To curb the menace of horse-trading or floor crossing or party defection by the legislators that gave rise to instability in the House and the government, the Tenth Schedule of the Constitution or the Anti-Defection Law was enacted in 1985. Under this law, a legislator can be disqualified from the house on grounds of defection. Defection is defined as voluntarily giving up the membership of a party. The Courts have later interpreted this definition to examine and explain what counts as “voluntarily giving up” the membership of a party. There are some exceptions to this law and the power to disqualify a legislator lies with the Speaker or Chairman of the House. 

In one of the most recent instances, Mizoram MLA Lalduhoma was disqualified by the Speaker. Mr. Lalduhoma was elected as an Independent Candidate and later declared himself a Member of the Zoram People’s Movement (ZPM). This was alleged by some other MLAs as an act of defection. He was disqualified after being given a 15-day show cause notice. It was reported that Mr. Lalduhoma argued that he had always maintained his allegiance to ZPM. However, he contested the election as an Independent Candidate, and his declaration will be considered defection according to the definition in the Tenth Schedule.

The law aims to restrict the legislator from changing their status and allegiance to the party from which they are elected by the people; alternatively here in the case of Mr. Lalduhoma if he was elected as an independent candidate then he would be restricted from joining a party after the election. This is because the act of defection defies the trust of the voter that they placed in the candidate under their allegiance to a particular party or their independent status. Political parties invest in the campaigning of their candidates and require their support to form a stable government or opposition in the House. In the case of independent candidates, it can be argued that they won the public support based on their non-allegiance to any party; this trust is defeated when they win and join a party.

As such cases keep cropping up, questions have been posed as to whether the law refrains the Legislator from exercising their free will during important votes, the way it affects the Speaker’s or Chairman’s power to make unbiased decisions, among others; the Supreme Court has dealt with some of these, while others remain a topic of debate.

Developments in the Law

Over the years the law has been interpreted and tweaked by the Courts to understand and discern the various connotations of its provisions, most importantly, addressing the question as to what “voluntarily giving up the membership” entails. The Supreme Court ruled in the case of Ravi Naik vs UOI, that the provision defining defection includes not only handing over a formal resignation but also resignation by the conduct of the candidate. This includes publicly expressing opposition to the party leadership or support for another party, attending opposition rallies, and even writing a letter to the governor asking to call upon the leader of another party to form a government. All such instances would be deemed as defection.

Another provision in Para 2(1)(b) of the Tenth Schedule allows disqualification of the candidate for voting against the whip of the party. The constitutional validity of this provision has been challenged. In the case of Kihoto Hollohan vs Zachilhu and Others, the Supreme Court held the provision constitutionally valid but also expressed its fear about the power accorded to the Speaker in deciding such matters. The Court was further suspicious about the Speaker’s partisanship in some cases. Moreover, no time limit has been prescribed within which the Speaker is required to give the decision regarding the disqualification, rendering the process arbitrary. For example, the Speakers in some cases have disqualified the legislators immediately and have delayed the decision for a year in other cases, allowing candidates to hold office when they deserved disqualification.

Recent case laws

Despite the intervention of Courts to interpret the law and regular amendments to fill the loopholes and make the law more effective, there persists a lot of disagreement and confusion amongst legislators and parties over what the law says. This is evident from the plethora of cases of defection coming up. 

In Ram Chandra Prasad Singh vs Sharad Yadav the Rajya Sabha MP Sharad Yadav, who was elected as a member of Janata Dal United (JDU), was disqualified from the Upper House, after he gave up his membership through his conduct, public speeches and ostensible alignment with another party (RJD). Regardless of his denial of such allegations, the Chairman read into his conduct as a party member, and decided that his act amounts to giving up his membership.

The Supreme Court in the case of Keisham Meghachandra Singh vs the Hon’ble Speaker expressed its anguish over the arbitrary nature of power handed to the Speaker and suggested that the Parliament should consider having a separate Tribunal for adjudicating the disqualification proceedings instead of leaving the decision to the Speakers. This is because the Speaker remains either a de jure or a de facto member of a political party and their decision can be politically colored.

In another incident, the anti-defection law was challenged by Sachin Pilot in Rajasthan HC where he asserted that “Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to conduct falling within the Clause 2(1)(a) of the 10th Schedule of the Constitution of India”. Similar concerns have been raised earlier about the scope of the provisions of this law and what it aims to curtail.

The Court ruled in Shivraj Singh Chauhan v Speaker, Madhya Pradesh, that a member is barred from holding an office after disqualification on account of defection until the term completes or reelections. It was also noted that the constitution recognises the political party as a political unit- the legislators’ membership is pertinent to a stable government and flagrant violation of the anti-defection law is a threat to public policy and smooth functioning of the Parliament, and therefore needs to be taken care of.

Critiques and Suggestions

The critics have pointed out that the law has ended up restraining the legislators from exercising their powers and duties; it also hampers the voters from holding their elected representatives accountable for the enacted laws. When a legislator is compelled to act according to the party whip he might fail to represent the voices of the people who voted for him. Parties with a majority in the House can pass bills through Whips regardless of what the people and their representatives want. This defeats the democratic procedure of law making. 

Suggestions have been proffered like whips should be allowed only when the stability of the government is in question and disqualification should be limited to cases where the candidate gives up his membership or votes against a whip. This allows the legislators to exercise their power and represent their people without fearing the repercussions of defying party leadership or running the risk of being disqualified. In this way no party with a sweeping majority in the house can manipulate the voting process in cases where the stability of the government is not in question. The powers of the Speaker should also be reconsidered and shifted to an unbiased body outside of the House for fair disqualification proceedings. This grants quasi-judicial powers to the speaker and a separate tribunal for this purpose can keep the speaker out of the decision making process, as the speaker is nonetheless a member of the house and should not be made the judge in this situation. 

By Shivangi Khare, Research Associate, Law, LQF