Context

• The Speaker of the Goa Legislative Assembly has dismissed a disqualification petition against eight “rebel” MLAs, who had switched from one party to another in 2022.

Anti-defection Law

• The Tenth Schedule of the Constitution, commonly known as the anti-defection law, was introduced in 1985 with a view to curb the tendency among legislators to switch loyalties from one party to another and facilitate the toppling of regimes and formation of new ones. The law applies to both Parliament and state assemblies.
• It provides for the Presiding Officer of the legislature to disqualify any defector on a petition by another member. 

• Disqualification is done when:
  • Member voluntarily gives up party membership;
  • If a member violates a direction (whip) issued by his party to vote in a particular way or to abstain from voting.
  • If an independent candidate joins any political party after their election to legislature;
  • If a nominated member joins a party after 6 months of his/her nomination.

• While voting contrary to the party’s whip is quite a straightforward instance of defection, the other mode of defection has proved to be a source of dispute and litigation. A member ‘voluntarily giving up membership’ does not refer to a simple resignation letter and formally joining another party. It is often an inference drawn by the party that loses a member to another based on the legislator’s conduct. 
• The Supreme Court has also ruled that ‘voluntarily giving up membership’ can be inferred from the conduct of a person.

Merger & Split

• Under Tenth Schedule, disqualification on account of defection will not apply in case of a merger of one party with another. There is a deemed merger only if two-thirds of the party’s total strength agrees to the merger. 
• Originally, the 10th Schedule had spoken of a ‘split’ in a legislature party as an exception to the disqualification rule. That is if one-thirds of a legislature party leaves it or joins another party, it amounts to a ‘split’ and such members would not attract disqualification. 
• This proved to be an escape clause for legislators to form a group that amounted to one-third of the legislature party’s total strength and then cross over. This provision which allowed the use of a split to avoid disqualification for defection was deleted by the Constitution (91st Amendment) Act, 2003.

Effectiveness of the Law

• What was introduced as a panacea for the menace of floor-crossing and toppling of elected regimes by engineering defections has proved largely ineffective in many cases. Recent instances give an idea of the various ploys adopted by parties, legislators and Speakers to either evade the law against defection or to achieve partisan political ends.
• The most common these days is for a ruling party with a big majority to poach the main Opposition parties without any regard for the anti-defection law. When the aggrieved party moves for disqualification, Speakers choose not to act, thus formalising the defection. The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.

Way Forward

• The 170th Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside. The parties should listen to the opinions of the members and have discussions giving the freedom of speech and expression and promote inner-party democracy.
• Justice Verma in Kihoto Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority. So there is a need for an independent authority to deal with the cases of defection.
• The Election Commission has recommended that decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
• In 2020, the Supreme Court held that ideally, Speakers should take a decision on a defection petition within three months, in the absence of exceptional reasons. The Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.

Former Vice President Hamid Ansari has suggested applying it only to save governments in no-confidence motions.