The Anti-Defection Law in India, introduced through the 52nd Amendment Act of 1985 and strengthened by the 91st Amendment Act of 2003, disqualifies legislators on grounds of defection under the Tenth Schedule. Important for UPSC Polity.

The 52nd Constitutional Amendment Act of 1985, widely known as the Anti-Defection Law, was a crucial reform in Indian politics. It introduced provisions to curb political defections in both Parliament and State Legislatures by adding the Tenth Schedule to the Constitution. Later, the 91st Amendment Act of 2003 further modified these provisions, strengthening the framework against unethical party switching. This topic holds high importance for UPSC students preparing for polity and governance.

52nd Amendment Act 1985 and the Anti-Defection Law in India

• The 52nd Amendment Act disqualified MPs and MLAs on the grounds of defection to maintain stability in the democratic setup.
  • It made changes in four Articles of the Constitution.
  • It introduced a new provision called the Tenth Schedule.
  • It is popularly referred to as the anti-defection law.

• 91st Amendment Act 2003 and its Impact on Anti-Defection Provisions

  • The 91st Amendment removed the earlier exemption related to party splits.
  • This meant that protection on the grounds of one-third split was no longer available to defectors.
  • The change tightened the law to prevent misuse and bulk defections.

• Key Provisions of the Tenth Schedule under the Anti-Defection Law

  • Disqualification of Members on Grounds of Defection

    • Members of Political Parties: Disqualified if (i) they voluntarily give up party membership; or (ii) they vote/abstain against the party whip without prior approval, unless condoned within 15 days.
    • Independent Members: Disqualified if they join a political party after being elected.
    • Nominated Members: Disqualified if they join a political party after six months from the date they assume their seat. Within the first six months, they are allowed to join without penalty.

  • Exceptions to Disqualification under Anti-Defection Law

    • (i) If the party merges with another and at least two-thirds of its members agree to the merger.
    • (ii) If a member becomes the presiding officer (Speaker/Chairman) of the House and voluntarily gives up or later rejoins the party, to maintain dignity and impartiality of the chair.
    • Note: The earlier exemption for one-third split was removed by the 91st Amendment Act 2003.

  • Authority to Decide on Defection Cases

    • The Presiding Officer of the House decides disqualification matters under the Tenth Schedule.
    • Originally, the decision was final and beyond judicial review.
    • However, in the Kihoto Hollohan Case (1993), the Supreme Court held that such decisions are subject to judicial review for mala fides, perversity, or constitutional violation.

  • Rule-Making Power under the Tenth Schedule

    • The presiding officer is empowered to frame rules for enforcing the schedule.
    • Such rules must be presented before the House for 30 days for approval, modification, or rejection.
    • Defection cases can be taken up only after a formal complaint is filed.
    • The accused member must be given an opportunity to explain before a decision is taken.
    • The matter may also be referred to the Committee of Privileges for inquiry.
    • Thus, disqualification is not automatic and follows a structured process.

The Tenth Schedule of the Indian Constitution, also called the anti-defection law, was introduced to stop unethical political defections motivated by lure of office or monetary gains. Its aim was to strengthen Indian parliamentary democracy. Rajiv Gandhi termed it as the “first step towards cleaning-up public life,” while the then Union Law Minister called its unanimous passage a symbol of maturity and stability of Indian democracy. The provisions were later reinforced through the 91st Constitutional Amendment Act of 2003 to make the law more stringent.

Tenth Schedule of Indian Constitution and Anti-Defection Law

• Advantages of the Anti-Defection Law in India

  • (a) Ensures political stability by discouraging legislators from shifting parties frequently.
  • (b) Allows realignment of parties through mergers instead of defections.
  • (c) Reduces corruption and unnecessary expenses linked to frequent elections.
  • (d) Provides for the first time constitutional recognition to political parties.

• Criticism of the Anti-Defection Law

  • (i) Fails to distinguish between dissent and defection, restricting legislators’ freedom of conscience.
  • (ii) Its difference between individual and group defections is irrational – it bans retail defections but legalises wholesale ones.
  • (iii) Does not empower parties to expel legislators for activities outside the legislature.
  • (iv) Creates an illogical difference: independent members are disqualified for joining parties, but nominated members can do so within six months.
  • (v) Vests authority in the Presiding Officer, raising doubts due to possible political bias and lack of legal expertise. Even two former Lok Sabha Speakers – Rabi Ray (1991) and Shivraj Patil (1993) – questioned their suitability to decide defection cases.

• 91st Amendment Act 2003: Strengthening the Anti-Defection Framework

  • Reasons for the 91st Constitutional Amendment Act

    • (i) The Tenth Schedule failed to stop defections completely, allowing bulk defections while banning individual ones.
    • (ii) The Dinesh Goswami Committee (1990), Law Commission’s 170th Report (1999), and NCRWC Report (2002) recommended removing the “split” exemption.
    • (iii) The NCRWC suggested defectors should be barred from holding public offices such as ministers or remunerative posts until the term ends or fresh elections are held.
    • (iv) The NCRWC also criticised the creation of excessively large Councils of Ministers and recommended fixing a cap of 10% of the total strength of the House.

  • Key Provisions of the 91st Amendment Act 2003

    • (i) The Union Council of Ministers, including the Prime Minister, cannot exceed 15% of Lok Sabha strength (Article 75).
    • (ii) Defectors are disqualified from becoming ministers at the Centre (Article 75).
    • (iii) In states, the Council of Ministers including the Chief Minister cannot exceed 15% of the Assembly’s strength, but must have at least 12 members (Article 164).
    • (iv) State legislators disqualified for defection are also barred from ministerial posts (Article 164).
    • (v) Disqualified MPs or MLAs cannot hold any remunerative political post (Article 361-B). This includes:
      • (a) Any office under the Centre or State with salary from public revenue.
      • (b) Any office under a body wholly or partly owned by the government, except where compensation is purely nominal.
    • (vi) The earlier provision allowing exemption in case of one-third party splits was completely deleted. Thus, defectors have no protection on grounds of splits.