Baba’s Explainer – Anti-Defection Law (Tenth Schedule)

• The anti-defection law was passed in 1985 through the 52^nd Amendment to the Constitution. The Amendment added the Tenth Schedule to the Indian Constitution, with an intent to curb “the evil of political defections”.
• Under the anti-defection law, legislators may be disqualified from their membership to the House if they resign from their party after being elected, or defy the direction issued by the party leadership during a vote on any issue.

When can a legislator be disqualified as per Tenth Schedule?

• If a member of a house belonging to a political party:
  • Voluntarily gives up membership of his political party, or
  • Votes contrary to a direction issued by his political party, or does not vote in the House at all, when such a direction is issued.
  • However, a member shall not be disqualified if he has taken prior permission of his party, or is condoned by the party within 15 days from such voting or abstention.
• If an independent candidate joins a party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature

Are there any exceptions?

• A person shall not be disqualified if his original political party merges with another (applicable only if more than two-thirds of the members of the party have agreed to the merger), and:
  • He and other members of the old political party become members of the new political party, or
  • He and other members do not accept the merger and opt to function as a separate group.
• Note that Until 2003, the law also exempted defections caused by 1/3rd members of the original party splitting from the party. This exception was removed in 2003.

Who has the power to disqualify?

• The Chairman or the Speaker of the House takes the decision to disqualify a member.
• If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

• One justification offered for the law is that it intends to combat political
  defections fuelled by political corruption and bribery
• In the years preceding the passage of the anti-defection law, it was noted that
  legislators were often given the lure of executive office, or promised personal benefits, in order to encourage them to defect from their party.
• This obviously affected the political stability of the government & thereby the governance of the administration, hence necessitating anti-defection law.
• Others have argued that defections flout the voters’ mandate. This argument is based on a recognition of the role of political parties in the parliamentary system.
• The argument is that most candidates are elected on the basis of the party which gives them a ticket. The party also arranges for election expenses of the candidate and the candidate fights the election based on the manifesto of the party.
• Therefore, when a member defects from the party, he betrays the fundamental trust based on which people elected him to power.

• Broken Chain of Accountability: The legislator is accountable to voters, and the government is accountable to legislators. In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
• Restrains legislators from expressing their conscience in the House: All legislators have a ready explanation for their voting behaviour: they had to follow the party’s direction. This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
• Legislator’s ability to hold the government accountable diluted: One of the key features of a parliamentary democracy is that the government is accountable for its decisions to Parliament. However, the anti-defection law deters a legislator from his duty to hold the government accountable, by requiring him to follow the instruction of the party leadership on almost every decision.
  • Therefore, he may debate and dissent from his party position on an issue in
    Parliament, but will still be compelled to vote as per the instruction of
    the party whip.
• Role of Legislator compromised: If an MP has no freedom to take decisions on policy and legislative proposals, there would not be any incentive to put in the effort to understand the different policy choices and their outcome. The core role of an MP to examine and decide on policy, Bills and budgets is therefore side-lined.
• Impacts decision-making in the House: The anti-defection law leads to major decisions in the legislature being taken by a few party leaders and not by the larger body of legislators. In India, political parties frequently issue whips on matters which are subject to a vote in Parliament. This implies that anyone who controls the party leadership can issue directions to all legislators.
  • This reduces Parliament from a deliberative body to one where party
    leaders are able to unilaterally decide the vote on an issue, without
    consulting with members of their political party
• Against the intention of Constitution makers: The drafting committee believed that India needed a government that was accountable, even at the cost of stability. The anti-defection bill weakens the accountability mechanism.
• Does not even provide stability: The political system has found ways to topple governments. The Constitution was amended to ensure that any person disqualified for defecting cannot get a ministerial position unless they are re-elected; the way around this has been to resign rather than vote against the party. In other instances, the Speaker has delayed taking a decision on the disqualification.
• Loopholes in the law
  • It allows wholesale defection. But retail defection is not allowed.
  • There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.

Supreme Court Judgements in Kihoto Hollohan (1992) case:

• Five Judge Bench of SC upheld the validity of the Constitution’s Tenth Schedule, or the anti-defection law.
• It was also held in this case that a Speaker or a Chairman, acting Tenth Schedule, is a Tribunal and thus his discretionary powers were protected by Constitution.
  • Dissenting minority view by Justice JS Verma questioned the fairness of speaker in adjudication.
• This verdict had also made the Speaker’s order subject to judicial review on limited grounds and that mere procedural infirmities could not prompt judicial intervention.
• It was also held that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.

Supreme Court in its 21st Jan 2020 order gave the following pronouncements

• Reasonable Time period for deciding on Disqualification
  • Unless there were “exceptional circumstances”, disqualification petitions under the Tenth Schedule shouldbe decided by Speakers within three months 
  • Failure to deliver decision by Speaker within a reasonable time period will entail the court to intervene in the disqualification matter (as has happened now in this case)
• Suggested an Independent Body 
  • SC asked the Parliament to consider having an independent and permanent body to decide disqualification petition, which requires an amendment to the constitution.
  • Given the fact that a Speaker belongs to a particular political party, the Court mooted this idea
  • Also, Speaker wasn’t adjudicating election disputes or disqualification of members under Articles 103/ 192/ 329for good reason, because their fairness could be suspected.

• The issue of political defections is not unique to India.
• Mature democracies, such as the US, UK, and Canada, do not have an anti- defection law.
• Parties may issue directions or exert pressure if a member goes against the party line. However, legislators are not disqualified for defying the directives of their party. For example, whips are often issued by political parties in the UK. If an individual MP or MLA defies the whip, they continue to retain their membership to the legislature (although the party may take disciplinary action against them).
• Currently, among the 40 countries that have an anti-defection law, only six countries have a law that mandates legislators to vote according to party diktat.
  • The six countries that disqualify legislators who defy the party whip are India, Pakistan, Bangladesh, Guyana, Sierra Leone and Zimbabwe.
• The remaining countries only disqualify legislators if they are found to resign from their party or be expelled from it.