Anti-defection law

 Anti-Defection Laws

By Shreya Verma

Seldom do we see politicians going against the principles of the political party from which they have been elected or voting against their own party and even changing the political party which they previously supported. Are they not bound to be loyal to the people and stick to the ideology for which people voted for them? Is there any law to check such practices? These are some of the questions which will be dealt under this article.

Defection as per Merriam-Webster dictionary means 'a conscious abandonment of allegiance or duty.' And a political Defection means a change of political loyalty of a party legislator or group of legislators who switches over to another party in the inter-election years. It includes situations like change of party or group, shifting of loyalty from one party to another, or "crossing of floor" inside the legislative chamber. It is the political phenomena in which a legislator elected as a member of certain political party changes party allegiance without resigning his seat resulting in an unstable government, coalition politics dissidents, infighting, etc. Considering such situations, a need for implementing anti-defection laws to prevent unstable governments was felt. Therefore, through 52nd constitutional amendment, in 1985 Tenth schedule was added to the constitution which deals with the provisions of anti-defection. It is to be read with Articles 102(2) and 191(2) which two were inserted after 52nd amendment and they talk about disqualification of members on the ground of defection from Parliament and state legislature respectively. 

The Constitution 52nd Amendment Act 1985, amended articles 101, 102, 190 and 191 of the Constitution that deal with the vacation of seats and disqualification for membership of Parliament or state legislature and added 10th Schedule, setting certain provisions as to disqualification of members on the ground of Defection:

  1. If a member voluntarily gives up the membership of a political party on whose ticket he is elected to the house; or 

  2. if he votes or abstains from voting in the House against any direction of the political party, without the prior permission of such party, and unless it has been condoned by the party within 15 days from the date of voting or abstention; or

  3. if any nominated member joins any political party after the expiry of six months from the date on which he takes a seat in the House.

However, the above disqualifications will not apply if: 

  1. A member of Parliament or state legislature goes out of his party as a result of a split in the original party, provided such group consists of not less than one-third of the total membership of that party in the House; or 

  2. if a member goes out as a result of merger of his original political party with another political party provided two third of the total members of the Legislature Party have agreed to such Merger; or 

  3. if a member, after being elected as a presiding officer gives up the membership of the party to which he belonged, or does not re-join that party or becomes a member of another party.

The question as to the disqualification of any member is raised before the Chairman or the Speaker of the House whose decision shall be final, and when the question is about this qualification of the chairman or the speaker then the decision of the House would be final.  Though, no time-frame for making such decision is framed.

Constitutional 91st Amendment Act (2003) inserted Article 361-B which provides that a member, disqualified under the anti-defection law, shall not be appointed as a Minister nor can he hold any remunerative political post, for the duration from the date of his disqualification, till the expiry of the term of the house in which he was a member until he is re-elected to the house whichever is earlier.

These laws have been an effective instrument to prevent defection and to promote a stable government.


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