Anti Defection Law (10th Schedule): Role of Speaker, Rules

In the world of politics, a scenario arises when a member of a political party decides to exit from their party and align themselves with another faction. This phenomenon, known as ‘defection’, has consistently been a catalyst for political unrest and unpredictability within Indian politics. Moreover, Defection has occurred time and again and even after an entire law has been formed on it, there are loopholes that politicians use. Additionally, the Government is open to suggestions and amendments from committees to make the Anti Defection Law even more effective. 

Fun Fact! The phenomenon of moving from one political party to another originated from the House of Commons in Britain and was called “floor crossing.” The name so came to be when a member crossed the floor to the other side. 

The Constitution Bill (52nd Amendment) of 1985 or the Anti Defection Law

On the 24th of January, 1985 the Government of India introduced the Constitution Bill or the 52nd Amendment in the Lok Sabha. 

• The Amendments were in particular for Article 101, Article 102, Article 190 and Article 191 of the Constitution of India.
  • Additionally, these Amendments were made to outline the basis for leaving the seats for the disqualification of the members. 

• The 10th Schedule was also added through the 52nd Amendment, which also mentions the provisions regarding disqualification on the grounds of Defection. 

• Moreover, the Constitution Bill was passed by the Lok Sabha on the 30th of January, 1985 and the Rajya Sabha after a day on the 31st of January, 1985. 

• Furthermore, on the 1st of March 1985, the Act came into force with immediate effect. 

• On the 18th of March, 1986, the implementation of the Lok Sabha (Disqualification on Ground of Defection) Rules of 1985 which was established by the Speaker of the Lok Sabha as per Paragraph 8 of the 10th Schedule came into force. 

Also Read: What was the 1st Amendment of the Indian Constitution?

The Rules of the Anti Defection Law or the 10th Schedule 

The Rules in the 10th Schedule of the Anti Defection Law are:

Rule 2

Rule 2 lays down the grounds for disqualification if:

• If a member of a legislative body affiliated with a political party:
  • Chooses to renounce their membership in said political party voluntarily, or
  • Casts a vote, or refrains from voting, in opposition to the directives of their political party.

However, if the member obtains prior authorization or receives a pardon from the party within 15 days following such voting or abstention, disqualification shall not apply.

• Moreover, if an independent candidate aligns with a political party after the election. 

• If a nominated legislative body member joins a political party after six months have elapsed from their initial appointment to the legislature.

Rule 3

In Rule 3 it was specified that members would not face disqualification solely for representing a faction of their original political party resulting from an internal split. Previously, a Defection by at least one-third of members from such a party was regarded as a split, yet not subject to penalties. However, the 91st Amendment in 2003 removed this provision.

Rule 4 and Rule 5 

Rule 4 and Rule 5 outline the conditions under which a member of the House is not subject to disqualification. These conditions include:

• If a member’s original political party merges with another political party, and the member, along with others from their party:
  • Joins the new political party resulting from the merger 
  • Chooses not to accept the merger and instead operates as a distinct group.

To determine the occurrence of a merger as described in subparagraph (a), it must be established that at least two-thirds of the members of the relevant legislative party have agreed to the merger.

Rule 6

Rule 6 grants authority to the Speaker or Chairman of a House, where the issue of disqualification of a member has been raised, to make a final decision on the matter.

Rule 8

Rule 8 grants authority to the Chairman or Speaker of a legislative body to establish regulations for implementing the provisions outlined in the 10th Schedule.

Also Read: Sources of the Indian Constitution

The Constitution Act of 2003 or the 91st Amendment

The Government of India presented the Constitution Amendment Bill, 2003 (97th) in the Lok Sabha on the 5th of May 2003. Following a review by the Standing Committee on Home Affairs, which provided recommendations, the Bill underwent Amendments before being approved by both the Lok Sabha on the 16th of December 2003 and the Rajya Sabha on the 18th of December 2003. Moreover, on the 1st of January 2004, it received approval from the President of India, hence becoming the Constitution Act of 2003 (91st Amendment). It was officially published in the Gazette of India on the 2nd of January 2004.

