Bihar Study Notes: Anti-Defection Law

By Brajendra|Updated : August 28th, 2022

The law laid out the process for disqualifying an elected member for the remaining term, who defected either by resigning or by defying the party leadership and being absent on a crucial vote.

 Anti-defection Law

  • Indian Politics started facing the problem of Political Defection just after a decade when regional parties started gaining importance.
  • In a case study, Haryana MLA Gaya Lal in 1967 changed his political party three times in a single day for getting political privileges and benefits.
  • Apart from this, there were many other such incidences which were motivating a legislator for defection.
  • For such reasons, Anti-Defection was necessary for stabilizing the Indian Politics and prevents such political defections which happened only to get some political reward or similar consideration.
  • Anti-Defection Law was inserted in the Indian Constitution in 1985 by the 52nd Amendment Act of 1985. Rajiv Gandhi government was the main initiator for the introduction of this law.
  • The 52nd amendment of the Constitution inserted the Tenth Schedule in which provisions were made by which legislators can be disqualified on the grounds of defection to any other political party.
  • The issue of disqualification on the ground of defection may be raised by any member of the house and is referred to the Chairman or the Speaker of House. The decision of the Chairman/Speaker of the concerned house is final and binding.
  • However, the decision of the Speaker or the Chairman of the house is open for judicial review.
  • The Anti-Defection law is applicable to both the houses of Parliament and also to the state assemblies.
  • Anti-Defection law is in practice not only in India, but it is practised in various other countries of Asia and Africa like Bangladesh, South Africa, Kenya etc.

What was the need for Anti-Defection Law?

  • The main reason for the introduction of Anti-Defection Law was to discourage “the evil practice of political defections” by the legislators who get motivated even by the immoral reasons of getting a high office or any other such benefits.
  • The other important reason was to provide stability to the government in power. This was necessary for the stability in Indian Politics.
  • The Anti-Defection Law was also introduced to ensure that a legislator elected from a political party symbol with the issues and agenda of that party remains loyal to that political party.
  • This was also necessary for creating stability in the policy formulation process.
  • It was also essential for morale upgradation of legislators in the Indian Politics.

Salient Features Anti-Defection Law

Grounds of Defection

  • For Members belonging to any political party – A legislator who is a member of any political party may be disqualified if:–
    • If any legislator voluntarily gives up his membership from such political party.
    • If any legislator belonging to any political party votes or abstains from voting in the House contrary to the directions already issued by that political party.
  • For nominated members of a House – A nominated member of a house may be disqualified if a nominated member of a house declares to joins any other political party after six months of taking her/ his seat in that house after complying with the provision of Article 99 or Article 188.
  • For Member elected otherwise than as a candidate set up by any political party – A member of the house who is elected as an independent candidate may be disqualified on the ground of defection if he joins any political party after the election.

Exceptions under the Anti-Defection Law:- The changing of a political party by a legislator do not always lead to defection under the Anti-Defection Law. The Anti-Defection law allows a political party to merge with any other party subjected to the fulfilment of the following condition –

  • A legislator shall not be disqualified if his original/ initial political party merges with any other political party, and:
    • She/ He and other members of her/ his old political party takes the membership of the new political party, or
    • She/ He and other members of her/ his old political party do not accept the merger and decide to function as a separate group.
  • This exception under the Anti-Defection Law shall be applicable only if not less than two-thirds of the members of a political party is in agreement with the merger or to function as a separate group.

Judicial Interpretations of Anti-Defection law

  • As per the Tenth Schedule, the decision of Speaker/Chairperson on the questions of disqualification under the Anti-Defection Law shall be final and can’t be questioned in the court of law. However, the Constitution Bench of Supreme Court in Kihoto Hollohan vs Zachillhu and Others case of 1991, declared that the decision of Speaker/Chairperson is subject to judicial review.
  • In 1996 it was declared under Tenth Schedule that once a member of a house is expelled, She/he will be treated as an ‘unattached’ member in that house. However, she/he should continue to be a member of the old party from which she/he belongs. If she/he joins a new political party after being expelled from the house, she/he should be looked in the same way as she/he has voluntarily given up membership from his old political party.
  • The Speaker/Chairperson of a House does not have the power to review his own decisions taken under the Anti-Defection Law to disqualify a candidate. Such powers were not implicit in the provisions of Tenth Schedule but interpreted by the courts.
  • In case Speaker/Chairperson of a house fails to act on a complaint or accepts the claim of splits or mergers of a political party without making a finding, it will be treated that the Speaker/Chairperson has failed to act as per the Tenth Schedule of the constitution. The Court declared that in all such cases of ignoring a petition for disqualification will not be treated only as an irregularity but also the violation of the constitutional duties of the Speaker/Chairperson.

Benefits of the anti-defection law

  • It helped in providing stability to the government by imposing restrictions on shifting of party allegiance.
  • It helped in ensuring a candidate’s loyalty to his political party as well the citizens of the country who voted for her/him.
  • It also helped in the genuine merger of political parties without in case of difference of opinion without attracting defections under the provisions of Anti-defection Law.
  • It helped in promoting discipline in a political party.
  • Now a political party in power will have more time and stability for working in other government bills and other important issues.
  • The Anti-Defection Law also helped in reducing the political corruptions.
  • The Anti-Defection has the provision of punitive action in case of defections and hence created a deterrent.

Way Forward

  • According to the Tenth Schedule, the Speaker/Chairperson has been given too much importance by giving final decision-making powers of disqualifying a member. The final decision-making power may be shifted to the President or Governor.
  • To create more deterrence more stringent and effective law may be made by the parliament.
  • A Tribunal may be set up to deal with the cases of disqualifications declared under the Anti-Defection Law.
  • Political stability should be given due priority as the government can perform well only with the disciplined parliamentarians having high moral values.

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