Anti-Defection Law

With the emergence of horse trading and political corruption in Indian politics, despite of the election procedure exercised in a democratic country where the citizens are free to convey and express their rational and political views and elect the representatives in accordance of one’s will;

The Tenth Schedule of Constitution i.e. Anti-Defection Laws were introduced to stabilize the lacking consistency caused by the elected representatives shifting allegiance.

Anti-Defection Laws Abridged

Intent:

The rudimentary purpose of the Anti-Defection Laws is to eliminate and suppress the political corruption like the monetary perquisites and executive posts availed from the opposite parties and to strengthen democracy and the election process sanctity.

Background:

A Haryana MLA Gaya Lal who changed his party twice the same day is an extreme example that occurred in the year 1967, that has sabotaged the democratic principles, which demanded a set of legislations to prevent the defections prevalent in politics.

Thus, the Fifty Second Constitution Amendment Act of 1985 was enacted in the year 1985 with the objectives;

To combat the evil of political defections has been a matter of national concern.

Grounds of disqualifications:

  • If the elected member has voluntarily surrendered his membership of political party;
  • An elected member, who has been elected under a party’s name for being a member of the House, intends to join any other political party after such election.
  • If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs without obtaining prior permission of the part he is representing at the House.

If any political party has agreed to merge with the two third of its member into another legislative party, the disqualifications would be exempted in that case.

Speaker’s Role:

The office of speaker of the House is not considered as the sole arbiter who has the authority to disqualify a political defector.

It has also been reviewed that the speaker being a member of a political party has often seen exercising partial politics thus defying the essence of a constitutional post.

In Jagjit Singh versus State of Haryana (2006) highlighted the similar allegations about the confidence on the role of Speaker in the matters of impartiality.

As a result, the powers are vested on the judicial bodies and/ or tribunals to interpret and decide on the disqualifications to be initiated against the political defectors.

The presiding officer of the House i.e. the Speaker has the right to decide the question arising on defection though his decision is not final.

There is no specific time limit within which the Speaker has to cast his decision on any disqualification plea, thought the Courts can also decide on the matter once the Speaker has conveyed his decision.

Grounds to appeal against Speakers decision,

The Supreme Court laid down the following grounds to appeal against the presiding officer’s decision,

  • If the principles of natural justice is not observed;
  • If the presiding officer acted in malafide way;
  • If it violates and abrogates the constitutional mandates enshrined.

Interpretation of Courts:

As mentioned aforesaid,

  1. The decision of the Presiding Officer of the House is subject to judicial review and not final and binding.
  2. In the initial stages of defection laws implementation, the word of the speaker was final which was quashed by the Supreme Court in the year 1992. The judiciary could intervene once the decision of the speaker is divulged and the appeals were sanctioned against the pronouncement of the Speaker to High Courts and Supreme Courts.
  • There is a fine line of demarcation between Resignation from a party and voluntary surrender of membership.

When an open opposition is raised against the party in which they are a member, it is sought to be resignation whereas through the course of conduct if no formal resignation is announced or conformed, it can be termed as Voluntary Surrender of Membership.

Does the tenth schedule of the Constitution put curbs on the freedom of speech of legislators?

Every fundamental rights enriched in the Constitution are subject to reasonable restrictions imposed so is the Article 19 of the Indian Constitution.

In Kihoto Hollohon case [1]

The Supreme Court expressed that,

It did not violate Article 105 and 195 of the constitution while holding this it was expressed by the Supreme Court that the provisions of the Tenth schedule are salutary and were intended to strengthen the fabric of Indian parliament democracy.

Case References:

  1. Rajendra Singh Rana And Ors vs Swami Prasad Maurya And Ors

The Court observed that, the Speaker is not absolutely immune from judicial review; the immunity is provided to the speaker as provided in Schedule 10 of the Indian Constitution.

  • In one of the recent cases,

Karnataka Legislative Assembly Case,

Shrimanth Balasaheb Patil vs Honble Speaker ,

15 MLAs who resigned from membership in the congress party to secure a seat in Janata Dal Secular in order to form a new government in alliance with the BJP party thus collapsing the government after this and the speaker disqualified the MLAs for a period till the expiry of the assembly which was in 2023.

In this case the powers of the Speakers were determined thus ending the limitation on Speakers powers to do nothing, as;

As the adjudicating authority, the presiding officer of the house has the power to decide under the anti-defection law.

It has also been made clear that the court’s intervention cannot be institutes unless the Speaker passes an order divulging his decision.

Conclusion:

The democracy index of India is often seen deteriorating in consonance to the structural issues within the democratic bodies and legislators, with no stable government and stringent scrutinisation.
Anti-defection laws though it aims to ensure equilibrium within the governing bodies and elected representatives;

A distinct body of experts with judicial powers and political expertise is to be constituted to investigate into the immoral affairs of the representatives and strict punitive actions are to be imposed in order to secure the democratic essence of the Indian politics.


  1. [1] DURGA DAS BASU, INTRODUCTION TO THE CONSTITUION OF INDIA (24th ed. 2019)

Author: Aathira Pillai from Dr. D. Y. Patil College of Law.


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