Here is all you wanted to know about the anti-defection law

The Uttarakhand high court on Monday decided to uphold speaker Govind Singh Kunjwal’s decision to disqualify nine rebel Congress MLAs, a day before the crucial floor test to decide the fate of chief minister Harish Rawat, has brought the focus back on the anti-defection law.

HT explains pros and cons of the controversial law that is often invoked just before trial of strength to manipulate numbers in the House.

Added to the Constitution as the tenth schedule by the 52nd amendment during Rajiv Gandhi’s tenure as the Prime Minister in 1985, the anti-defection law aimed to check the ‘Aya Ram, Gaya Ram’ (frequent defection by legislators) phenomenon in Indian politics.

The Statement of Objects and Reasons of the Fifty-second Constitution Amendment Bill, 1985 read: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.”

Disqualification under anti-defection law

According to the 10th Schedule of the Constitution, a member can be disqualified in two circumstances.

First, if he/she “voluntarily gives up membership of a party” (paragraph 2(1)(a)). Second, a member also incurs disqualification when he/she votes (or abstains from voting) contrary to the directive issued by the party (paragraph 2(1)(b)).

In the 1994 Ravi Naik vs. Union of India case, the Supreme Court (SC) said: “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

Expulsion under anti-defection law

Under the anti-defection law, even an expelled legislator is required to follow the whip issued by the party on whose ticket he was elected to the House and vote for his/her original party during a floor test.

In G Viswanathan versus Hono’ble Speaker, Tamil Nadu State Assembly, the Supreme Court ruled in 1996 that an expelled member was bound by the party’s whip even after expulsion, and failure to adhere to it would result in his/her disqualification from the House.

“Paragraph 2(1) read with the explanation clearly points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party,” the SC ruled.

However, the top court provided relief to Samajwadi Party leaders Amar Singh and Jaya Prada on November 15, 2010, declaring that they could not be disqualified from Parliament under the anti-defection law even if they defied the whip of their former party.

The matter was referred to a larger bench to resolve contradictions on the important constitutional issue and still remains pending before the Supreme Court.

Split and merger under anti-defection law

According to the Tenth Schedule, it requires at least two-third members of a legislature party to form a new political group, or ‘merge’ with another political party without getting disqualified under the anti-defection law.

Paragraph 3 of the Tenth Schedule originally recognised a ‘split’ if at least one-third members of the legislature party decided to form or join another political party.

However, this provision was done away with by the 91st amendment to the Constitution in 2003. The amendment, which came into force in January 2004, does not recognise a ‘split’ in a legislature party.

Instead, it recognises a ‘merger’ that requires at least two-third members of a legislature party to join another political formation or form a new one without inviting the wrath of the anti-defection law.

Speaker’s decision subject to judicial review

Paragraph 6 of the Tenth Schedule clearly said that the Speaker’s or the Chairperson’s decision on questions of disqualification on ground of defection shall be final as all such proceedings shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.

Further, Paragraph 7 said, “Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.”

While upholding the Constitutional validity of the Tenth Schedule, a Constitution Bench of the Supreme Court in Kihoto Hollohan vs Zachillhu and Others (1991) declared paragraph 7 unconstitutional. It also said the Speaker’s decision was subject to judicial review as he acted as a tribunal while deciding cases under the anti-defection law.


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