Anti-Defection Law

Why was the Anti-Defection Act introduced? / Why was the Anti-Defection Law needed?

In India, after a few years of independence, governments began to form and fall due to manipulation of public representatives (MLAs and MPs). It was felt that their collective mandate was being ignored by the political parties.

The politics of 'Aaya Ram Gaya Ram' had become quite popular in the 1960s-70s in India. In 1967, Gaya Lal, an MLA from Haryana, changed the party thrice within 15 days to bring the issue of anti-defection to light. Independent MLA Gaya Lal, who was elected from Haryana's Hasanpur seat, joined the Congress soon after his victory. Within fifteen days, Gaya Lal changed parties three times. Gaya Lal first went from Congress to United Front, then came back to Congress and on the same day again went to United Front.

When Gaya Lal came back from the United Front to the Congress, a party leader said that 'Gaya Ram has become Aaya Ram'. After this, when he again went to the United Front, Yashwant Rao Chavan said that 'Aaya Ram, Gaya Ram' happened. After this, this phrase of 'Aaya Ram, Gaya Ram' became common during the incidents of defection.

With increasing incidents of defections, political instability also intensified. The faith of the people in the House started showing a decline. The need was felt to prevent and disqualify the public representatives (MLAs and MPs) who violated the mandate given to the political parties. Finally in the year 1985, through the constitutional amendment, the Anti-Defection Act was brought.

2. What is Anti-Defection Law?

In the year 1985, through the 52nd Constitutional Amendment, the 'Anti-Defection Law' (dal badal kanoon) was passed in the country. By the 52nd Constitutional Amendment Act, 1985, provision has been made regarding disqualification by MPs and MLAs on the ground of defection from one political party to another.

For this, changes have been made in four articles of the Constitution (Article 101, 102 and Article 190, 191) and a new schedule "Tenth Schedule" has been added to the Constitution. This act is commonly called 'anti-defection law'. Particularly Articles 102(2) and 191(2) are related to the Tenth Schedule, in which there is a provision to disqualify MPs and MLAs on the ground of defection in the greed of political gain and office.

The 10th Schedule of the Constitution of India defines the provisions of 'what is defection' and disqualification of MPs and MLAs who have defected.

Main provisions of anti-defection law:- The Parliament of India unanimously passed the 52nd Constitutional Amendment Act (1985) to ban defection. The following provisions have been made in this Act:Membership of a Member of Parliament/Assembly will be terminated in the following circumstances (Disqualification):

An elected member voluntarily renounces the membership of the political party from which he has been elected.
If he votes in that House contrary to the instructions of his political party or remains absent in the vote and has not received clemency from the political party within 15 days.
If a nominated member joins any political party after the expiry of 6 months from the date of taking oath.
If an independent elected member joins any political party.

Some such special circumstances have been mentioned in the law, in which disqualification cannot be done even on defection (Exception of Anti-Defection law) (Exceptions):
      5.  Membership will not be terminated on the dissolution of any political party. A split in the party is considered when one-third (1/3) of the members join together to form a new party in the House.
   6.  Even in the event of merger, defection will not be considered if at least two-thirds (2/3) of the members of any party approve it. If any of its members wants to get out of the merger, then the anti-defection law will not apply to them.
       7. The Speaker of the House shall have the final decision on any question raised on defection and no court shall have the right to interfere therein.
8.  If a member is elected as Speaker or Speaker, he can resign from his party and rejoin the party when he leaves office. He will not be disqualified in such case.
      9.  If a party terminates the party membership of a member, then his membership of the House will not be terminated.
10.  If a member is expelled by the party, his membership of the House will not be terminated.

3. 91st Constitutional Amendment Act, 2003

The following changes have been made in the Anti-Defection Act 1985 (dal badal kanoon 1985) under the 91st Constitutional Amendment, 2003.

The size of the Council of Ministers shall not exceed 15 percent of the strength of the House at the Center and in the larger States Parliament. (Article-75)
The size of the Council of Ministers in large states shall not exceed 15 percent of the strength of the House. But in smaller states the minimum number of council of ministers should not be less than 12. (Article-164)
Where the size of the Council of Ministers at the time of the enactment of the 91st Constitutional Amendment Act, 2003 is more than 15 per cent, the size of the Council of Ministers shall be reduced to 15 per cent within 6 months of the coming into force of this Act.
The provision of one-third (1/3) of the 52nd Constitutional Amendment of 1985 has been removed by the 91st Constitutional Amendment, 2003 Act. Now the division of one-third of the members will not be recognized. This figure was reduced to two thirds (2/3).
The defecting member cannot get any kind of government and office of profit.
To get the membership of the House, it is necessary to win the re-election.

Who has the power to disqualify a public representative? / Right of Speaker

All questions relating to disqualification arising out of defection are decided by the Speaker of the House of which this matter is concerned. Initially, according to this law, the decision of the Speaker was final and could not be questioned in any court of law. But in Kihoto Holohan vs. Zachillhu case (1993) the Supreme Court declared this provision unconstitutional and the Supreme Court in its judgment held that the decision made by the Speaker of the House on a question relating to disqualification on the basis of the Tenth Schedule is judicial reviewable. Will be. The Speaker of the House is associated with a party, so it was very likely that the Speaker of the House disqualifies a member of another political party or does not disqualify a member of his own party in the interest of the party. Coming under the purview of judicial review, a lot of improvement can be seen in this.
If a complaint arising out of defection is received in respect of any member belonging to the party of the Speaker of the House, any other member elected by the House has the right to take a decision in this regard.

