Anti Defection Law

About Anti Defection Law


  • Anti Defection Law was introduced by the 52nd Amendment Act in 1985.
  • The Tenth Schedule of the Indian Constitution, is the Anti Defection Law.
  • The Anti Defection Law in India is a provision aimed at preventing political defection by elected representatives.
  • It was introduced to address the problem of political instability caused by frequent party changes and floor-crossing of elected members.

Historical Background of Anti Defection Law


  • Anti Defection Law was introduced by the 52nd Amendment Act in 1985.
  • The Tenth Schedule of the Indian Constitution, is the Anti Defection Law.
  • The Anti Defection Law in India is a provision aimed at preventing political defection by elected representatives.

The historical background of Anti Defection Laws in India can be traced to several factors:

Pre-Independence Era

  • Political defection was not uncommon in the pre-independence era. However, the issue gained importance in the post-independence period as political parties became more organized and played an important role in the functioning of democracy.                                                                               .

Constitutional Provisions

  • The Indian Constitution adopted in 1950 included provisions relating to disqualification of members due to defection. Article 102 and Article 191 of the Constitution deal with disqualification of members of Parliament and State Legislatures respectively.

Kihoto Holohan Case

  • The need for a comprehensive Anti defection law was highlighted by the Supreme Court of India’s landmark judgment in the Kihoto Holohan case in 1992. The court held that political defection could be considered a violation of the constitutional mandate and subject to disqualification.                                                             

Political Instability

  • India witnessed periods of political instability in the 1980s and early 1990s, with frequent instances of elected representatives moving from one party to another. This leads to unstable governments and compromises the democratic process.
  • To address these issues, the Indian Parliament passed the 52nd Amendment Act in 1985, which introduced the Tenth Schedule to the Constitution. The Tenth Schedule, known as the Anti-Defection Law, sets out the grounds for disqualification of members due to defection and provides a framework for dealing with such situations.

 

Types of defection under the Anti Defection Law


Voluntary Resignation

  • When a member of a political party voluntarily resigns from their party membership.

Voting or abstaining against party instructions

  • If a member of a political party votes or abstains from voting in the legislature against the party’s official line.

Joining another party

  • If a member of a political party joins another political party without resigning from their existing party.

Merger

  • When a political party merges with another party, and members of the merged party join the merged party.

Disqualification by Speaker/Chairperson

  •  The Speaker or Chairperson of the House can disqualify a member if they have voluntarily renounced membership of a political party, or if they have violated the party whip.

  • It is important to note that the Anti Defection Law applies to Members of Parliament (both Lok Sabha and Rajya Sabha) as well as members of State Legislatures. The law aims to prevent political defections and maintain government stability.

Anti Defection Law

Role of the Presiding Officer in deciding defection cases in India


  • In India, the role of the Presiding Officer in deciding defection cases is primarily governed by the Tenth Schedule of the Indian Constitution, commonly known as the Anti Defection Law. The Presiding Officer refers to the Speaker in the case of the Lok Sabha (House of the People) and the Chairman in the case of the Rajya Sabha (State Assembly).

Here are the key aspects of the Presiding Officer’s role in deciding desertion cases in India:

Disqualification Procedure

  • When a complaint or petition is received alleging defection of a member, the Presiding Officer examines the evidence and conducts an inquiry. The Presiding Officer is responsible for determining whether a member has suffered disqualification under the Anti-Defection Law.

Decision-Making Authority

  • The Presiding Officer has the power to decide on questions of disqualification of members. Their decision is considered final and binding unless it is challenged and overturned by a court of law. However, it is worth noting that there have been discussions and debates about transferring this authority to an independent body to ensure impartiality.

Examination of Evidence

  • The Presiding Officer conducts the hearing and examines the evidence presented before them. They can summon witnesses, examine documents and allow both members accused of defection and complainants to present their arguments. The Presiding Officer ensures a fair and impartial investigation while following the procedures established by law.

Interpretation of Anti Defection Law

  • The Presiding Officer interprets the provisions of the Anti Defection Law in the context of the particular case in hand. They determine whether the member’s actions fall within the scope of defection as defined by law. The presiding officer’s interpretation plays an important role in determining the outcome of the case.

Time Limit for Decision

  • As per law, the presiding officer has to decide the disqualification case within a reasonable time limit. Generally, this period is three months from the date of referral of the case to the Presiding Officer. However, there have been instances where the deadline has been exceeded, leading to criticism and legal challenges.

Judicial Review

  • The decision of the Presiding Officer is considered final but subject to judicial review. If any member or interested party disagrees with the decision of the Presiding Officer, they can challenge the same in the appropriate court. Courts have the power to review the decision and determine its validity and enforceability.
  • It is important to note that the role of the Presiding Officer in deciding defection cases is a matter of debate and criticism in India. Concerns have been raised about the neutrality of the Speaker or Chairman, as they are themselves members of a political party. Some argue for the establishment of an independent body or a collegium to adjudicate defection cases to ensure a more impartial decision-making process.

