In 1985, through the 52nd Amendment, a new schedule was inserted to the Constitution of India in the form of tenth schedule, which to common people is better known as ‘Anti-Defection Law’. Earlier, the tenth schedule was related to the association of Sikkim with India and this schedule was repealed via the 36th amendment act once Sikkim became the full-fledged state of India.
The Statement of Objects and Reasons of the Fifty-second Constitution Amendment Bill, 1985 read as “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” Changes were made in Articles 101, 102, 190 and 191 of the Indian Constitution
Earlier, the representatives used to switch the political party after winning elections for their private interests which often resulted in instability of the legislative bodies. Political parties used to offer money or a position as minister to lure that elected representative which more often than not led to abandoning the loyalty towards their original party.
From 1967 to 1971, some 142 Member of Parliaments and over 1900 MLAs switched their political parties. Governments in many states, beginning from Haryana, collapsed. In Haryana, one legislator “Gaya Lal” changed his parties for thrice within few days and that led to the origin of the phrase “Aaya Ram-Gaya Ram”. However, such a grave political and moral crisis was not addressed immediately and took another 15 years for this amendment to come.
So as per this law, a Member of Parliament or a state legislature was deemed to have defected if he or she either voluntarily resigned from his party, joined any other party or voted in contravention of the party leadership on a vote i.e. party’s whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of any party had an option to choose to join a party within six months or after that period; they were treated as a party member or independent member.
The law also made a few exceptions such as any person who has been elected as speaker or chairman could resign from his or her party and rejoin the party if he or she demitted that post. A party can be merged into another party if at least two-thirds of its party legislators voted for the merger. The law also permitted splitting of parties, but that has now been outlawed by the Ninety-first Amendment Act, 2003, which came into force with effect from 1 January 2004.Hence the claim of a split in the party in a legislature has been barred by law.
What constitutes “voluntarily” resignation from a party? In Ravi Naik v. The Union of India, the apex court has interpreted the phrase ‘voluntarily gives up his membership and says that “The words ‘voluntarily gives up his membership' are not synonymous with ‘resignation' and have a wider connotation.” The court says, “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”
Earlier, the Para 7 of the Schedule says “Notwithstanding anything contained in the Constitution, no court has any jurisdiction in respect of any matter connected with the disqualification of a member of a House on the ground of defection.” However, this bar on judicial review has been declared void by the Supreme Court in Kihoto Hollohan vs. Zachilhu AIR 1993, SC 412. However, this Para still exists in the Schedule 10 as no amendment has struck off this law from this schedule but it is not applicable being unconstitutional.
Recently, the Election Commission of India clarified that the anti-defection law does not apply to Presidential Elections. “The voting or not voting as per his/her own free will at the Presidential election will not come within the ambit of disqualification under the Tenth Schedule to the Constitution of India and the electors are at liberty to vote or not to vote at the Presidential election as per their own free will and choice.”
Therefore, no whip can be issued by the parties to their members to vote in a particular manner and if such a direction is made, it would amount to the exertion of undue influence within the meaning of Section 171C of the Indian Penal Code.
The ECI clarification relied on the judgment of Kuldip Nayar v. Union of India, AIR 2006 SC 3127, and Pashupati Nath Sukul v. Nem Chandra Jain Air 1984 SC 399. These cases state the non-application of anti-defection laws on the Upper House ie. The Rajya Sabha, the election commission thus stated that the same would be applicable to the Presidential elections as well.
Even after more than three decades of the functioning of this provision of the Constitution, this law requires some changes and issues have to be looked into like whether it should be applicable to the pre-poll alliance? What should happen if the defection takes place before new elections, which makes disqualification immaterial? Should there be additional penalties on defectors? These issues must be addressed as soon as possible so that the original intent of the 52nd amendment to maintain the stability becomes a reality and not hampered by loopholes left by the current law in practice.