Defection by legislators occurs in many democracies. It can be argued that they can undermine the stability of the cabinet, which is dependent on the support of elected legislators. The argument follows that such instability can amount to a betrayal of the people's mandate, as voiced at the most recent prior election.

Before the introduction of the anti-defection law, the election of both the Prime Minister and Chief Ministers of some of its states and territories had experienced instances of perceived uncertainty resulting from legislators changing their political allegiance. It may be noted that the 'Political Party' was not a recognised word in the Constitution of India at that time. By one estimate, almost 50 percent of the 4,000 legislators elected to central and federal parliaments in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.[1]

Historical background of anti-defection law in India

The anti-defection law was passed to curtail the "Aya Ram Gaya Ram" (Ram has come, Ram has gone) practice after the elections have taken place.[2] The phrase became famous in 1967 when Gaya Lal a MLA in Haryana changed parties thrice in a fortnight. The practice was often practiced by many political parties and hence to combat this practice this anti-defection law was needed. It was during 1960s that coalition governments started coming to power.

Till this time INC was the only dominating party in the Indian Political framework but they lost 9 states during 1967 where they used to be in power. Their majority also suffered in Lok Sabha. Haryana was one of the states where they were expecting to retain power but United Front came to power as Gaya Ram changed his parties thrice in a fortnight.

It was congress which won the majority of seats in Haryana but their government was unable to stabilize due to multiple defections of this sort. Prior to the 1967 disaster, India only had roughly 500 defections, the most of which occurred in the States.[3]In 1967, notwithstanding, around 550 of the roughly 3500 chosen state officials exchanged ship.50% of the parliamentarians exchanged sides once somewhere in the range of 1967 and 1972.[4] Political instability loomed large in numerous state governments as a result of these large-scale defections, with the Congress bearing the brunt of the defections.[5] The relaxed floor-crossing by such competitors who were tempted either by influence or by cash, which in the end became known as 'Horse Trading,' was additionally supported by a stunning number of independent members.[6]

Y.B Chavan Committee

The genesis of the endeavours towards bringing forward a legislation in India for curbing the malaise of defections can be traced to a private member's resolution moved in the Fourth Lok Sabha on 11 August 1967 by Shri P. Venkatasubbaiah. When Shri P. Venkatasubbaiah's resolution in Lok Sabha was under discussion, the propriety of legislators changing their allegiance from one party to another and their frequent crossing of the floor and its effect on the growth of Parliamentary democracy was actively deliberated upon in the Presiding Officers' Conference held in New Delhi on 14 and 15 October 1967. After due deliberations, the Presiding Officers' Conference left the task of taking steps towards curbing defections to the political parties and the Government. Shri Venkatasubbaiah's resolution was discussed in Lok Sabha on 24 November and 8 December 1967.

The resolution in its final form as passed unanimously by the Lok Sabha on 8 December 1967, read as under:

This House is of opinion that a high-level Committee consisting of representatives of political parties and constitutional experts be set up Anti-Defection Law in India and the Commonwealth immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard. In consonance with the opinion expressed in the resolution, a Committee on Defections, as mentioned earlier, was set up by the Government under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan. [7]

The other members of the Committee were Shri P. Govinda Menon, the then Union Law Minister, Shri Ram Subhag Singh, the then Minister of Parliamentary Affairs and Communications and Sarvashri P. Venkatasubbaiah, Bhupesh Gupta, P. Ramamurti, S.N. Dwivedy, Madhu Limaye, K. Anbazhagan, Jaya Prakash Narayan, Raghuvir Singh Shastri, N.C. Chatterjee, M.C. Setalvad, C.K. Daphtary, S. Mohan Kumaramangalam, ProLN.G. Ranga, Prof Balraj Madhok, Dr. Kami Singh and Dr. H.N. Kunzru. On 18 February 1969, the Report of the Contmittee was laid on the Table of Lok Sabha.

Recommendations of the Y.B Chavan Committee

The panel defined defection and an exception for genuine defectors. According to the committee, defection was the voluntary giving up of allegiance of a political party on whose symbol a legislator was elected, except when such action was the result of the decision of the party.

In its report, the committee noted "that the lure of office played a dominant part in decisions of legislators to defect". It pointed out that out of 210 defecting legislators in seven states, 116 were given ministerial berths in governments which they helped form by their defections.

To combat this, the committee recommended a bar on defecting legislators from holding ministerial positions for a year - or until the time they got themselves re-elected. It also suggested a smaller Council of Ministers both at the levels of the Centre and the states. The committee was in favour of political parties working together to help evolve a code of conduct to effectively tackle disruptions.

