Friday, 4 February 2022

Anti-Defection Law

 ANTI-DEFECTION LAW

Representation of Peoples Act, 1951 prescribes the conditions for disqualification from the membership of the parliament and state legislatures:

  • Disqualification on conviction for certain offences

  • Disqualification for corruption or disloyalty (he will be dismissed for 5 years)

  • Disqualification for Government contracts, etc.

  • Disqualification for office under Government Company

  • Disqualification for failure to lodge account of election expenses

  • Removal or reduction of period of disqualification

  • Having a share in a company or corporation where government has more than 25% share.

Anti-defection laws also deal with the disqualification of the parliament members. Through the 52nd amendment of the Indian constitution [10th schedule of it], disqualification on grounds of defection was introduced in 1985. Articles 101, 102, 190, 191 are amended through the 52nd amendment of the Indian constitution.

In 1967, a Haryana MLA, Gaya Lal switched parties three times in a day, from then Aaya Ram Gaya Ram became a common phrase in Indian politics. The anti-defection law was enacted to prohibit political defections motivated by office rewards or other equivalent factors.

In 1985, the 10th Schedule was inserted in the Constitution. It affirms the procedure by which legislators can be disqualified by the Presiding Officer of a legislature for defection, based on a petition from any other member of the House. A legislator is considered to have defected if he either voluntarily leaves his party or disobeys the party leadership's directions on a vote. This means that a legislator who defies (abstains or votes against) the party whip on any issue risks losing his House membership. Both Parliament and state legislatures are subject to this law.

A legislator is deemed to be defected if he voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying the party whip on any issue can lose his House Membership. This law is applicable to both Parliament and state assemblies.

Whip:

  • In India, the concept of the whip was inherited from colonial British rule.

  • Every major political party appoints a whip who is responsible for the party's discipline and behaviors on the floor of the house.

  • Whip is not a person; it is a direction or order passed by a political party to its own members to maintain discipline on the floor of the house or to vacate, or not to vote, etc.

Para 7 of 10th Schedule of 52nd amendment of Indian Constitution was stuck down declaring it (unconstitutional) as against the basic structure of the Indian Constitution. It is barring the court’s jurisdiction in intervening in the disqualification of a member under anti-defection law. So, now even the decision of the speaker can be questioned. If any member after taking his oath of allegiance after 6 months goes to another party, he will be dismissed.

Exceptions to Anti-defection law

Legislators may change their party without the risk of disqualification in certain circumstances:

  • A party can merge with or into another party if at least two-thirds of its legislators are in favour of the merger. In that case, no one in the merged party or the original party will face disqualification.

  • A person cannot be disqualified if he goes out of his party as a result of a split in his original party and such group consists of not less than one third of the total membership of that party in the house.

  • If a member after being elected as a presiding officer gives up a party to which he belongs or becomes a member of another party, he/she can't be dismissed.

According to the recommendations of various expert committees rather than Presiding Officer, the decision to disqualify any member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.

Which would be similar to the process that is followed for disqualification of a member in case the member holds an office of profit (i.e., the member holds an office under the central or state government which carries in a remuneration, and has not been excluded in a list made by the legislature).


Anti-Defection Law by Velanati Jyothirmai at Lex Cliq


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