The anti-defection law in India has an all-pervasive impact on the lives of ordinary citizens as it seeks to promote parliamentary discipline and decorum and prevent unethical tactics from being used by politicians. While such aims are indeed laudable there are its critics who claim that this law has created more problems and complications than ever before. There has been a continuous struggle between the supporters of the law on one hand and its detractors on the other.
Aaya Ram Gaya Ram was a phrase that becomes popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice on the same day in 1967. The Anti Defection Law sought to prevent such political defection which may be due to rewards of the office or other similar considerations.
The Tenth Schedule was inserted into the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on the petition by any other member of the house. A legislature is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directive of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.
The Supreme Court off lately has been adjudicating defection-based disqualification petitions from different state legislative assemblies. In the process, the court has reviewed the limits of the speaker’s discretion.
When Haryana held its first election in 1967 after the state was carved out from Punjab, an independent candidate named Gayalal won the assembly elections. Later he joined the Congress party; in the evening, he joined the United Front, and within 9 hrs he joined the Congress again, which ultimately means M.L.A. Gayalal switched his party thrice within 9hrs. This incident gave rise to “Aaya Ram Gaya Ram” politics in our country, and the defection got the new term, “Aaya Ram, Gaya Ram.” Unfortunately, this didn’t end here. Within 15 days, Gayalal again joined the United Front. In another notorious event in 1979, Haryana also came into the limelight when Bhajan Lal became CM of the state. The next, year Indira Gandhi came into power in the central government. He joined the Congress party with forty other M.L.A.s It is worth mentioning here that more than 50 state governments have fallen because of these defections since Independence’s enactment.
These acts of defections had to be curbed to maintain the dignity of the constitutional machinery and assemblies; then, the prime minister of the country, late Rajeev Gandhi, enacted the 52nd amendment of the Constitution, and the10th Schedule was added, which defined the word defection and known as Anti-Defection law. Various provisions have been provided by the law, which discusses grounds under which any member of the state legislature or Parliament can be disqualified. In most common forms, defection means jumping from one political party to the other after getting elected.
The phenomenon of defection is not peculiar to India. It is prevalent in democracies all over the world, which have adopted the party system. In Great Britain, famous politicians like Winston Churchill, William Gladstone and Ramsay Macdonald used it during their careers as political tactics. Similarly, in Australia, Canada and USA, this practice of defection has been noticeable.
In India, the need to tackle defection arose only after 1967. Before 1967, there were only about 500 instances of defection and that too, mostly at the state level. Such defection occurred mostly for ideological reasons and not due to the lure of office. These defections further strengthened the fabric of Indian democracy and curbing such defection would have been akin to undermining and eroding the freedom required setup. After Fourth General Election in the country, however, the practice of defection took an alarmingly unprecedented turn. Many legislators switched sides thanks to the use of office and abruptly switched back when the promises made to them were not fulfilled. Between 1967 and 1972 more than 50% of the legislators switched sides at least once. This practice of switching sides to gain office came to be known as ‘Horse-Trading’.
The first attempt to analyse this malady came in December 1967 when the Lok Sabha appointed a high-level committee to look into the problem and make recommendations. The committee was constituted under the chairmanship of the then Union Home Minister Y.B. Chavan and consisted of legal and political luminaries such as M.C. Setalvad, Jayaprakash Narayan, H.N. Kunzru, M. Kumaramangalam and Madhu Limaye among others. The committee placed its report before the Parliament in February 1969. The committee’s recommendations included that:
- Political parties should arrive at a code of conduct amongst themselves.
- In cases of defection for ideological reasons, the defector should be disqualified from continuing as a legislator but is allowed to stand again.
- In cases of defection due to the lure of the office or pecuniary gains, the defector should not only be disqualified from the office but also be prevented from standing for a specified period.
What emerges is that no definite stand for or against defection was taken. It was proposed to regulate defection and only a certain category of defections were sought to be prohibited. However, these recommendations were not acted upon immediately. it was only in May 1973 that the government introduced the Constitution (32nd Amendment) Bill, 1973 to give effect to recommendations made 4 years earlier. However, there was strong opposition to the bill and it became a matter of public debate. This bill was then referred to a joint committee of the 2 Houses. However, the Lok Sabha was dissolved before this committee could complete its deliberation and the bill lapsed.
It was not until 5 years later when the Janata Party came to power in 1978 that an attempt was made to bring forward a bill on defection. However, this was opposed at the stage of introduction itself not only by the opposition but also by some members of the ruling party and the motion for introducing the bill was withdrawn.
It was not until the Rajiv Gandhi Government came to power 7 years later that any move was made in this direction. It began on 17th January 1985 with the presidential address to both Houses of Parliament in which he said that the government intended to introduce a bill relating to the matter. To fulfil the promise made by President, the Government introduced the 52nd Amendment Bill in Lok Sabha just a week later on the 24th of January. The Prime Minister prolonged the talks with the opposition groups; it was after this that the Bill was finally passed. Lok Sabha passed it on 30th and Rajya Sabha on 31st January. The Act came into force with effect 1st of March after having received Presidential assent on the 15thof February. The constitution 52nd Amendment Act, 1985 amended Acts 101, 102, 190, and 191 of the constitution providing further grounds for disqualification from membership of Parliament and State Legislature.
After enacting the Constitution in the year 1950, we had the first general elections in our country in which Congress secured a whopping victory. Still, with time, the political scenario took a turn, and we came across coalition governments in various states. Floor crossing started which led to a vicious cycle of defections and floor crossing. In the late 1960s, most defectors were from Congress. In 1977, the Bhartiya Lok Dal ran 94 turncoat candidates, including 21 from Congress. Many of them migrated back to Congress once it became clear that Indira Gandhi was set to win the 1980 elections. This period is considered a weak point of Congress in Indian Politics.