The Committee recommended that a Committee of the representatives of the parties in Parliament and State Assemblies be constituted to draw up a code of conduct for the political parties with particular reference to the problem of defections and to observe its implementation by discussions among themselves. It also recommended that no person who was not a member of the lower House should be appointed as Minister/Chief Minister. The Committee advised for a Constitutional amendment in this regard without affecting the existing incumbents in office.[8]

The Committee further recommended that a defector should be debarred for one year or till such time he resigned his seat and got re-elected, from appointment to the office of a Minister, Speaker, Deputy Speaker or any post carrying salary and allowances to be paid from the Consolidated Fund of the Union or the States or from the funds of the Government Undertakings.[9]

Aftermath of Y.B Chavan Report

Following the report of the Y B Chavan committee, two separate legislative attempts, both unsuccessful, were made to find a solution to defections. The first one was made by Indira's Home Minister Uma Shankar Dikshit in 1973; the second, in 1978, by Shanti Bhushan, Minister for Law and Justice in the Janata Party government of Morarji Desai.[10]

Anti-Defection Law

The third attempt - which was successful - was made in 1985, after the Congress won more than 400 seats in Lok Sabha in the aftermath of Indira's assassination.[11]

The Bill to amend the Constitution was introduced by Rajiv Gandhi's Law Minister Ashoke Kumar Sen, the veteran barrister and politician who had also served in the Cabinet of Jawaharlal Nehru. The statement of objects and reasons of the Bill said: "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."

The amendment by which the Tenth Schedule was inserted in the Constitution, did three broad things.

• It made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature - the penalty being the loss of their seats in Parliament or the state legislatures.
• It protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party.
• It made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings.

The immediate challenges

No sooner was the law put in place than political parties started to stress-test its boundaries. The issue of what constitutes a spilt in a political party rocked both the V P Singh and the Chandra Shekhar governments. The role of the Presiding Officers also became increasingly politicised. Lok Sabha Speaker Shivraj Patil said in 1992: "The Speaker is not expected to dabble in keeping the political parties week or strong or discipline the Parliamentarians for their party purposes."

The intervention of the higher judiciary was sought to decide questions such as what kinds of conduct outside the legislature would fall in the category of defection, and what was the extent of the Speaker's power in deciding defections. The Supreme Court, while upholding the supremacy of the Speaker in defection proceedings, also held that the Speaker's decisions were subject to judicial review.

The 2003 Amendment
The last step in the legislative journey of the anti-defection law came in 2003. A Constitution Amendment Bill was introduced in Parliament by the government of Prime Minister Atal Bihari Vajpayee to address some of the issues with the law. A committee headed by Pranab Mukherjee examined the Bill.

The committee observed: "The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the evil of defection has not been checked in the right earnest. Further it is also observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections."

The one-third split provision which offered protection to defectors was deleted from the law on the committee's recommendation. The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election. However, as events in the years and decades since have demonstrated, these amendments have had only limited impact.

The abuse of the law
The removal of the split provision prompted political parties to engineer wholesale defections (to merge) instead of smaller 'retail' ones. Legislators started resigning from the membership of the House in order to escape disqualification from ministerial berths.

The ceiling on the size of the Council of Ministers meant an increase in the number of positions of parliamentary secretaries in states. The Speakers started taking an active interest in political matters, helping build and break governments. The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end.[12]

Views Of Some Committees On Anti-Defection Law:

Dinesh Goswami Committee on Electoral Reforms (1990):

This committee said:

• Disqualification shall have limitation like:
• For the members who voluntarily give up the membership
• For the members who acts/votes contrary to the confidence of his party.
• The power of the decision of disqualification shall be to the President/Governor on the advice of the Election Commission.

Law Commission (170th Report, 1999):

The provision of split and mergers shall be deleted as an exception from the provision of disqualification. Pre-poll electoral fronts should be treated as political parties under the anti-defection law.

Election Commission:

The power of the decision of disqualification shall be to the President/Governor on the advice of the Election Commission.

Constitution Review Commission (2002):

The defaulters who are not loyal towards their party shall be barred from holding the public office and also they shall be eligible for getting any political post or any remuneration of the party. The voting cast by the defaulters shall be treated as invalid.[13]

Important cases concerning Anti-Defection Law:

• Kihoto Hollohon v. Zachilhu and Others[14]:
  In this case, it was held that the law is valid in all respects. expect on the matter about judicial review, which was held to be unconstitutional.
• Rajendra Singh Rana v. Swami Prasad Maurya and Others[15]:
  It is yet another case which expanded the meaning to the words voluntarily giving up the membership.' It was held for the situation that a letter by a chosen party part to the Governor mentioning him to call upon the pioneer of the contrary party to frame a Legislature would without anyone else sums to a demonstration of deliberately surrendering enrollment of the party of which he is a chosen part.
• Keshavananda Bharati and Others v. the State of Kerala and Another[16]:
  In this case, judicial review was held to be a basic feature of the Constitution and the Constitution cannot be amended to violate its basic structure.
• Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP[17]:
  The court held that if the member of the party publicly opposes his original party and supports the other the party then this act deems to be a resignation from the party.
• Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors[18]:
  The question was raised regarding the jurisdiction of Speaker or Presiding Officers. The court held that there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.

