91st Amendment Act (2003) and Anti-Defection Law
The Anti-Defection Law < https://pwonlyias.com/udaan/anti-defection-
law/#:~:text=Through%20the%20disqualification%20of%20defectors%20and%20the%20authority,the%20principles%20of%20pa
, introduced through the 91st Amendment Act of 2003, aims to curb the negative impact of political defections by
limiting the size of ministerial councils and barring defectors from holding public offices. This law strengthens
parliamentary democracy by addressing the unethical practice of political defection driven by the lure of office or
material benefits. However, despite these measures, recent trends have exposed significant loopholes, highlighting the
need for further reforms.
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Key Provisions of the 91st Amendment Act
Several provisions were made to limit the size of the Council of Ministers < https://pwonlyias.com/udaan/council-of-
ministers/> , to debar defectors from holding public offices, and to strengthen the anti-defection law through the 91st
Constitutional Amendment Act 2003.
Some of the Provisions of the act are as follows:
Article 75 (1A): The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15%
of the total strength of the Lok Sabha.
Article 75 (1B): A member of either House of Parliament affiliated with any political party, who is disqualified based on defection, is
also ineligible for appointment as a minister, till he is elected again as a member.
Article 164 (1A): The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed
15% of the total strength of the Legislative Assembly of that state. However, the count of ministers, including the Chief Minister, in a
state must not fall below 12 and in case of Delhi this limit is only 10% of the total strength.
Article 164 (1B): A member of either House of a state legislature affiliated with any political party, who is disqualified due to
defection, is also ineligible to be appointed as a minister.
Article 361B : A member of either House of Parliament or either House of State Legislature associated with any political party, facing
disqualification on the grounds of defection, is also barred from holding any remunerative political position.
Tenth Schedule: The provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by 1/3rd members
of legislature party has been deleted.
Significant Loopholes and Challenges in the Anti-Defection Law Framework
Ineffectiveness in Preventing Defections: Despite these laws, there has been a continued trend of legislators defecting,
which has led to the collapse of elected governments in various states like Goa (2017), Karnataka (2018 and 2019),
Maharashtra (2019) and Madhya Pradesh (2020).
This situation underlines the ineffectiveness of the Tenth Schedule and its subsequent amendments in arresting this trend.
Role of the Speaker: A major loophole in the anti-defection law is the role of the Speaker as the final adjudicator in cases of party
defections.
The law does not set a time limit for the Speaker to make a decision, which can lead to delays or biassed decisions, as the
Speaker often belongs to a political party.
For instance, In the case of the Shiv Sena split in the Maharashtra Assembly, the Supreme Court directed the Speaker to
rule “within a reasonable time,” but the decision has been delayed for over a year.
Recent Developments: The Election Commission of India recently recognized a party formed by a group of MLAs defecting
from the Maharashtra state legislative assembly < https://pwonlyias.com/upsc-notes/state-legislature-vs-rajya-sabha/>
as the original party.
This decision raises questions about the interpretation and application of the anti-defection law in modern political
scenarios.
Criticisms and Calls for Reform: Critics argue that the law restricts legislators from acting independently, thereby undermining
the principles of parliamentary democracy.
It binds legislators to their party’s position on various issues, reducing their accountability to their constituencies.
Additionally, it consolidates control under party leadership rather than encouraging ideological cohesion.
Need for Amendments and Judicial Interpretation: The provisions of the Tenth Schedule do not specify a time frame for
decision-making in defection cases, leading to uncertainty.
The Supreme Court has recommended that Speakers ideally resolve defection petitions within three months, although
this is not legally obligatory.
Additionally, there have been contrasting interpretations of the law by Indian courts, creating further uncertainty.
Suggestions Related to the Anti-defection Law
Relieving Chairman/Speaker from Adjudicating Powers: Granting the Chairman/Speaker final authority in defection cases
challenges the separation of powers.
Transferring this responsibility to the higher judiciary or the Election Commission < https://pwonlyias.com/election-
commission-of-india/> , as suggested by the 2nd ARC report, could mitigate defection issues.
Restricting the Scope of Anti-defection Law: To safeguard representative democracy, consider narrowing the scope of the anti-
defection law to instances where government defeat could result in a loss of confidence, thus preventing its detrimental impact.
Independent Tribunal: The Supreme Court of India has recommended that Parliament should set up an independent tribunal
headed by a retired judge of the higher judiciary to decide defection cases quickly and impartially.
Enhancing Intra-Party Democracy: To address government stability concerns stemming from party defections, parties should
focus on bolstering their internal democratic processes.
Regulating Political Parties: Legislation governing political parties in India is crucial, encompassing provisions such as bringing
parties under RTI and reinforcing intra-party democracy.
Time frame: The Supreme Court has held that the Speaker of the Legislative Assembly should decide on a petition seeking
disqualification of a member under the Tenth Schedule within a period of three months.
Global Application of Anti-Defection Laws
Anti-defection laws are not exclusive to India but are observed in several countries such as Bangladesh, Kenya, South
Africa, and Singapore.
Bangladesh’s Constitutional Provision (Article 70): In Bangladesh, Article 70 of the Constitution mandates that a member
vacate their seat if they resign or vote against their party’s directives.
Disputes are referred to the Election Commission by the Speaker.
Kenya’s Anti-Defection Regulation (Section 40): Kenya’s Constitution, under Section 40, requires a member who resigns from
their party to vacate their seat.
The Speaker decides, and the member has the option to appeal to the High Court.
Singapore’s Anti-Defection Provisions (Article 46 and 48): In Singapore, Article 46 necessitates a member to vacate their seat
upon resignation or expulsion from their party.
Article 48 empowers Parliament to decide on any matter related to a member’s disqualification.
South Africa’s Anti-Defection Clause (Section 47): South Africa’s Constitution, through Section 47, stipulates that a member
loses parliamentary membership if they cease to be a member of the party that nominated them.
Articles Related to Anti-defection Law
Article Subject-Matter
Article 101 Vacation of seats (Parliament)
Article 102 Disqualifications for membership (Parliament)
Article 190 Vacation of seats (State Legislature)
Article 191 Disqualifications for membership (State Legislature)
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Conclusion
Although the Anti-Defection Law was enacted to prevent governmental instability, it has faced criticism for being
discriminatory and restricting the freedom of speech of elected representatives.
Ensuring government stability requires strengthening the internal democracy of political parties.
Therefore, there is a pressing need for a more refined and effective legislation that fosters a truly representative democracy
while addressing the current law’s shortcomings.
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