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Anti-Defection in Law; In reference to Politics

What is Anti- Defection in Law?

The anti-defection law in India, also known as the Tenth Schedule to the Indian Constitution, was enacted to address the perceived problem of instability caused by democratically elected legislators in India's federal system of government shifting allegiance from the parties they supported at the time of election or disobeying their parties' decisions at critical times, such as voting on an important resolution. [1]

Basically anti defection of law was instituted to address perceived problem of uncertainty caused by democratically elected legislatures. Shifting parties and their obedience, so that switching its loyalty towards one party to another and disobeying their parties, such shifting of obedience is considered to be indication of political corruption which is said to be anti-defection in law.

This law is applicable to both parliament and state assemblies.[2]

Who has a power to make a rule?

The Presiding officer of a house can make rules, as such all these rules must be placed by the house for 30 days in which they have right to approve or to modify or to reject them.

A Presiding officer takes case of defection only when he receives complaint from the members of the house. And before taking the final decision, the defecting member has a chance to submit his explanation.

How legislative members defect?

There are several categories in which the legislative members get defected:

  1. Defections by members belonging to the Political Parties
  2. Defection of members elected otherwise than a candidate set up by any Political Party which is Individual.
  3. Defection by nominated members.

So these are the categories in which the legislative members get defected.
  1. Defections by members belonging to the Political Parties. A legislator can be said to be a member of the party if the political party had set him up as a candidate for elections. If the member of political party after being elected as a candidate selected by the party gives up the membership of party is said to be a defector.
  2. Defection of members elected otherwise than a candidate set up by any Political Party which is Individual. These are independent candidates. Any person who gets elected as independent candidate are disqualified from the legislature if they get unite with any political party after winning the seat.
  3. Defection by nominated members. If the member chooses to unite with any Political Party after expiry of six Months from the date of which he takes seat.

Therefore, defection is politically unethical act, and for such reason anti- defection law is made. If people choose a representative from one political party, he or she has no legal rights to defect to another party during the tenure. The tenth schedule disqualifies such representatives, and their legislative membership is terminated.

A merger can be legally recognized only when the original party merges with another party, which is not less than two-thirds of the members of the legislature party agrees to get such merger. And provided if two-third of the members decides to merge, there would be no merger if the original party does not merge with the another party. Therefore, they will be the defectors and held liable to be disqualified.

Here the main motive of tenth schedule is to prevent the defection and protect the stability of the system and government.

Written By: Forum Parekh - Final Year Student of B.A LLB. from GLS Law College, Ahmadabad.

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