- The Tenth Schedule of the Constitution, popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment (1985) to the Constitution.
- ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.
- The law contemplates two kinds of defection:
- A member voluntarily giving up membership of the party on whose symbol he got elected
- Member violating a whip issued by the party to vote in a particular way or to abstain from voting.
- The anti-defection was introduced to ensure that a party member does not violate the mandate of the party and in case he/she does so, he/she will lose membership of the House. It was meant to curtail the menace of floor-crossing and toppling of elected regimes by engineering defections. Hence it sought for stability of governments.
Concerns with the anti-defection law:
Antithetical to the principle of representative democracy:
- The anti-defection law by forcing the elected members to stand by the party line comes across as being against the principle of representative democracy. The provisions of the law prevent the members from representing the views of the people of their constituency and is also found to violate their freedom of expression.
Exceptions to application of anti-defection law:
- Paragraph 4 of the Tenth Schedule provides for an exception to the application of anti-defection law for disqualification in case of a merger of one party with another. As per this provision, a deemed merger is said to have occurred only if two-thirds of the party’s total strength agrees to the merger. This paves the way for mass defections.
- There are also concerns that this provision would be used to save the defectors from the anti-defection law.
Misuse of the provisions:
- Recent instances are indicative of the misuse of provisions by parties, legislators and Speakers to either evade the law against defection or to achieve partisan political ends.
- The speaker has in many cases misused his/her powers with respect to the provisions of anti-defection law. In many cases, speakers have chosen not to act on anti-defection petitions. This has allowed members to continue as members of the house as well as become ministers despite having had defected to the ruling party.
- As per the anti-defection law, the Presiding Officer of the legislature to disqualify any defector on a petition by another member
- There have been recent episodes of members submitting resignation letters to escape disqualification proceedings.
Uncertainty around the law:
- A member using the ‘voluntarily giving up membership’ mode of defection has been a source of dispute and litigation.
- The Supreme Court decisions on this aspect have not been conclusionary and there continues to remain scope for further dispute and litigation.
- As the anti-defection law has failed to curtail defections and has been liable to misuse, there is a strong case to reform the anti-defection law.
- Redefining the merger clause, shifting the adjudicatory power from the Speaker to some other credible authority could be some of the important aspects to be considered for reforming the law.