“ YASHWANTRAO CHAVAN LAW COLLEGE PUNE ”

 LAW TEACHING .

 Presented BY:-
 Name Of Students: – ANIL JAYKANT LAMB
( ROLL-30 LLM-I , Semi- II)

 Subjects of Law teaching: – Anti -Defection Law

 Date of Law teaching :- 22ṭḥ March 2024

 Time of Law Teaching :-10 am to onwards

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 The Anti – Defection Laws in India

 Introducation:-

 The anti-defection law punishes individual Members

of Parliament (MPs)/MLAs for leaving one party for another.
 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.
o The Tenth Schedule - popularly known as the Anti-Defection Act -
was included in the Constitution via the 52nd Amendment Act,
1985.
o It sets the provisions for disqualification of elected members on the
grounds of defection to another political party.
o It was a response to the toppling of multiple state governments by
party-hopping MLAs after the general elections of 1967.
 However, 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
penalize political parties for encouraging or accepting defecting legislators.
o As per the 1985 Act, a 'defection' by one-third of the elected
members of a political party was considered a 'merger'.
o But the 91st Constitutional Amendment Act, 2003, changed this
and now at least two-thirds of the members of a party must be
in Favour of a "merger" for it to have validity in the eyes of the
law.
 The members disqualified under the law can stand for elections from any
political party for a seat in the same House.
 The decision on questions as to disqualification on ground of defection are
referred to the Chairman or the Speaker of such House, which is subject
to ‘Judicial review’.
o However, the law does not provide a timeframe within which the
presiding officer has to decide a defection case.

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 How did the Law Evolve:-

 In 1967, an MLA from Haryana, Gaya Lal changed his party thrice on the same
day.
 "Aaya Ram Gaya Ram" became a popular phrase in Indian Politics after this.
 It became a common practice to switch political parties across States which
brought down state governments from their power.
 This raised concerns in the Lok Sabha and a committee was set up under Home
Minister Yashwantrao Balwantrao to assess the problem.
 It was the Chavan Committee that recommended that if a legislator changes
party for monetary gains, they should be excluded from the Parliament and also
be barred from contesting elections for some time.
 The anti-defection law was introduced to prevent such floor choosing and was
therefore inaugurated under Rajiv Gandhi's rule through the 52nd Amendment.
 In 1992, the Tenth Schedule was brought to the Supreme Court and challenged
its constitutionality under a landmark case of Kihoto Hollohan v. Zachillhu
and others.
 In 2003, through the 91st Amendment, the anti-defection law was made more
effective to deal with regular defection.
o It deleted the provisions that protected legislators in case of a split
in the party.
o It also stated that any legislator disqualified under Tenth Schedule
would be disqualified from the executive or ministerial post as
well.

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 What are its Objectives:-

 It is to prevent defections motivated by the lure of office or material advantages

or other such considerations.
 It deters the legislators from shifting their political association to gain any
personal advantages.
 It maintains stability in the party system and prevents the threat of toppling the
governments.
 It promotes party discipline by ensuring that the legislators vote in favour of the
party whip.
 It permits the merger of political parties without disqualification of members.
 It strengthens the institution of democracy and keeps corruption in check.

 What are the Grounds for Defection:-

 Voluntary Give Up:
o If an elected member voluntarily gives up his membership of a
political party.
 Violation of Instructions:
o If he votes or abstains from voting in such House contrary to any
direction issued by his political party or anyone authorized to do so,
without obtaining prior permission.
 As a pre-condition for his disqualification, his
abstention from voting should not be condoned by
his party or the authorized person within 15 days of
such incident.

 Elected Member:
o If any independently elected member joins any political party.
 Nominated Member:
o If any nominated member joins any political party after the
expiry of six months.

