Why in the News?

• Numerous examples in recent time exist in the history of Parliament and State Assemblies where MPs or MLAs have defected from their party.
  • These activities often led to the frequent falling of governments.

What is Anti-Defection Law?

• The 52nd Constitutional Amendment introduced the anti-defection law through the Tenth Schedule in 1985.
• It aimed at tackling political defections destabilizing governments, especially after the 1967 general elections.
• According to this Schedule, a member of the State Legislature or the House of Parliament who voluntarily resigns from their political party or abstains from voting in the House contrary to the party’s instruction may be removed from the House.
• This voting instruction is issued by the party whip, a member of the parliamentary party nominated by the political party in the House.

Process of Disqualification under Anti-Defection Law

• Petition:
  • Any member of the House can initiate the process by filing a petition/complaint with the Speaker (Lok Sabha) or Chairman (Rajya Sabha) alleging defection by another member.
  • The Presiding Officer CANNOT initiate disqualification proceedings suo moto and can only act upon a formal complaint.
• Deciding Authority:
  • The Speaker of Lok Sabha, the Chairman of Rajya Sabha, or the State Legislative Assembly decides disqualification petitions under the anti-defection law.
• Timeframe:
  • The law does not specify a strict timeline for the decision, which has led to criticism due to potential delays.
• Judicial Review:
  • The decision can be challenged in courts, ensuring a system of checks and balances.
  • The landmark judgment in Kihoto Hollohan vs. Zachillhu and Others (1992) upheld the constitutionality of the anti-defection law and affirmed that decisions regarding disqualification are subject to judicial review.
• Exceptions:
  • No disqualification if 1/3rd members of the legislature party split to form a separate group (provision DELETED by the 91st Amendment in 2003).
  • Mergers of political parties are allowed when 2/3rd of the members of a legislative party agree to merge with another party.

Limitations of the Anti-Defection Law

• Dictatorship of Party: The law has been criticized for undermining democratic principles by restricting legislators’ freedom of speech and making them more accountable to party leaders than their constituents.
• Limited Political Choice: The law discriminates against independent members, disqualifying them immediately if they join a political party, while nominated members have a six-month grace period.
• Partial Law: The law needs a more precise timeline for resolving defection cases. It allows large-group defections, fostering opportunistic mergers and “horse-trading”, destabilizing the political system.
• Promotes Defection: It fails to address root causes like intra-party democracy, corruption, and electoral malpractices.

Recommendations on Reforming the Law

• Dinesh Goswami Committee (1990):
  • Disqualification should be limited to cases of voluntarily giving up membership or voting/abstention contrary to the party direction only in specific motions.
  • Decision on disqualification should be made by the President or Governor based on the advice of the Election Commission.
• Law Commission of India (2015):
  • Proposed shifting the power to decide disqualification petitions from the Presiding Officer to the President or Governor based on the advice of the Election Commission.
• Supreme Court in K. M. Singh v. Speaker of Manipur (2020):
  • Recommended transferring the Speaker’s decision-making authority over disqualification petitions to an independent tribunal presided over by judges.
• Committee Led by Rahul Narwekar:
  • Announced by Lok Sabha Speaker Om Birla to review the nation’s anti-defection law.

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