Anti-defection law

Published on 16 Jan 2025

The 52nd Constitutional Amendment introduced the 10th schedule to the Indian constitution, introducing Anti Defection Law aimed at preventing legislators from switching between different parties. The law intended to reduce corruption in politics and preserve the spirit of democracy.

Features of Anti defection law

• Disqualification: When an elected member of a legislative body voluntarily gives up their membership of a political party or disobeys the party’s whip on voting (or abstaining from voting), they can be disqualified from holding their seat.

• Deciding authority: The Speaker and Chairperson, at the Lok Sabha and Rajya Sabha respectively, are the authorised persons to decide on cases of disqualification under anti-defection law.

• Exceptions: Disqualification does not take place in case of a merger of political parties. Merging is said to take place if two-third members of a party have decided to move to another party.

• Judicial review: The decisions made by the prescribed authority can be challenged in a court of law.

Issues associated with Anti defection law

• Discretionary powers of the prescribed authority: The Speaker belongs to the ruling party and has a tendency to act in a partisan manner thus leading to allegations of bias and misuse of the legislation.

• Example: In the Kihoto Hollohan case, one of the judges ruled that the suspicion of bias on the Speaker’s role cannot be ruled out as his tenure depends on the majority will of the house.

• Delayed decisions: No time limit has been set within which the decision is to be taken by the prescribed authority which results in long delay.

• Example: In Manipur, the Speaker has not responded to the petition against defection of an MLA for 3 years. Finally, the Supreme Court intervened under Article 142.

• Sanction wholesale defection: The merger provision has facilitated wholesale defection as bulk movement of legislators would make them immune to anti defection law.

• Example: In 2019, 12 out of 18 Congress MLAs in Telangana joined TRS and escaped from defection as they commanded two third of party seats.

• Curb representative freedom: The provision to disqualify a member for voting against the party whip destroys the individuality of the representative.

• Example: MLAs were disqualified in Telangana for voting against party whip which could be seen as a move to stifle dissent within the party.

• Lack of constructive criticisms: The excessive limitations imposed by the legislation on free speech can reduce the efficiency of debates in the Parliament.

• Promote Horse Trading: Defection also promotes horse-trading of legislators which clearly goes against the mandate of a democratic setup.

• Example: In 2022, the BJP was accused of horse trading by the Shiv Sena in Maharashtra. 

Way forward

• Deciding authority:

• The Dinesh Goswami committee recommended that the decision be made by the President on the recommendation made by the Election Commissioner.

• The Supreme Court in the Keisham Meghachandra vs Speaker of Manipur case has declared to have a permanent tribunal headed by a retired Supreme Court judge to decide those matters.

• Law Commission recommendation

• Whips to be used only for critical issues like no confidence motion.

• There should be a time limit on the Speaker to take the decision.

• Halim committee recommendation

• The disqualified legislators must be prohibited from holding public office for a cool off period.

• The provision of voluntarily giving up the office must be well defined.

Anti-defection law has many shortcomings which are being exploited by power hungry politicians. Hence altering some provisions to make the legislation foolproof is the need of the hour.

Tags:
Polity

Keywords:
Anti-defection law schedule 10 52nd Constitutional Amendment Disqualification Speaker Chairperson Kihoto Hollohan case wholesale defection Horse Trading

Syllabus:
General Studies Paper 2

Topics:
Parliament and State Legislatures