Anti Defection Law

Question 1

What is the anti-defection law?

Answer 1

• Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act
• lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer

Question 2

When can a member be disqualified?

Answer 2

If a member of a house belonging to a political party:

1. Voluntarily gives up the membership of his political party, or
2. Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
3. If an independent candidate joins a political party after the election.
4. If a nominated member joins a party six months after he becomes a member of the legislature.

Question 3

How can a legislature change party without the risk of disqualification?

Answer 3

The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.

In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Question 4

What is the provision about Decision of the Presiding Officer being subject to judicial review?

Answer 4

• initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.
• no judicial intervention until the Presiding Officer gives his order.

Question 5

What are Various Recommendations to overcome the challenges posed by the law

Answer 5

1.Dinesh Goswami Committee on electoral reforms:

Disqualification should be limited to following cases:

(A) member voluntarily gives up the membership of his political party.

(B)member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. Political parties could issue whips only when the government was in danger.

2.Law Commission (170th Report):

(A)Provisions which exempt splits and mergers from disqualification to be deleted.

(B)Pre-poll electoral fronts should be treated as political parties under anti-defection

(C)Political parties should limit issuance of whips to instances only when the government is in danger.

3.Election Commission:

Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.