From Aaya Ram Gaya Ram To The 52nd Amendment: The Journey Of India's Anti-Defection Law

Suppose I choose a particular candidate who belongs to a specific party, and that party, through that individual, has appealed for my vote on certain parameters. In that case, I expect that person to be my representative in the house and to implement what they promised to do. After being elected to Parliament or the legislature and taking their oath, if they decide to abandon that party, its platform, and those promises—then cross over for whatever personal goals they may have—they are, in many ways, betraying the trust I have placed in them to represent me and fulfill those promises. This constitutes a betrayal.

The 10th Schedule introduces a form of regulation by doing three things. First, it places a significant emphasis—on political parties. Political parties were not referred to in the Constitution before the 10th Schedule, so this places a considerable premium on them. Therefore, there is no defection if an individual moves to another individual’s position, but it is considered defection under the law when a member of a political party leaves that party to join another party, or when an independent individual joins a political party. Both of these actions are considered defections.

In the 10th Schedule itself, if we examine Paragraph 2, the beginning of Paragraph 2 provides a clear definition of defection and outlines how a legislator can defect. The starting point is subject to provisions of paragraphs 4 and 5. Paragraphs 4 and 5 describe exemptions; Paragraph 4 specifically addresses mergers. Initially, there were Paragraphs 3, 4, and 5, but Paragraph 3 has already been omitted by the 91st Amendment Act of 2003, and Paragraph 2 has also been amended.

Paragraphs 4 and 5 are exemptions, with Paragraph 4 discussing mergers. If a legislator or a group of legislators decides to form a new party by merging with another party, there must be a minimum requirement: it is emphatically stated that only if two-thirds of the members of that party merge with another party will they be exempted from disqualification based on a defection. However, here's the catch: the remaining members are also not considered to have defected. One-third or whatever remains of that party will also not be affected, and they will maintain their membership, meaning that no sanctions under the anti-defection law will apply to them in the case of mergers.

Paragraph 5 states that if a legislator is appointed as a Speaker, Deputy Speaker, Chairperson of the Council of States, or Deputy Chairperson of the Council of States or Legislative Assembly, and leaves their party during their term as presiding officer, they will not be covered under the defection provisions during that time.

As far as the 10th Schedule and defection are concerned, it is the Speaker or the Chairman, depending on whether it's the Lok Sabha or the Rajya Sabha, who has the authority. Disqualifications exist in the Constitution when discussing parliamentarians and legislators, specifically in Article 102 and several other provisions.

When the Constitution was created, it stated that the President would be the decision-maker in consultation with the Election Commission. The Constitution outlines four or five criteria that would disqualify someone from being a member or continuing as a member. These include not being a citizen of India, being of unsound mind, or being an undischarged insolvent. It also mentioned that Parliament could enact laws to determine other disqualifications.

In 1950 and 1951, two pieces of legislation known as the Representation of the People Acts were enacted. The 1950 Act is less relevant for this purpose; the 1951 Act addressed many issues regulating elections. Sections 8 to 11 of the Representation of the People Act lay down disqualifications for individuals convicted of offenses. They are automatically disqualified—no additional decision is needed beyond the judgment of the court that convicted them. The disqualification takes effect based on the sentencing.

There are also other disqualifications for corrupt practices in elections. If disqualification is not automatic based on a court judgment, then the Election Commission will make a decision. Therefore, we have three clear categories: one under the Constitution itself, where the decision is made by the President; another under the Representation of the People Act, where the decision is based on the operation of law and court judgments; and a third under the Anti-Defection Law, where the authority lies with the Speaker.

This last part has faced considerable criticism over the years due to situations where one expects the Speaker or Chairman to act neutrally, without party affiliation. In practice, however, they often have their allegiances. When a decision needs to be made, if a few members decide to cross the floor and defect from the Speaker's party, the Speaker will quickly rule them disqualified. Conversely, if the members are joining the Speaker's party, the Speaker may be lackadaisical, potentially delaying the decision for months or even years. Numerous cases have gone to court based on this inconsistency.

The Supreme Court, in the Kihoto Hollohan judgment—which is the primary ruling addressing defections—contains a passage stating that the two triggers for defection in the Tenth Schedule are: first, that a member has voluntarily left the party or has shown that they have left the party. In Ravi Naik's case, the Supreme Court clarified that this does not require an express declaration; it can be implied by the member's actions. The second trigger is when a member violates the whip given to them regarding how to vote in Parliament.

An argument against this was that it essentially makes the representative an instrument of the party, undermining the essence of democracy. By enforcing a whip, the representative is compelled to follow party lines rather than act in the best interests of their constituency.

The Supreme Court struck a balance by stating that these two conditions should be limited regarding the free speech angle. They specified two situations where defying the whip is not permissible: first, during a confidence or no-confidence motion, where the party relies on member votes; and second, when a member has made a promise to the electorate based on their manifesto. If a member violates the whip in these situations, they will be guilty of defection.

In all other cases, members are free to vote as they wish, which is significant. If I am compelled to vote on an issue that affects only my constituency, but the party whip instructs me to vote against it, how can I reconcile that? There is an inherent conflict, and I should have the freedom to act according to my constituents' interests. The Constitution and the current law provide me with that freedom. Therefore, I believe there is a balance, and the anti-defection law does not unreasonably curtail freedom of speech.

The evolution of the anti-defection law in India reflects a crucial attempt to uphold democratic principles while addressing the complexities of political loyalty and representation. The balance sought by the Supreme Court in its rulings highlights the tension between party discipline and individual freedom, emphasizing that elected representatives must remain accountable to their constituents. As political dynamics continue to evolve, the ongoing discourse around the anti-defection law will remain vital in shaping the future of Indian democracy. Ultimately, ensuring that representatives act in the best interests of their voters, rather than merely as extensions of party agendas, is essential for maintaining the integrity of the electoral process and fostering public trust in democratic institutions.