Anti-defection law

Also called: Tenth Schedule · Topic: Political Parties, Party Systems and Anti-defection · NCERT: Class 9, Ch 7 "Elections"; Class 10, Ch 4 "Political Parties"; Class 11, Ch 5 "Legislature"; Class 11, Ch 9 "Constitution as a Living Document"; Class 12, Ch 5 "Challenges to and Restoration of the Congress System"

Meaning

The anti-defection law is the Tenth Schedule of the Constitution, added by the 52nd Amendment, 1985. Under it, an MP or MLA loses their seat if they leave their party, or vote or abstain against the party whip. An independent member also loses the seat by joining a party after the election [2][3]. The presiding officer (Speaker or Chairman) decides each case, and the courts can review that decision. The only group exception today is a merger that at least two-thirds of the party's legislators agree to [2][3].

It matters because it ended the "Aya Ram, Gaya Ram" politics of the late 1960s, when governments rose and fell through defections. Critics say it went too far and turned legislators into people who simply follow the whip.

Explanation

What counts as defection

• Defection means either of two things:
• leaving the party on whose ticket the legislator was elected; or

• voting against the party's direction in the House, or staying away from (abstaining in) that vote.

• Two views of defection (NCERT Class 9):

• Opportunism: legislators switch sides for ministerial posts or cash. This is the main view.
• Conscience: a legislator may leave because of real disagreement with the party, or because what the public wants has changed.

Grounds for disqualification (para 2)

Disqualification means losing the seat in the House.

Para	Who	When the member is disqualified
2(1)(a)	Member elected on a party ticket	Voluntarily gives up party membership [4]
2(1)(b)	Member elected on a party ticket	Votes or abstains against the party whip without permission, unless the party condones (forgives) it within 15 days
2(2)	Independent member (elected without a party ticket)	Joins any political party after the election [4]
2(3)	Nominated member	Joins a party more than six months after taking the seat (taking the oath under Art. 99 or Art. 188) [4]

• Party whip: the party's written order on how its members must vote in the House.
• The whip rule covers votes inside the House only.

• So cross-voting in a Rajya Sabha election (MLAs voting for another party's candidate) is not by itself a ground for disqualification.

• "Voluntarily giving up membership" is wider than resigning.

• It can be judged from a member's conduct. No formal resignation is needed.
• Publicly opposing one's own party or attending a rival party's rally can count [2].

Exceptions

• Merger (para 4): a party may merge with or into another party if at least two-thirds of its legislators agree. Nobody is disqualified, neither the members who join the merger nor those who stay out [2].
• Split (old para 3), now deleted:
• The original law also protected a "split" by one-third of a legislature party.
• The 91st Amendment, 2003 removed this and kept only the two-thirds merger route [3].

• So members facing disqualification can no longer defend themselves by claiming a "split" (Subhash Desai, 2023) [6].

• Presiding officer's exemption (para 5): a Speaker, Chairman or their deputy may give up party membership while in office and rejoin the party afterwards without being disqualified. This lets them act neutrally.

The procedure, step by step

1. Petition: any other member of the House files a petition against the legislator [2].
2. Decision: the Speaker (Lok Sabha or Assembly) or Chairman (Rajya Sabha or Council) decides. The Schedule says "his decision shall be final" (para 6) [4].

3. Time limit: - The Tenth Schedule itself sets no deadline [2]. - The Supreme Court has said that, unless there are exceptional reasons, three months from the filing of the petition is the outer limit (Keisham, 2020) [5].

4. Rules: the presiding officer may make rules to run the process (para 8).

5. Judicial review: the decision can be challenged in the High Court and Supreme Court (judicial review means the courts' power to check whether an action is lawful) [2]. - While the case is pending, the MLA facing the petition can still take part in House proceedings [6].

In the Constitution and practice

• Where it sits:
• The Tenth Schedule, added by the 52nd Constitutional Amendment Act, 1985, passed under the Rajiv Gandhi government [2][3].
• The same amendment also changed Art. 101 and Art. 102(2) (vacation of seats and disqualification of MPs) and Art. 190 and Art. 191(2) (the same for MLAs).

• The 91st Amendment, 2003 deleted the split clause [3].

• Background:

• After the 1967 elections, Congress MLAs broke away and helped install non-Congress governments in Haryana, Madhya Pradesh and Uttar Pradesh (NCERT Class 12).
• Gaya Lal, a Haryana MLA, changed parties three times in a fortnight in 1967. Rao Birendra Singh told the press "Gaya Ram was now Aya Ram", which gave Indian politics the phrase "Aya Ram, Gaya Ram" (slang for a turncoat).

• A committee chaired by Y.B. Chavan (1967-69) studied the problem. Earlier anti-defection bills failed to become law.

