This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to explain the features of 52nd Constitutional Amendment, its historical background, objectives, exceptions, current issues, and the ways to overcome them.

It has been published by Rachit Garg.

Introduction

There is a saying that ‘power corrupts, and absolute power corrupts absolutely.’ This quest to gain power is also reflected among the politicians especially the Members of Legislative Assemblies (MLAs). Till almost 40 years after independence, the MLAs used to hop or shift between the different parties that were in power to get a seat in Parliament or the State Legislative Assembly. This led to the dissolution of a lot of parties due to mass defections, thereby leading to political instability in the various states with the majority parties continuously changing. It was a political problem arising out of the vested interests of the ministers. In order to bring an end to such corrupt practices, the 52nd Constitutional Amendment was introduced in 1985, this amendment certainly brought about a huge change at that time in the political scenario as the defection to other political parties among the MLAs was now prohibited. However, it suffered from certain loopholes that are being exploited even to this date by various politicians. 

As a result, it becomes all the more important to bring about certain changes in the current defection laws in order to cover all the loopholes. This article aims to look into all these major gaps and address them. This would further help in resolving all the ambiguities that are still existing in the anti-defection laws of India. 

Historical background of the 52nd Constitutional Amendment

The concept of Universal Adult Franchise was introduced in India by the British. Every individual above 18 years of age got the right to vote for choosing their representative giving them their assertive right. However, even before independence, political defections used to take place which used to undermine this right and the very principles of democracy. The politicians indulged in such practices in a bid to obtain a seat in the cabinet and to become a member of the ruling party. Such large-scale defections were leading to a fall of the majority parties in various states thereby leading to political instability.

The most prominent case of defection by a Member of the Legislative Assembly (MLA) was of Gaya Lal. This incident took place in 1967. He was a member of the Haryana State Assembly and subsequently changed the party three times within a single day. He had first defected from the Indian National Congress to join the Janata Party. Later on, he joined Congress, again. Then within nine hours of joining Congress, he went back to Janata Party. This was a completely unfair practice and it gave rise to the highly infamous expression of ‘Aaya Ram Gaya Ram’. This violated the rights of the people as the representative whom they elected continuously kept changing the parties in utter disregard for the citizens’ expectations.

From the 1960s till the late 1970s, the Indian National Congress was able to avail a huge advantage of such defections. It lost around 100 politicians through defections but at the same time, it gained about 400 more politicians. They were able to strengthen their control as the ruling party in the country. All those who defected from other parties but didn’t join Congress had the objective of forming coalitions together. As a result, there were huge defections that took place during the 1967 elections. 

In 1967, a committee was formed to submit a report for submitting an anti-defection bill in Parliament. However, no further developments took place till 1977. In 1977, the government led by Morarji Desai, which was the first Non-Congress government at the central level witnessed a defection of 76 members of Parliament. As a result, they lost their power and there was uncertainty with respect to the ruling party till 1979. Eventually, Congress gained a majority in 1979. In almost all the states, the regional parties were losing their power due to the large-scale defections taking place among the Non-Congress parliamentarians. All this was leading to increasing protests and scrutiny by the people.

Eventually, in 1984, Rajiv Gandhi put forth a new anti-defection Bill before the Parliament which was passed in 1985 after obtaining the approval of the Lok Sabha and the Rajya Sabha along with the President’s assent. This anti-defection law was the first major step towards curbing the unconstitutional practice of defection between the parties by the politicians. However, the law still has certain drawbacks owing to which the political parties and the citizens are suffering even till now.

