Anti-Defection Law & A Way Ahead

The purpose of writing this article is due to the political tussle that presently continues in Rajasthan between the CM Ashok Gehlot and Deputy CM Sachin Pilot. In the assembly of 200 seats, Congress has 106 MLAs, including six who defected to the party from the BSP last year. To run a state, should be a golden figure of majority i.e. 101 MLAs. However, according to the various reports suggested that Sachin Pilot has broken away 25-30 Rajasthan MLAs. If 25-30 MLAs were to defect, then Ashok Gehlot shortfall to majority and government would fall. So it is important to discuss what does anti-defection law says on it? The  Anti-defection law has its place under the Tenth Schedule of the Constitution of India during Rajiv Gandhi Government by the 52nd amendment act,1985.

How anti-defection law comes into existence?

Instead of giving immediate answers, firstly we should understand the past development that led to the emergence of this law so-called anti-defection law. We all must have heard “AAYA RAM GAYA RAM” not a new term in Indian politics. The story dates back to 1967 when the first-ever assembly elections were held in Haryana. An independent politician named Gaya Lal was elected MLA in the elections. Haryana had 81 members legislative assembly then. Gaya Lal was elected from the Hassanpur assembly seat. Within hours of being elected, Gaya Lal joined the INC (Indian National Congress). A few hours later Gaya Lal joined the United Front Coalition but it did not end here. By the evening Gaya Lal had rejoined the Congress Party. In 8-10 hours, Gaya lal had switched party thrice. In the evening, congress leader Rao Birender Singh addressed a press conference in Chandigarh with Gaya Lal by his side. Birender Singh told media, “AGAYA RAM AB AAYA RAM HAI”

To stop this trend, the Rajiv Gandhi Government in 1985 introduced the anti-defection law. The anti-defection law laid the process by which legislators may be disqualified on the ground of defection. An MLA or leader who switches party can avoid anti-defection law, only if 1/3rd of the party legislators resign. Otherwise, any MLA or MP resigning the party would stand disqualified and will lose membership.

Who can be disqualified?

A member of House/ Assembly belonging to any political party becomes disqualified for being a member of the house, if;

  • He voluntarily gives up his membership of such political parties; or
  • He 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 not been condoned by the party within 15 days.

Exceptions to disqualifications?

  • If a member, after being elected as the presiding officer of the house, voluntarily gives up the membership of his party or rejoices if he ceases to hold that office.
  • 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 2/3rd of the member of the party has agreed to such a merger.

Speaker power with regard to anti-defection law;-

Article 102(2) & 191(2), says “A person shall be disqualified for being a member of either house of parliament or the legislative assembly if he is so disqualified under 10th schedule. Such power of a presiding officer of house or assembly is subjected to judicial review. In Kihoto Hollohan vs. Zachillu& other, 1992, the Supreme Court of India ruled that decision of the speaker is subject to judicial review. Hence it is not into effect immediately.

A way ahead?

Recently India ranked 51st in the democracy index by EIU. The Democracy Index is based on the political culture, functioning of the government, etc. Hence the role of the speaker comes to play is the custodian of the house /assembly and to run the functioning of the government in an effective manner. In India Speaker of the house/assembly without resigning from the membership of the party on his/her election to the office.

India adopted the parliamentary system from `Britain, In Britain, a speaker is strictly a non-party person. There is a convention that the speaker has to resign from his party and remain politically neutral. Also, once elected remains in office until retirement, even though the majority may change. Hence this mechanism can be adopted whereby the speaker needs to renounce all political affiliations, membership, and activity once they have been elected to the office. This practice ensures the speaker to loyal towards the values of the constitution instead of a Political party.

This article has been authored by Pawan Kumar Sharma, the author is a practicing advocate in Delhi High Court.

Also Read – Extrajudicial Killing – Menace To An Idea of Constitutionalism

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