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Subject: Polity

Topic: Anti - Defection Law

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Defections are a source of political instability; breach of representative faith and indicate power-hunger among legislators. Therefore, they need to be prevented and punished.

The Anti-defection Law made by the Constitution (Fifty-Second Amendment) Act, 1985 aims to do that. It amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and State legislatures respectively and inserted a new Schedule (Tenth Schedule) to the Constitution setting out certain provisions regarding disqualification from membership of Parliament and the State Legislatures on the ground of defection, from the political party to which the Member belongs.

Anti-Defection Law details the grounds of defection and also prescribes disqualification for the defectors for being Members of the House. The grounds of detection are as under:

• If a member of the House belonging to a political party voluntarily gives up his/her membership of that political party.

• if he/she abstains from the voting or votes contrary to the direction issued by the political party to which he/she belongs in the House.

• If he/she defects from his/her party to any party after elections.

• If the nominated member joins any political party after six months after taking his seat.

• An independent Member who joins a political party after his/her election.

• Member who acts in defiance of party direction (Party Whip) and if such defiant action is not condoned by the Chief Whip within 15 days. The Chief Whip may condone the same and recommend to the Speaker/Chairman that the member should not be disqualified

• Originally, the law protected bulk defections’ in the nature of split (one third of legislature party). However, Constitution (Ninety-first Amendment) Act 2003 made splits illegal too.

Exemptions

Disqualification on ground of defection does not apply in case of merger of political parties. A party may merge with another or the two may form a new party. If 2/3rd of the members of the legislature party decide to merge with another party, neither the 2/3rd nor the remaining 1/3rd lose membership,if 1/3rd exist as a separate group. (“Legislature party” mean members of the party in the legislature).

• The provisions of disqualification, under the Tenth Schedule, do not apply to a member who on his election as the Speaker or the Deputy Speaker of Lok Sabha or the Deputy Chairman of Rajya Sabha, or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly voluntarily gives up his membership of the political party to which he belonged immediately before his election or rejoins such political party after he ceases to hold such office.

The Chairman/Speaker has been given the final authority to decide questions of disqualification of a member of a House under the provisions of the Tenth Schedule to the Constitution.

There is a category of members that has no place in the law. The Law does not talk of consequences of expulsion of a member from the party. The ruling of the Speaker is that he should be considered ‘unattached’ member. He however, can not join a political party.

There is another grey area in the law. It talks of members. One becomes a member only after he is sworn in. The moot point is whether the law applies to him from the lime of the declaration of the result till he is sworn in.

With the addition of Tenth Schedule to the Constitution by the Anti-Defection Law, political parties received Constitutional recognition which they did not have earlier. They had no Constitutional identity before. Chief Whip also receives Constitutional recognition.

Over the years, it was observed that these provisions have been circumvented by the legislators to avert disqualification. The provision of split has been grossly misused to engineer multiple divisions in the party, as a result of which the defection has not been checked in the right earnest. Further it is also observed the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections. Therefore it was outlawed in 2003 as mentioned above.

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