This Article is written by Edwin Shibu, a Third-Year Law Student of Amity University, Dubai, UAE

1. Introduction:

"The Anti-Defection Law is a necessary evil in the Indian political context. While it ensures stability in governance, it also stifles the democratic rights of lawmakers to express dissent and contribute to healthy debates." It is crucial to Indian democracy, to tackle a long-standing issue that has affected the political scene since the British colonial period.

Firstly, one must understand what are “defections”, in simple terms; floor-crossing by a member of one political party to another political party can termed. Examples of party defections can be traced back to early political developments in India. For instance, Shri Shyam Lai Nehru switched his allegiance from the Congress to the British, and Shri Hafiz Mohammed Ibrahim, who was elected on a Muslim League ticket, later joined the Congress in 1937. These shifts illustrate the instability that defections can create, a problem that became even more pronounced after the Fourth General Elections. Moreover, the Chavan Committee Report from 1969 highlighted a startling issue: there were 438 defections in just a single year. This alarming number underscored the urgent need for reforms to protect party integrity and ensure political stability.

Defections can shake the foundations of democracy by compromising the electoral mandate. That’s where the Anti-Defection Law comes in, aiming to tackle this problem by limiting the ability of legislators to change parties and making sure that voters’ choices are honored. This law covers not only party members but also independent and nominated members, with some exceptions for defection, like when two-thirds of a party decides to merge with another.

However, while the law has brought some stability, it has also exposed significant loopholes that continue to challenge its effectiveness. Political defections, often termed "floor-crossing," not only threaten governmental stability but also divert focus from governance to the machinations of party politics, a phenomenon illustrated by the historical context of political allegiance shifts in India.

This research paper will delve into the history of the Anti-Defection Law, its effects on Indian democracy, and the debates surrounding its application and importance. By examining historical contexts, case laws, and present-day challenges. Furthermore, the research paper seeks to provide a thorough understanding of how these laws can promote democratic ideals while also possibly restricting dissent within political parties.

2. Evolution of Anti-Defection Laws in India

The issue of defections in Indian politics is deeply rooted, dating back to ancient times. For example, in the Ramayana, Vibhishana’s betrayal of Ravana to join Rama symbolizes early instances of shifting loyalties. In modern history, defections became evident during the Montagu-Chelmsford in the early 20th century, particularly with Shyam Lal Nehru’s switch from the Congress Party to the British side. This pattern continued post-independence, particularly in the political landscape of the late 1960s, highlighting a persistent struggle with party loyalty and the consequences of defection on political stability.

Post-independence, the Indian National Congress (INC) faced an ideological crisis, as its unifying goal of achieving independence diminished. With the realization of internal discontent, many legislators began forming breakaway factions, particularly evident during the Fourth General Elections in 1967. The elections resulted in a fragmented political environment where INC, despite winning, could not secure a majority in many states, leading to rampant "horse trading." This instability called for urgent reforms, as the frequent changes in party allegiance threatened the very fabric of parliamentary democracy.

The Jaya Prakash Narayan Committee’s recommendations in 1969 sought to tackle the growing issue of defections with a comprehensive strategy. It called for ethical standards for party behavior, including mandatory registration of political parties and a code of conduct aimed at discouraging unprincipled defections. Though the above-mentioned measures were all well-conceived, they faced stiff resistance in the Rajya Sabha because, in general terms, they were deemed to be ultra-vires. The contention from the other side was that carrying out any such mandate would be restraining the representatives’ rights in terms of the freedom to form associations as enshrined in Article 19(1)(c) of the Indian Constitution.

The turning point came in 1985, with the enactment of the Anti-Defection Law as the 52nd Amendment to the Indian Constitution. This legislation aimed to curb the political instability caused by frequent defections. It established clear criteria for disqualification of members who switched parties, thus safeguarding the integrity of elected bodies. The backdrop to this enactment was the INC’s overwhelming victory in the 1984 elections, which gave it the political clout to address the destabilizing effects of defections head-on. The law intended to ensure that elected representatives remained accountable to their voters and the political party that nominated them.

Over the years, the Anti-Defection Law has been updated to enhance its effectiveness. The 91st Amendment in 2003 introduced stringent rules for disqualification and made it clear that splits within a party wouldn’t be considered mergers, helping to close loopholes that allowed for ongoing defections. In 2006, the landmark case of Kihoto Hollohan vs. Zachillhu[1] Marked a turning point in the legitimacy of the law, with the Supreme Court stressing the importance of good governance. Nevertheless, the Constitution was amended in 2018 in an effort to shorten the disqualification process, because concerns of potential use of power by legislative heads have persisted.

The enactment of the Anti-Defection Law was largely influenced by the survival instinct of political parties. When a government faces instability due to defections, it risks losing its majority, which directly affects the standings of individual legislators. Therefore, a law that curtails defections aligns with the interests of party members who rely on the party’s stability for their positions. This creates a paradox where legislators support restrictions on their freedom to switch parties, recognizing that a stable ruling party benefits their political futures.

