Anti-Defection Law in India: Grounds, Exceptions and Judicial Review

Introduction

The anti-defection law was introduced by the 52nd Constitutional Amendment Act, 1985, to prevent elected representatives from changing political parties for personal or political gain. It inserted the Tenth Schedule into the Indian Constitution, which specifies when Members of Parliament and State Legislatures can be disqualified for defection (leaving or acting against their political party in circumstances covered by the law). The law aims to promote political stability while raising important questions about legislators' freedom to express independent views.

Meaning and Constitutional Background

Defection generally means leaving one political party to join another or acting against the party in a manner that attracts disqualification under the Constitution.

The 52nd Constitutional Amendment Act, 1985, amended Articles 101, 102, 190 and 191 and inserted the Tenth Schedule. The amendment was introduced because frequent changes of political allegiance by elected representatives were seen as a threat to democratic government.

The Tenth Schedule applies to members of both Houses of Parliament and State Legislatures. It lays down the grounds for disqualification, exceptions for certain party mergers and the procedure for deciding disqualification cases.

The 91st Constitutional Amendment Act, 2003, strengthened the anti-defection framework. It removed the earlier exception for a split in a political party and restricted the size of the Council of Ministers, among other changes.

Grounds for Disqualification under the Tenth Schedule

Paragraph 2 of the Tenth Schedule specifies the circumstances in which a legislator may be disqualified for defection.

Voluntarily Giving Up Membership of a Political Party

A member elected as a candidate of a political party may be disqualified if the member voluntarily gives up membership of that party.

The law does not require a formal resignation in every case. A member's conduct may show that they have voluntarily abandoned their party membership, even if they have not submitted a resignation letter.

Voting or Abstaining Against the Party's Direction

A member may be disqualified if they vote or abstain from voting in the House contrary to a direction issued by their political party or an authorised person, without prior permission, and the party does not condone (formally forgive or accept) the conduct within fifteen days of the vote or abstention.

Such a direction is commonly called a party whip. The legal effect depends on the requirements of the Tenth Schedule and the circumstances of the vote.

An Elected Independent Member Joining a Political Party

An independent member elected without being nominated by a political party is disqualified if they join a political party after the election.

This rule aims to prevent an independent candidate from obtaining election without party support and then joining a party after winning.

A Nominated Member Joining a Political Party

A nominated member may join a political party within six months from the date they take their seat in the House without attracting disqualification on this ground.

If the nominated member joins a political party after that six-month period, the member becomes liable to disqualification under the Tenth Schedule.

Exceptions to Disqualification

The Tenth Schedule recognises a limited exception for certain mergers. It does not allow every change of political allegiance to be treated as a valid exception.

Merger of a Political Party

Under paragraph 4, disqualification does not apply on the ground of a merger if the original political party merges with another political party and at least two-thirds of the members of the legislature party concerned agree to the merger.

The members covered by the provision may either become members of the party formed by the merger or join the party with which the original party has merged. Members who do not accept the merger and choose to function as a separate group are also protected under the conditions specified in paragraph 4.

The exception depends on the constitutional requirements for a merger, including the support of at least two-thirds of the members of the legislature party. A mere claim that a party has split or that some members have changed sides is not enough.

The Earlier Exception for a Party Split

Before the 91st Constitutional Amendment Act, 2003, paragraph 3 of the Tenth Schedule protected members where a group representing at least one-third of the legislature party formed a split.

The 91st Amendment removed this exception. Therefore, a group cannot avoid disqualification merely by claiming that a sufficient number of members have split from the original political party.

Exemption for Presiding Officers

Paragraph 5 of the Tenth Schedule provides a limited exemption for members who are elected as the Speaker or Deputy Speaker of the Lok Sabha or a State Legislative Assembly, or as the Chairman or Deputy Chairman of the Rajya Sabha or a State Legislative Council.

Under specified conditions, such a member may give up membership of their political party after being elected to the presiding office without attracting disqualification on that ground. The exemption also covers certain members who join a political party after leaving the presiding office.

