·        The Anti-Defection Law, enacted in 1985 as the Tenth Schedule of the Constitution via the 52nd Amendment Act, aims to bring stability to governments by discouraging legislators from switching parties.

§  Defection refers to switching political allegiance, particularly when a member of a political party leaves the party and joins another party or becomes independent.

Grounds for Defection under the Anti-Defection Law:

o   Voluntary Give Up: If an elected member voluntarily renounces membership of their political party.

o   Violation of Party Instructions: If a member votes or abstains from voting against their party’s directives without prior permission.

o   Independent Elected Member: If an independent elected member joins a political party.

o   Nominated Member: If a nominated member joins a political party after six months from their nomination.

Key Aspects of the Anti-Defection Law:

·        Merger Provision: Allows a group of MPs/MLAs to merge with another political party without facing penalties for defection.

o   Originally required one-third of party members for a merger; amended under 91st Constitutional Amendment Act, 2003, to mandate approval by at least two-thirds of party members.

·        Electoral Eligibility: Disqualified members can contest elections from any political party for a seat in the same House.

·        Disqualification Process: Defection cases are decided by the Chairman or Speaker of the House, subject to judicial review. However, the law lacks a specified timeframe for resolution of defection cases.

Why is an Anti-defection law needed?

·        Impact of Defection on Electoral Mandates: Defection involves elected legislators who switch parties after being elected under one party’s banner, often motivated by opportunities for ministerial positions or financial incentives.

·        Affects the Normal Functioning of Government:  Defection, epitomized by the “Aaya Ram, Gaya Ram” phenomenon coined in the 1960s, involves frequent party-switching among legislators, leading to governmental instability and hampering effective administration.

·        Addressing Corruption and Influence of Wealth: There is a perceived necessity to curb the corrupting influence of money and power on politicians, ensuring accountability to the voters who elected them.

·        Ensuring Political Stability: The objective is to enhance democracy by fostering stability in administration, thereby safeguarding the government’s legislative programs from disruption caused by defections.

·        Promoting Responsibility and Loyalty: The aim is to instill greater accountability and loyalty among members of parliament towards the political parties they were aligned with at the time of their election.

·        Promote Horse Trading: Defection also promotes horse-trading of legislators which clearly goes against the mandate of a democratic setup.

Challenges with the Anti-Defection Law:

·        Merger Provision Ambiguity: Paragraph 4 allows members to retain seats if their party merges with another, requiring two-thirds support, but lacks clarity on national or regional party mergers.

·        Undermining Democracy: MPs and MLAs must follow party directives without discretion, compromising their independence and accountability to voters.

·        Controversial Speaker’s Role: Law lacks a defined timeframe for Speakers to resolve defection cases, leading to prolonged delays and unresolved cases.

·        No Recognition of Split: Amendments only recognize mergers, not splits within legislature parties, limiting legal clarity on internal party dissent.

·        Wholesale Defection Allowed: Law permits mass defections but restricts individual defections, necessitating amendments to prevent exploitation of loopholes.

·        Impact on Debate and Discussion: Shifts focus from democratic deliberation to party numbers, potentially stifling dissent and weakening parliamentary discourse on legislation.

Judicial Observations on Defection in India:

·        Kihoto Hollohan vs. Zachillhu and Others (1992): Supreme Court upheld the constitutionality of the Anti-Defection Law and ruled that provisions are necessary to prevent government destabilization and uphold electoral integrity.

·        G. Viswanathan vs. Hon’ble Speaker, Tamil Nadu Legislative Assembly (1995): Supreme Court affirmed the Speaker’s authority to decide defection cases and the decisions of the Speaker deemed final and not subject to judicial challenge.

·        Ravi S. Naik vs. Union of India (1994): Established that the Speaker or Chairman can disqualify legislators for defection and affirmed the Speaker’s role in maintaining party discipline and integrity in legislatures.

Handling Political Defection in Other Countries:

·        United Kingdom: No legal prohibition on politicians switching parties or becoming independents. Parties can expel defectors, who may face voter backlash in subsequent elections.

·        United States: No law against political defection; politicians can switch parties freely. However, defection may lead to electoral challenges and party repercussions in primary elections.

·        Canada, France, Australia, Germany, Italy: These countries also lack laws against political defection, allowing politicians to switch parties or become independents without legal penalties.

Suggestions for Reforming the Anti-Defection Law in India:

·        Role of President/Governor:

o   Proposals to have the President/Governor decide on disqualification cases based on Election Commission advice, as suggested by the 2nd ARC.

o   Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended to empower the President (for MPs) or Governor (for MLAs) to decide on disqualification cases, ensuring impartiality.

·        Raising Threshold for Disqualification: Advocacy for increasing the threshold for disqualification from one-third to two-thirds or three-fourths to reduce frequent defections.

·        Allowing Defections in Certain Circumstances: Suggestions to permit defections in specific scenarios like party mergers or expulsion from the party.

·        Allowing Independents to Join Parties: Recommendations to allow independent members to join political parties without facing disqualification.

·        Grace Period for Proving Loyalty: Proposals for a grace period for defectors to demonstrate loyalty to their new party.

·        Timely Disqualification Decisions: Emphasis on timely decisions within three months, as suggested by the Supreme Court, to avoid prolonged uncertainties.

·        Independent Adjudicatory Authority: Concerns raised about the Speaker’s impartiality due to their dependence on the House majority, as highlighted by Justice Verma in Hollohan’s judgment.