Objectives of the 52nd Constitutional Amendment

The primary objective of this Amendment was to curb the increasing cases of political defections which were directly undermining the Constitutional principles and the democratic values of the country.  The following objectives could be laid down which this Amendment seeks to achieve:

1. The objective was to curb political corruption taking place through defections. This would, in turn, play a vital role in making all the other commercial and political activities corruption-free.
2. The Amendment also aims to strengthen the existing democratic system by ensuring political stability. This is so because the party which has the majority would be able to rule without any insecurity through any form of defection. 
3. The anti-defection law proposed in this Amendment would help in keeping the politicians accountable to a great extent to their party. They would at the same time also become loyal and responsible to their own party.
4. Another major objective of this Amendment was to detect all the ministers who were involved in such defections and to take strict action against them. As a result, the defecting politicians would be straightaway disqualified from their position. This would have a good deterrent impact and would also protect citizens’ rights.
5. This Amendment also aimed at protecting the interests of the political parties especially the regional parties as the defection was the highest among these parties. The politicians from these parties mostly used to defect to the majority national parties. 

These were the objectives that this Amendment by introducing the anti-defection law wanted to achieve.

Key features of the 52nd Constitutional Amendment

The Tenth Schedule

The anti-defection law introduced in 1985 was added as the Tenth Schedule of the Indian Constitution. The basic aim of this Act as stated earlier is to discourage political defections among the politician to ensure political stability on one hand and to protect citizens’ faith on the other. The Tenth Schedule was included in the Constitution through the 85th Amendment Act of 1985.

Disqualification of defecting ministers

The anti-defection law focuses on the disqualification of all the ministers who are involved in such heinous acts of defection. All the ministers who are affiliated with a party or even the individual candidates, after getting elected are not allowed to defect to any other party since this would mean eventually disregarding the public which showed faith in the minister. However, the members who have been disqualified under the law can still contest the elections from any given political party to get a seat even in the same house from which they had been removed.

Powers with the chairperson

The chairman or the speaker of the concerned house has the power to disqualify any minister on the grounds of defection. However, their decisions are also subject to ‘judicial review’ by the courts. They are not completely immune from ‘judicial review’ and the judiciary will always keep a watch on their effective decision-making. 

At the same time, there is no set time frame within which such a decision regarding the defection of the minister is to be given by the chairperson. However, this power was considered to be discretionary in nature and various questions were raised regarding the unbiased nature of the speaker of the houses of Parliament.

Grounds for disqualification

An elected member can be disqualified if the chairperson or the speaker of the concerned house finds it appropriate according to the various criteria. The various criteria that are laid down are as follows:

1. When the elected members give up their affiliation or the membership of the political party at their own will, they can certainly be disqualified on grounds of defection.
2. If the elected member votes or abstains from voting which is in contradiction with any order or direction given by the political party or any other person on the party’s behalf, without obtaining their prior permission, the member could be disqualified. This is also known as a party whip. 

However, this is subject to the exception that the non-voting of the elected member should not be accepted by the political party within 15 days of such an event. 

3. When a person initially contested the elections as an independent candidate but later joined any other party, he/she could be held liable for defection thereby leading to their disqualification from holding their position.
4. When the member who had been nominated joins any other political party after the expiry of the term of six months, then they could be disqualified as this would clearly amount to defection.

These are the major grounds on the basis of which an elected member can be disqualified. All these would amount to defection and the evaluation for the same, as stated before lies with the speaker or the chairperson of the concerned house of Parliament.

Burden of proof

The burden of proving that there was no willingness to leave the party lies on the elected member who is alleged to have defected from the party and against whom such charges have been made. They are required to prove before the court that there was no ill intention on their part to defect in order to save themselves from any sanction.

In the case of Ravi S Naik v. Union of India (1994), it had been clearly stated by the Court that if any particular member has faced any disqualification and that member states that there has been a split in the party, then they should not be disqualified. 

Exceptions to the anti-defection law

The provisions under this Amendment aimed to prevent the shifting of the members of different political parties after the 1967 elections. However, these provisions also have certain exceptions. Though individual defection is not allowed, a group of MPs (Members of Parliament) or MLAs (Members of Legislative Assembly) are allowed to join or merge with other parties without attracting any penalties. In other words, mass defection i.e., defection by ‘one-third’ of the members of the different political parties was considered a ‘merger’. However, such mass defections in the name of mergers have proved to be detrimental to the political parties that have lost their power owing to the same factor. 

