ANTI-DEFECTION LAW

2. About anti-defection law

The anti-defection law in India refers to the provisions laid down in the Tenth Schedule of the Constitution of India, which was inserted by the 52nd Amendment Act of 1985. The primary purpose of the anti-defection law is to curb "political defections" by legislators for personal gains or due to extraneous considerations, thereby promoting stability and integrity in the political system.

Key features and purposes of the anti-defection law include

• The law provides for the disqualification of elected legislators if they voluntarily give up the membership of their political party or disobey the directives issued by their party leadership on voting in legislative matters.
• By penalizing defections, the law aims to preserve stability and discipline within political parties. It discourages legislators from switching parties solely for opportunistic reasons, thereby promoting a more principled approach to politics.
• Preventing defections helps in maintaining stable governments by reducing the likelihood of frequent changes in government formation due to opportunistic alliances or individual defections. This stability is essential for effective governance and policy implementation.
• The law seeks to protect the mandate given by voters to a particular political party during elections. Defections can undermine the trust placed by voters in a party's policies and candidates, and the anti-defection law aims to safeguard the integrity of the electoral process.
• By discouraging defections and ensuring that legislators adhere to the party's stance on legislative matters, the law contributes to the smooth functioning of legislatures. It reduces disruptions caused by political uncertainties and promotes a more focused approach to lawmaking and governance.
• The anti-defection law upholds democratic principles by emphasizing the importance of party discipline and accountability. It encourages elected representatives to remain committed to the party's ideology and manifesto, thereby fostering a more transparent and accountable political system.

3. Has the anti-defection law ensured the stability of governments?

The effectiveness of the anti-defection law in ensuring the stability of governments in India is a subject of debate. While the law has certainly had some impact on curbing defections and promoting party discipline, its efficacy in maintaining government stability is not absolute.

Several factors contribute to this nuanced perspective

• The anti-defection law has succeeded in reducing blatant opportunistic defections where legislators switch parties solely for personal gains or political expediency. This has helped in preventing frequent changes in government formation and instability arising from such defections.
• In a multi-party democracy like India, coalition governments are common, and the anti-defection law has played a role in preserving these coalitions by deterring individual legislators from defecting and causing the collapse of the government.
• By discouraging defections and ensuring party discipline, the law has contributed to the smooth functioning of legislatures, which is essential for passing legislation and conducting parliamentary business. This has indirectly supported government stability by facilitating the enactment of policies and laws.
• Despite its provisions, the anti-defection law has faced challenges and criticisms. Some critics argue that the law has not entirely prevented defections, as legislators often find loopholes or exploit exceptions in the law to switch parties without facing disqualification.
• Government stability is influenced by various factors beyond the anti-defection law, including political dynamics, coalition dynamics, public opinion, and socio-economic factors. The law alone cannot guarantee government stability in the face of broader political uncertainties and challenges.
• While promoting stability, the anti-defection law has also raised concerns about its impact on democratic values such as freedom of speech and dissent within political parties. Critics argue that the law may stifle legitimate dissent and independent decision-making among legislators.

4. What constitutes defection? Who is the deciding authority?

Defection refers to the act of an elected representative or member of a political party abandoning their original party affiliation and joining another political party or forming a separate group, either independently or in association with others, without following the procedures laid down by their party or the law.

In the context of the anti-defection law in India, defection is specifically defined as:

• If a member of a political party voluntarily gives up their membership of that party.
• If an elected member votes or abstains from voting against the directives issued by their party leadership (whip) on a particular legislative matter, without obtaining prior permission.
• If a member of a political party joins another political party after being elected as a representative.
• If a member of a political party forms or joins a new group or political party, and such group consists of at least one-third of the members of the original political party in the legislature.

The deciding authority regarding defection cases is typically the Speaker or Chairman of the concerned legislative body (e.g., Lok Sabha, Rajya Sabha, State Legislative Assembly, or State Legislative Council). Upon receiving a complaint or petition regarding a defection case, the Speaker or Chairman examines the matter and makes a decision based on the provisions of the anti-defection law.

