Anti-defection law

• IAS NEXT, Lucknow
• 14, Feb 2022

Reference News:-

West Bengal Assembly Speaker Biman Banerjee has dismissed the petition filed by Leader of the Opposition Suvendu Adhikari seeking Mukul Roy’s disqualification as an MLA under the anti-defection law for switching sides after elections.

• Roy, a former BJP national vice-president, had defected to the ruling TMC in June last year.
• Roy would now continue as a BJP legislator in the House in the wake of the ruling.

What had the High Court ruled?

The high court had asked the Speaker to take a decision on the petition for Roy’s disqualification as a member of the House by October 7. In case of failure, the court said that it would take a call on the matter.

• Even the Supreme Court had expressed hope that the Speaker will take a decision on the disqualification plea soon.

Relevance: the Tenth Schedule of the Indian Constitution:

Popularly known as the anti-defection law.

• It specifies the circumstances under which changing of political parties by legislators invites action under the law.
• It was added to the Constitution by the 52nd Amendment Act.
• It includes situations in which an independent MLA, too, joins a party after the election.

The law covers three 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.

Matters related to 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.
• Last year, the Supreme Court observed that anti-defection cases should be decided by Speakers in three months’ time.

 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.

Loopholes in the law:

Those against say that voters elect individuals in the election and not parties and hence the Anti-Defection law is infructuous.

Can the courts intervene?

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”.