4. Kihoto Hollohan vs Zachillhu / Anti-Defection Law and Judicial Review

In the 1993 Kihoto Holohan vs. Zachilhu case, the Supreme Court held that the decision of the Speaker of the House would not be final. The decision of the Speaker of the House can be subject to judicial review.

Judicial review can be done in case the Speaker's decision is found to be malicious, malafide, against the constitutional mandate and natural justice. The Supreme Court said that disqualification of a member by the Speaker is not part of the procedure of the House. Rather it is a quasi-judicial matter. So, the judiciary will review it. Thereafter, there is a judicial review of the disqualification of the members.

5.Committees on Anti-Defection Law

Dinesh Goswami Committee

In 2002, the Constitution Review Committee headed by Dinesh Goswami Committee and Justice MN Venkatachaliah made the following recommendation on the disqualification decision.

The decision to disqualify representatives under anti-defection law should be taken by the President/Governor on the advice of the Election Commission.
Nominated members of the concerned House should be disqualified if they join any political party at any time.

According to the Dinesh Goswami Committee the disqualification should be limited to cases where,

A member voluntarily gives up the membership of his political party,
A member abstains from voting, or votes against the party whip in a motion of no-confidence

Law Commission's 170th Report : -

In the year 1999, the Law Commission in its 170th report said that-

If two or more parties contest the election in alliance before the election, then in the anti-defection provisions, that alliance should be considered as one party.
Whips should be issued by political parties only when the stability of the government is threatened. For example, the order of disqualification in the event of not voting in favor of the party or not voting for any party.

Election Commission's opinion:

In this regard, the Election Commission believes that the role of the Election Commission should be comprehensive. Therefore, on the binding advice of the Commission under the Tenth Schedule, arrangements should be made to take decisions by the President/Governor.

6. Relevance of defection law in present times

Arguments in favor / Benefits of Anti Defection Law

Anti-defection law has played an important role in providing stability to the government. Before 1985, it was seen many times that people's representatives used to leave the ruling party and join any other party for their benefit and form another new government, due to which there was a possibility of the government falling soon. In such a situation, the biggest impact was on the welfare schemes being made for the common people. The anti-defection law has prompted the ruling political party to focus on other development-related issues rather than the stability of its power. More concentration on governance is possible.
The provisions of the anti-defection law have also helped in curbing opportunistic politics due to greed for money or position and in controlling the extra expenditure due to untimely elections.
The anti-defection law has increased the influence of political parties. Along with this, it promotes the discipline of the political party.
Due to the anti-defection law, it helps in reducing corruption at the political level.
The anti-defection law provides the facility of re-grouping in a democratic manner to political parties in the event of merger or split in any party.

Arguments in opposition / Criticism of the Tenth Schedule of the Constitution

According to the Constitution, MPs or MLAs can freely express their views in the House. The anti-defection law was brought for stability in the government but because of the anti-defection law, views across party lines are not heard. This has an impact on inter-party democracy and jeopardizes the freedom of expression of party members.
This law promotes the system of rule of parties i.e. 'Party Raj', not of the people. The anti-defection law obliges the members to implement the ideas and actions of the political party even if the views of the members differ on it.
In many mature democracies of the world, there is no such system as anti-defection law. For example, in countries like England, Australia, America etc., if the people's representatives vote against their parties or vote outside the party line, even then their membership is not in danger.
This law prevents MLAs or MPs from taking decisions according to their discretion or the interests of their voters during the voting in the House. Many times people's representatives are not able to express their opinion according to the people and circumstances of their area because of this law because their party's opinion may be different from that.
It prohibited small-scale defection but legalized large-scale defection.
It does not provide for his expulsion by a public representative for his activities done outside the legislature.
The distinction between independents and nominated members is irrational. If the nominated member accepts the membership of any political party after 6 months of taking oath of his house, then his membership is terminated. If an independent member holds membership of a political party after winning the election, then his membership terminates.

7. Important Questions and Answers

Q. What is the meaning of defection? / Definition of defection

A. Defection is the conversion of MPs and MLAs from one political party to another in the greed of political advantage and position.

Q. What is the Tenth Schedule of the Constitution? What is in Schedule 10/10 What is the 10th Schedule / 10th Schedule of the Constitution of India?

A. The 10th Schedule of the Constitution of India defines the provisions of 'What is Defection' and disqualification of MPs and MLAs who have defected. Its purpose is to disqualify the people's representatives (MPs and MLAs) who have changed their defection in the greed of political gain and office, so that the stability of Parliament is maintained.

Q. Does the anti-defection law apply to the presiding officer?

A. If a member is elected as Speaker or Speaker then he can resign from his party and when he leaves office can join the party again. He will not be disqualified in such case.

Q. During which prime minister's time the anti-defection law came into force?

A. Anti-defection law came into force during the time of Prime Minister Rajiv Gandhi. In 1985, the Rajiv Gandhi government, through the 52nd Constitutional Amendment Act, made a provision regarding disqualification by MPs and MLAs on the ground of defection from one political party to another.

Q. Defection law is enforced by whom?

A. Anti-defection law is enforced by the Speaker or the Speaker of the House. All powers to enforce anti-defection law have been given to the Speaker or the Speaker of the House.

Q. By which amendment the anti-defection law was passed / anti-party law is related to which constitutional amendment?

A. The Anti-Defection Act was passed by the 52nd Constitutional Amendment Act, 1985.

Q. In which schedule is the anti-defection law?

A. Anti-defection law is in the 10th schedule of the constitution.

Q. On which date the Anti-Defection Act was passed? / When was the Anti-Defection Act passed?

A. The Anti-Defection Act was passed on February 15, 1985.

Anti-Defection Law