Exception and safeguard of Anti Defection Law


  • While the law generally prohibits elected members of Parliament and state legislatures from defecting to other parties, anti-defection laws contain some exceptions and safeguards. Here are some of them:

Merger

  • The Anti Defection Law allows for a merger of political parties. If two-thirds of the members of a party decide to merge with another party, they will not be disqualified under the Anti Defection Law. This provision aims to prevent arbitrary splitting of political parties.

Independent Members

  • Independent members who are not affiliated to any political party are exempt from disqualification under the Anti Defection Law. They are free to support any political party or coalition without facing punishment.

Split within a party

  • If a party splits, and one-third or less of the members decide to form a separate group, they will not be disqualified. However, the group should not merge with another party. This provision prevents disqualification of members in cases of factional disputes within a party.

Speaker’s role

  • The Speaker of the Lok Sabha (House of the People) or the State Legislative Assembly plays a crucial role in deciding on disqualification cases. The Speaker has the power to determine whether a member has voluntarily given up the membership of a party or has defected.

Disqualification process

  • Any complaint or petition regarding the disqualification of a member under the Anti Defection Law is referred to the Speaker or the Chairman of the House. They are required to take a decision within a reasonable time frame. However, the decision of the Speaker or Chairman can be challenged in a court of law.
  • It’s important to note that the Anti Defection Law is subject to interpretation and application by the Speaker or Chairman of the House, which can sometimes lead to controversies and debates. The exceptions and safeguards within the law aim to strike a balance between maintaining party discipline and allowing for genuine cases of disagreement or restructuring within political parties.
Article 352 of Indian Constitution Uniform Civil Code
Article 360 of Indian Constitution Kesavananda Bharati v. State of Kerala
Monetary Policy Committee Central Administrative Tribunal

Criticisms and Challenges to the Anti Defection Law


  • The Anti defection law in India has been the subject of various criticisms and challenges ever since its enactment.

Here are some of the main criticisms and challenges raised against the Anti defection Law:

Violation of free speech and expression

  • One of the primary criticisms is that anti defection laws infringe on the freedom of speech and expression of legislators. Critics argue that lawmakers should have the right to dissent and vote according to their conscience without being subject to disqualification or punishment.

Weakening democracy

  • Critics argue that the law weakens the country’s democratic structure by stifling political dissent and stifling dissenting voices. It is seen as a tool used by political parties to maintain order within their ranks, rather than encouraging healthy debate and diversity of opinion.

Centralization of Power

  • The law has been criticized for centralizing power in the hands of party leadership. Legislators are often forced to vote along party lines, undermining their autonomy and independence. This concentration of power can undermine the democratic principle of checks and balances and lead to unhealthy dominance of party leaders.

Undemocratic party whip system

  • The anti defection law relies heavily on the party whip system, which requires legislators to vote according to party orders. Critics argue that this system undermines the representative nature of democracy, as legislators are forced to vote according to party decisions rather than representing the interests of their constituents.

Manipulation and horse-trading

  • Some critics argue that the law has not been effective in preventing defections but has led to political manipulation and horse-trading. To avoid incompetence, politicians resort to political tactics such as mass resignations or creating factional divisions within parties, which can lead to political instability.

Lack of Clarity and Ambiguity

  • The law has been criticized for lack of clarity and ambiguity in its provisions. Disqualification criteria are often open to interpretation, leading to differing opinions and debates. This ambiguity can be exploited by political parties for their own benefit and may lead to legal disputes.

Inefficiency in tackling corruption

  • Critics argue that the law has not been effective in combating corruption within political parties. Defection is often motivated by personal ambition, financial gain or ideological change rather than a principled objection to party policy. As a result, the law fails to address the root causes of corruption in politics.

Need for reform

  • Many critics argue that anti defection laws need to be reformed to strike a balance between preventing opportunistic defection and preserving democratic principles. The reform proposals include redefining the disqualification criteria, reducing the influence of party whips and giving legislators greater freedom to vote according to their conscience.

Notable instances of defections and disqualifications in India


Anti Defection Law

  • In 1985, the Indian Parliament enacted the Tenth Schedule to the Constitution, known as the Anti Defection Law. The Law aims to prevent political defection by disqualifying elected representatives who defect from their political parties. It has since been used to disqualify several politicians who have violated its provisions.

Jaya Bachchan’s Disqualification

  • In 2004, Jaya Bachchan, an actress turned politician and a member of the Samajwadi Party, was disqualified from the Rajya Sabha (Upper House of Parliament) under the Anti Defection Law. She had failed to resign from her post as the chairperson of the Uttar Pradesh Film Development Council, which was deemed an office of profit. As a result, she lost her membership in the Rajya Sabha.

