This article on ‘Anti-Defection Law in India 2022: All You Need to Know’ was written by Kumar Sajal, an intern at Legal Upanishad.
This article will help us to know what is Anti-Defection, and what is the Anti-Defection law in India. It also discusses the exceptions of the law, its background, the ambiguities of the law and how it limits the ministers from shifting from one party to another.
What is Anti-Defection?
Basically, the word “Defection” means switching sides for one’s own interests. This term is generally used in a political sense when a party member switches his/her political party to another party. Anti-Defection Law is to restrict those turncoats from shifting one party to another for-profit motive and also to prevent chaos in the legislature(government).
What is anti-defection law?
Anti-Defection law is a law that limits and punishes MP/MLA for the defection of one political party to another party due to the reward of office. It provides some grounds for disqualification of the membership of legislature from the existing party.
History of Anti-defection law
The Tenth Schedule of the Indian Constitution is famously known as Anti-Defection law. It was added by the 52nd Constitutional Amendment in 1985 during the government of Rajiv Gandhi. This happened after the 1967 Indian General Election when about 142 MPs and 1900 MLAs defect their political parties in which the Congress Party solely lose 98 members but after the election, they gain 419. The first introduction of the Anti-defection bill in parliament happened after the submission of a report by the committee which was formed later by the present Prime Minister Indira Gandhi under the chairmanship of Y.B Chavan.
The Anti-defection Law provides
The Anti-defection law came into force after the 52nd Constitutional amendment of 1985 which amended Article 101 of the Indian constitution which talks about Vacation of Seats in Parliament, Article 190, Article 102 and Article 191 of the Indian constitution. The Anti-defection law mentioned in the Tenth Schedule of the Indian constitution is comprised of Eight paragraphs in which Para 2 deals with the “Disqualification of members on the grounds of defection”.
- Para 2.1 of Tenth Schedule-These are the grounds on which a legislature can be disqualified –
- (a) The member of a house will be disqualified if he has voluntarily given up his membership of that political party.
- (b) If the member votes, or abstains from voting in the house contrary to the direction of his political party.
- Para 2.2-It states that if a member joins another party after being selected as an elected representative of a certain party after the general election will be disqualified from the party.
- Para 2.3-It states that if a nominated member joins another political party after the tenure of six months of his office will be disqualified.
Exceptions of the law –
Para 4 and Para 5 of the Tenth Schedule of the Indian Constitution talk about the exception from the disqualification of the members. It states that a member will not be disqualified from the party if one-third of the members of the legislative party itself have consented to merge with another political party. And also the member will not be disqualified if he has not accepted the merger and opted to function as a separate political party.
Ambiguities in the law –
(i) Ultimate authority to the speaker
Para 6 and Para 8 of the Tenth Schedule of the Indian constitution give immense authority to the speaker and chairman of both the house to frame rules and take decisions regarding the disqualification of members. The ambiguity lies that the speaker is selected from the current governing legislative party of the house and he can be biased in making the decision to disqualification of members.
(ii) Lack of Judicial Review-
Para 7 of the Tenth Schedule bars the jurisdiction of any court in respect of any matter connected with the disqualification of a member of a house. But it does not bar judicial intervention of the court under Article 32, Article 226 and Article 137 of the Indian Constitution.
(iii) Lack of personal opinion or decision of the members-
Para 2.1(b) of the Tenth Schedule states “if the member votes, or abstains from voting in house contrary to the direction of his political party shall be disqualified from the party”. This rule is completely against the individual’s choice and decision. For instance, the member of the governing legislative party has to vote in favour of his party if a bill passes in the parliament even though he is against the bill.
(iv) Ambiguity in the term-
Para 2.1(a) of the Tenth Schedule states that “The member of a house will be disqualified if he has voluntarily given up his membership of that political party”. Here the sentence voluntarily giving up is ambiguous. The court in Ravi Naik v. Union of India interpreted that “voluntarily giving up his membership” means giving up his membership from the respective party without resignation. However, in G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly case the court held that if a member who is expelled from his party joins another party then it will be considered that he has given up the membership of his old political party voluntarily.
(v) Loophole in merger rule-
Para 4 and 5 of the Tenth Schedule provide an exception to the disqualification of members, it states that if one-third of the members merge with another political party with mutual consent then the members shall not be disqualified. But this rule comes with a very big loophole that the one-third of members who are going to merge with another political party can have a hidden and lucrative motive of the reward of office in another political party.
The Anti-defection law also known as the Tenth Schedule of the Indian Constitution was implemented by the Congress government in the year 1985 under the leadership of Rajiv Gandhi to limit the turncoats from defecting from one political party to another political party with a lucrative motive of the reward of office. But this law has many hidden loopholes that the legislature was not able to come across.
- Instead of giving absolute authority to the chairman and speaker in the decision-making of disqualification of members from the house the power to decide must be given to the judiciary.
- Para 2.1(b) of the Tenth schedule’s condition for the disqualification of the members needs some reformation, and transparency and gives value to the individual’s choice of the members of the political party.
- 2022. TENTH SCHEDULE. 1st ed. [ebook] mea.gov.in. Available at: <https://www.mea.gov.in/Images/pdf1/S10.pdf> [Accessed 28 June 2022].