 91st Amendment (2003) strengthened it by deleting the split exemption and capping ministerial strength.
• Merger requires two-thirds of the legislature party - this is the only surviving group exception.
• The Presiding Officer's decision is judicially reviewable since Kihoto Hollohan (1993), but his adjudicatory role itself is constitutionally valid.
• Defection has no automatic effect - a formal complaint, hearing, and decision are required.
• The ministerial cap is 15% of Lok Sabha strength at the centre and 15% of Legislative Assembly strength in states, subject to a minimum of 12 ministers in each state.
• Defectors are disqualified from holding not just ministerial posts but any remunerative political post as defined under Article 361-B.
• The law gives constitutional recognition to political parties for the first time.