Anatomy of India’s Anti-Defection Law
Changing of party allegiance by elected legislators is a well-known phenomenon in Indian politics. This change of allegiance is termed as “political defection”, and signifies the act of abandoning the party to which a legislator belongs, and on whose candidature, they are elected to either the Parliament of India or a state legislature. In 1985, India enacted a law to curb defections, by inserting the Tenth Schedule, or the anti-defection law, in the Constitution. Under the Tenth Schedule, an elected legislator can be disqualified from the membership of the House (of Parliament or a state legislative assembly) for (a) voluntarily abandoning the membership of the political party to which they originally belong, or (b) voting against the direction of their party in the House. The Tenth Schedule also carried two exemptions – legislators who are part of a group that either “split” from their party, or “merged” with another party could not be disqualified. While the exemption given to splits was deleted in 2003, the one on mergers is still a part of the Tenth Schedule.
As it so happens, the anti-defection law is now infamous for compounding the problem it was intended to solve, and has been unable to curb defections. The law is as much the subject of scrutiny as the act of defection itself. In particular, the exemption given to mergers between political parties has contributed massively in defeating the purpose of this law. While individual defections remain punishable, group defections escape the clutches of the law (because of the protection given to mergers). The perverse impact of the merger exception has become apparent because of several instances where governments have unravelled themselves on account of wholesale floor crossing by legislators. In recent years, democratically elected governments have been brought down in Maharashtra (2022), Madhya Pradesh (2020), Manipur (2020), Arunachal Pradesh (2016), and Karnataka (2019), largely because of orchestrated exits by large groups of legislators.
Since 2022 in particular, political developments in the state of Maharashtra have brought the anti-defection law into sharp focus. Against the backdrop of the political crises that the working of the anti-defection law has been unleashing, this report is an addition to the body of literature which focuses on the deficiencies inflicting India’s anti-defection law. The report charts a brief historical account of what led to the enactment of the Tenth Schedule in 1985. To better understand the implementation of the Tenth Schedule and especially the exemption given to mergers, this report presents the findings of a survey of decisions given by Speakers of the Lok Sabha (1986-2004), and the legislative assemblies of Goa (1990-1998), Haryana (1989-2011), Meghalaya (1988-2009), and Uttar Pradesh (1990-2008), in disqualification petitions filed before them.
The report also delves into how both defections as well as the anti-defection law impact the values which the Constitution of India espouses. The report makes a case for how the working of the anti-defection law offends political party discipline, causes instability in governments, and eventually ridicules democracy. The report also reiterates some older policy recommendations which can, hopefully, make the anti-defection law work.
This report is accompanied by a supplementary document which compiles the Speaker decisions which have been surveyed by the authors. As mentioned above, the decisions surveyed belong to the Lok Sabha, and the legislative assemblies of Goa, Haryana, Meghalaya, and Uttar Pradesh. This compilation can be accessed here.
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About the Authors
Ritwika is a Senior Resident Fellow and Lead at Charkha, Vidhi’s Constitutional Law Centre. Her current research is focused on comparative federalism, local governments, and electoral reforms. From 2014-17, Ritwika was a Research Fellow in the Public Law vertical at Vidhi. She advised several departments and regulatory authorities under the Government of India, on questions concerning constitutional validity of proposed legislation, legislative competence of the Union and states, and contours of the powers and functions of regulators. Ritwika also assisted the Union of India in preparing its written submissions in the National Judicial Appointments Commission (NJAC) Case. Between 2019-2020, Ritwika worked as a Research Associate at DAKSH, Bengaluru. She obtained her LL.M. from the University of Cambridge in 2018. She graduated with a B.A. LL.B. (Hons.)) from the Indraprastha University, Delhi in 2013, and the LL.M. from the NALSAR University of Law, Hyderabad in 2014. Ritwika is the co-editor of “Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence” (Oxford University Press, 2018), a volume of essays addressing the politics, doctrine, and crucial developments pertaining to judicial appointments in India.
Mayuri is a Milon K Banerji Research Fellow at Charkha, Vidhi’s Constitutional Law Centre. Currently, she is pursuing a Ph.D from Gujarat National Law University. She obtained her LL.M in Constitutional and Administrative law from Gujarat National Law University in 2017 with a R B Mehta Gold Medal. She graduated with a B.A. LL.B. (Hons.) from Amity Law School, Lucknow in 2016. Her area of interest includes constitutional law with current research focus on areas of federalism and local government. She regularly writes research papers for various journals, national & international seminars, conferences, etc. Prior to joining Vidhi, she worked as an Assistant Professor of Law.
