At one point of time, the incidents of defection by leaders became a problem hence anti-defection law was brought to stop such activities. Obviously, everyone is in search of a good offer, even if he is a leader. And defection is like a great offer for leaders

Obviously, everyone is looking for a good offer, even if he is a leader. And changing the party is just like a good offer for the leaders, where they are more likely to get things according to their interest and convenience. But if defection becomes a problem, a solution has to be found.

In this article, we will discuss the anti-defection law in a simple and easy way and try to understand its various aspects. So read this article till the end;

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Anti Defection law

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background of anti-defection law

After 1967, the loss of elections in many states of the Congress and the emergence of many parties gave rise to a new type of instability. When people’s representatives started moving from one party to another according to their convenience and interest. Wherever you get a good offer, you will slip there. This trend was seen very much in the 1960s.

The extent was reached when in 1967 a Haryana MLA changed his party thrice in a single day. That is why at that time it came as a big concern. In the 1970s, attempts were made to find a solution to this problem under the leadership of Uma Shankar Dixit and Shanti Bhushan, but failed. Then in 1985, Rajiv Gandhi ‘s government, through the 52nd Constitutional Amendment Act , has made a provision regarding disqualification by MPs and MLAs on the basis of defection from one political party to another.

For this, changes have been made in four articles (Article 101, 102 and Article 190, 191) of the Constitution 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. Let us understand those provisions.

Anti-defection law provisions

The provisions relating to disqualification of MPs and MLAs on the ground of defection in the Tenth Schedule are described as follows:

Disqualification on grounds of defection

Members of Political Parties: An elected member of Parliament or of a State Legislature who has been elected as a candidate set up by a political party shall be disqualified on the ground of defection – (1) if he voluntarily gives up the membership of that political party, or (2) If he votes contrary to the instructions of his political party during the polling in that House or does not vote at all, unless he receives an apology from that political party within fifteen days.

Overall, this means that a member who has been elected on a party ticket must continue to be a member of that party and follow the instructions of the party. Otherwise his membership may be lost.

Independent member: An independent member of Parliament or a State Legislature shall be disqualified for membership of either House if he joins any political party after that election.

Nominated member: A nominated Member of Parliament or a State Legislature who is not a member of any political party at the time of his nomination and who has become a member of any political party before the expiry of a period of six months from the date on which he enters upon his seat, shall be disqualified for membership if he joins any political party six months after he has taken his seat in that House.

Exemption from disqualification of defection

The above disqualification on grounds of defection does not apply in the following two cases:-

(1) When a legislature party decides to merge with another party and such decision is supported by two-thirds of its members, it shall not be called a defection.

Note – Earlier it was only one third, it was removed by the 91st Constitutional Amendment Act 2003️ and the provision of two thirds was included.

(2) If a member, on being elected as the Presiding Officer in the House, voluntarily withdraws from the membership of his party and then rejoins the membership of the party after his term of office. This is not considered a disqualification.

The Supreme CourtHindiEnglish
The Indian ParliamentHindiEnglish
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Composition of Election Commission

Who decides on anti-defection disputes?

All questions relating to disqualification arising out of defection are decided by the Speaker of the House to which the matter is concerned. For example, if a member of the Lok Sabha has defected, then all the decisions regarding disqualification of him will be taken by the Speaker of the Lok Sabha.

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 v. Jachilhu case (1992), the Supreme Court declared this provision unconstitutional on the ground that it was an attempt to stay outside the jurisdiction of the Supreme Court and the High Court.

In its judgment, the Supreme Court said that a decision made by the Speaker of the House on a question relating to disqualification on the basis of the Tenth Schedule shall be subject to judicial review . That is, if such a matter comes up after that, the court can review the decision of the Speaker of the House and corrective directions can be given if the decision is found to be an error.

Since the Speaker of the House is associated with a party, it was highly likely that the Speaker of the House disqualifies any other party member or disqualifies any 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.

power to make rules

The Speaker of either House has the power to make rules (regulations) to give effect to the provisions of the Tenth Schedule. Such rule(s) shall be laid before the House and may be amended or disapproved by the House.

The house can approve these rules, improve them or reject them. Further, he may direct that a breach of such rules by a member shall be treated in the same manner as a breach of the privileges of the House.

Benefit of defection law

(1) This law provides high stability in the political institution by curbing the defection tendency of the legislators.

(2) It facilitates the re-grouping of political parties by the legislature in a democratic manner such as joining other parties or breaking up with an existing party.

(3) It reduces corruption at the political level and reduces progressive expenditure on irregular elections.

(4) It has given a constitutional identity to the existing political parties. Because now they can work without the fear that its members might leave.

The Tenth Schedule of the Constitution aims to strengthen Indian parliamentary democracy and check unprincipled and immoral defection. The then Prime Minister Rajiv Gandhi called it the first step towards reforms in public life.

The Anti-defection law was the first bold step towards the purity of our political life and it ushered in a new era in the political life of the country, yet it did not yield the expected benefits at all. That’s why it gets a lot of criticism.

Criticism of the Tenth Schedule of the Constitution pdf

1. It could not tell the difference between dissent and defection. It hindered the legislature’s right to dissent and freedom of good conscience. Therefore, in the name of party discipline, it carried forward the rigidity of party ownership and permission.

2. It prohibited sporadic defection but legalized large-scale defection.

3. It does not provide for the expulsion of a legislator by him for his activities done outside the legislature.

Two Lok Sabha Speakers (Ravi Rai-1991 and Shivraj Patil-1993) had also expressed doubts about their suitability to adjudicate in cases related to defection.

Note – In order to make the anti-defection law a little more strict , some amendments were made in this law by the 91st Constitutional Amendment Act, 2003 , whether all the amendments have been done, definitely understand it.

So this was the important things of anti-defection law, for better understanding, you must also read other important articles related to elections. The link is being given below.

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