3. Key Provisions under Anti Defection Law in India:

The Anti-Defection Law, part of the Tenth Schedule of the Indian Constitution, sets clear guidelines for disqualification in cases of defection. Some of the main provisions are:

1. Grounds for Disqualification: (Paragraph 2)

Elected members of a House may be disqualified under the following conditions:

Voluntary Resignation: A member who voluntarily gives up their membership in a political party after being elected.

In the 1994 Supreme Court case of Ravi S. Nayak vs. Union of India[2], the Court expanded the term "voluntarily gives up membership of a political party" concerning resignation. The judgment showed that a member's conduct can indicate that he or she ceased belonging to his or her party even in the absence of a formal resignation. For instance, if someone goes out of his way to criticize the party or even willfully disregards the orders of his party, such behavior is clear evidence of withdrawal. This interpretation highlights how important a member's conduct is in determining their allegiance to a party, extending the definition beyond just a formal resignation.

Voting Against Party Directives: A member who votes or abstains from voting contrary to the directions of their political party without prior approval. If the party condones this action within 15 days, the member will not face disqualification.

Independent Candidates: Independent members who join a political party after the election are also subject to disqualification.

Nominated Members: Nominated members must remain unaffiliated with any political party for six months following their nomination to avoid disqualification.

2. Exemptions from Disqualification (Paragraphs 4 and 5):

Certain exemptions are provided to prevent disqualification in specific circumstances:

The merger of Political Parties: A member is not disqualified if their original political party merges with another, provided that at least two-thirds of the members agree to the merger or choose to form a separate group.

Officeholders' Exemptions: Key officials, such as the Speaker and the Deputy Speaker, are exempt from disqualification if they resign from their party while in office, provided they do not rejoin another party until their term concludes.

3. Decision on Disqualification (Paragraph 6):

The Speaker or Chairman of the House is responsible for deciding matters related to disqualification. Their decision is final, ensuring impartiality. In cases where the disqualification involves the Speaker or the Chairman themselves, another member elected by the House will adjudicate the matter.

4. Judicial Review (Invalidation of Paragraph 7):

Initially, Paragraph 7 barred courts from reviewing disqualification matters. However, this was declared unconstitutional in the Kihoto Hollohan vs. Zachillhu.[3] Case, allowing for judicial scrutiny of disqualification decisions. This provides a necessary check on the powers of the Speaker or Chairman.

In the landmark case of Ramesh Kumar vs. The Honorable Speaker, Karnataka Legislative Assembly (2019), the judges of the Supreme Court had to determine the disqualification of 17 MLAs by the Speaker of the Karnataka Assembly. They upheld the Speaker’s decision, noting that even though it would be correct to say that the MLAs were not “whipped;” their behavior before resignation justifies disqualification. The Supreme Court emphasized that the Speaker could not disqualify members before the end of the Assembly's tenure, illustrating the delicate balance between party discipline and legislative autonomy.

5. Rule-Making Authority (Paragraph 8):

The Speaker and Chairman are empowered to establish rules for implementing the provisions of the 10th Schedule. This authority enables adaptability and practical enforcement of the Anti-Defection Law, ensuring consistent handling of disqualification cases.

6. Amendments to the Anti-Defection Law:

The Anti-Defection Law has undergone several amendments to address various shortcomings:

52nd Amendment Act (1985): Introduced the Anti-Defection Law and the Tenth Schedule, establishing disqualification procedures.

61st Amendment Act (1988): Allowed for political parties to merge without triggering disqualification.

65th Amendment Act (1991): Enabled the separation of factions within political parties without disqualification, preventing misuse of the law.

91st Amendment Act (2003): Eliminated the provision for splits, reinforcing disqualification for members who leave their party and establishing further restrictions on holding ministerial or remunerative posts until re-elected.

The maintaining of party discipline, avoiding defections of its members especially over selfish interests, and making it possible for the elected government to uphold its integrity are some of the key objectives of the Anti-Defection Laws.

4. Lacunae in the Existing Laws:

Despite the Anti-Defection Law's intention to uphold political stability, several gaps undermine its effectiveness. One major flaw is that there is no provision for a timeline for the Speaker to decide under the 10th Schedule. Either the Speaker makes decisions rashly or takes a longer time, indicating a political bias.

The recent ruling in Keshav Mega Chandra Singh vs. The Honorable Speaker, Manipur Legislative Assembly (2020)[4], marks a pivotal moment in the discourse on political accountability. The Supreme Court recommended that Parliament amend the Constitution to establish an independent body for adjudicating disqualification matters, given the inherent political bias of the Speaker, who currently functions as a quasi-judicial authority.

This recommendation aims to enhance the impartiality and fairness of disqualification proceedings, thereby addressing concerns about the potential misuse of power. The court's call for reform reflects a critical assessment of the existing framework and underscores the necessity for a more balanced approach in handling issues of defection and party loyalty.