This provision aims to allow presiding officers to perform their duties with greater independence. The exemption applies only when the conditions laid down in paragraph 5 are satisfied.

Who Decides Disqualification Cases?

Role of the Speaker or Chairman

Under paragraph 6 of the Tenth Schedule, a question about whether a member has become disqualified under the anti-defection law is decided by the presiding officer of the relevant House.

• In the Lok Sabha and State Legislative Assemblies, the Speaker decides the question.
• In the Rajya Sabha and State Legislative Councils, the Chairman decides the question.

The presiding officer acts as an adjudicating authority (a person or body that decides a dispute) when deciding such cases.

Concerns About Impartiality

A major criticism is that the Speaker or Chairman may have political links with the party that elected them to the office. This can create concerns about whether disqualification cases will be decided fairly, particularly when the ruling party's majority is at stake.

The Constitution entrusts this responsibility to the presiding officer, but the power is not unlimited. The decision is subject to judicial review.

Proposals for an Independent Decision-Maker

The Dinesh Goswami Committee on electoral reforms, the National Commission to Review the Working of the Constitution and the Law Commission of India have discussed reforms to the anti-defection system, including proposals for an independent authority to decide disqualification cases.

One proposal is that the President or Governor should decide such questions based on the advice of the Election Commission, following the model used for certain other questions of legislative disqualification under Articles 103 and 192.

These are reform proposals, not the current procedure under the Tenth Schedule. Under the existing law, the Speaker or Chairman remains the authority responsible for deciding defection cases.

Judicial Review of Disqualification Decisions

Judicial review means that courts can examine whether a decision complies with the Constitution and the law.

Paragraph 7 of the original Tenth Schedule attempted to exclude the jurisdiction of courts over matters relating to disqualification under the Schedule. However, in Kihoto Hollohan v. Zachillhu (1992), the Supreme Court held that this exclusion was unconstitutional because it required ratification by the States under Article 368(2), which had not been obtained.

The Court upheld the remaining provisions of the Tenth Schedule. It also held that the Speaker or Chairman acts as a tribunal when deciding disqualification questions and that such decisions are subject to judicial review by the High Courts and the Supreme Court.

Ordinarily, courts should not interfere before the presiding officer has made a decision. However, judicial review remains available on recognised constitutional and legal grounds.

Important Case Law

Kihoto Hollohan v. Zachillhu (1992)

The Supreme Court considered the constitutional validity of the Tenth Schedule and the Speaker's authority to decide disqualification cases.

The Court upheld the anti-defection law but invalidated paragraph 7, which attempted to exclude the jurisdiction of courts, because the required State ratification had not been obtained. It held that decisions of the Speaker or Chairman under the Tenth Schedule are subject to judicial review.

Principle: The Speaker or Chairman may decide defection cases, but the decision is not beyond the review of constitutional courts.

Ravi S. Naik v. Union of India (1994)

The Supreme Court interpreted the expression “voluntarily gives up his membership” under the Tenth Schedule.

The Court held that the expression has a wider meaning than formally resigning from a political party. A member's conduct may show that the member has voluntarily given up party membership even without submitting a resignation.

Principle: Voluntarily giving up party membership can be inferred from a member's conduct.

G. Viswanathan v. Hon'ble Speaker, Tamil Nadu Legislative Assembly (1996)

The Supreme Court considered the position of legislators who had been expelled from their political party and later joined another party.

The Court held that expulsion from a political party does not automatically end the member's status as a member of the original party for the purposes of the Tenth Schedule. If the member joins another political party after expulsion, that conduct may amount to voluntarily giving up membership of the original party.

Principle: Expulsion from a party does not, by itself, remove the member from the operation of the anti-defection law.

Rajendra Singh Rana v. Swami Prasad Maurya (2007)

The Supreme Court examined a dispute involving legislators whose conduct raised questions about whether they had voluntarily given up membership of their political party.

The Court held that conduct such as supporting an opposing party's claim to form the government may be relevant evidence of voluntarily giving up party membership. The case also emphasised that the Speaker's handling of a disqualification petition can be reviewed by courts in appropriate circumstances.

