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Anti-defection law

  May 23, 2022

Anti-defection law

Q. Why is this in news?

A. Vice President of India , Venkaiah Naidu recently said it is time for amending the anti-defection law to plug the loopholes. 

Q. What is anti-defection law?

A.

It is covered under the Tenth Schedule of the Indian Constitution:

Q. What are the Challenges?

A. 

The law covers the following scenarios with respect to shifting of political parties by an MP or an MLA. These include:

  1. When a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party.
  2. When a legislator who has won his or her seat as an independent candidate joins a political party after the election.

In the above two cases, the legislator loses the seat in the legislature on changing (or joining) a party.

  1. Relates to nominated MPs: In their case, the law gives them six months to join a political party, after being nominated. If they join a party after such time, they stand to lose their seat in the House.

 Q. What are the Matters related to disqualification?

A. 

 However, Legislators may change their party without the risk of disqualification in certain circumstances. Exceptions:

  1. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
  2. On being elected as the presiding officer of the House, if a member voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office, he won’t be disqualified.

 Q. What are the loopholes in the law?

A. 

 Q. Can the courts intervene?

A. Courts have, in certain cases, intervened in the workings of a legislature.

  1. In 1992, a five-judge constitutional bench of the Supreme Court held that the anti-defection law proceedings before the Speaker are akin to a tribunal and, thus, can be placed under judicial review.
  2. In January 2020, the Supreme Court asked Parliament to amend the Constitution to strip legislative assembly speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.
  3. In March 2020, the Supreme Court removed Manipur minister Thounaojam Shyamkumar Singh, against whom disqualification petitions were pending before the speaker since 2017, from the state cabinet and restrained him “from entering the legislative assembly till further orders”.

 Q. What might be the way forward ?

A. 

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