• The Constitution Act of 2003 removed the clause concerning divisions from the 10th Schedule of the Constitution.

• According to the provisions outlined in paragraph 2 of the 10th Schedule, a member who is disqualified will also be ineligible for appointment as a Minister or to hold any paid political position.
  • This disqualification remains in effect from the date of disqualification until the expiration of the member’s term of office, or if the member contests an election to either the Parliament or a State Legislature before their term ends, until the date they are declared elected, whichever occurs first.

Also Read: Women’s Reservation Bill

Problems with the Anti Defection Law

There are a few shortcomings of the Anti Defection Law, they are as follows:

Issue with Merger

While Rule 4 of the 10th Schedule offers a certain degree of exemption from disqualification for members involved in mergers, there appears to be a legal gap. 

• This provision aims to protect members of a political party when the original party merges with another, under the condition that at least two-thirds of the legislature party members consent to the merger. 
• However, the flaw lies in the fact that this exception is solely based on the numerical strength of members rather than the underlying reason for defection. 
• The primary motives for individual defections often revolve around the allure of prestigious positions or ministerial roles within the other party. 
• It is reasonable to assume that the same incentives could influence the two-thirds majority who support the merger.

Expulsions

Challenges have emerged in enforcing the Anti Defection Law due to its silence on the expulsion of members from their political parties. 

• One significant flaw in the law is its failure to address the repercussions of a member’s expulsion from their party. 
• Although political parties retain the authority to expel members based on their party constitution, the absence of provisions in the 10th Schedule regarding expelled members creates a paradoxical scenario. 
• Expelled members remain subject to the party’s discipline and directives, yet they may lose their rights under the party constitution.

Voluntarily relinquishing party membership

According to Rule 2(1)(a) of the 10th Schedule, a member of the House faces disqualification from their party if they voluntarily relinquish their membership in the political party. 

• However, the language of this provision lacks clarity regarding whether actions such as opposing the party’s interests or endorsing a candidate from another party in elections, which technically do not constitute formal withdrawal from the party, might still be construed as the member voluntarily renouncing party membership.

Extensive Authority of the Speaker

Rule 6 of the 10th Schedule grants significant and unrestricted authority to the Chairman or the Speaker of the House concerning cases involving the disqualification of members due to defection. 

• It is worth noting, however, that the Speaker typically maintains membership in the political party that nominated them for the role. 
• This situation raises concerns about the Speaker’s ability to remain impartial when adjudicating cases involving their party. 
• While the Speaker’s decision holds finality according to the law, there is no stipulated timeframe for reaching a decision. 
• Parties can resort to legal action only after the Speaker has rendered their decision. 
• The Dinesh Goswami Committee on Electoral Reforms and the Election Commission proposed that the authority to decide on disqualification issues under the 10th Schedule should be vested in the President or the Governor of the State, who would act based on the advice of the Election Commission.
  • However, no amendments have been enacted to implement these recommendations in the legislation.

Scope of Judicial Review

The scope of judicial review regarding the disqualification of a member of a House is limited by Rule 7, which prohibits courts from exercising jurisdiction over such matters. 

• This restriction applies to all courts, including the Supreme Court under Article 136, and High Courts under Articles 226 and 227 of the Constitution. 
• Despite various judgments affirming the validity of the law, except concerning judicial review, which was deemed unconstitutional, there have been no amendments to the 10th Schedule to accommodate the judiciary’s authority to review such decisions.

No Individual Stance in the Party

Rule 2 of the anti-defection law mandates collective conformity among party members, effectively restricting legislators from challenging party actions, policies, leaders, or proposed bills. 

• Consequently, individual freedom within the legislative body is constrained, as party allegiance takes precedence over the lawmaker’s autonomy to oppose objectionable measures. 
• This hierarchical structure transforms political parties into dictatorial entities, compelling members to toe the party line and stifling dissent. 
• Such a framework undermines the essence of representative democracy, wherein elected officials are expected to prioritize the interests and preferences of their constituents over party directives.

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