Anti-defection law

Published on - January 21, 2022

A political Issue

Source: The Indian Express

Context:

Last week, Mayawati, the leader of the Bahujan Samaj Party (BSP), asked for a more strict anti-defection law in the wake of a wave of lawmakers switching parties ahead of the Uttar Pradesh assembly election, which will take place next month.

 

What exactly is the problem?

Politicians abandoning their political party right before elections is not an uncommon occurrence. And every time there are defections, the anti-defection statute comes into play, which penalises individual legislators who move political parties.

The Tenth Schedule of the Indian Constitution has the following significance:

The anti-defection legislation is one of the most well-known laws.

It describes the situations under which a legislator's decision to switch political parties will result in legal action.

The 52nd Amendment Act made it a part of the United States Constitution.

It also includes circumstances in which an independent MLA decides to join a political party after the election results are announced.

The legislation specifies three instances in which a member of Parliament or a member of the Legislative Assembly may change political parties.

These are some examples:

When a member of the House who was elected on the ticket of a political party "voluntarily" throws up his or her membership in that party or votes in the House against the party's desires.

When a lawmaker who ran as an independent candidate and was elected to a legislative seat later joins a political party after being elected.

In the two examples above, the legislator's position in the legislature is forfeited when he or she switches (or joins) political parties.

It has to do with the MPs who have been nominated. If they are nominated, the legislation provides them with six months to join a political party once they are nominated. If they join a political party after that, they risk losing their seat in the House of Commons.

Disqualification-related issues include the following:

According to the anti-defection statute, the presiding officer of the legislature has the authority to decide whether or not an MP or MLA should be disqualified from serving.

According to the legislation, there is no time limit within which such a judgment must be taken.

The Supreme Court ruled last year that anti-defection matters should be determined by Speakers within three months after being filed.

Legislators, on the other hand, may alter their party affiliation without risking disqualification under specific conditions.

 

Exceptions:

When a political party wishes to merge with or into another party, the law enables it to do so as long as at least two-thirds of its lawmakers are in favour of the merger.

If a member willingly puts up his or her membership in his or her political party after being elected as the presiding officer of the House, he or she will not be barred from serving in that position.

Legal loopholes include the following:

Those who are against the Anti-Defection Law argue that voters chose people rather than parties in elections and that as a result, the law is ineffective.

Is it possible for the courts to intervene?

Certain instances of court intervention in the workings of a legislature have occurred.

When a five-judge constitutional bench of the Supreme Court ruled in 1992, it said that the anti-defection law procedures before the Speaker are analogous to a tribunal and that they might thus be subjected to judicial review.

In January 2020, the Supreme Court requested that Parliament modify the Constitution to deprive legislative assembly speakers of the exclusive authority to determine whether or not lawmakers should be disqualified under the anti-defection provision. The Supreme Court's request was granted.

Since 2017, disqualification petitions filed against Manipur minister Thounaojam Shyamkumar Singh have been pending before the state's speaker. In March 2020, the Supreme Court withdrew him from the state government and prohibited him from joining the legislative assembly "until further instructions."