With all those defections in this phase, the most dramatic case of defection in that era was that of Mr Gaya Lal, who contested state assembly elections as an independent candidate. As result, he switched the parties between Congress and United Front thrice a day. Ultimately, the president was forced to implement President Rule in the state, giving rise to Aaya Ram, Gaya Ram politics in our country.
Anti-defection law isn’t applicable in India only. It’s rife in various other countries like the People’s Republic of Bangladesh, Kenya, an African country, etc. Article 70th of the People’s Republic of Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The Speaker refers the dispute to the committee. Section forty of the Kenyan Constitution states that a member United Nations agency that resigns from his party must vacate his seat. The choice is by the Speaker, and therefore the member might consider attractiveness to the state supreme court.
Article forty-six of the Singapore Constitution says a member should vacate his seat if he resigns or is expelled from his party. Article forty-eight states that Parliament decides on any question about the Disqualification of a member. Section forty-seven of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party appointed him.
- A member of the house is disqualified from the membership if he voluntarily gives it up or if he votes or abstains from voting contrary to the direction given by the party.
- This disqualification does not apply in case of a split i.e., 1/3rd or more of the members of a party defect.
- It shall also not apply in the event of a merger i.e., 2/3rd of the members or more merge with any other party.
- The speaker, Deputy Speaker and Deputy Chairman are allowed to give up their membership after being elected to the office.
- The speaker or chairman is the person to decide on questions of disqualification.
- The jurisdiction of the courts regarding the disqualification of any member has been barred. However, the Supreme Court 1993 struck down this part of the schedule as unconstitutional.
- The Act disqualifies (a) a member of the house who voluntarily gives up his membership of a political party on whose ticket he contested the election. (b) a member of the House if he votes or abstains from voting in the house contrary to the direction of his political party without its prior permission and if his action has not been condoned within 15 days by his party. (c) to an independently elected member who joins a party after the election (d) a nominated member belonging to a political party provided he voluntarily resigns from his party, and (e) a non-party nominated member who joins a political party after six months but not if he joins within six months.
- The Act exempts the cases of splits and mergers from disqualification. Members of a house do not incur disqualification if they belong to the legislature party and constitute a group representing a faction arising as a result of a split of their political party provided the group consists of at least one-third of members of the such legislature party. Again, members of a house do not incur disqualification where their political party merges with another and they claim that they have become members of such other party or a new party formed as a result of such merger, or they have not accepted the merger and opted to function as a separate group. From the time of the merger, such other party, new party or group is deemed to be the political party to which the members belong. Further, the merger is deemed to have taken place if not less than two-thirds of the members of the legislature party concerned have agreed to a merger.
- These Articles debar courts from inquiring into such proceedings. Despite the procedure laid down by the anti-defection rules framed under the Act, the decision of presiding officers (who are usually nominees of majority legislature parties) may not always inspire confidence, psychologically and unconsciously they are likely to lean in favour of their political supporters. Again, it is not clear why a separate forum has been created for settling the question of disqualification on account of defection when the constitution is already provided with machinery for dealing with issues of disqualifications specified in Articles 102 and 191. Under Articles 103 and 192, these issues have respectively to be referred to the President and Governors whose decisions are final. But before doing so, they have to seek the opinion of the Election Commission and have to act according to such opinion. The provision empowering presiding officers to decide questions of disqualification as a result of alleged defection is inconsistent with the existing constitutional scheme to have decisions in such matters by the Election Commission which an impartial forum is created by the constitution. There is no rational basis for such discrimination.
- The Act has also taken away a judicial review in cases of disqualification based on defection. There is no such bar regarding issues of disqualifications mentioned in Articles 102 and 191. This again is impermissible discrimination and violates Article 14. Though under the existing provisions the decision of the President or the
- Governor, as the case may be, is final; the courts can still intervene on the ground that he has not acted according to the opinion of the election commission because “finality can attach only to intra vires exercise of the power when a power is limited by conditions”. According to Judicial Review cannot be barred as it is part of the basic structure of the constitution.
The Anti-Defection Law or 10th Schedule of the Constitution of India was interpolated in the Constitution in 1985 by the 52nd Amendment Act in order to discourse the perceived problem of the Members of Parliament (MPs) / Members of Legislative Assembly (MLAs) shifting their loyalties from the parties they supported at the time of election or defying their parties at perilous times such as during voting on a cardinal resolution.
The main objective for which the Anti-Defection law was introduced was to combat “the evil of political defection” but so far it has failed to fabricate results as the instances of political defections still continue unabated.
 Subhash C. Kashyap, The Anti Defection Law-promises, Provisions and Problems, 35 JPI (1989) (SCC Online web Edition).
 K.N. Singh, Anti-Defection Law and Judicial Review, 38 JPI 31 (1992) (SCC Online web Edition).
 J.K. Mittal Anti-Defection Act: A comment on its constitutionality (1987) 3 SCC (J) 25 at 26 (SCC Online Web Edition, The Law on Anti-Defection: An Appraisal, by H.R. Saviprasad: and Vinay Reddy).
 Subhash C. Kashyap, The-Defection Law-Premises, Provisions and Problems, 35 JPI (1989) 9, p. 11.
 KihotoHollohan v. Zachillhu, 1992 Supp (2) SCC 651: AIR 1993 SC 412.
 Election Commission v. N.G. Ranga, (1978) 4 SCC 181.
 Anti-Defection Act: A comment on its constitutionality, J.K. Mittal, (1987) 3 SCC J-25, SCC Online (web edition).
Article by Prime Legal