The Speakers and the Chairmen are not unbiased referees. The speaker is chosen among the MPs themselves, which inherently brings political affiliations and biases. Furthermore, the lack of regulation in the political party itself makes it easier for the MPs to defect. As a result of which members tend to deviate from party lines.

The Election Commission of India (ECI) plays a key role in organizing elections and ensuring the democratic process runs smoothly in the country. One of its main duties is to register and deregister political parties according to Section 29A of the Representation of the People Act, 1950. For a political party to be recognized as a national party, it must be officially registered with the ECI. This registration is crucial for ensuring that parties adhere to the legal standards governing elections in India.

However, the powers of the ECI are not without limitations. The Supreme Court, in the case of Indian National Congress vs. Institute of Social Welfare and Ors. (2002)[5], established that the ECI cannot deregister a political party solely on the grounds of constitutional violations. This limitation underscores a significant challenge, as the ECI is unable to act against parties that breach fundamental principles of the Indian Constitution, which raises questions about the efficacy of its regulatory authority.

In conclusion, while the Anti-Defection Law was enacted with the noble aim of promoting political stability, its effectiveness is significantly hampered by various gaps and limitations.

5. Case Study:

The dynamics witnessed in the last two years’ government of Maharashtra have exposed the challenges of the Anti-Defection Law in India. In the 2019 Maharashtra Assembly polls, the Maha Vikas Aghadi (MVA) which consists of the Shiv Sena, Indian National Congress (INC), and Nationalist Congress Party (NCP) formed a government under the leadership of Uddhav Thakeray of the Shiv Sena.

However, it didn’t take long for that pin-drop silence to be broken by noises of disagreement within the Shiv Sena when by 2022, a growing party leader named Eknath Shinde led a faction that revolted against the leadership of Thakeray. Shinde, along with 39 other MLAs disagreed with the party’s conduct and the relations it had with the Congress party and NCP. This discord within the Shiv Sena led to the formation of two groups in the party, with Shinde being referred to as the “legitimate” Shiv Sena and citing the Anti-Defection Law’s two-thirds rule which allows defection without disqualification if two-thirds of the members of the party agree of the same.

The crisis caused by the rebellion was a constitutional crisis because the Assembly had doubts regarding the majority of the MVA government. The Governor of Maharashtra, Bhagat Singh Koshyari, acted by requesting Thackeray to take a floor test, to ascertain the government’s majority in the Assembly. However, before the test could be conducted, Thackeray put in his resignation and shortly Eknath Shinde with assistance from the BJP was issued as the Chief Minister.

After the switch, Thackeray’s inner circle went to the Supreme Court purporting that the rebel MLAs should be taken out of numbers without any notification of the law taking place.

In the meantime, the Speaker of the Maharashtra Assembly held off the ruling on the matter of disqualification of the members of the house instead, offering much help to the Shinde government. This crisis highlighted several key issues, such as the interpretation of the two-thirds rule, the discretionary powers of the Speaker, and the need for judicial intervention in defection cases.

As of early 2023, no final decision had been made regarding the disqualification of the rebel MLAs. However, Shinde’s successful rise to the position of Chief Minister, backed by the BJP, while Thackeray’s faction was reduced to a minority, underscored the political impact of the crisis.

This event brought to light critical aspects of the Anti-Defection Law. The law, which aims to prevent political instability by curbing defections, often hinges on contentious interpretations of its provisions, such as what constitutes a legitimate "split" within a party and the scope of the Speaker’s discretion. The delay in disqualification rulings and the reliance on judicial intervention in such cases show how the law can be a double-edged sword in Indian politics. While designed to promote stability, its application often depends on timing, legal interpretation, and the political dynamics of the moment, as seen in the Maharashtra crisis.

6. Conclusion:

The Anti-Defection Law, while essential for maintaining political stability in India, continues to spark debates over its effectiveness and fairness. Initially, enacted to curb rampant party-switching and preserve the integrity of elected governments, the law has faced significant criticism for its rigid approach. Its provisions, though aimed at discouraging opportunistic defections, have often been manipulated by party leaders, sidelining the democratic freedom of lawmakers to voice dissent or vote according to their conscience. Furthermore, the delays in disqualification rulings and the ambiguities in the interpretation of key provisions highlight the law's inherent weaknesses.

The 2022 Maharashtra political crisis exemplifies how the Anti-Defection Law can both safeguard and destabilize the political process. As the case unfolded, it became clear that the law's provisions were subject to contentious interpretation, especially concerning the two-thirds rule and the discretionary power of the Speaker. While the law remains crucial for preventing widespread defections and ensuring the continuity of governments, the legal and political complexities involved in its implementation expose its limitations. Moving forward, it is essential to revisit and refine the Anti-Defection Law to strike a balance between maintaining political stability and safeguarding the democratic freedoms of legislators, ensuring the law truly serves the broader interests of democracy in India.

REFERENCES

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[1] 1992 SCR (1) 686

[2] 1994 AIR 1558

[3] 1992 SCR (1) 686

[4] AIRONLINE 2020 SC 54

[5] AIR 2002 SUPREME COURT 2158