It was believed that mass defections were primarily for the good purpose of merging with the different parties. However, in most cases, even these were for fulfilling the profit motive and the quest for power of the ministers as a group. Realizing the same, this limit was increased to two-thirds in the 91st Constitutional Amendment Act, 2003. In other words, now at least 2/3rds of the members of the party had to defect to consider it a merger thereby making it valid under the laws in force. 

This is the general exception which is in contradiction to the concept of the anti-defection law. It is, to this date, considered an unfair practice.

Landmark judgements relating to the 52nd Constitutional Amendment

Keshavananda Bharati v. Union of India (1973)

This case covered a large number of aspects that were included later in the Indian Constitution. In this case, it has been stated that the ‘judicial review’ is a vital part of the basic structure of the Constitution and can’t be taken away from the courts under any circumstance. As a result, the decision of the speaker or the chairman being subjected to the ‘judicial review’ of the courts is completely valid.

Rajendra Singh Rana v. Swami Prasad Maurya and Others (2007)

This case expanded the meaning of the term ‘voluntarily gives up the membership’ under the grounds for disqualification for the defection. It was stated that when an elected member of any political party gives a letter to the governor mentioning him to call upon the pioneer of the opposite party, then they are assumed to have deliberately surrendered the membership of the original party of which they were a part. Further, it also emphasized upon the power of ‘judicial review’ with the judiciary which unless otherwise stated, would be valid on any decision passed by the legislative member.

Mannadi Satyanarayan Reddy v. Andhra Pradesh Legislative Assembly and others (2009)

In this case, a question had been raised by the appellant regarding the jurisdiction of the chairperson or the presiding officer. However, the High Court of Andhra Pradesh explicitly stated that there are no provisions within the Tenth Schedule that completely restrain the chairperson from taking any decision. The Court further went on to state that the ‘judicial review’ is not available with the courts when the proceedings are still going on and a quia timet action would also not be permissible. Even any form of interference at the stage of the proceedings is not permitted. The power to resolve the disputes, that is vested in the speaker or the chairperson is a judicial power. Hence, the decision which they pass is going to be considered to be final. 

Keisham Meghachandra Singh v. Hon’ble Speaker of Manipur (2020)

This is one of the very recent judgments criticizing the existing anti-defection laws stated in the Tenth Schedule. Justice Nariman pointed out that the anti-defection laws were toothless tigers in modern times with the entire power being concentrated in the hands of the chairperson to disqualify any person. This could be highly discretionary in nature because the speaker will have an inclination towards their political party either de jure or de facto. As a result, he suggested that there should be an external mechanism that should deal with the cases of defection by the elected members. This would firstly ensure that there is no possibility of any form of bias or impartiality and secondly, it could provide a fair opportunity to the alleged defector to represent their case. 

Kihoto Hollohan v. Zachilhu and others (1992)

In this case, the question raised before the Court was whether the anti-defection law directly infringes the right to freedom of speech and expression of the legislative members. The Supreme Court of India explicitly stated in this case that though the freedom of speech and expression is guaranteed to all, it can’t be used in an unreasonable or unrestricted manner to obtain personal gains at the cost of the Political party and the people’s rights. The anti-defection law aims to give more preference to the properties of personal and social conduct over certain other theoretical assumptions. Therefore, the anti-defection law doesn’t violate any rights of the legislator and rather prevents them from indulging in malicious activities. As a result, this law constitutes a part of the basic structure of the constitution and protects citizens’ and government’s rights at the same time.

Role of the governor

The governor till almost the end of the 20th Century had a huge role to play in protecting the state from facing any form of political instability. If they felt that the ruling party was not capable of managing the state affairs or when there are mass defections from the ruling party leaving, they could convey this information to the President to impose a state emergency under Article 356 of the Constitution. However, making such a recommendation was banned after the judgement given by the Supreme Court of India in the case of SR Bommai v. Union of India (1994). 

