Anti Defection Law

Anti Defection Law in India

What is the Anti-defection Law?

In any democracy, it is common to witness defection by legislators. This type of defection can seriously undermine the stability of the ruling government. The anti-defection law in India has been made to punish individual Members of the Legislative Assembly (MLA)/Member of Parliament (MPs) for leaving one party for joining another. This law was added to the Indian Constitution in the Tenth Schedule in 1985.

The primary purpose of the anti-defection law is to give a form of stability to governments by discouraging legislators from defecting or changing parties, especially at crucial moments.

The Tenth Schedule has since then been referred to as the Anti-defection Act. This act got included in the Constitution by passing the 52nd Amendment Act of 1985. The anti-defection act sets out the punishment for disqualifying the elected legislative members upon joining another political party.

Provisions under the Anti-Defection Law State

If you want to understand the provisions of the anti-defection law in India, it is first necessary to understand the history behind the passing of this law. The anti-defection law came into being after Gaya Lala, an MLA from Haryana, changed his party three times on the same day in 1967.

The anti-defection law was brought in to prevent such types of political defections that are carried out with the sole purpose of a reward of office or monetary promises.

The law lays down the process by which legislators who indulge in party-hopping may be disqualified on the grounds of defection. The Presiding Officer of a legislature can carry out the disqualification if a petition signed by other members of the House is submitted.

The anti-defection law applies to both the Parliament and state assemblies.  

What are the grounds for Disqualification?

Under the anti-defection law, the following make for grounds for disqualification of MLAs and MPs:

•       If any elected member voluntarily gives up the membership of the party.
•       If the elected legislator abstains or votes in the House contrary to the party’s stand.
•       If any nominated legislator joins another political party after finishing six months.
•       If any legislator who gets independently elected joins any party.

The decision on disqualification is referred to the Speaker or Chairman of the House. His/her decision is considered to be final on the issue. However, in the past, the Supreme Court of India has said that legislators are allowed to challenge their disqualification in front of the higher judiciary.

Are there any Exceptions under the Anti-Defection Law?

Several exceptions under this law have often brought the law under question. Legislators are allowed to change their party without facing the penalty of disqualification in several circumstances. The law makes it possible for one party to merge with another party if two-thirds of the legislators are in favour of such a merger.

In such circumstances, neither of the legislators who favoured the merger nor did the members who remain with the original party face any disqualification. It also does not have any provision for penalising any political party for encouraging and accepting the legislators who have defected.

So, according to the original 1985 Anti-Defection Act, the defection of one-third of the elected legislators of any party was not considered to be a ‘defection’ but a merger. However, in 2003, this changed.

Under the 91st Constitutional Amendment Act of 2003, the merger will only be valid under the law if two-thirds of the member sofa political party is in favour of the said merger.

What is the Timeframe for Deciding Defection Cases?

The anti-defection law does not state any timeframe within which the decision of a defection case has to be provided by the presiding officer. There have been many cases where a Speaker has not been able to give the decision on a defecting MLA until the very end of the legislature term.

This lack of a standard timeframe within which the Presiding Officer has to decide on the disqualification plea means that the legislator in question can only approach the courts for intervention after the decision has been passed. So the legislator has no option but to wait for the Presiding Officer to give the decision.

There have also been cases where the defecting MLAs became ministers while the defection case against them was going on before the Speaker. For example, in 2020, the Supreme Court disqualified a minister in Manipur after the Speaker was unable to decide on the defection case against him even after a period of three years. The court announced that Speakers should announce their decision on defection petitions preferably within a period of three months.

Has the Anti-Defection Law helped make the Government Stable?

Unfortunately, due to the misuse of the law combined with the prolonged time taken by Presiding Officers to announce the decisions, the anti-defection law in India has not exactly been successful in ensuring the stability of the governments.

In order to prevent defection, it has become common practice now for parties to hide away their MLAs in resorts all over the country.

Parties have also started to use the anti-defection law to their advantage. For example, in 2019, 10 out of the 15 Congress MLAs in Goa went ahead and merged their legislature party with the BJP. Also, in 2019, six BSP MLAs in Rajasthan merged their party with Congress.

Conclusion 

In recent years, many discussions have taken place about improving the anti-defection law in India. However, as of now, the government has not taken any concrete move to carry out any changes to this law.