The anti-defection law

The anti-defection law

Subject – Polity

Context – The Calcutta High Court has given West Bengal Assembly Speaker Biman Banerjee a deadline of Thursday, October 7 to pass an order in the defection case involving MLA Mukul Roy.

Concept –

• The anti-defection law punishes individual MPs/MLAs for leaving one party for another. It allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators.
• Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
• It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.

What constitutes defection?

• The law covers three kinds of scenarios.
  • One is when legislators elected on the ticket of one political party “voluntarily give up” membership of that party or vote in the legislature against the party’s wishes. A legislator’s speech and conduct inside and outside the legislature can lead to deciding the voluntarily giving up membership.
  • The second scenario arises when an MP/MLA who has been elected as an independent joins a party later.
  • The third scenario relates to nominated legislators. In their case, the law specifies that they can join a political party within six months of being appointed to the House, and not after such time.
• Violation of the law in any of these scenarios can lead to a legislator being penalised for defection. The Presiding Officers of the Legislature (Speaker, Chairman) are the deciding authorities in such cases. The Supreme Court has held legislators can challenge their decisions before the higher judiciary.
• The law does not provide a time-frame within which the presiding officer has to decide a defection case.
• The supreme court held that ideally, Speakers should take a decision on a defection petition within three months.

Suggestions to improve the law

• Some commentators have said the law has failed and recommended its removal.
• Former Vice President Hamid Ansari has suggested that it apply only to save governments in no-confidence motions.
• The Election Commission has suggested it should be the deciding authority in defection cases.
• Others have argued that the President and Governors should hear defection petitions.
• And last year, the Supreme Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.

To know more about Anti-Defection Law, please click here.

To know about Anti-defection law for independent legislators, please click here.