Anti-Defection Law: Explained

The Speaker of the West Bengal Legislative Assembly Mr.Biman Banerjee has approached the Supreme Court against the order of the Kolkata High Court. The Kolkata High Court in its order had, among other things, held that the Speaker must take a decision on the disqualification of Mr.Mukul Roy within 3 months from the date of the order. The following article shall seek to explain what disqualification on the grounds of defection means and under what laws are Speakers empowered to take such decisions. The article shall also discuss the loopholes that exists in the 'Anti-Defection' law which have allowed legislators to by-pass the intent of the law and some of the measures taken by the Judiciary to address these loopholes. SCHEDULE X: PUTTING AN END TO 'AAYA RAM GAYA RAM' POLITICS The Tenth Schedule of the Constitution popularly known as the 'Anti-Defection law' seeks to disqualify elected members of Parliament and State Assembly for the act of defecting to another political party. The 'Anti-defection' provisions were inserted into the Constitution by the 52nd Constitutional Amendment Act in 1985 with an intention to put an end to 'Aaya Ram Gaya Ram' politics whereby politicians would change political parties frequently on the promise of money, power, or ministerial berths. The Amendment Act introduced made changes to Articles 102 and 191 of the Constitution of India and introduced 'defection' as a ground for disqualification of legislators. The Anti-Defection Law recognizes that there can be genuine instances of a person wishing to change their political allegiances and hence does not punish every act of a change in a political party. It specifies the circumstances under which changing political parties by legislators will invite action under the law. The objective behind enacting the Anti-defection law was to bring an end to the practice of politicians constantly shifting political allegiances, horse-trading and the influence of money and muscle power in politics. It was hoped that the law would act as a deterrent and thereby bring stability to democratically elected governments. However, three decades since its introduction the growing number of instances of defections and governments being toppled by politicians shifting alliances en-masse is an indication that the Anti-Defection Law hasn't entirely been successful in fulfilling its objective. While there hasn't been any comprehensive study on the number of defections at the Centre and state level, a recent report by Association for Democratic Reforms shows that governments in Madhya Pradesh, Manipur, Goa, Arunachal Pradesh, and Karnataka fell during the past five years due to the defection of MLAs. What explains the unabating wave of defections and toppling of governments despite there being a law in place to punish these very acts? How are these acts of defections going unpunished? To understand the loopholes in the Anti-Defection law that are being exploited by legislators it is imperative to first understand the content and scope of the Anti-Defection Law. THE ANTI-DEFECTION LAW 10th Schedule of the Constitution lays down the process by which legislators may be disqualified for the act of 'defection'. The decision is taken by the Presiding Officer of the Parliament or State Legislature- thus the Speaker or the Chairman as the case may be. The action can be initiated based on a disqualification plea moved by any other member of the Parliament/ state legislatures. The Constitution doesn't define the term 'defection' but it provides certain grounds under which a legislator may be disqualified: Voluntarily giving up membership of partyVoting or abstaining from voting in the House, contrary to any direction issues by his political partyIndependent Member joins any party.Nominated Members joins 6 months after taking the oath to become a legislator The law also provides certain exceptions under which legislators may change with the political party without the risk of disqualification. For example, in case of a merger of a political party wherein 2/3rd of the legislators are in favor of the merger with another party, the Anti-Defection Law would not apply.While three of the four grounds are self-explanatory in nature, the first ground 'voluntarily giving up membership' is very broadly worded and has been subject to clarification by the courts. In Ravi S.Naik vs Union of India, the Apex Court explained that the term "voluntarily giving up membership" had a wider connotation than the term 'resignation'. The Court explained that the term would also include references that could be drawn from the conduct of the individual and that an MP/MLA need not formally resign from their party to attract disqualification under the anti-defection law. Following Ravi S.Naik, in G. Viswanathan Vs. The Hon'ble Speaker, Tamil Nadu Legislative Assembly,...

Anti-Defection Law: Explained

Sneha Rao

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