Anti-Defection Law

The anti-defection law restricts legislators from changing political allegiance while retaining their seats. The Tenth Schedule of the Constitution specifies when members of Parliament and State legislatures can be disqualified for defection, the exceptions available, and who decides these questions.

Constitutional basis and purpose

The 52nd Constitutional Amendment Act, 1985 inserted the Tenth Schedule. Articles 102(2) and 191(2) provide for disqualification under it for members of Parliament and State legislatures, respectively.

• The law seeks to curb political defections and promote governmental stability, but its enforcement of party discipline also limits legislators' freedom to vote independently.

Grounds for disqualification

The Schedule distinguishes between members belonging to political parties, independent members and nominated members.

• A member belonging to a political party is disqualified for voluntarily giving up membership of that party. This need not involve a formal resignation; it may be inferred from conduct.
• A party member is also disqualified for voting or abstaining contrary to a party direction without prior permission, unless the party or its authorised authority condones the conduct within 15 days.
• An independent member, elected without being set up by a political party, is disqualified upon joining any political party after the election.
• A nominated member is disqualified upon joining a political party after six months from the date of taking their seat; joining within that period does not attract this ground.

Exceptions and the removal of the split provision

The Schedule protects qualifying mergers and provides a limited exception for specified legislative presiding officers.

• Under the merger exception, disqualification does not apply where the original political party merges with another party and the member joins the merged party or opts to function as a separate group. A merger is deemed to occur only when at least two-thirds of the legislature party agree.
• Specified presiding officers may give up party membership on election to their office without disqualification, subject to the Schedule's conditions.
• The 91st Constitutional Amendment Act, 2003 removed the exemption for a split supported by one-third of a legislature party.

Decision-making and judicial review

Disqualification questions are decided by the Speaker or Chairman of the House. If the question concerns that presiding officer, it is decided by another member elected by the House.

• In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court upheld the law's principal provisions and held that the presiding officer's decisions are subject to judicial review.
• The Tenth Schedule prescribes no fixed deadline for deciding disqualification petitions.