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Thursday, December 02, 2021

Explained: The anti-defection law, and how it has often failed to discourage defection

The anti-defection law punishes individual MPs/MLAs for leaving one party for another. It allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection.

Written by Chakshu Roy | New Delhi |
Updated: October 6, 2021 1:09:53 pm
Explained: The anti-defection law, and how it has often failed to discourage defectionSome commentators have said the law has failed and recommended its removal. (File Photo)

The Calcutta High Court has given West Bengal Assembly Speaker Biman Banerjee a deadline of Thursday, October 7 to pass an order in the defection case involving MLA Mukul Roy. He had contested and won the 2021 Assembly elections on a BJP ticket and then joined the Trinamool Congress. BJP MLA Suvendu Adhikari, Leader of Opposition in the Assembly, has petitioned the Speaker to disqualify Roy and two other BJP MLAs for joining the Trinamool Congress. These petitions are under the Tenth Schedule of the Constitution, i.e. the anti-defection law.

Anti-defection proceedings are also going on in other states. In Jharkhand, former CM Babulal Marandi faces such proceedings after merging his party, Jharkhand Vikas Morcha (Prajatantrik), with the BJP. In Rajasthan, six Bahujan Samaj Party (BSP) MLAs have merged their legislature party with the ruling Congress, a move challenged by the BSP, and the Supreme Court recently gave the six MLAs a final opportunity to explain the merger. In Lok Sabha, two Trinamool and one YSR Congress Party MPs face proceedings. The Trinamool Congress wants to disqualify its two MPs (one of them is Sisir Adhikari, father of Suvendu) for joining the BJP, and the YSRCP wants to disqualify its MP for “anti-party activities”.

What is the anti-defection law, and what is its purpose?

The anti-defection law punishes individual MPs/MLAs for leaving one party for another. It allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators. Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties. It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.

What constitutes defection? Who is the deciding authority?

The law covers three kinds of scenarios. One is when legislators elected on the ticket of one political party “voluntarily give up” membership of that party or vote in the legislature against the party’s wishes. A legislator’s speech and conduct inside and outside the legislature can lead to deciding the voluntarily giving up membership.

The second scenario arises when an MP/MLA who has been elected as an independent joins a party later. The third scenario relates to nominated legislators. In their case, the law specifies that they can join a political party within six months of being appointed to the House, and not after such time.

Violation of the law in any of these scenarios can lead to a legislator being penalised for defection. The Presiding Officers of the Legislature (Speaker, Chairman) are the deciding authorities in such cases. The Supreme Court has held legislators can challenge their decisions before the higher judiciary.

How long does it take for deciding cases of defection?

The law does not provide a time-frame within which the presiding officer has to decide a defection case. There have been many instances when a Speaker has not determined the case of a defecting MLA until the end of the legislature term. There have also been instances of defecting MLAs becoming ministers while a defection petition against them has been pending before the Speaker. Last year, the Supreme Court dismissed a minister in Manipur when the Speaker did not decide the defection petition against him even after three years. The court held that ideally, Speakers should take a decision on a defection petition within three months.

Has the anti-defection law ensured the stability of governments?

No. Parties often have to sequester MLAs in resorts to prevent them from changing their allegiance or getting poached by a rival party or an opposing faction of their party. Recent examples are Rajasthan (2020), Maharashtra (2019), Karnataka (2019 and 2018), and Tamil Nadu (2017).

Parties have also been able to use the anti-defection law to their advantage. In 2019 in Goa, 10 of the 15 Congress MLAs merged their legislature party with the BJP. In the same year, in Rajasthan, six BSP MLAs merged their party with the Congress (the case being heard in the Supreme Court), and in Sikkim, 10 of the 15 MLAs of the Sikkim Democratic Front have joined the BJP.

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Have any suggestions been made to improve the law?

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

Chakshu Roy is Head of Outreach, PRS Legislative Research

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