In the present times, the governor doesn’t have any right to interfere in the matters of the disqualification of the ministers. The sole authority of the same under the Tenth Schedule rests with the speaker of the house or with the chairperson. If their decision is contrary to the existing legal provisions it could be taken up by the courts for ‘judicial review’, but the governor would still not have any powers to take the matter into his hands. The governor doesn’t have any constitutional discretion which he/she had been given previously to take away the constitutional right of the speaker to look into such matters.

Issues in the 52nd Constitutional Amendment

The 52nd Amendment was put forth in 1985 which suffered from several drawbacks. Despite this, hardly any changes have been brought to the law to make it more effective. The various issues relating to the 52nd Amendment are as follows:

1. Among the grounds for defection, it has been stated that if the person gives a vote contrary to the party whip, they might be disqualified as they would be assumed to have committed defection. In other words, they would be required to follow the party’s decision blindly and will not have any freedom to vote for their decision if it contradicts the party’s policies.
2. There is no specification of the maximum time limit to take a given decision. As a result, there might be lengthy delays in the process of decision-making on the part of the speaker or the chairperson of the concerned house.
3. The anti-defection law proposed in this Amendment has completely broken the chain of accountability as the legislators have primarily become accountable to only the political party.
4. The 91st Amendment made in the anti-defection law provided for an exception to the disqualification of the minister if two-thirds of them defected. This was considered to be a merger but in reality, this is a form of encouraging mass defection harming the party’s interests.
5. The rules have led the major parties to take advantage of the regional parties. They have a lot of influence and money power which they could use to attract the ministers of these parties and make them join them. This has essentially encouraged the horse-trading of the legislators from one party to another which is detrimental to the democratic system of any country.
6. There were continuous defections taking place in 1965 that led to the spread of the slogan ‘’Aaya Ram, Gaya Ram’’. It can hence be ascertained that defections lead to political instability thereby impacting the overall administration.
7. The Supreme Court has time and again suggested to set up an independent tribunal to decide upon the cases of defection but no action has been taken by the Parliament in this respect. There have been several barriers to proper communication between the Court and the other authorities due to which there have been delays in taking appropriate actions.

These are some of the major issues in the present times that exist in the 52nd Constitutional Amendment relating to the anti-defection law. Hence, there is a need to make certain changes to ensure the welfare of the political parties and the entire society in general.

Current scenario

The current situation regarding the use of anti-defection law is not very encouraging. Despite the laws being amended, mass defections are still very common in India. This is having a detrimental impact on the political parties and the governmental system as a whole. 

The most recent case is of the defections taking place among the Shiv Sena in Maharashtra. On the 22nd of June, 2022 there was a meeting held between the Members of the Legislative Assembly of the Shiv Sena in Mumbai to discuss the recent shift of the legislators with the party’s rebel leader Eknath Shinde, who is protesting against the main party in Assam. The party gave a clear indication to all the members that their absence from the meeting would lead to a presumption that they want to leave the party thereby violating the anti-defection laws. The Supreme Court has interpreted the grounds for disqualification for defection with a very broad outlook and the conduct of the MLA can be kept in mind to determine their intention. 

However, in case two-thirds of the members defect from the party they would be protected from facing charges for defection since it would be considered a merger.

In the present case of Shiv Sena, around 30 MLAs were with Eknath Shinde, with around 55 required to constitute a merger thereby escaping liability under mass defection. Hence, the protection under the anti-defection law might not be applicable to them. In such a situation, either all the rebel MLAs would be disqualified owing to defection accompanied by the necessary documentary evidence, otherwise, the burden of proof would be on the group of Eknath Shinde and the MLAs with him to write to the deputy speaker that they have two-thirds of the elected members of the Shiv Sena in order to claim the protection. The case is still to be heard by the Deputy Speaker of the Maharashtra State Legislative Assembly. This is one of the most recent cases of the misuse of the loopholes in the anti-defection law which has still not been rectified.

