Anti-Defection Law

Jun 20, 2022

Q Why is it in News ?

A Vice-President M. Venkaiah Naidu said that there was a need to amend the anti-defection legislation in the country to plug existing loopholes.

Q What did Vice President notice now?

Stating that there was no clarity in the law about the time frame for the action of the House Chairperson or Speaker in anti-defection cases.
Some cases are taking six months and some even three years.
There are cases that are disposed of after the term is over.

Q What is Anti-defection Law?

The Anti-Defection Law under the Tenth Schedule of the Constitution punishes MPs/ MLAs for defecting from their party by taking away their membership of the legislature.
It gives the Speaker of the legislature the power to decide the outcome of defection proceedings.
It was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
The law applies to both Parliament and state assemblies.

Q Which Cases are considered under the anti-defection law ?

A The law covers three scenarios with respect to shifting of political parties by an MP or an MLA.

(1) Voluntary give-up

The first is 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.
Such persons lose his seat.

(2) Independent members

When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.

(3) 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 Who has Powers for disqualification ?

Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature.
The law does not specify a time frame in which such a decision has to be made.
As a result, Speakers of legislatures have sometimes acted very quickly or have delayed the decision for years — and have been accused of political bias in both situations.

Q How Significant is the role of Speaker/Presiding Officer ?

Pandit Nehru had referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasized that Speakers should be men of “outstanding ability and impartiality”.
Several judgments on the anti-defection law have been rendered by the Supreme Court.
A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.

Q What are reasons for Speakers’ ambiguous action ?

The Speaker continues to belong to a particular political party.
The electoral system and conventions in India have ‘not been developed to ensure protection to the office, there are cogent reasons for Speakers to retain party membership.
It would be unrealistic to expect a speaker to completely abjure all party considerations while functioning.
There are structural issues regarding the manner of appointment of the Speaker and her tenure in office.

Q What can be the Way forward ?

Parliament may seriously consider a Constitutional amendment to bring in a permanent Tribunal for dealing with defection cases.
It is suggested that a scheme should be brought wherein Speakers should renounce all political affiliations, membership, and activity once they have been elected.
We can learn from the UK model. In practice, once elected, the Speaker gives up all-partisan affiliation, as in other Parliaments of British tradition.
He/she remains in office until retirement, even though the majority may change and does not express any political views during debates.
Impartiality, fairness, and autonomy in decision-making are the hallmarks of a robust institution.
It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality as a constitutional value.