• Landmark cases:

• Kihoto Hollohan v. Zachillhu (1992): upheld the Tenth Schedule as valid. It struck down para 7, which had barred all courts from these cases. So the Speaker's decision is open to judicial review [2][3].
• Ravi S. Naik (1994): giving up membership can be judged from conduct. Openly working for another party is enough.
• G. Viswanathan (1996): a member expelled by the party still belongs to it under the Tenth Schedule. If that member joins another party, it counts as defection.
• Keisham Meghachandra Singh v. Speaker, Manipur (2020):
  • When deciding these cases, the Speaker acts as a Tribunal (a body that settles disputes like a court), not as an officer of the House.
  • So Arts. 122 and 212, which protect the House's internal proceedings from the courts, do not protect these decisions.
  • Three months is the outer time limit [5].

• Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), a 5-judge bench ruling on the Shiv Sena dispute:

  • The political party (the organisation outside the House), not the legislature party (its members inside the House), appoints the whip and the party leader [6].
  • The Speaker must recognise the whip and leader authorised under the party constitution. When rival groups both claim to be the party, the Speaker decides prima facie (on a first look) which group is the party [6].
  • The Speaker (under the Tenth Schedule) and the ECI (under para 15 of the Symbols Order) can decide their own cases at the same time [6].
  • The Supreme Court cannot normally decide disqualification petitions itself at the first stage. The Speaker must decide within a reasonable period [6].
  • Whether Nabam Rebia (2016) was right was referred to a 7-judge bench. That ruling barred a Speaker facing a removal notice from deciding disqualification cases [6][5].

• How it has worked:

• Defections have fallen.
• Presiding officers have sometimes delayed decisions or not disqualified members, which makes people doubt their neutrality [2].
• Group switching has moved to the two-thirds merger route.

Don't confuse with

• Merger (para 4) vs split (old para 3): a merger needs two-thirds of the legislators and is still protected. The one-third split exception was deleted by the 91st Amendment, 2003 [3].
• Legislature party vs political party: the legislature party is the party's MPs or MLAs in the House. Under Subhash Desai (2023), the political party outside the House appoints the whip [6].
• Speaker's power under the Tenth Schedule vs ECI's power under the Symbols Order: the Speaker decides whether a member is disqualified. The ECI decides which group gets the party's name and symbol (para 15). The two can run at the same time [6].
• Independent member vs nominated member: an independent is disqualified for joining any party at any time. A nominated member may join a party within six months of taking the seat [4].

Prelims Hooks

• 52nd Amendment, 1985 → added the Tenth Schedule and amended Arts. 101, 102(2), 190, 191(2). 91st Amendment, 2003 → deleted the one-third "split" exception and kept only the two-thirds merger [3].
• Kihoto Hollohan (1992) → Tenth Schedule valid, but the para 7 bar on courts struck down, so the Speaker's decision is open to judicial review [2].
• Keisham Meghachandra (2020) → Speaker acts as a Tribunal, with three months as the outer limit. Subhash Desai (2023) → the political party appoints the whip [5][6].
• Para 2(1)(b): the party can condone a vote against the whip within 15 days. Cross-voting in a Rajya Sabha election is not by itself a ground for disqualification.
• Ravi S. Naik (1994) → membership can be given up through conduct. G. Viswanathan (1996) → an expelled member still belongs to the party.
• Trap: the Speaker or Chairman decides disqualification, not the ECI or the President. The President or Governor deciding on ECI's advice is only a proposal (Goswami 1990, NCRWC 2002) [2].

Mains Points

• Stability vs free voting:
• The law reduced the post-1967 kind of defections, but it ties legislators to the whip on almost every vote.
• As NCERT Class 10 puts it, legislators "have to accept whatever the party leaders decide". This weakens debate and makes the executive less answerable to the legislature.

• Fix: limit the whip to votes that decide whether the government survives. The Dinesh Goswami Committee (1990) suggested confidence motions. The Law Commission's 170th Report (1999) suggested budgets and no-confidence motions [2][3].

• Neutrality of the decider:

• The Speaker is a party member who rules on cases about colleagues and rivals. Delays and one-sided decisions happen [2].

• Proposed fixes:

  • the President or Governor decides on ECI's advice (Goswami 1990; NCRWC 2002) [2];
  • a three-month deadline (Keisham, 2020) [5];
  • a permanent Tribunal headed by a retired Supreme Court judge or a retired High Court Chief Justice, suggested by the Supreme Court [5].

• Loopholes remain:

• The two-thirds merger route lets whole groups switch sides together.
• Mass resignations and long delays by Speakers also get around the law.
• Removing the "split" defence in 2003 fixed only part of the problem [3][6].

Related concepts

• Defection
• 52nd Constitutional Amendment Act 1985
• Party whip
• Legislature party
• Independent and nominated members under anti-defection law
• Ravi S. Naik case
• Presiding officer's exemption

Read more

• Defection and the Tenth Schedule