Principle: A member's actions and conduct, not merely a formal resignation, may establish defection.

Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020)

The Supreme Court considered delays in deciding disqualification petitions under the Tenth Schedule. It stated that such petitions should ordinarily be decided within a reasonable period and indicated that three months would generally be appropriate, unless exceptional circumstances justify a longer period.

The Court also discussed the need for an independent mechanism to decide disqualification disputes.

Principle: Disqualification petitions should not remain undecided for an unreasonable period.

Criticism and Limitations of the Anti-Defection Law

Concentration of Power in the Presiding Officer

The Speaker or Chairman decides disqualification disputes despite often having political associations. This creates concerns about neutrality, particularly where the outcome may affect the ruling party's majority.

Judicial review provides an important safeguard, but court proceedings may take time and do not necessarily prevent political uncertainty while a dispute remains unresolved.

Restriction on Independent Voting

The anti-defection law may restrict a legislator's freedom to disagree with the party leadership. If a member votes or abstains contrary to a party direction without the required permission or timely condonation, disqualification may follow.

Critics argue that this can weaken independent debate and make legislators more answerable to party leadership than to their constituents. At the same time, the law seeks to prevent elected representatives from changing sides in ways that undermine the electoral mandate.

Uncertainty Over Voluntarily Giving Up Membership

The Tenth Schedule does not provide an exhaustive definition of “voluntarily gives up his membership.” Courts have therefore interpreted the expression by examining members' conduct and the circumstances of each case.

This allows the law to address conduct that may not involve a formal resignation, but it can also create uncertainty about which actions will lead to disqualification.

Merger Exception

The merger exception under paragraph 4 is based on the support of at least two-thirds of the members of the legislature party concerned. Critics argue that a large group may change political allegiance for reasons similar to those that motivate individual defections.

The constitutional exception nevertheless remains available when the conditions specified in paragraph 4 are met. The earlier exception for a split involving one-third of the members was removed by the 91st Amendment Act, 2003.

Distinction Between Defection and a Party Merger

Practical Example

Suppose a political party has 90 members in a State Legislative Assembly. One member votes against the party's direction on a Bill without obtaining prior permission. If the party does not condone the conduct within fifteen days, the member may be disqualified under paragraph 2 of the Tenth Schedule.

Now suppose the original political party merges with another party and at least two-thirds of its legislature party members agree to the merger. The members covered by paragraph 4 may qualify for the merger exception, provided all its conditions are satisfied.

If a dispute arises over whether a member has defected, the Speaker decides the question under paragraph 6. If the decision violates constitutional or legal requirements, it may be challenged before a constitutional court through judicial review.

Summary

• The 52nd Constitutional Amendment Act, 1985, inserted the Tenth Schedule to combat political defections.
• Paragraph 2 sets out the grounds for disqualification, including voluntarily giving up party membership, voting or abstaining against a party direction without the required permission or condonation, and certain cases involving independent or nominated members.
• A nominated member may join a political party within six months of taking their seat without attracting disqualification on that ground.
• Paragraph 4 provides a limited exception for a qualifying merger supported by at least two-thirds of the members of the legislature party concerned.
• The 91st Constitutional Amendment Act, 2003, removed the earlier exception for a party split.
• Paragraph 5 provides a limited exemption for certain members who become presiding officers.
• Under paragraph 6, the Speaker or Chairman decides disqualification questions, subject to judicial review.
• In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court upheld the anti-defection law but invalidated paragraph 7's attempt to exclude court jurisdiction.
• In Ravi S. Naik v. Union of India (1994), the Supreme Court held that voluntarily giving up party membership can be inferred from conduct.
• In G. Viswanathan v. Hon'ble Speaker (1996), the Court clarified that expulsion from a party does not automatically remove a legislator from the operation of the Tenth Schedule.
• The law seeks to promote political stability but is criticised for restricting legislators' independent judgement and placing disqualification decisions in the hands of politically connected presiding officers.