Anti-defection law

Why in news?

• Bypolls to a legislative assembly seat in Bengaluru will be held soon.
• The seat has been vacant since the sitting MLA, was disqualified under the anti-defection law last year after crossing from the Congress to the BJP.

What is Anti-defection law?

• The Act provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.

Introduced in?

• In 1985, through the 52nd Amendment Act, the government had included the Tenth Schedule or the Anti-Defection Act in the Constitution.

Provisions

• Disqualification of Members of Political Parties: A member of a House belonging to any political party becomes disqualified for being a member of the House
  • if he voluntarily gives up his membership of such political party; or
  • if he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
• Disqualification Independent Members: An independent member of a House becomes disqualified to remain a member of the House if he joins any political party after such election.
• Disqualification of Nominated Members: A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.

Exceptions

• The above disqualification on the ground of defection does not apply in the following two cases:
  • If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
  • If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.

Deciding Authority

• Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
• Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.

Kihoto Hollohan case:

• However, in Kihoto Hollohan case (1993), the Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the high courts.
• It held that the presiding officer, while deciding a question under the Tenth Schedule, function as a tribunal.
• Hence, presiding officer’s decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.

Rule-Making Power

• The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule.
• Further, he may direct that any willful contravention by any member of such rules may be dealt with in the same manner as a breach of privilege of the House.
• According to the rules made so, the presiding officer can take up a defection case only when he receives a complaint from a member of the House.
• Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation.
• He may also refer the matter to the committee of privileges for inquiry.
• Hence, defection has no immediate and automatic effect.

91st Amendment Act of 2003

• In the original act there was a provision for exemption from disqualification in case of split by one-third members of legislature party.
• It was deleted by the 91st Amendment Act of 2003
• It means that the defectors have no protection on grounds of splits

PRELIMS QUESTION

Consider the following statements regarding “Anti-defection law” in India:
1.Any question regarding disqualification arising out of defection is to be decided by the Governor.
2.An independent member of a House becomes disqualified if he joins any political party after election.
Which of the statements given above is/are correct?
(a)1 only
(b)2 only
(c)Both 1 and 2
(d)Neither 1 nor 2

Answer to prelims question