Crossing the Floor: Is Anti-Defection Law Losing its Effectiveness?

“Defectors often cause more difficulty than disinterested disbelievers.”  

                                                                                                                    – Neal Ash Maxwell

Introduction

In recent times, we have observed a pattern among MLAs in several states, such as Bihar, Maharashtra, Madhya Pradesh, Karnataka, and Goa. They are adopting a strategy of resigning from their political parties in significant numbers to secure success in the no-confidence motion.

The practice of floor crossing by the legislators, that is shifting from one party to the other, is a phenomenon that has been a part of Indian politics since the first elections held in 1951, but it came into focus in the year 1967 when the phrase ‘Aya Ram Gaya Ram’ gained popularity. This was when Haryana MLA Gaya Lal changed his party four times within two weeks. Now, the phrase is commonly used to refer to any party hopper, such as recently with Nitish Kumar (Aya Kumar Gaya Kumar).

Defection is the act of joining another political party by leaving one’s own for personal gain or career advancement, thereby abandoning their original party and risking its dissolution. To curb this practice, the government of former Prime Minister Rajiv Gandhi came up with the anti-defection law in 1985, which was inserted in the Constitution through the 52nd Amendment¹ as the Tenth Schedule. Before this, there was no provision regarding defection in the Indian Constitution. The purpose of bringing the anti-defection law was to prevent the violation of the democratic mandate because when a voter votes in India, he or she does not vote for a particular individual; they vote for the party, and when the individual switches parties, it is a violation of the democratic mandate and undermines the trust of the voters who elected them. Because of this, a country faces an unstable government, disrupted policies, and increased corruption. This unhealthy practice is continuously growing and is compelling us to question how effectively the law has achieved its intended goal, which was to preserve the stability of the government and to stop this horse-trading.

The Anti-Defection Law in India

The tenth schedule talks about ‘Provisions as to disqualification on the ground of defection’ ² and includes a total of eight paragraphs, where paragraph 2 outlines the grounds for defection that apply to elected members of any political party, independent elected members, and nominated members. It states that the elected members will be disqualified if they voluntarily give up their membership in such a political party if they join another political party after being elected, or if they vote against their own party’s directions without permission. Independent members face disqualification if they join a party after the election, while nominated members face disqualification if they join a party six months after taking the oath. Paragraph 3 talks about the split that can take place between the parties. Paragraphs 4 and 5 provide exceptions from disqualification; Paragraph 4 allows for no disqualification in the event of a party merger with the agreement of two-thirds of its members or if members choose to operate separately. Paragraph 5 exempts certain officials, like the speaker or deputy speaker of the house and deputy chairman of the council of states or the chairman or deputy chairman of the legislative council of the state, from disqualification if they give up party membership before the election and do not rejoin until after leaving office. Paragraph 6 designates the chairman or speaker as the presiding officer for decisions on member disqualification due to defection, with their ruling being final within the meaning of Article 122 or Article 212 of the Constitution, depending on the legislative body. Paragraph 7 bars the jurisdiction of the court and limits court jurisdiction. Although this was deemed invalid in the Kihoto Hollohan v. Zachillhu (1992)³ case, where the five-judge constitutional bench allowed appeals to the High Courts and Supreme Court in defection cases, in this case, it was held for the first time that the decision of the speaker or chairman is subject to judicial review. Paragraph 8 gives the responsibility to the chairman and speaker to make rules in order to enforce the provisions of this schedule.

The 91st Amendment⁴ was brought in 2003 to revise the Tenth Schedule of the Constitution to stop the misuse of Paragraph 3, which was an exception to disqualification in case of party splits. At the same time, Articles 75(1B), 164(1B), and 361B were added, prohibiting a disqualified member from acting as a minister or holding any other paid political position from the moment of his disqualification up to when his term expires or he gets re-elected. Additionally, in the amendment, it was provided that the total combined number of ministers in the Central and State Councils of Ministers should not exceed fifteen percent of the total number of members of the legislature. However, the 91st Amendment dealt with the problem of mass defections by increasing the proportion of party members from one-third to at least two-thirds for a ‘merger’ to be legally valid.

However, defection does not take place when a political party splits if the whole party joins another political party. It also does not apply if elected members of a particular party were to form a new political party out of the existing one. Further, defection is not taken if other members of a party do not consent to the merger of two parties and prefer to exist as a different group after the merger.

Challenges with the Anti-Defection Law

The current legislation regulating the concerning act of defection has several major flaws. First and foremost, one of these issues involves uncertainty in defining the concept of ‘voluntary give-up’⁵ since this concept has not been clearly defined, and as a result, judicial systems in various cases have put forward different interpretations of the same. For instance, in the case Ravi S. Naik v. Union of India (1994)⁶, the Supreme Court discussed the meaning of the words ‘voluntary give up membership’, wherein the court said that while deciding the disqualification under this schedule, an individual’s conduct should also be taken into consideration. Likewise, in the case of Rajendra Singh Rana vs. Swami Prasad Maurya and Others (2007)⁷, the honourable Supreme Court of India declared that if any member gives a letter to another party to form the government, it will constitute a ‘voluntary give-up’. The law was enacted with the aim of reducing defection cases to ensure the stability of the government. However, since the implementation of the 91st Amendment, mass defection has become increasingly common, even though the law has effectively reduced individual instances of defection. In addition, the anti-defection provisions effectively take away the flexibility of democracy; this is where freedom of speech matters most. The concentration of power in the hands of party officials undermines regional needs and perpetuates a dictatorial atmosphere within democratic institutions.

