Anti Defection Law

March 5, 2023

This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3^rd year law student.

BACKGROUND

In Indian Democracy went through a phase where political defections were rampant and Opposition parties used it as a tool to overthrow the democratically elected governments, especially at the state level. Finally, in 1967 Parliament passed a unanimous resolution calling for the formation of a Parliamentary Committee headed by Y.B. Chavan to investigate and report on this increasingly concerning issue. As per the recommendations of the committee 32^nd Constitutional Amendment Bill seeking to disqualify defecting parliamentarians from holding ministerial positions was submitted to the Parliament. But it could not be passed due to the dissolution of the Parliament. The proliferation of such practices resulted in the enactment of the anti- defection law in India in 1985. Although the instances of Political defection may have reduced from the past, but this law has failed to plug the practice completely. last year in Meghalaya, 12 of 17 Congress MLAs joined the All India Trinamool Congress. In 2019, all six MLAs of the Bahujan Samaj, Party in Rajasthan joined the Congress. The same year, four out of six Telgu Desam Rajya Sabha MPs joined the BJP.

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, before the anti-defection law. The anti defection law was inserted in the Tenth Schedule of the Indian Constitution and is popularly known as Anti Defection Act. The anti-defection law was introduced in 1985, through the 52^nd Amendment Act of 1985. Defection means to “conscious abandonment of allegiance or duty”. It down the process of disqualification on grounds of defection. It applies to both the Parliament and the state assemblies. The goal was to prevent the legislators from changing their political affiliations during their tenure in office.

OBJECTIVE OF ANTI DEFECTION LAW

There are following objectives of Anti defection law are as follow :

The anti-defection bill aims to keep the government stable by preventing legislators from switching sides.
It is to prevent defections motivated by the lure of office or material advantages or other such considerations.
It deters the legislators from shifting their political association to gain any personal advantages.
In effect, the Anti-Defection Law Implemented the separation of powers between the Executive and the Legislature, concentrating power in the hands of the executives.
The Anti-Defection Law Implemented o democracy based on parties and numbers rather than debate and discussion in India.
It makes no distinction between dissent and defection in this way. Weakening Parliamentary debates on any measure.
It strengthens the institution of democracy and keeps corruption in check.
It permits the merger of political parties without disqualification of members.

GROUNDS FOR DISQUALIFICATION

The presiding officer has the authority to disqualify a member on proven grounds of defection. The 10^th schedule provides the following grounds of defection with regards to the disqualification of MP’s and MLA’s are as follow :

If an elected member gives up his membership of a political party voluntarily.
If he votes or abstains from voting in the House, contrary to any direction issued by his political party.
If any member who is independently elected joins any party.
If any nominated member joins any political party after the end of 6 months.

The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, and his/her decision is final.

WHAT IS NOT DEFECTION : EXCEPTIONS

The 10th Schedule says that if there is a merger between two political parties. Two-thirds of the members of a legislature party agree to the merger, they will not be disqualified. (91^st Amendment). An exemption to the speaker, chairman, and deputy chairman of the legislature from disqualification on grounds of defection, according to paragraph 5 of Anti defection law. Neither the members who decide to merge nor the ones who stay in the original party will face any disqualification.

KIHOTO HOLOHAN CASE 1993

The court held that while deciding a question under the 10^th Schedule, the presiding officer should function as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of malafides, perversity, etc. The court rejected the argument that the vesting of adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias. Yet reform is being suggested to vest the powers in President/Governor.

VOLUNTARY RESIGNATION

In Ravi S Naik v Union of India (1994), the SC held that once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. Conduct of member has to be seen. In 1992, the Tenth Schedule was brought to the Supreme Court and challenged its constitutionality under a landmark case of Kihoto Hollohan v. Zachillhu and others.

CONCLUSION

Prior to 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. The government has not taken any concrete move to carry out any changes to this law.

REFERENCE

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March 5, 2023