WHAT IS ANTI-DEFECTION LAW?

INTRODUCTION

Defection laws have been a major problem in recent years as a result of the leaders of the nation flagrantly breaking the laws against defection. The practice of desertion has been a contentious one in India since independence. We can consider the Madhya Pradesh government crisis in March 2020, when Jyotir Aditya Scindia and the 22 Member Legislative Assembly (“MLA”) resigned as the speaker of the assembly.[1] This crisis dealt a severe blow to the Congress Party as they failed the floor test, and the BJP, which had the most seats, subsequently came to power and Shivraj Singh Chauhan was chosen as the state’s chief minister. Sachin Pilot, the deputy chief minister of Rajasthan, and 18 other congress party rebels recently received warnings for desertion. Notices were sent out asking for their exclusion from the state assembly because they had all disobeyed the party whip by skipping two legislative sessions.[2] The Rajasthan High Court is still deliberating on the case. This article’s main goal is to provide readers with a greater knowledge of the potential of defection laws, their evolution via precedents, and the harsh penalties that result from breaking these rules.

Why was the Anti defection law enacted?

The Tenth Schedule to the Indian Constitution, or the anti-defection law in India, was enacted to address the perceived issue of instability brought on by democratically elected legislators in India’s Parliamentary System of Government switching allegiances from the parties they supported during the election or disobeying their parties’ decisions during crucial moments, like during voting on an important resolution.

What is Anti Defection law?

The anti-defection statute penalizes certain Members of Parliament (MPs)/MLAs who switch parties. In 1985, it was included by Parliament as the Tenth Schedule to the Constitution. Its goal was to prevent legislators from switching parties, and so bringing stability to governments. Through the 52nd Amendment Act of 1985, the Tenth Schedule, sometimes referred to as the Anti-Defection Act, was included in the Constitution.[3] It lays forth the guidelines for disqualifying elected officials from joining a different political party. After the 1967 federal elections, party-hopping MLAs overthrew several state administrations, prompting this reaction. However, it permits a group of MPs or MLAs to ally with (i.e., merge with) another political party without subjecting them to the desertion penalty. Political parties are also not penalized whether they support or oppose opposition legislators[4]. The 1985 Act defined a “merger” as the “defection” of one-third of an elected political party’s members. However, this was altered by the 91st Constitutional Amendment Act of 2003, and today, for a “merger” to be considered legal, at least two-thirds of the members of a party must be in favour of it.[5]The members of Congress who are ineligible to serve in the House may compete for office in elections under any political banner. The Chairman or Speaker of that House is asked to make decisions about defection-related disqualification, and such decisions are then subject to “Judicial review. “The statute, however, does not provide a deadline for the presiding officer to decide a defection case.

What are the grounds for Disqualification?

  • If he casts a vote—or doesn’t cast a vote—in such a House against any directive issued by his political party or anybody with the authority to do so, without first getting consent.[6]
  • His refusal to cast a ballot must not have been approved by his party or the designated person within 15 days after the incident for him to be disqualified.[7]
  • If an elected politician willingly renounces their affiliation with a political party.
  • If a member who was elected independently decides to join a political party.
  • If any nominee joins a political party after the initial six months have passed.[8]

What is the Governor’s role?

When there is political unrest in a state, the governor plays a critical role. Before 1994, governors would quickly dissolve a state government because it lacked a majority in the state legislature and would advise imposing the president’s administration. However, this practice was put to an end by the Supreme Court with its ruling in the S R Bommai case in 1994. In this important judgment, the court determined that the legislature should be the venue to determine whether a government has lost its majority. A state’s chief minister has the authority to suggest to the governor that the legislature be dissolved before the end of its five-year term and that elections be held. The Governor’s judgment is used in this situation.[9] If the governor feels that the suggestion comes from a council of ministers that lacks the support of the state legislature, he or she may decide not to dissolve the legislature.

Case Analysis

KihotoHollohan vs Zachillhu[10]

Mass defections should be prevented by the same laws that must be in place to prevent individual defections. It is necessary to bring up the speaker’s impersonation as well. For his tenure, the speaker is dependent on the majority in the legislative body. The 1992 ruling in KihotoHollohon against Zachillhu and Others addresses some of the questions and issues raised about this statute. The court said that this new legislation on defection attempts to understand the pragmatic requirement to place the decencies of political and individual lead over certain speculative presumptions while keeping the constitutional legality of this amendment. The court ultimately determined that the statute did not violate any basic principles of parliamentary democratic governance or the right to free speech. An expert in pronouncing absconding is a crucial component of this judgment’s final decision. The court made it clear that the managing official is the one who makes the decision, and that it is finally subject to judicial review after being expressed and implemented.

CONCLUSION

There is an urgent need for a watchdog to stop future incidences of defection and escalating levels of corruption inside the Indian political system. The Anti-defection Law makes an effort to reduce these occurrences, but so far it hasn’t been effective enough. For instance, it was powerless to stop PemaKhandu, the chief minister of Arunachal Pradesh, and 43 other MLAs from the Congress Party from joining the People’s Party of Arunachal. For the members of the Parliament to have a voice in politics, a political consensus must also be developed.[11]The Anti-Defections rules should include provisions mandating the formation of independent committees to look into allegations of horse-trading between the parties and the imposition of harsh consequences on anyone found accountable. They should also be prohibited from running in elections, to prevent these forces from upending the nation’s functioning democracy.

Author(s) Name: Saransh Sinha (Vivekananda Institute of Professional Studies)

References:

[1] Sidharth Sharma, ‘Anti-defection laws: a critical analysis’ (ipleaders, 12 August 2022)  <https://blog.ipleaders.in/explained-anti-defection-laws>  accessed 7 July 2022

[2]Ibid

[3] ‘Anti-Defection law’ (drishtiias, 25 April 2022) <https://www.drishtiias.com/daily-updates/daily-news-analysis/anti-defection-law-7>  accessed 7 July 2022

[4]Ibid

[5]Ibid

[6] ‘Anti-Defection law’ (iasbaba, 27 June 2022) <https://iasbaba.com/2022/06/anti-defection-law-2/>  accessed 7 July 2022

[7]Ibid

[8]Ibid

[9]Chakshu Roy, ‘The anti-defection law, and why Eknath Shinde could be poised to dodge it in Maharashtra’ (Indianexpress, 28 June 2022) <https://indianexpress.com/article/explained/eknath-shinde-maharashtra-political-crisis-anti-defection-law-explained-7984004/> accessed 7 July 2022

[10]KihotoHollohan v Zachillhu And Others,1992 SCR (1) 686

[11] Patil Amruta, ‘Anti-Defection Law (10th Schedule)’ (prepp, 7 July 2022) <https://prepp.in/news/e-492-anti-defection-law-10th-schedule-indian-polity-upsc-notes>  accessed on 7 July 2022