The Speaker or Chairman is responsible for determining whether the actions of the member(s) constitute defection as per the law and, if so, for issuing appropriate orders, including disqualification of the defectors from membership of the legislature. The decision of the Speaker or Chairman can be challenged in the courts through legal recourse if it is perceived to be arbitrary or in violation of constitutional principles.

5. Kihoto Hollohan case (1993)

The Kihoto Hollohan vs. Zachillhu and Others case, decided by the Supreme Court of India in 1992, is a landmark case related to defection and the role of the Speaker in Indian politics.

• The Tenth Schedule of the Indian Constitution, introduced through the 52nd Amendment in 1985, laid down provisions to curb defection by elected representatives. This case challenged the constitutionality of the Tenth Schedule, particularly the broad powers it granted to the Speaker in deciding defection cases.
• The petitioners argued that giving the Speaker such extensive power violated the doctrine of basic structure and potentially infringed on the freedom of speech, dissent, and conscience of elected representatives.
• The Supreme Court, in a majority judgment, upheld the Tenth Schedule and the Speaker's broad powers. The court reasoned that:
  • The Speaker occupies a crucial position in the parliamentary system and is expected to handle sensitive matters.
  • Granting the Speaker broad discretion is necessary for the efficient and effective functioning of the anti-defection law.
  • The court acknowledged the potential for bias but believed it was minimized by the Speaker's constitutional position and the requirement to act in good faith.

Significance: The Kihoto Hollohan case remains a pivotal judgment shaping Indian politics. It

• Established the Speaker's authority in deciding defection cases.
• affirmed the constitutionality of the anti-defection law.
• However, the case also sparked discussions about the balance between stability and individual rights in the context of defection. It continues to be debated whether the broad powers granted to the Speaker are truly necessary or pose a risk to democratic principles.

6. SR Bommai case (1994)

The SR Bommai case, officially known as S.R. Bommai vs. Union of India, is a landmark judgment delivered by the Supreme Court of India in 1994. This case dealt with issues related to the dismissal of state governments under Article 356 of the Constitution of India, popularly known as the President's Rule.

The case was prompted by the dismissal of the government in the state of Karnataka in 1989 under Article 356 by the then-central government led by Prime Minister Rajiv Gandhi. This dismissal led to legal challenges, including petitions filed by S.R. Bommai, who was the Chief Minister of Karnataka at the time of dismissal.

Key Issues

1. Whether the decision of the President to impose President's Rule in a state under Article 356 was immune from judicial review.
2. Whether the power of the President to dismiss a state government was absolute or whether there were limitations on this power.
3. Whether there were grounds for judicial intervention in cases of misuse or abuse of Article 356 by the Central government.

Key Judgments

• The Supreme Court held that the imposition of the President's Rule in a state is subject to judicial review. The Court ruled that the exercise of power under Article 356 is justiciable, and the President's satisfaction with imposing the President's Rule can be questioned in a court of law.
• The Court laid down guidelines and limitations on the exercise of power under Article 356. It held that the President's Rule can only be imposed in exceptional circumstances where the constitutional machinery in a state has completely broken down, and the Governor's report justifying the imposition of the President's Rule must be based on relevant material.
• The Court ruled that a floor test in the legislative assembly is the most effective way to determine the strength of the government and resolve political uncertainties. It held that the majority enjoyed by a government in the assembly should be tested on the floor of the House.

Significance: The SR Bommai case is significant as it established judicial guidelines and limitations on the use of Article 356 and provided clarity on the scope of judicial review in matters related to the dismissal of state governments. It reinforced the principles of federalism and democracy by limiting the Central government's power to dismiss state governments arbitrarily and ensuring accountability in the exercise of such powers.

7. The 52nd Amendment Act of 1985 and the 10th Schedule of the Constitution

The 52nd Amendment Act of 1985 was a significant amendment to the Constitution of India. It introduced the Tenth Schedule to the Constitution, commonly known as the anti-defection law. The primary objective of this amendment was to curb the practice of political defections by legislators, which often led to instability in governments and undermined the democratic process.

