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Anti-Defection Law: An explainer

In 1967, Gaya Lal, an MLA from Haryana, changed parties three times in one day, and the expression "Aaya Ram Gaya Ram" was set off widespread in the Indian political scenario. Good governance became elusive as a result of frequent defections of elected and nominated party members, creating an uncertain climate for the state and federal administrations to function in.

To combat similar political resignations, it was essential that an anti-defection act was required. Hence, Rajiv Gandhi, India's Prime Minister at that time, suggested a proposal to eliminate the dangers of desertion.

It took place in 1967. Parliament used the case to justify the addition of the 10th Schedule to the Indian Constitution. This law establishes the procedure for parliamentarians to be disqualified for defection by a Presiding Officer in response to a petition from any other member of the House.

According to the law, a politician commits defection if he voluntarily leaves his party or disobeys the party leadership's directions on a vote in the House of Commons. The assumption is that the legislator is violating the party whip with this behaviour.

What is Anti defection:
  • The anti-defection law punishes individual MPs/MLAs for leaving one party for another.
  • It allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection.
  • And it does not penalize political parties for encouraging or accepting defecting legislators....

Scenario in which Anti-Defection Deals with:
The Ant- Defection Law in India addresses three scenarios in which a member of parliament or a member of the legislature switches political parties:

Voluntary give-up:
A member of a house belonging to any political party becomes disqualified if he:
  1. voluntarily gives up his membership
  2. If he votes or abstains from voting contrary to any direction issued by his political party without obtaining prior permission of the party....

Ravi S Naik v Union of India (1994).
In this case the Supreme Court gave a wider prospect to "resignation by voluntarily giving up the membership". The court observed that a person may voluntarily give up his membership of a political party even if he has not tendered resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs".

Violation of Instructions:
If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.

As a pre-condition for his disqualification, his abstention from voting should not be condoned by his party or the authorized person within 15 days of such incident.
  • An independent member of the house becomes disqualified to remain a member of the house if he joins any political party after such election.
  • A nominated member of the house gets disqualified if he joins any political party after the expiry of six months from the date on which he takes his seat in the house

  • Undermining Representative & Parliamentary Democracy:
    • After enactment of the Anti-defection law, the MP or MLA has to follow the party's direction blindly and has no freedom to vote in their judgment.
    • Due to Anti-Defection law, the chain of accountability has been broken by making legislators accountable primarily to the political party.
  • Controversial Role of Speaker:
    • There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
    • Some cases take six months and some even three years. There are cases that are disposed - off after the term is over.
  • No Recognition of Split:
    • Due to the 91st Constitutional Amendment Act, 2003, the anti-defection law created an exception for anti-defection rulings.
    • However, the amendment does not recognize a 'split' in a legislature party and instead recognizes a 'merger'.
  • Allows only Wholesale Defection:
    • It allows wholesale defection, but retail defection is not allowed. Amendments are required to plug the loopholes.
    • He raised concern that if a politician is leaving a party, s/he may do so, but they should not be given a post in the new party.
  • Affects the debate and discussion: 
    • The Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion.
    • In this way, it does not make a differentiation between dissent and defection and weaken the Parliamentary deliberations on any law.

What Can be Done to Make Anti-Defection Law More Effective?
Rational use of the anti-defection law: 
Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. Example: passage of the annual budget or no-confidence motions.

Advice of Election Commission: 
Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.

Independent authority to deal with disqualification:
Justice Verma in Hollohan judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority.

Also, his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

Thus, the need for an independent authority to deal with the cases of defection.

In chart:
Why Defection Law Failed In India:
Circumvention of Anti-Defection Law
Defecting MLAs have found an innovative method to sidestep the restrictions in the Tenth Schedule and Supreme Court's direction.

Instead of formally "crossing the floor" or voting against their party in a confidence motion, they resign from the party.This brings down the party's strength in the House, and the government is toppled.A few months later, when by-elections are held, the same MLAs then stand for election on the ticket of the opposition party and are returned to the assembly.

This, it should be clear, is defection in all, but the most formal sense.

Bare text reading:
  • Vacation of seats
    • No person shall be a member of both Houses of Parliament
    • and provision shall be made by Parliament by law
    • for the vacation by a person who is chosen a member of both Houses
    • of his seat in one House or the other
  • No person shall be a member
    • both of Parliament and of a House of the Legislature of a State
    • and if a person is chosen a member both of Parliament and of a House of the Legislature of a State,
    • then, at the expiration of such period as may be specified in rules made by the President,
    • that persons seat in Parliament shall become vacant,
    • unless he has previously resigned his seat in the Legislature of the State
  • If a member of either House of Parliament
    1. becomes subject to any of the disqualifications
    2. mentioned in clause (1) or clause (2) of Article 102,or
  • resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the as may be,
  • and his resignation is accepted by the chairman or the Speaker, as the case may be,
  • his seat shall thereupon become vacant:
  • Provided that in the case of any resignation referred to in sub clause (b),
  • if from information received or otherwise and after making such inquiry as he thinks fit,
  • the chairman or the Speaker, as the case may be,
  • is satisfied that such resignation is not voluntary or genuine,
  • he shall not accept such resignation
  • If for a period of sixty days a member of either House of Parliament
  • is without permission of the House absent from all meetings thereof,
  • the House may declare his seat vacant:
  • Provided that in computing the said period of sixty days
  • no account shall be taken of any period during
  • which the House is prorogued or is adjourned for more than four consecutive days

Article 102 in The Constitution of India 1949
  • Disqualifications for membership
  • A person shall be disqualified for being chosen as, and for being,
  • a member of either House of Parliament
    1. if he holds any office of profit
      • under the Government of India or the Government of any State,
      • other than an office declared by Parliament by law not to disqualify its holder;
    2. if he is of unsound mind
      • and stands so declared by a competent court;
    3. if he is an undischarged insolvent;
      • if he is not a citizen of India,
      • or has voluntarily acquired the citizenship of a foreign State,
      • or is under any acknowledgement of allegiance or adherence to a foreign State;
    4. if he is so disqualified by or under any law made by Parliament

  • For the purposes of this clause
  • a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.
  • A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule

Article 103 of Constitution of India "Decision on questions as to disqualifications of members"
  1. If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
  2. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

Article 104 "Penalty for sitting and voting before making oath or affirmation under Article 99 or when not qualified or when disqualified"
  • If a person sits or votes as a member of either House of Parliament
  • before he has complied with the requirements of Article 99, or
  • when he knows that he is not qualified or
  • that he is disqualified for membership thereof, or
  • that he is prohibited from so doing by the provisions of any law made by Parliament,
  • he shall be liable in respect of each day on which he so sits or votes
  • to a penalty of five hundred rupees to be recovered
  • as a debt due to the Union

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