Evaluation of the Act
The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”
The law related to defection ensures stability in the government since there aren’t shifts of party allegiance. The purpose of the Anti-Defection Law is to prevent unsteadiness within the government governing the citizens.
Defection is not only confined to India, but it is also rampant and prevalent in the countries having a Parliamentary form of Government. Anti-Defection law provides for punitive measures against a member who defects from one party to another.
Anti-Defection Law, therefore, seeks to provide safety measures to protect both the government and the opposition against the instability that arises due to defection and shift in party allegiance.
When a citizen is voting for a particular candidate, it is because of the personal agenda of the candidate as well as the political party’s agenda or beliefs. A candidate is bound by the promises made by his party during the elections, and therefore, he is expected to remain loyal to the party as well the citizens voting for him.
By preventing Parliamentarians from changing their allegiance, it reduces the accountability of the government to the parliament and the people.
It is restraining the basic freedom of speech and expression of the parliamentarians and the people.
While it is agreed that the stability of the government is important, equally desirable is the accountability of the house which consist of members who in turn are accountable not only to their political parties but also to the electorate.
Issues related to Anti-Defection Law
The first and foremost issue that needs to be addressed is whether the Tenth Schedule curtails the right to freedom of speech and expression. In the case of Kihoto Hollohon v. Zachilhu and Others, the Supreme Court stated that the provisions under Schedule X are not violative of Article 105 and Article 194 of the Constitution of India. They do not infringe the democratic rights of elected members of the Parliament as well as the State Legislature.
The second issue raised is whether only resignation can constitute as the voluntarily giving up of the membership and affiliation from a political party. The Supreme Court has settled this issue in the case of Ravi S Naik v. Union India. It held that the phrase ‘Voluntarily giving up of membership’ has a wider meaning and even the conduct of the member can come under the ambit of this phrase.
The third question in regard to the Schedule X is whether a member can be said to have voluntarily given up his membership of a party if he has been expelled from such party and he joins another party.
This question is answered in the case of G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly, in which it was laid down that once a member is expelled, he is unattached and does not have any affiliation with any political party, so if he joins a new party after being expelled it shall be considered as ‘voluntarily giving up of membership’.
Another issue for consideration is whether granting the power to take the final decision on disqualification of a member to the Speaker can be considered valid or not. In the case of Kihota Hollohon v. Zachilhu and Others, the Court said that such a provision is valid. However, the Supreme Court and the High Court has the power to review the decision made by the Speaker.
Finally the 91st Constitutional Amendment Act, 2003, changed all this. So now at least two-thirds of the members of a party have to be in favor of a “merger” for it to have validity in the eyes of the law.
“The merger of the original political party or a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger,” states the Tenth Schedule.
A split in a political party will not be considered a defection if an entire political party merges with another; if a new political party is formed by some of the elected members of one party; if he or she or other members of the party have not accepted the merger between the two parties and opted to function as a separate group from the time of such a merger.
On defection of elected members of his party, the whip can send a petition on the alleged defection to the Chairman or the Speaker of a House for their disqualification. He can also expel the members from the party. But this does not necessarily mean that the members so expelled lose their seats in the House.