Anti-Defection Law : Time To Let Go?

Anti-Defection Law : Time To Let Go?
Rebel Karnataka MLAs outside Raj Bhavan on July 6 after meeting with Governor Vajubhai Vala following their resignation as legislators.

This is the ‘first step towards cleansing our public life, removing the lure of “politics without principles”, this is how former PM Rajiv Gandhi had described the Anti-Defection Law. The recent incident of the resignations of the members of the ruling Congress party in Karnataka amid allegations on BJP of trying to topple the legitimate government and subverting electoral mandate has again brought the law in spotlight and the political scene is abuzz with the question of its relevance and effectiveness.


The political hegemony of the Congress Party ended in 1967 when it lost elections in a number of states, a new era of multi-party coalitions and unstable governments began. This scenario gave rise to the vicious and immoral practice of political defections where elected representatives changed party affiliations in expectation of plum posts and other such considerations. The incident of a Haryana MLA, Gaya Lal changing his party thrice in a single day gave rise to a now popular phraseAaya Ram Gaya Ram”. An urgent need was felt to curb this menacing practice of political defections in which our elected representatives had a price tag and could be bought by the highest bidder.


After the recommendations of various committees, the Tenth Schedule was inserted in the Constitution in 1985 by the Rajiv Gandhi government, through the 52nd amendment of the constitution, which is popularly known as the Anti-Defection Law. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.  The anti-defection law applies to both Parliament and state assemblies.


The original bill contained a provision under which if there occurs a split in the original political party and as a result of which one-third of the legislators of that party forms a separate group, they shall not be disqualified. This provision resulted in large scale defections and the lawmakers were convinced that the provision of a split in the party was being misused. Therefore, they decided to delete this provision. The anti-defection law was amended in 2003 by 91st amendment act under the auspices of Vajpayee government. Now, paragraph 4 of the 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.


The anti-defection law has come into question in a number of landmark cases where the courts have put sufficient light on how the provisions of the law have to be interpreted. In Ravi S Naik Vs Union of India (1994) the Supreme Court said that the phrase “voluntarily giving up membership” has a wider meaning and is not restricted to resignations. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party. In Kihota Hollohon vs  Zachilhu and others(1993) , the SC removed the bar from the jurisdiction of the court in cases of disqualification, it said that  paragraph 7 seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2). The paragraph was therefore held invalid as it had not been ratified. The court also said that its provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution.

Anti-Defection Law : Time To Let Go?


There are obvious benefits of the anti-defection law – it provides stability to governments and also promotes party discipline and loyalty. But like every other legislative measure it has its own limitations. It is alleged that it curbs the freedom of speech and expression of members, since they have to toe the party line in all cases and that it makes them more loyal to their party instead of the people they are supposed to represent. The restrictions put reduce the deliberative quality of legislature debates since they allow of no dissenting opinion however important or knowledgeable it might be. The law permits of no relief to a member whose change of affiliation is the result of a natural ideological metamorphosis or  a reflection of the changing ground reality. The most common criticism is that the law is not effective at all and has failed on multiple occasions to fulfill its purpose of preventing unprincipled defections. Jurists, civil society and political parties themselves have asked for improvements to be made in the law. The demand of completely doing away with the law has also been raised.


Numerous legal committees have given their recommendations for making this law more effective and to counter the criticisms it presently faces. The Dinesh Goswami Committee on Electoral Reforms (1990) and also the Election Commission have recommended that the decision of disqualification under the law should be taken by the President/Governor on the advice of the Election Commission. The Law Commission in its 170th report (1999) advised that the provisions exempting splits and mergers from disqualification should be deleted and political parties should issue whips only in instances when the government is in danger. The Constitution Review Commission (2002) recommended that the defectors must be debarred from holding any public office or any remunerative post for the duration of the remaining term. It also said that a vote cast by a defector to topple a government must be treated as invalid.


The concerned law has never in its  life of almost 35 years been completely free from criticism but with every passing case of defection and the law’s appalling failure to prevent it casts more and more doubt on its utility and the point of its existence. Questioning the effectiveness of the law is a valid concern, but removing it would be taking a step backwards in our efforts to devise a regime of measures for tackling political corruption. In fact, the law should be given more teeth by including the recommendations listed above and it should also be supplemented with other measures. Giving voters the right to recall a defecting representative would act as an effective deterrent. The assets of such defectors must be closely scrutinized after a sudden change of political heart. The law is faulty but useful, doing away with it will only legitimize a completely undemocratic and corrupt practice.


The main problem with the law is that it seeks to provide a legal solution for a political problem. It should be kept in mind that the Indian political structure is vast and extremely complicated and can be compared with almost no other country and that its practical operation will always be far from perfect. Formal punitive measures only go so far in remedying problems which at their core consist of a moral question rather than a legal one. The Indian political spirit must be infused with democratic ideals and principles. Democracy and elections are sacred and their sanctity will be better protected when people themselves realize that defection is a debasing practice and amounts to sacrilege of the holy promise that we made to our founding fathers of taking this democracy to greater heights.