Conclusion
The anti-defection law neglected to accomplish its objective of forestalling political abandonments and keeping up with political solidness. Moreover, the demonstration has coincidental ramifications that keep officials from doing their obligations appropriately. The legislator can't follow up on his own conviction and judgment, and thus can't satisfy his established commitment to consider the public authority responsible. The law has likewise hampered electors' ability to consider their chosen authorities dependable.

Consequently, it very well might be beneficial to propose revoking the counter abandonment rule. A few changes have been proposed over the course of the years to alter different spaces of the rule. One of the vital objectives of the law's presentation, for instance, was to guarantee the public authority's soundness. Thus, different organizations have exhorted that the law's application be restricted to votes that impact the public authority's soundness, for example, votes on no certainty movements and cash bills. This would likewise imply that the law doesn't make a difference to the upper places of parliament, for example, the Rajya Sabha and state governing bodies.

A private part's bill documented by a Member of Parliament in 2010 supported this correction. Some other element of reform has been the creation of an independent adjudicating authority to determine on legal disqualifications. Numerous experts have suggested that the Speaker's office may not be able to achieve this criteria. As a result, it has been proposed that defection cases be decided by the President (for the centre) or the Governor (for the states), based on the Election Commission's binding advice. This is comparable to how questions about legislators' disqualification for other reasons, such as holding a profit-making office, are decided under the Constitution.[19]

End-Notes:

1. WIKIPEDIA, https://en.wikipedia.org/wiki/Anti-defection_law_(India) (last visited Jan.12,2024).
2. Subhash C. Kashyap, The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India, UNIVERSITY OF CALIFORNIA PRESS (Jan. 13,2024, 12:30 PM), https://online.ucpress.edu/as/article-abstract/10/3/195/19683/The-Politics-of-Defection-The-Changing-Contours-of?redirectedFrom=fulltext.
3. H. R. SAVIPRASAD & VINAY REDDY, THE LAW ON ANTI-DEFECTION: AN APPRAISAL, 11 (Student Advoc. 1999).
4. Id.
5. Akash Dixit, Abhishek Bhatt & Shubham Saini, The Efficacy of Anti-defection law in India: A Comprehensive analysis, Vol 2. Iss 1, INDIAN JOUR OF INTG RESEARCH IN LAW. 1,1-2-3 (2022), https://ijirl.com/wp-content/uploads/2022/01/THE-EFFICACY-OF-ANTI-DEFECTION-LAW-IN-INDIA-A-COMPREHENSIVE-ANALYSIS.pdf.
6. Subhash C. Kashyap, The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India, 10 ASIAN SURVEY 195-208 (1970).
7. WIKIPEDIA, https://en.wikipedia.org/wiki/Yashwantrao_Chavan (last visited Jan.13,2024).
8. G.C. MALHOTRA, ANTI-DEFECTION LAW IN INDIA AND THE COMMONWEALTH 6-7, (Metropolitan Book Co. Pvt. Ltd 2005).
9. PRS, https://prsindia.org/articles-by-prs-team/explained-the-limits-of-anti-defection (last visited Jan.13,2024).
10. G.C MALHOTRA, Supra note 8.
11. PRS, https://prsindia.org/articles-by-prs-team/explained-the-limits-of-anti-defection (last visited Jan.13,2024).
12. PRS, https://prsindia.org/articles-by-prs-team/explained-the-limits-of-anti-defection (last visited Jan.13,2024).
13. Priya, Anti-Defection Law, LEGAL SERVICE INDIA (Jan. 13,2024, 09:30PM), https://www.legalserviceindia.com/legal/article-4090-anti-defection-law.html.
14. Kihoto Hollohon v. Zachilhu and Others, 1992 SCR (1) 686(India).
15. Rajendra Singh Rana v. Swami Prasad Maurya and Others, (2007) 4 SCC 270(India).
16. Keshavananda Bharati and Others v. the State of Kerala and Another, (1973) 4 SCC 225(India).
17. Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP , SCC OnLine All 1923 (2010)(India).
18. In Mannadi Satyanarayan Reddy v. Andhra Pradesh Legislative Assembly and Ors, W.P.No: 28453 & 28624/2008(India).
19. Akash Dixit, Abhishek Bhatt & Shubham Saini, The Efficacy of Anti-defection law in India: A Comprehensive analysis, Vol 2. Iss 1, Indian Jour Of Intg Research In Law. 1,1-2-3 (2022), https://ijirl.com/wp-content/uploads/2022/01/THE-EFFICACY-OF-ANTI-DEFECTION-LAW-IN-INDIA-A-COMPREHENSIVE-ANALYSIS.pdf.