Anti-Defection Law: Provisions, Power, and Authority

Introduction

The anti-defection law, enacted in India under the Tenth Schedule of the Constitution, aims to curb political defections by Members of Parliament and Members of Legislative Assemblies. It prohibits elected representatives from changing parties or voting against the directives of their party leadership after their election without facing disqualification. 

The anti-defection law seeks to maintain stability in government by discouraging opportunistic party switching and promoting political integrity and accountability among elected officials.

52nd CAA (1985)

• Changes in four Articles: 101, 102, 190 and 191.
• Added Tenth Schedule to the constitution.
• Disqualification (MPs + MLAs): ground of defection from one party to another.

91st CAA (2003)

• Limitation on Total Number of Ministers:
• Union CoM: The total number of ministers, including the PM, in the Central CoM shall not exceed 15 percent of the total strength of the Lok Sabha.
• State CoM: The total number of ministers, including the CM, in state CoM shall not exceed 15 percent of the total strength of the Legislative Assembly of that state, and shall not be less than 12.
• Disqualification of Ministers: A member of either House of Parliament/State Legislature (Article 75/164) of any party disqualified on grounds of defection is also disqualified as a minister.
• Disqualification from Holding Remunerative Political Posts: A member of either House of Parliament or House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
• Deletion of  Split Provision: Provision of the Tenth Schedule (anti-defection law) about exemption from disqualification in case of split by one-third of members of the legislature party has been deleted.

Special Provisions Of The Anti-Defection Law

• Members of Political Parties: A member of the House belonging to any political party becomes disqualified for being a member of the house if:
  • Voluntarily Relinquishing Membership: He/she voluntarily gives up his membership of such political party; or
  • Voting Contrary to Party Direction: He/she votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
• Independent Members: Becomes disqualified to remain a member of the House if he joins any political party after such election.
• Nominated Members: Becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.
• He may join any political party within six months of taking his seat in the House without inviting this disqualification.

Certain Exceptions Of The Anti-Defection Law

The above disqualification on the ground of defection does not apply if:

• A member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such a merger.
• A member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.

Adjudicating Authority Of The Anti-Defection Law

• Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House – chairperson in RS and speaker in LS. 
• There is no time limit for him/her to decide such a case.
• SC in Kihoto Hollohan Case (1993): declared the finality of the decision of the Speaker under the tenth schedule as unconstitutional and open to judicial review on the grounds of being malafide, perversity, etc.

Rule-making Power Of The Anti-Defection Law

• Presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule. All such rules must be placed before the House for 30 days. The House may approve or modify or disapprove them.
• Presiding officer can take up a defection case only when he receives a complaint from a member of the House.
• Before taking the final decision, he/she must give the member (against whom the complaint has been made) a chance to submit his/ her explanation. He may also refer the matter to the committee of privileges for inquiry. Hence, defection has no immediate and automatic effect. 

Conclusion

• The Anti-Defection Law in India serves as a crucial mechanism to uphold political stability and integrity by discouraging opportunistic party-switching among elected representatives.
• Through the disqualification of defectors and the authority vested in the presiding officers of legislative bodies to adjudicate on defection-related matters, the Anti-Defection Law strengthens the democratic framework and safeguards the principles of party discipline and collective responsibility.
• Through these reforms, the 97th Constitutional Amendment fosters cooperative entrepreneurship, encourages sustainable development, and contributes to the overall welfare of society.