ANTI-DEFECTION LAW IN

INDIA

AUGASTYA PRAJAPATI
SHAHEED BHAGAT SINGH COLLEGE ( UNIVERSITY OF DELHI )

INTRODUCTION

Election is a vital component in a democratic system of governance, where emergence of

(a) members of a political party (b) independent members and (c) nominated members.

In limited circumstances, the law allows legislators to change their party without
incurring the risk of disqualification.
MEANING AND ORIGIN OF THE TERM DEFECTION

The term defection indicates revolt , dissent and rebellion by a person or a party.
Defection refers to leaving an association to join another . In political term it is a
situation when a member of a political party leaves his party and joins hands with a
member of a political party leaves his party and joins hands with other parties.
Traditionally, this phenomenon is known as 'floor crossing' which had its origin in the
British House of Commons where a legislator changed his allegiance when he crossed the
floor and moved from the Government to the Opposition side, or vice-versa.

DEFECTIONS IN INDIA

Indian political system has been no exception to this phenomenon of defections. The
practice of ‘defection’ in Indian politics has always been the breeding ground of political
instability and uncertainty in the country, often tending to shift the focus from
‘governance’ to ‘governments’. The infamous “Aaya Ram, Gaya Ram” slogan was coined
against the background of continuous defections by the legislators in the 1960s.

The history of defections in India can be traced back to the days of Central Legislature
when Shri Shyam Lai Nehru, a member of Central Legislature changed his allegiance
from Congress Party to British side. To cite one more instance, in 1937 Shri Hafiz
Mohammed Ibrabim, who was elected to the Uttar Pradesh Legislative Assembly on the
Muslim League ticket defected to join the Congress. In late sixties, the phenomenon of
changing political party for reasons other than ideological, sweep over the Indian polity.
According to the Chavan Committee Report (1969), the Fourth General Elections, in the
period between March 1967 and February 1968, the Indian political scene was
characterized by numerous instances of change of party allegiance by legislators in
several States. Out of roughly 542 cases in the entire two-decade period between the First
and the Fourth General Elections, at least 438 defections occurred in these 12 months
alone. Among Independents, 157 out of a total of 376 elected, joined various parties in
this period.

EVOLUTION OF ANTI-DEFECTION LAW IN INDIA

Steps for bringing forward a legislation in India to curb the malaise of defections can be

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traced to a private member's resolution moved in the Fourth Lok Sabha on 11 August
1967 by Shri P. Venkatasubbaiah. His resolution was discussed in Lok Sabha on 24
November and 8 December 1967. The resolution in its final form was passed
unanimously by the Lok Sabha on 8 December 1967. In consonance with the opinion
expressed in the resolution, a Committee on Defections, was set up by the Government
under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan which
submitted its report on 18 February 1969. The Report of the Contmittee was laid on the
Table of Lok Sabha.

THE 32nd CONSTITUTIONAL AMENDMENT BILL, 1973

As the Y.B. Chavan Committee's recommendations could not provide adequate solution to
the problem of defections, the Constitution (Thirty-second Amendment) Bill, 1973 was
introduced in the Lok Sabha on 16 May 1973 for constitutionally providing for
disqualification on defections. A motion for reference of the bill to a Joint Committee of
the Houses of Parliament was adopted in the Lok Sabha on 13 December 1973 and in the
Rajya Sabha on 17 December 1973. The Joint Committee became defunct upon
dissolution of the Fifth Lok Sabha on 18 January 1977.

THE 48th CONSTITUTIONAL AMENDMENT BILL, 1978

On 28 August 1978, another attempt was made in this direction by bringing forward the
Constitution (Forty-eighth Amendment) Bill, 1978 in Lok Sabha. Several members
belonging to both ruling party and opposition parties opposed the Bill at the introduction
stage itself. The members took serious objections to the alleged misrepresentation of
facts in the Statement of Objects and Reasons in as much as the members were not
consulted over the provisions of the Bill, whereas the Statement of Objects and Reasons
of the Bill said "the problem cuts across all parties. It has been examined in consultation
with the leaders of political parties". In view of stiff opposition, the Minister withdrew
the motion for leave to introduce the Bill.

THE 52nd CONSTITUTIONAL AMENDMENT BILL, 1985 (Anti-defection

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The Government introduced the Constitution (Fifty-second Amendment) Bill in the Lok
Sabha on 24 January 1985 which led to amendment in Article 101, 102, 190 and 191 of the
Constitution to provide the grounds for vacation of seats for the disqualification of the
members; and also inserted Tenth Schedule. It lays down provisions regarding
disqualification on the grounds of defection. The Bill was passed by the Lok Sabha and
the Rajya Sabha on 30 and 31 January 1985, respectively. The Act, which came into force
with effect from 1 March 1985. The Members of Lok Sabha (Disqualification on ground of
Defection) Rules, 1985 framed by the Speaker, Lok Sabha (in terms of para 8 of the Tenth
Schedule) for giving effect to the provisions of the Tenth Schedule came into force with
effect from 18 March 1986.

LACUNAE AND SHORTCOMINGS

PROBLEM WITH MERGER : While Rule 4 of the Tenth Schedule seems to provide some
exception from disqualification of members in the cases relating to mergers, there seems
to be some loophole in the law. The provision tends to safeguard the members of a
political party where the original political party merges with another party subject to the
condition that at least two-third of the members of the legislature party concerned have
agreed to such merger. The flaw seems to be that the exception is based on the number
of members rather than the reason behind the defection. The common reasons for
defection of individual members seems to be availability of lucrative office or ministerial
posts with the other party. It can very well be expected that the very same reason might
be available with those two-third members who have agreed to the merger.

WIDE POWER TO THE SPEAKER :

Rule 6 of the Tenth Schedule has given wide and absolute power to the Chairman or the
Speaker of the House in deciding the cases pertaining to disqualification of members on
the ground of defection. However, it must be noted that the Speaker still remains the
member of the party which nominated him/her for the post of Speaker. In such a
scenario, it is difficult to expect that the Speaker will act impartially in cases pertaining
to his/ her political party. As per the Law, the Speaker's decision is final but there,
however, is no time limit for him to arrive at any decision. A party can move court, but
only after the Speaker has announced his decision. The Dinesh Goswami Committee on
Electoral Reforms and the Election Commission recommended that the power to decide
on the issue of disqualification under the Tenth Schedule should be given to the
President or the Governor of the State, who shall act on the advice of the Election

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Commission. However, no amendments have been made in the Act giving effect to these
recommendations.

SCOPE OF JUDICIAL REVIEW :

The jurisdiction of the courts in respect of any matter connected with disqualification of
a member of a House, which means that it is outside the jurisdiction of all courts
including the Supreme Court under Article 136 and High Courts under Article 226 and
227 of the Constitution to review the decisions made by the Speaker in this regard. The
Supreme Court in various judgments has held that the law is valid in all respects except
on the matter pertaining to judicial review, which was held to be unconstitutional.
However, after several judicial pronouncements favoring the power of judicial review by
the Courts, no amendment has been made in the Tenth Schedule in this regard.

CONCLUSION

The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing
political defections. Though the law has succeeded in a reasonable way but due to some
of its loopholes, it has not been able to achieve the best it can. Over the years the law has
been examined by various committees and several recommendations have been given in
their reports e.g. Dinesh Goswami committee report (1990),Hashim Abdul Halim
committee report ( 1994), 170th report of the Law Commission of India . The government
should relook at these suggestions and make suitable amendments to the existing law to
help it to develop to the best possible extent.