Besides this incident, several other events have also taken place in the past few years. In 2021, 12 MLAs out of 17 in Congress defected to the Trinamool Congress. As a result, this mass defection of MLAs didn’t lead to their disqualification as it came within the purview of mergers.

In 2017, Congress was the single largest party that got the maximum number of votes but couldn’t form the Government at the Central level. This was because of the defections that the ministers indulged in for obtaining big money and in the quest for a higher power. As a result, around ten MLAs from the Congress defected to Bharatiya Janata Party (BJP) leaving the Congress members reduced to a mere two. This also didn’t amount to defection due to the exception of mergers. 

From both these instances, it can be clearly inferred that despite corruption being inherent in all these defections, the ministers even to this date are able to escape their liability. There are several loopholes and issues in the anti-defection law and there is a dire need to bring about a change in it.

Recommendations

After evaluation of all the major issues in the anti-defection laws of the country, the following changes are certainly required to be incorporated.

1. The decision regarding the disqualification of the legislative member for defection must be taken up by an independent committee or even the election commission to reduce the possibility of any bias on the part of the speaker.
2. There should be a specific time limit for the disposal of such decisions to ensure that there are no delays that might cause frustration to both the party as well as the citizens who elected them. 
3. There should be some changes in the current anti-defection law to prevent mass defection by the ministers of a political party under the blanket of mergers.
4. At the same time, the freedom of speech and expression of legislators must not be violated. For ensuring the same, the ground for disqualification stating that the person who casts his vote contrary to the guidelines of government should be disqualified should be completely eliminated.
5. The parties should aim to strengthen their internal mechanisms so that the members, in the first place are held accountable and don’t resort to defection as result.

These are some of the major recommendations which should be considered by the Government as well as the political parties to curb the defection of ministers.

Conclusion

The anti-defection law was introduced in the 52nd Amendment Act of 1985 that became a part of the tenth schedule. It was a welcome move at that point but suffered from drawbacks that have still not been addressed. While certain grounds are discriminatory against the legislative members and restrict the practice of their legal rights, certain provisions provide discretionary powers to the speaker and protect mass defections. There is a need to achieve an effective balance between the rights of the legislative members and the interests of the citizens and the political parties by suitably modifying the anti-defection laws. 

Hence, it can be concluded that some speedy action is required to be taken to address this issue. This is required for the welfare of the political parties and to sustain the very system of democracy. 

Frequently asked questions (FAQs)

Which Schedule was added through the 52nd Amendment?

The 52nd Amendment Act, 1985 introduced anti-defection law in India which became the part of 10th Schedule of the Indian Constitution.

What is the exception to anti-defection law?

In the case where two-thirds of the members of the party defect, it would be considered a merger. Hence, the defecting members can’t be held liable under the anti-defection law.

Who has the power to make decisions concerning the disqualification of legislators on the grounds of defection?

The Chairperson or the Speaker of the concerned house (Lok Sabha or Rajya Sabha) has the power to make a decision regarding the disqualification of any elected member on the grounds of defection. 

References

• https://www.thehindu.com/news/national/Arunachal-Can-Governor-intervene-in-Speaker%E2%80%99s-disqualification-powers-asks-SC/article60529724.ece 
• https://indianexpress.com/article/explained/eknath-shinde-maharashtra-political-crisis-anti-defection-law-explained-7984004/ 
• https://www.mea.gov.in/Images/pdf1/S10.pdf 
• https://www.economist.com/the-economist-explains/2022/07/08/what-is-indias-anti-defection-law 
• https://blog.ipleaders.in/explained-anti-defection-laws/ 
• https://indianexpress.com/article/explained/the-anti-defection-law-and-how-it-has-often-failed-to-discourage-defection-7554426/

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