“Aya Ram Gaya Ram” was a famous phrase in Indian politics when a Haryana MLA Gaya Lal changed his party three times in a single day in 1967. To prevent such political defection in India, the Tenth Schedule was inserted in the Constitution of India in 1985. Under Anti-Defection Law legislators may be disqualified based on defection by the Presiding Officers of a legislature based on a petition by any other member of the house. A legislator is considered as defected if he/she willingly gives up the membership of his party or he/she breaks any rule of his party leadership on a vote. It means the member may lose his membership in the house, where Anti-Defection Law applies to both Parliament and State Assembly.
In many democracies, defection by legislators occurs. It can weaken the present government, depending on which the government is governed. Defection can lead to a betrayal of the people’s faith in the election and elected party they have voted to elect the party in the prior election.
In this article -
- 1 History of Anti-Defection Law in India
- 2 What are the aims of the Anti-Defection Law?
- 3 How legislators disqualified under this Law?
- 4 What are the procedures of disqualification?
- 5 What are the exceptions under the Law?
- 6 How is the Anti-Defection Law interpreted by Courts while dealing with related issues?
- 7 What are the laws included there?
History of Anti-Defection Law in India
In 1967 and 1971 election, both the central government and some state & territory government experienced instances of legislators changing their political party which created instability in Indian politics. Almost 50 per cent of the elected legislators defected which lead the country politics to a political turmoil.
So, a restriction was needed to control detection in India. In 1985, with the 52nd amendment of Constitution of India, Parliament of India inserted Tenth Schedule in the Constitution. In 2003, following some recommendations of different constitutional bodies, the Parliament did the Ninety-first Amendment to the Indian Constitution. Which strengthened the Tenth Schedule and put a restriction to the legislators that he/she can’t be appointed as a minister for a period?
In a democratic country, elections allow the people of the country to establish their wishes democratically where defections killed their hope before fulfilling. Even before the sovereignty of the country defection were exist. But the height of defection was noticed in 1967. When Gaya Lal, a legislator from Haryana changed his party three times in a single day. Because of which “Aaya Ram Gaya Ram” phrase became popular.
To deal with such situation of political defection, during the fourth Lok Sabha a committee was erected under the chairmanship of Y.B. Chavan. In 1968 this committee submitted a report in Parliament which carried the matter of an Anti-Defection Bill. Chief Minister of Karnataka, Virendra Patil named this defection, which was a definite trend during 1970-80 in Indian politics as ‘Goldrush’. But only after Rajiv Gandhi‘s clear majority win in 1984, he proposed a new Anti-Defection Bill in Parliament and after debates; unanimously the bill was approved by both Lok Sabha and Rajya Sabha on 30 and 31 January 1985 respectively. On 15 February, President of that time signs on the bill and from 18 March it came into effect.
What are the aims of the Anti-Defection Law?
- The most important point of the Law is to put a full stop to political corruption. It is interpreted as the first necessary step to take before taking any other step and before addressing any other corruption in the country.
- It was aiming to bring stability in politics to strengthen the democracy of India. It was a necessary step to make belief the country people by stopping defection.
- Also, the bill was aimed to make the members of Parliament more responsible and faithful to their party or the aligned party with whom they participated in the election.
How legislators disqualified under this Law?
If a member willingly gives up his membership of the party, then he will be disqualified automatically.
- If a member abstains from voting or vote against the direction issued by the whip.
- If an independent member joins a political party after the election.
- If a nominated member joins another political party after six months.
What are the procedures of disqualification?
- The members against whom, the petitions have been made for disqualification need to submit their arguments before the presiding officer in 7 days.
- Petition for disqualification of a defector shall be filled before by a member.
- The presiding officer may transfer it to the committee for exemptions for a better inquiry or satisfactory decision on it.
- The chairman’s decision is final but subject to judicial review.
What are the exceptions under the Law?
If legislators change their party without putting their party in any risk then there will not arise any situation of defection. If two-third members of a party wish to merge another party or change their party which number is in favour of the merger, there will be no charge of detection against anyone.
Various expert committees advise the Election Commission of India, instead of the Presiding Officer, the President should decide on disqualification of a member in case of MP’s and by the Governor in case of MLA’s.
The phrase ‘Voluntarily gives up his Membership’ has a broader meaning than resignation. While giving a decision, the Supreme Court interprets that if it is a formal resignation, it is not a defection. On the other hand, if a member expresses his view publicly to join another party, he/she is allowed to do so. It is not under the defection law.
The Presiding Officer gives the decision is subject to judicial review. There will be no judicial review until the Presiding Officer gives his order. There was no such condition initially, but in 1992 the Supreme Court includes the condition that a member can appeal against the Presiding Officer’s decision in the High Court and the Supreme Court.
There is not mentioned any time limit of a hearing for the Presiding Officer to decide on the disqualification appeal. But it is said that courts can intervene or judicial review is possible only after the Presiding Officer’s decision.
The Law is to provide stability to the government from the legislator side changing activity, which can bring down the government. The Law restricts the legislators to vote against his party. He/she cannot decide his vote, the only party leadership can decide. The legislators cannot decide on the basis of his opinion, interests.
The political party set a decision and direction, which should be followed by the member on any ground. Expert suggests that the Law should be valid only for those voters who keep the stability of the government.
What are the laws included there?
The Anti-Defection Law was introduced through the insertion of the Tenth Schedule in the Constitution of India. It has eight paragraphs. Here is a brief about the Law:
- Paragraph-1: Interpretation. The paragraph explains the definition of different terms used in the Law…
- Paragraph-2: Disqualification on the grounds of defection. This paragraph explains the factors based on which a member’s membership could be disqualified under the Anti Defection Law. It is as follows:
Para 2.1(a) provides disqualification of a member, If the member willingly gives up his membership of the party, then he will be disqualified automatically.
Para 2.1(b) provisions, address a situation if a member abstains from voting or vote against the direction issued by the whip.
Para 2.2 states that any member, elected from a political party as a representative if he/she joins other party after election shall be disqualified.
Para 2.3 states that a nominated member shall be disqualified if he/she joins any political party after six months from the date he/she elected for a seat.
- Paragraph-3: After the Ninety-first Amendment of the tenth schedule in 2003, if one-third of the members defecting from a political party from which party they have contested in the previous election, the disqualification of the members will be starting there.
- Paragraph-4: Disqualification on ground of defection not to apply in case of merger. This paragraph includes, if two-thirds member of a party wishes to merge with another party or change their party which number is in favour of the merger, there will be no charge of detection against anyone.
- Paragraph-5: Exemption. Paragraph number 5 provides protections or freedom to the Speaker, Chairman and Deputy-Chairman of various legislative Houses.
- Paragraph-6: Decision on questions as to disqualification on ground of defection. This provision says the authorizations of the Chairman or the Speaker of the respective legislative house to be the ultimate decision-making authority in case of any disqualification that arises.
- Paragraph-7: Bar of jurisdiction of courts. This paragraph says that no court has any jurisdiction regarding any matter concerns with the disqualification of a member of a house under Anti Defection law. However, this schedule does not bar court intervention under articles 32, 226, and 137 of the Constitution of India. After the Presiding officer’s decision, there is only a review by the court on the Presiding Officer’s decision.
- Paragraph-8: Rules. This paragraph says that the Chairman and the Speaker can make rules for their respective concerning legislative house to deal with disqualification of a member.