ANTI-DEFECTION LAW IN INDIA

In order to combat the danger posed by the practise of exchanging elected officials from
various parties in order to overthrow the majority administration, the anti-defection
provision, also known as the 10th schedule of the Indian Constitution, was added by a
constitutional amendment in the year 1985. Before the 1980s, a wave of defections compelled
the government to pass a legislation prohibiting it because startling cases of party-hopping
had become all too regular. The Law has made some progress toward achieving its goals of
bringing party stability and reducing defections, but because of some of its incorrect
provisions, it is unable to fully realise its potential. Every now and again, governments fall
and rise across the nation, and the cliche "Aaya ram, Gaya ram" appears to be making a
comeback. The ongoing political unrest in Maharashtra has brought attention back to this
law. Eknath Shinde, the leader of the Shiv Sena rebellion, may have been successful in
overthrowing the Maha Vikas Aghadi (MVA) administration. Any sensible person would
question the continued applicability of India's anti-defection rules in light of this. Is this
stable enough to prevent the overthrow of governments? What further needs to be done to
address this crisis?

Defection is one of the causes for which Members of Legislative Assemblies (MLAs) and
Members of Parliament (MPs) in India may be removed from office. The Indian Constitution
provides for a number of other grounds as well. The act of a legislator switching from the
party on whose platform he was elected to that of another political party is referred to as a
defection.1 According to the Tenth Schedule, a member will lose their membership if they
voluntarily resign from it.2 If a nominee for a legislative body joins a political party at any
time within six months of taking the oath, she will also be removed from office. 3 The tenth
schedule's fourth paragraph talks about how disqualifications do not apply in merger
situations.

After the law of defection was so incorporated in the Constitution, some developments took
place, which had great impact on this law. The first development happened when somebody
challenged the constitutional validity of this law which finally reached the Supreme Court for
consideration. After the law of defection was included in the Constitution in this manner, a
number of events occurred that greatly affected this provision. The first change occurred

1
Anviti Chaturvedi, Debating Anti-Defection Law, COMMON CAUSE, (July 2016).
2
Tenth Schedule of the Constitution of India, ¶ 2(1)(a).
3
Id. 12(2), 2(3).
when someone contested the constitutionality of this law, which ultimately made it to the
Supreme Court for review. Up until the 1992 case of Kihoto Hollohan v. Zachilhu, Schedule
10 of the Constitution4 was thought to be outside the purview of judicial review. 5 According
to the ruling in the case, Paragraph 7 of the Schedule is unlawful and violates the Constitution
because it attempts to limit the authority of the Supreme Court and the High Court. It was
argued that because the officer's decisions would be handled similarly to those of a tribunal,
they were subject to judicial scrutiny for reasons such as malfeasance, perversity, etc. A
speaker is mandated under paragraph 6 of the tenth schedule to settle an electoral dispute, it
was argued before the court. It was argued that because speakers are chosen by political
parties and are not even required to resign from those parties, their independence, fairness,
and impartiality would always be questioned, which is unquestionably at odds with the
fundamental tenets of a parliamentary democracy. This argument was rejected by the
Supreme Court.

It is about time that the legislation is modified because the Tenth Schedule's adoption into the
Indian Constitution was intended to stop political defections. As a result, we have put forth a
few recommendations to clean up the law's inconsistencies. First and foremost, the decision-
making authority currently held by the Speaker or Chairman, the presiding officers, should be
transferred to another independent body because it is crucial to have a body that can make
judgments without favouring one party over another, unlike the Speaker. Second, the
distinction made and the exception provided in cases of disqualification based on the quantity
of defections are illogical and should be changed. By exempting them from disqualification
just because they are more numerous, the legislation appears to be ignoring the potential that
two thirds of the party may combine due to the allure of office. The majority of the Tenth
Schedule is made up of the phrase "voluntarily giving up membership," yet because it is so
ambiguous, Speakers frequently misinterpret it. Therefore, a thorough definition of this term
is necessary.

It seems unlikely that India will be able to follow the US paradigm when determining
whether a member's defection was lawful. Although the defection process is managed
internally in the US and UK while it is handled by the Indian Parliament, the latter must learn
from the extent of sanctions that can be imposed on a member by a political party, especially
in cases where sanctions have an impact on the performance of the members in the House.

4
Constitution of India, schedule X.
5
Kihoto Hollohan v Zachilhu [1992] 1 SCC 309.
Sanctions can be weakened in India so that they only permit the expulsion of a party defector
without costing him his seat in the legislature and by making it a matter for each political
party to decide on its own.

Horse-trading that occurs right after an election distorts the Indian response to defection.
However, since the anti-defection law was passed, the Indian voter has also matured and is
now capable of recognising political opportunism and reacting appropriately. The Tenth
Schedule has developed into a crucial tool in the government's political toolbox, so the winds
of change won't begin to blow from the government benches. In light of the current state of
Indian democracy and the track record of the constitutional functionaries tasked with
defending it, the Supreme Court should convene a seven-judge Constitution Bench as soon as
possible to examine the law with fresh eyes.