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Anti-Defection Law

As we see the Constitution of India didn't have any notice about the political parties. In any case, steadily when the multi-party framework advanced, there had have been abandonments in the Indian Parliamentary Framework where there has been the move of individuals starting with one political group then onto the next which brought about separating the public rust in the democratic form of government.

Defection is defined as:

departure of the loyalty of one individual from his party' or fundamentally it signifies ‘when a chosen delegate joins another party without leaving his current party for benefits.

The practice of switching the political sides to get a higher position or office is known as Horse-Trading.

In the early, the 1950s-60s, there was no mention about the political parties and their existence in the Indian Constitution. Later, after the 1967 election also known as Watershed Moment in India's democracy, the Anti-Defection Law concept was introduced.

What happened in the 1967 election?

In 1967, around 16 states had gone for polls and Congress lost in the majority and was able to form their government only in one state. From that election to 1971, around 142 MPs and 1900 MLAs migrated from their political parties. It took almost 17 years to introduce the Anti-Defection Law and then in 1985 it was finally introduced with the main objective of ‘The evil of political defections'. 52nd amendment of Indian Constitution inserted 10th schedule which has the provision of disqualification of members on the ground of defection.

Main Features of the Anti-Defection Law:

Under Tenth Schedule, the provisions of Anti-Defections are:
Subject Provisions in the Tenth Schedule
Disqualification
  1. If the member of the party:
    • Voluntarily resigns from the party.
    • Votes, or does not vote as per the directions of the party. However, if the member has taken prior permission within 15 days about his then the member cannot be disqualified.
  2. If an independent candidate, after the election joins a political party.
  3. If a nominated candidate joins the party six months after becoming the member of the legislature.
Power to disqualify
  1. The sole power of deciding the disqualification of the member is with the Chairman or the Speaker.
  2. But if the complaint is about the defection of the Chairman or Speaker, then the member of the House elected by that House has the power to decide on the disqualification.
Exception A member cannot be disqualified if his/her original party merges with another and:
  • He/She and other members of the old political party join the new political party.
  • He/She and other members opt to function as a separate group rather than merging.

Advantages and Disadvantages:
Advantages Disadvantages
It provides stability to the government as it prevents the shifting of the people. As parliamentarians prevent from changing the party thus, accountability of the government reduces towards Parliament and the People.
The loyalty of the member of the party maintains as they are elected by the party support and trust. It also ensures party discipline. It somehow interferes the Freedom of Speech and Expression of the member. As they cannot exercise the act of shifting party.


Views Of Some Committees On Anti-Defection Law:

  1. Dinesh Goswami Committee on Electoral Reforms (1990):
    This committee said:
    1. Disqualification shall have limitation like:
      • For the members who voluntarily give up the membership.
      • For the members who acts/votes contrary to the confidence of his party.
    2. The power of the decision of disqualification shall be to the President/Governor on the advice of the Election Commission.
       
  2. Law Commission (170th Report, 1999):
    The provision of split and mergers shall be deleted as an exception from the provision of disqualification. Pre-poll electoral fronts should be treated as political parties under the anti-defection law.
     
  3. Election Commission:
    The power of the decision of disqualification shall be to the President/Governor on the advice of the Election Commission.
     
  4. Constitution Review Commission (2002):
    The defaulters who are not loyal towards their party shall be barred from holding the public office and also they shall be eligible for getting any political post or any remuneration of the party.

    The voting cast by the defaulters shall be treated as invalid.
Challenges And Interpretations:
The Anti-Defections Law raises several questions, mostly have been decided by the Courts and the Presiding officers:
  • Does the Anti-Defection Law infringe Right to Speech and Expression of the legislators?
    In 1992, the Supreme Court decided this issue in Kihoto Hollohan vs Zachilhu and others case[1]. The court said that “the anti-defection law seeks to recognize the practical need to place the properties of political and personal conduct above certain theoretical assumptions”. It was held that the law does not violate any rights of the legislators and also, it does not hamper the basic structure of parliamentary democracy.
     
  • What certain things constitute voluntarily resignation from the party?
    According to various judgments and orders of the officers indicates that if the member of the party publicly opposes his original party and supports the other party then this act deems to be a resignation from the party. The shreds of evidence for this can be the News Paper, speech given in any form of the electric forms etc. which is recognizable by the government.
     
  • The decision of the Presiding Officers can be challenged?
    The law clearly states the decision made by the Presiding Officers shall be final and not subject to the judicial review. Later, the Supreme Court struck down this condition and said that initially judicial intervention will not be there but by the orders of Presiding Officers it may subject to judicial intervention. Thus, the order of the presiding officers shall be appealable in the HC and SC.
     
Important Case Laws:
  1. In Kihoto Hollohon v. Zachilhu and Others[2], held that the law is valid in all respects. expect on the matter about judicial review, which was held to be unconstitutional.
     
  2. Rajendra Singh Rana v. Swami Prasad Maurya and Others[3] is yet another case which expanded the meaning to the words ‘voluntarily giving up the membership.' It was held for the situation that a letter by a chosen party part to the Governor mentioning him to call upon the pioneer of the contrary party to frame a Legislature would without anyone else sums to a demonstration of deliberately surrendering enrollment of the party of which he is a chosen part.
     
  3. In Keshavananda Bharati and Others v. the State of Kerala and Another[4], judicial review was held to be a basic feature of the Constitution and the Constitution cannot be amended to violate its basic structure.
     
  4. Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (January 27, 2008), the court held that if the member of the party publicly opposes his original party and supports the other the party then this act deems to be a resignation from the party.
     
  5. In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors[5]:
    The question was raised regarding the jurisdiction of Speaker or Presiding Officers. The court held that “there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.”

Conclusion:

In this way, the evil of political surrender over our body country and their resulting injurious impact on our technique for administration can be unequivocally handled if essential established changes are done as recommended above and alleged changes in our perspectives towards this issue by powerful preparation of help both at the national, provincial and nearby level for the reception of such systems for the advancement of the drawn-out goal of a solid what's more, stable political administration for promotion of such closures.

End-Notes:
  1. 1992 SCR (1) 686
  2. 1992 SCR (1) 686
  3. AIR2007SC1305
  4. (1973) 4 SCC 225
  5. Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors decided on Apr-08-2009
Written By: Priya Singh, The ICFAI University

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