Anti-defection law

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Betrayal of a political party will definitely lead to political instability and serious confusion among the citizens and at the same time will also affect the confidentiality of various political parties. Our law-makers took this issue very seriously and introduced the Anti-defection law in the Indian Constitution in 1985. It came into force through the 52nd constitutional amendment and is contained in the Tenth Schedule.

Salient features of the Anti-defection law

The Fifty-second Constitutional amendment brought about changes in the articles 101, 102, 190 and 191 of the Indian Constitution and stated the provision under which legislators could be rendered disqualified on the basis of defection.

Disqualification

 a. If a member of a house belonging to a political party:

 – Voluntarily gives up the membership of his political party, or

– Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

 b. If an independent candidate joins a political party after the election.

 c. If a nominated member joins a party six months after he becomes a member of the legislature.

Power to Disqualify:

 a. The Chairman or the Speaker of the House takes the decision to disqualify a member.

 b. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Exception

Merger: A person shall not be disqualified if his original political party merges with another, and:

 – He and other members of the old political party become members of the new political party, or

 – He and other members do not accept the merger and opt to function as a separate group.

This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

Ninety-first Constitutional Amendment Act, 2003: This amendment brought about some major changes in the exception to this law as prior to this amendment, the defection of one-third of the members of a political party would result in a merger. This amendment added a condition to this exception whereby at least two-third of the members of that party should agree to that merger. In addition to that it stated that the defected members shall give-up their legislative memberships and shall seek re-election.

Reasons for the enforcement

In 1967, long before this law came into force, a number of legislators were changing their political parties and were migrating to other parties. Part of the reason was that during that time, elections were held in the majority of the states and Congress had failed to form a government in almost all the states except Haryana. In the midst of all this chaos, a legislator from Hassanpur (Haryana) named Gaya Lal migrated from Congress to the United Front and after a few days returned back to Congress but within just nine hours of his return he went back to the United Front. This incident eventually led to coining of the popular quip, “Aaya Ram, Gaya Ram”.

This whole incident shows how important it was to implement this law in order to maintain stability and order and also putting restrictions on the freedom provided to all the legislators in order to avoid exploitation.

Constitutional basis of this law

Anti-defection law has been criticized of being violative of freedom of speech of the elected legislators and their right to have diverse opinions. It was also claimed to be violative of articles 105 and 194 of the Indian constitution.

This difference of opinions existing between the law-makers and the legislators was very clearly visible through the recommendations made by Dinesh Goswami committee, formed in 1990, which suggested that the disqualification shall be decided by the President or the Governor of the concerned state on the advice of the Election Commission.

This law was also contested through various lawsuits as well. In the case of Kihoto Hollohon vs. Zachilhu (1992), it was contested that the Tenth Schedule was in violation of the freedom of speech and expression of the parliamentarians and state legislators, to which the Supreme Court held that these allegation were not true and that the Tenth Schedule was constitutionally valid.

The above verdict was followed with approval in Ravi S. Naik vs. Union of India (1994) and G. Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly (1996) but these cases did not challenge the constitutionality of this law and were filed just to clarify certain confusions regarding certain provisions of this statute.

Advantages and disadvantages

Advantages

  1. It helped in decreasing the number of political party migrations by various legislators and thereby maintained political stability in the country.
  2. This  law also helped in assuring the various political parties that the various legislators associated with them would be loyal to them and were in support of the goals mentioned in their party manifesto.

Disadvantages

  1. This law has enabled the various political parties to easily get away from the responsibilities they hold towards their legislators and has discouraged them from holding varied opinions.
  2. This law goes against the democratic nature of our Constitution which grants to all the freedom of speech and a right to dissent.

Conclusion

This law has played a great role in giving a sense of security to various political parties by ensuring that their members would not be able to switch sides that easily but at the same time we cannot deny that it has in a way overpowered the whip and has resulted in less constructive debates between the legislators and party leaders.

This means that although this law has brought about various positive changes in the political arena but it still needs certain reforms. Firstly, this law should bring about clarity in its provisions like the phrase “voluntarily giving up membership”, as it can be comprehended in different ways by different people. Secondly, the decision given by the Speaker should be followed by judicial review. Lastly, the different political parties should resort to the issuance of whips only in extremely critical situations.

Author: Sukanya Singh from NMIMS, Mumbai.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

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