Defection in Arunachal Pradesh

  • In 2016, a political crisis erupted in Arunachal Pradesh, a northeastern state of India. Several legislators of the ruling Congress party defected to the regional People’s Party of Arunachal (PPA), which was supported by the Bharatiya Janata Party (BJP)-led central government. This defection led to the collapse of the Congress government in the state and the formation of a new government under the PPA-BJP alliance.

Disqualification of MLAs in Tamil Nadu

  • In 2017, the Speaker of the Tamil Nadu Legislative Assembly disqualified 18 AIADMK legislators who were supporting the sidelined AIADMK leader T.T.V. Dhinakaran. The Speaker’s action came after these legislators expressed a loss of confidence in the Chief Minister at the time, E. Palaniswami. The disqualification allowed the ruling faction to maintain its majority in the assembly.

Aam Aadmi Party (AAP) Disqualifications

  • In 2018, the President of India approved the disqualification of 20 AAP MLAs (Members of Legislative Assembly) in Delhi on the recommendation of the Election Commission. These MLAs were disqualified for holding offices of profit as parliamentary secretaries, which was deemed a violation of the Anti Defection Law. The disqualification reduced the AAP’s majority in the Delhi Legislative Assembly.
  • These are just a few notable instances, and there have been many more instances of defections and disqualifications in Indian politics over the years. Political dynamics and circumstances can vary, leading to such events in different states and at different levels of government.

Conclusion


  • The Anti Defection Law in India stands as a crucial instrument in preserving democratic integrity and ensuring political stability.
  • It has been effective in reducing frequent defections and promoting party discipline.
  • However, there is a need for periodic review and amendments to address the concerns raised by its critics, striking a balance between party discipline and the legislator’s freedom to express their views.
  • The objective should be to maintain the law’s original purpose while safeguarding the spirit of democracy and promoting healthy debates within the legislative framework of India.

FAQs


Article 102 of the Indian Constitution addresses the disqualifications for individuals seeking membership in either House of Parliament.

It outlines the following conditions that would lead to disqualification:

  1. Holding an office of profit under the Government of India or any State government, except for offices exempted by Parliament through legislation.
  2. Being declared of unsound mind by a competent court.
  3. Being an undischarged insolvent.
  4. Being convicted, sentenced, and currently serving imprisonment for any offense.
  5. Being disqualified from being elected as a member of the House of the People under any law enacted by Parliament.
  6. Voluntarily acquiring citizenship of a foreign state.
  7. Being disqualified as per any law established by Parliament.

The aforementioned disqualifications prevent an individual from becoming a member of either House of Parliament.

The 91st Amendment was proposed to address the issue of excessively large Cabinets and the consequent financial burden on the public treasury.

In the past, there have been instances where the size of the Cabinet has been disproportionately large, leading to a waste of public resources. The 91st Amendment sets a limit of 15% of the total number of members of the Legislative Assembly on the number of Ministers, including the Chief Minister, in a State. This helps to ensure that the Cabinet is of a reasonable size and that public resources are used more efficiently.

The 91st Amendment also provides that the number of Ministers, including the Chief Minister in a State shall not be less than twelve. This is to ensure that the Cabinet has a sufficient number of members to effectively carry out its functions.

The 91st Amendment was passed by the Parliament of India in 2003 and came into force on July 7, 2004.

Article 101 of the Indian Constitution pertains to the composition of the Legislative Councils in states that have such councils.

It specifies the total number of members, their appointment, and the duration of their office.

Article 102 of the Indian Constitution deals with the disqualification of members of Parliament (both the Lok Sabha and Rajya Sabha).

It outlines various grounds on which a person may be disqualified from being a member of Parliament, such as holding an office of profit, unsoundness of mind, and being declared insolvent, among others.

The Anti-Defection Law was enacted in India in 1985 to prevent the frequent switching of political parties by elected representatives, also known as "floor crossing". This practice was seen as a major threat to the stability of the government and the democratic process.

The law defines defection as the act of an elected member of Parliament or state legislature:

  • resigning from the party on whose ticket he/she was elected;
  • voting in the House contrary to the direction of the party; or
  • abstaining from voting in the House on a matter of confidence or no-confidence, even if he/she is not bound by any direction of the party.

An elected member who is found guilty of defection can be disqualified from the House for a period of up to six years.

The Anti-Defection Law has been controversial since its inception. Some critics argue that it stifles dissent and prevents elected representatives from representing the will of their constituents. Others argue that it is necessary to protect the stability of the government and the democratic process.

The Supreme Court of India has upheld the constitutionality of the Anti-Defection Law, but it has also ruled that it cannot be used to stifle dissent or prevent elected representatives from representing the will of their constituents.

Overall, the Anti-Defection Law has had a mixed impact on Indian democracy. It has helped to prevent the frequent switching of political parties by elected representatives, but it has also been criticized for stifling dissent and preventing elected representatives from representing the will of their constituents.

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