Furthermore, the provisions of the Tenth Schedule do not specify the timeframe within which the Speaker is supposed to make a decision on disqualification cases, rendering the Tenth Schedule quite ineffective. In the case of Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly and Others (2020)⁸, the Supreme Court intervened and gave a three-month timeline for such decisions while highlighting a major loophole in the legislation as there was a lack of a specified timeframe. The judiciary has also intervened in instances where the speaker’s decision violated principles of natural justice. At present, the power resides with the Speaker or Chairman of the House, which raises concerns about impartiality and quick resolution, particularly because of the political affiliations of these officials. Such an arrangement, in addition to the absence of a requirement for the Speaker to give up his political ties upon assuming office, casts doubt on the fairness and uncertainty of decisions regarding defection, potentially leading to decisions influenced by political factors rather than the merits of the case. Given this, the Law Commission of India, in its 170th Report(1999)⁹ has recommended assigning the responsibility of deciding on disqualification to a third party or unbiased figure, such as the President or Governor, to ensure fairness and impartiality, based on the Election Commissioner’s recommendations. Furthermore, the Dinesh Goswami Committee on Electoral Reforms (1990)¹⁰ and the National Commission to Review the Working of the Constitution (NCRWC) (2002)¹¹ have recommended removing the Speaker’s role in hearing and deciding the cases related to defection.

Comparing Anti-Defection Laws (India v. Other Countries)

Political defection is not an act limited to India only, as it can also be noticed in other countries, including the USA, Canada, and the UK, where anti-defection laws are not implemented. In these countries, parties may issue directives or use pressure on those members who deviate from the party line, but legislators are not disqualified for disobeying such instructions given by their party. In the United Kingdom, parties often issue whips, but disobedience typically results in disciplinary action rather than disqualification from the legislature. As for the implementation of the anti-defection legislation, out of 40 countries, only six—India, Pakistan, Bangladesh, Zimbabwe, Sierra Leone, and Guyana—require legislators to strictly adhere to party directives, while the rest disqualify MPs only if they resign or are expelled from their party. India is among the countries that have provisions on disqualification for not following the party whip, as provided in Paragraph 2(1) of the Tenth Schedule. Such provisions impose restrictions on the freedom of speech and expression of legislators and promote autocratic party functioning. Given these concerns, it is about time to look at the more relaxed approach taken by countries like the United States of America and the United Kingdom in addressing the issue of political defection.

Conclusion

The problem of political defection in India raises important questions that prevent legislators from effectively performing their duties and responsibilities and undermine public trust in elected representatives. The current anti-defection law, which was aimed at enforcing party discipline, has defeated its very purpose by restricting the freedom of legislators and compromising their accountability to voters. Criticism has been directed at the impartiality of the Speaker’s role in deciding defection cases, prompting recommendations to transfer this responsibility to neutral figures like the President or Governor, in line with advice from the Election Commission. Unfortunately, even after thirty-nine years and several amendments in the tenth schedule, the core objective of fostering a vibrant democracy with stable governance remains a dream and a far-fetched goal, particularly in the face of recent mass defections in various states. The existing state of affairs presents a question of whether to strengthen the law or scrap it altogether. Proposed changes include taking political parties before the courts in cases of dissatisfaction with the decision of the speaker. Further, measures such as disqualifying defectors from contesting elections or holding ministerial positions could help in reducing the number of defection cases. This was done in the Lily Thomas case of (2013)¹² which discusses the disqualification of defectors from ministerial positions under Article 75(5) and Article 164(4), underscoring the complexity of the anti-defection law and the challenges it presents.

This article is authored by Renisha Sharma, student at Institute of Law, Nirma University.

References:

1. https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-fifty-second-amendment-act-1985
2.  https://www.mea.gov.in/Images/pdf1/S10.pdf
3. Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651
4. https://www.india.gov.in/sites/upload_files/npi/files/amend91.pdf
5. https://prsindia.org/files/parliament/discussion_papers/The_Anti-Defection_Law.pdf
6. Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641
7.  Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270
8. Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, (2021) 16 SCC 503
9. https://lawcommissionofindia.nic.in/cat_ELECTORAL_REFORMS/
10. https://adrindia.org/sites/default/files/Dinesh%20Goswami%20Report%20on%20Electoral%20Reforms.pdf
11. https://prsindia.org/files/parliament/discussion_papers/The_Anti-Defection_Law.pdf
12. Lily Thomas v. Union of India, (2013)7 SCC 653

Other References:

1. https://www-livelaw-in.elibrary.nirmauni.ac.in/columns/anti-defection-law-need-for-reforms-and-a-better-interpretation-of-law-to-serve-the-objectives-160648
2. https://articles.manupatra.com/article-details/Understanding-the-Anti-Defection-Law-in-India-Provisions-Significance-and-Criticisms
3. https://ijirl.com/wp-content/uploads/2022/01/THE-EFFICACY-OF-ANTI-DEFECTION-LAW-IN-INDIA-A-COMPREHENSIVE-ANALYSIS.pdf