Key provisions of the 52nd Amendment Act and the Tenth Schedule include

1. The Tenth Schedule defines defection and provides criteria for disqualification of legislators who defect from their political party.
2. Legislators can be disqualified if they voluntarily give up their party membership or violate the directives issued by their party leadership on voting in legislative matters.
3. The Tenth Schedule empowers the Speaker or Chairman of the legislative body to decide on defection cases. The decision of the Speaker or Chairman regarding disqualification is final and cannot be questioned in a court of law except on certain grounds such as mala fide or violation of principles of natural justice.
4. The Tenth Schedule provides certain exceptions to disqualification, such as when a political party merges with another party, and two-thirds of its members agree to the merger.
5. While the decision of the Speaker or Chairman is generally final, it is subject to judicial review on certain grounds, such as violation of constitutional provisions or principles of natural justice.

The 52nd Amendment Act and the Tenth Schedule were introduced to promote stability and integrity in the political system by discouraging defections and preserving party discipline. However, over the years, there have been debates and discussions about the effectiveness of the anti-defection law and its impact on democratic principles such as freedom of speech and dissent within political parties. Nevertheless, the introduction of the Tenth Schedule remains a significant milestone in the constitutional history of India aimed at strengthening the democratic framework of the country.

8. 91st Amendment Act of 2003

The 91st Amendment Act of 2003 is an important amendment to the Constitution of India. This amendment introduced changes to Article 75 and Article 164, which deal with the appointment of Ministers in the Union Council of Ministers and State Council of Ministers, respectively. The primary objective of the 91st Amendment Act was to prevent the practice of "office of profit" by Members of Parliament (MPs) and Members of the State Legislature (MLAs).

Key provisions of the 91st Amendment Act include

1. The amendment clarified the definition of "office of profit" held by MPs and MLAs. An office of profit refers to any position held by a person which brings them some financial gain, advantage, or benefit.
2.  The amendment exempted certain offices from being considered as offices of profit. These include offices held by MPs or MLAs as Ministers, or positions that the Parliament or State Legislature has specifically declared as not being offices of profit.
3. The amendment specified that a person shall be disqualified from being a member of Parliament or State Legislature if they hold any office of profit under the Government of India or the Government of any state, other than offices exempted by law.
4. The amendment allowed for the Parliament or State Legislature to make laws specifying the offices that are exempted from disqualification. It also provided for the interpretation of the term "office of profit" by the Parliament or State Legislature.

The 91st Amendment Act aimed to ensure that legislators do not hold positions that could potentially compromise their independence and impartiality in discharging their duties as elected representatives. By preventing MPs and MLAs from holding offices of profit, the amendment sought to uphold the principles of transparency, accountability, and integrity in the functioning of the legislative bodies in India.

8.1. What is that ‘exception’?

• The exception mentioned in the context of the 91st Amendment Act of 2003 refers to certain offices that are exempted from being considered as "office of profit" and, therefore, do not lead to disqualification of MPs or MLAs holding such positions.
• The amendment provides that certain offices can be specifically exempted by law from being considered as offices of profit. This means that the Parliament or State Legislature can pass laws to declare certain positions or offices as not falling under the definition of office of profit, thereby allowing MPs or MLAs to hold these positions without facing disqualification.
• The purpose of this exception is to provide clarity and flexibility in determining which positions should be considered as offices of profit and which should be exempted. It allows for a case-by-case examination of positions held by legislators to ensure that they do not hold any office that could potentially compromise their independence or impartiality in discharging their duties as elected representatives.
• Examples of offices that may be exempted from being considered as offices of profit include positions held by legislators as Ministers or positions that are honorary or ceremonial, without any substantial remuneration or executive authority attached to them. However, the specific exemptions may vary depending on the laws passed by the Parliament or State Legislature.

9. The Way Forward

The anti-defection law remains a significant milestone in India's constitutional history, aimed at strengthening democratic principles and promoting a more transparent and accountable political system. There is a need to review and strengthen the implementation of the law, enhance transparency in defection cases, promote intra-party democracy, and encourage public awareness to uphold the integrity of the electoral process and ensure the stability of governments.