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Anti-Defection Law

The 52nd amendment act of 1985 provided for the disqualification of the Members of parliament and the state legislatures on the ground of Defection from one party to another. for this purpose, it made changes In four article of the constitution [ 101,102,190,191] & added a new Schedule (tenth schedule). This act is often referred to as the anti- Defection law. 91st amendment act omitted the exception Provision, that is, disqualification on the ground of defection not to Apply in case of split.

Provision of the Act:
  • The tenth schedule contains the following provision with respect to the disqualification of members of parliament and the state legislatures on the ground of defection.

Grounds for the Disqualifications:
  1. A members of a house belonging to any political party becomes disqualified for being a members of the house.
    1. If an elected members gives up his membership of such political Party.
    2. If he votes or abstain from voting in such house contrary to any direction issued by his political party.
  2. If any member who is independently elected joins any party.
  3. If any nominated member joins any political party after the end of six Month.

The decision on disqualification question on the ground of defection is referred to the speaker or the chairman of the house,his/her decision is Final.

The disqualification on the ground of defection does not apply in the Following two case:
  1. If a member goes out of his party as a result of a merger of the party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
  2. If a member,after being elected as the presiding of house , voluntary gives up membership of party or rejoins it after he ceases to hold that office .this exemption has been provided in view of the dignity and impartiality of the office.

Deciding authority
Any question regarding disqualification arising out of defection is to be decided by presiding officer of the house. Originally ,the act provide that the decision of the presiding officer is final and cannot be question in any court.
[kihoto hollon case] the supreme court

Declared this provision as unconstitutional on the ground .that it seeks to take away the jurisdiction of the supreme court and high court .the court rejected the contention that the vesting of adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias.

Rule Making Power
The presiding officer of a house is empowered to make rules to give effect to the provision of the tenth schedule. All such rules must be placed before the house for 30 days.the house may approve or modify or disapprove them. According to this rule, the presiding officer can take up a defection case only when he receives a complaint from a member of the house .before taking the final decision ,he must give the member a chance to submit his explanation . He also refer the matter to the committee of privileges for inquiry.

  1. Provide stability to the government
  2. More concentration is possible
  3. Promotes party discipline
  4. Ensures that candidate remain loyal to the party as well as the citizens voting for him.

Recent issue:
The chairman of upper house M.Venkaiah Naidu Disqualified Two Janta Dal Leaders .Sharad Yadav And Ali Anwar Ansari. The Supreme Court Judgement

Voluntary giving up the membership of the party is not Synonymous resignation.

Written By: Abhishek Tripathi (University Of Lucknow)

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