Anti Defection Law

The Anti-Defection Law in India, introduced by the 52nd Amendment in 1985, aimed to curb the "Aaya Ram Gaya Ram" phenomenon, where legislators frequently changed parties. The law seeks to disqualify members who defect voluntarily or violate party directives without permission. However, its effectiveness is questionable. The cases of defections still persist and the law has reduced the role of individual lawmakers. The criticisms of the law include limiting the freedom of speech for legislators and undermining the essence of parliamentary democracy. However, arguments in favor emphasize stability of the government, loyalty, and the prevention of corruption.The Anti-Defection Law's current form weakens checks and balances in a parliamentary democracy and is in need of reform.

In the 1970s and 1980s, the phenomenon of political defection earned the name "Aaya Ram Gaya Ram," which was inspired by a legislator named Gaya Lal who switched parties three times in two days. Defection involves changing allegiance from the party on whose ticket one was elected. Following the general elections of 1967, numerous state governments faced instability due to party MLAs defecting. This led to the insertion of the Anti-Defection Law by the 52nd Amendment in 1985. This amendment added the 10th Schedule to the constitution. Subsequent 91st Amendment of 2003 aimed to strengthen the law. However, recent instances in states like Maharashtra and Karnataka indicate that the law has not entirely eradicated the problem of defection. Over the years, the Anti-Defection Law has contributed to a decline in the influence of individual Members of Parliament (MP).

The anti-defection law punishes individual MPs and MLAs for leaving one party for another. It sets the provisions for the disqualification of members on the grounds of defection to another political party. These provisions are(as per Schedule 10 of the Constitution):

• Disqualification: A MP/MLA belonging to any political party becomes disqualified from being a member of the House,
  • if he voluntarily gives up the membership of such a political party; or
  • if he votes or abstains from voting in the House which is contrary to the direction (whip) issued by his political party without obtaining permission of the party and this has not been condoned by the political party within 15 days.
    • Whip: A whip is a written order issued by an official of a political party to its members to direct them to vote in a particular way. It ensures party discipline in parliament.
    • Types of Whip
      • One-Line Whip: It informs the members about the vote and they are allowed to abstain.
      • Two-Line Whip: It directs the party members to be present in the House during voting.
      • Three-Line Whip: It directs party members to vote as per the party line.
    • Exceptions of Whip:
      • A three-line whip can be violated when 1/3rd of the party members decide to vote against the party whip's orders.
      • In Presidential elections, whips cannot direct a MP/MLA on whom to vote.
• An Independent Member becomes disqualified from remaining a member of the House if he joins any political party after an election.
• A nominated member becomes disqualified if he joins a political party after the expiry of six months from the date he takes his seat in the House.
• Exceptions for anti detection law: This does not apply in the following cases:
  • Merger: If a member leaves his party due to a merger of the party with another party, with two-thirds of the members of the party having agreed to such a merger.
  • Presiding Officer can voluntarily give up the membership of his party or rejoin it after he ceases to hold that office to protect the dignity and impartiality of this office.
  • Split:
    • The provision of split of a party has been deleted by the 2003 amendment.
    • Before this amendment, in the event of a split within the original party resulting in one-third of the legislature members leaving the party, they were exempt from disqualification
• Deciding Authority: The Presiding officer(Speaker) of the House has the authority to decide on questions relating to defection, and his decision is final.

• Instability: Defection disrupts the regular government operations by fostering instability and hindering policy implementation.
• Horse trading: Cases of defection encourage horse trading and undermine the principles of democracy.
• Mandate:They also undermine electoral mandates, leading to a subversion of the democratic process.
• Institutional dignity: Defection erodes the institutional dignity of political parties and promotes issues like money-muscle power, corruption, and other malpractices.

• Political:
  • It ensures governmental stability by preventing frequent shifts.
  • The act guarantees loyalty to both the party and citizens, with punitive measures acting as a deterrent.
  • It reduces corruption and addresses malpractices like horse trading, monetary influence, and muscle power.
  • The act also facilitates party mergers.
  • The law provides constitutional recognition to political parties for the first time.
• Social
  • It promotes citizen trust in elected legislators
  • It protects minorities from opportunistic politics, as party shifts can alter ideologies and priorities.
• Governance: The law relieves the government from the challenges of defection, ensuring the smooth flow of administration and policy implementation.
• Ethical: Promote party discipline and uphold the respect for electoral mandates.

• Restriction on Freedom of Speech and Expression: It limits legislators from voting based on their conscience, judgement, and the interests of their electorate.
• Undermines Democratic Spirit: Legislators act as a puppet in political democracy, undermining the spirit of liberty by eliminating the need for the government to build a broad consensus for its decisions.
• Lack of Time Frame for Speaker's Action: The act does not provide a stipulated time frame within which the Speaker has to act on defection-related matters.
• Wholesale Defection vs. Retail Defection: The act permits wholesale defection but does not allow retail defection, leading to an imbalance.
• Speaker's Decision: Although the Supreme Court, in the Kihoto Hollohan case, held that the decision of Speaker is subject to judicial review, intervention is not possible until the presiding officer gives the order.
• Shift Towards a Democracy of Numbers: The act transforms the political landscape from a democracy of debate and discussion to a democracy of parties and numbers.

• Law Commission 170th Report has suggested:
  • Delete the exemption in case of splits and merger
  • Consider pre-poll electoral coalition as one party under the 10th Schedule.
  • Issue whips only on critical situations like stability, not on normal functioning.
• Halim Committee (2003) on Anti-defection:
  • The word 'voluntary giving up membership of political party' to be comprehensively defined
  • Put restrictions on expelled members like prohibition on joining other party or holding offices in Government
  • Clearly define the term 'political party' in the act.
• Dinesh Goswami Committee(1990): The disqualification should be decided by the President or Governor on the binding advice of the Election Commission.

The effective parliamentary functioning depends on individual MPs playing their role as legislators and being accountable to their electorate. The Anti-Defection Law seeks to enhance democratic stability by restraining political defections. However, the existing form of the Anti-Defection Law in India undermines the inherent checks and balances within a parliamentary democracy. The need of the hour is to reform the law by focussing on debates and consensus-building.