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Anti Defection Law

Diksha Sharma April 27, 2022 5 MINUTES

Anti-Defection Law

Context:

Vice President Venkaiah Naidu recently said it is time for amending the anti-defection act to plug the loopholes.

Challenges:

Despite a law in place, defection of legislators from one party to another is taking place as usual.
The speakers, chairpersons and the courts are also dragging the anti-defection cases for years.
There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.

What is anti defection law?

It is covered under the Tenth Schedule of the Indian Constitution:

It specifies the circumstances under which changing of political parties by legislators invites action under the law.
It was added to the Constitution by the 52nd amendment act, 1985.
It includes situations in which an independent MLA, too, joins a party after the election.

The law covers the following scenarios with respect to shifting of political parties by an MP or an MLA. These include:

When a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party.
When a legislator who has won his or her seat as an independent candidate joins a political party after the election.

In the above two cases, the legislator loses the seat in the legislature on changing (or joining) a party.

Relates to nominated MPs: In their case, the law gives them six months to join a political party, after being nominated. If they join a party after such time, they stand to lose their seat in the House.

Matters related to disqualification:

Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature.
The law does not specify a time frame in which such a decision has to be made.
Last year, the Supreme Court observed that anti-defection cases should be decided by Speakers in three months’ time.

However, Legislators may change their party without the risk of disqualification in certain circumstances. Exceptions:

The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
On being elected as the presiding officer of the House, if a member voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office, he won’t be disqualified.

Loopholes in the law:

Those against say that voters elect individuals in the election and not parties and hence the Anti-Defection law is infructuous.
In many instances, the Speaker (usually from the ruling party) has delayed deciding on the disqualification.
The amendment does not recognise a ‘split’ in a legislature party and instead recognises a ‘merger’.

Can the courts intervene?

Courts have, in certain cases, intervened in the workings of a legislature.

In 1992, a five-judge constitutional bench of the Supreme Court held that the anti-defection law proceedings before the Speaker are akin to a tribunal and, thus, can be placed under judicial review.
In January 2020, the Supreme Court asked Parliament to amend the Constitution to strip legislative assembly speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.
In March 2020, the Supreme Court removed Manipur minister Thounaojam Shyamkumar Singh, against whom disqualification petitions were pending before the speaker since 2017, from the state cabinet and restrained him “from entering the legislative assembly till further orders”.

Suggestions:

The Election Commission has suggested it should be the deciding authority in defection cases.
Others have argued that the President and Governors should hear defection petitions.
The Supreme Court has suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.