Anti-Defection Law

Context

The Himachal Pradesh Chief Minister highlighted the role of the Anti-Defection Law in safeguarding democracy following the 2024 Rajya Sabha elections, where six Congress MLAs cross-voted for a BJP candidate, leading to their disqualification and the prevention of a potential no-confidence motion against the elected government.

Anti-Defection Law – Overview

Introduced via 52nd Constitutional Amendment Act, 1985.
Incorporated as the Tenth Schedule of the Constitution.
Objective: Prevent political defections to ensure stability of elected governments.
Applies to both Parliament and State Legislatures.

Key Provisions

Aimed to disqualify legislators for:
- Defecting to another political party.
- Voting/abstaining against party direction (whip).
Speaker/Chairman decides on disqualification.
Subject to Judicial Review (Kihoto Hollohan v. Zachillhu, 1992).

Grounds for Disqualification

Voluntarily giving up party membership.
Voting or abstaining against party whip without prior permission.
- Disqualification not applicable if party condones within 15 days.
Independent member joins a political party post-election.
Nominated member joins any political party after 6 months.

Exceptions to Disqualification

Merger Exception:
- If 2/3rd members of a party agree to merge with another party.
- No disqualification for such members.
Split provision (1/3rd rule) removed via 91st Constitutional Amendment Act, 2003.

Major Issues

Undermines legislative autonomy; MPs/MLAs must obey party line.
No time limit for Speaker to decide on defection cases.
Speaker's role may be politically biased.
No recognition for ‘split’, only merger is valid.
Promotes horse-trading, weakening democratic ethics.
Breaks accountability chain: legislators accountable to party, not public.
Encourages wholesale defection, penalizes retail defection.

Suggestions for Reform

Time-bound adjudication of disqualification by an independent tribunal (SC recommendation).
Election Commission to decide defection cases (EC recommendation).
Restrict law to confidence/money bills only (Hamid Ansari).
Enact law to promote intra-party democracy, bring parties under RTI.

Important Case Law