Anti Defection Law in India

What is defection?

As per the report of 1967 defector is a person who is elected as member of parliament or state legislative assembly or union territory and has been allotted the reserve symbol of that political party. After being elected he voluntary renounces allegiance or association with such political party provided that his action is not in consequence of the decision of the party concerned”

What is anti-defection law?

Under the 10th schedule provisions regarding anti-defection law has been mentioned which is added in the constitution by the 52nd Amendment Act 1985. Anti-defection law basically provides grounds under which a member of the state assembly or parliament lose his privileges as an Elected Representative of a party and hence disqualified from the party. The law of Anti Defection states that if a Member Parliament or Member Legislative Assembly:

  1. Voluntarily gives up the membership of the party.
  2. Votes or abstains for voting or defies any party whip.
  3. Joins any other party.

The member will be disqualified from the party and he will not hold the position of a nominated or an elected individual under the party. Thus, he will lose his position as an MP or an MLA.

History of Anti-Defection Law

Defection was common in India even before and after independence and there was rise in the coalition government which increase the cases of defection in India. And one of the famous case was of the congress leader Gaya Lal who shifted fortnight to Janta Dal then Congress then again to Janta Dal, and this incident gave rise to an infamous expression “aya ram gaya ram”.

With rising public opinion for an anti-defection law, immediately after securing a clear majority in 1984, Rajiv Gandhi proposed the new anti-defection bill in the Parliament. After marathon debates, both the Lok Sabha and Rajya Sabha unanimously approved the bill on 30 and 31 January 1985, respectively. The bill received the President’s approval on 15 February 1985 and the act came into effect on 18 March 1985.

Exceptions

 The above disqualification on the ground of defection does not apply in the following two cases: (a) If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.

(b) If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.

It must be noted here that the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003. It means that the defectors have no more protection on grounds of splits.

Deciding officer

Any question regarding the disqualification of the member on the ground of defection is to be decided by the presiding officer of the house and the decision is final, therefore no judicial review can be done by the court. Later kihoto hollohan case the supreme court declared this provision invalid because it takes away the power of judicial review from the court which is against the doctrine of basic structure.

Rulemaking power is also in the hand of the presiding officer (speaker). Presiding officer have to make the rules and framework to give effect to the provision of tenth schedule, and have to present in the house to get approval or modification from the member of parliament.

Advantages

  • It gives constitutional recognition to political party.
  • It gives greater stability to the political body.
  • Reduction in corruption at political level as well as non- development incurred on irregular elections.
  • It facilitates democratic realignment of parties in the legislature by way of merger of parties.

Criticism

  • It does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
  • it banned only retail defections and legalized wholesale defections.
  • Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same.
  •  Its vesting of decision-making authority in the presiding officer is criticized on two grounds. Firstly, he may not exercise this authority in an impartial and objective manner due to political exigencies. Secondly, he lacks the legal knowledge and experience to adjudicate upon the cases.

Amendment

The 91 st Amendment Act of 2003 has made the following provisions to limit the size of Council of Ministers, to debar defectors from holding public offices, and to strengthen the anti-defection law:

1. The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15 per cent of the total strength of the Lok Sabha (Article 75).

2. A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister (Article 75).

3. The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 per cent of the total strength of the Legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12 (Article 164).

 4. A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister (Article 164).

5. A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post. The expression “remunerative political post” means (i) any office under the Central Government or a state government where the salary or remuneration for such office is paid out of the public revenue of the concerned government; or (ii) any office under a body, whether incorporated or not, which is wholly or partially owned by the Central Government or a state government and the salary or remuneration for such office is paid by such body, except where such salary or remuneration paid is compensatory in nature (Article 361-B).

6. The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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