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 What are the Recent occurrences on Anti Defection Law:-

 In 2020, the Supreme Court stated that the speakers should decide on the
question of disqualification within a "reasonable time".
 The case of Keisham Meghachandra v. the Hon'ble Speaker Manipur (2020)
o In Keisham Meghachandra v. the Hon'ble Speaker Manipur, Justice
Rohinton Nariman talked of the need to set an external means to
deal with defection cases.
o In his words, " Parliament may seriously consider amending the
Constitution to substitute the Speaker of the Lok Sabha and
Legislative Assemblies as an arbiter of disputes concerning
disqualification which arise under the Tenth Schedule"
o He further continued that it can be "with a permanent Tribunal
headed by a retired Supreme Court Judge or a retired Chief
Justice of a High Court, or some other outside independent
mechanism to ensure that such disputes are decided both swiftly
and impartially, thus giving real teeth to the provisions contained in
the Tenth Schedule, which are so vital in the proper functioning of
our democracy”
 The political crisis that occurred in Maharashtra has also thrown new light on
the roles of Speaker and Governor and anti-defection Law.

 What are the Exceptions under the Law:-

 The law enables a party to merge with another party if at least two-thirds of the
legislators of the party are in favour of such a merger.
 Neither the members who decide to merge nor the ones who stay in the original
party will face any disqualification.
 According to Paragraph 5 of the Anti-Defection Law, the section provides
an exemption to the speaker, chairman, and deputy chairman of the legislature
from disqualification on grounds of defection.

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  What are the different Opinions on Anti-Defection
Law:-
 Expert committees suggest that the decision to disqualify a member of
Parliament should be made by the President and the decision to disqualify a
member of the State Assembly should be made by the Governor, based on the
advice of the Election Commission.
 The Supreme Court has recommended that the Parliament can consider setting
up an independent tribunal, which will be headed by a retired judge. It will allow
the defection cases to be settled quickly and timely.
 Some suggest that the anti-defection law has ceased to function and has various
flaws. Hamid Ansari, the former Vice President of India opined that it applies
only in cases of no-confidence motions.
 After enactment of the Anti-defection law, the MP or MLA has to follow the
party’s direction blindly and has no freedom to vote their judgment.
o Due to Anti-Defection law, the chain of accountability has been
broken by making legislators accountable primarily to the political
party.

 What Can be Done to Make Anti-Defection Law More Effective:-

 Rational use of the anti-defection law:

o Several experts have suggested that the law should be valid only for
those votes that determine the stability of the government.
Example: passage of the annual budget or no-confidence motions.
 Advice of Election Commission:
o Various commissions including National Commission to review the
working of the constitution (NCRWC) have recommended that
rather than the Presiding Officer, the decision to disqualify a
member should be made by the President (in case of MPs) or the
Governor (in case of MLAs) on the advice of the Election
Commission.
 Independent authority to deal with disqualification:
o Justice Verma in Hollohan judgment said that tenure of the Speaker
is dependent on the continuous support of the majority in the House
and therefore, he does not satisfy the requirement of such
independent adjudicatory authority.
o Also, his choice as the sole arbiter in the matter violates an
essential attribute of the basic feature.
o Thus, the need for an independent authority to deal with the cases
of defection.

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  Promoting the principle of intra-party democracy:
o 170th Law Commission report underscored the importance of intra-
party democracy by arguing that a political party cannot be a
dictatorship internally and democratic in its functioning outside.
o Thus, the parties should listen to the opinions of the members and
have discussions on the same. This would give the freedom of
speech and expression to its members and promote inner-party
democracy.
o

 Analysis by Supreme Court:

o An academic revisiting of the Tenth Schedule by the Supreme
Court, so as to guide future use of the anti - defection law, is timely
and should happen soon.

 What are the Challenges with Anti - Defection Law:-

 Undermining Representative & Parliamentary Democracy:

o After enactment of the Anti-defection law, the MP or MLA has to
follow the party’s direction blindly and has no freedom to vote in
their judgment.
o Due to Anti-Defection law, the chain of accountability has been
broken by making legislators accountable primarily to the political
party.

 Controversial Role of Speaker:-

o There is no clarity in the law about the timeframe for the action of
the House Chairperson or Speaker in the anti-defection cases.
o Some cases take six months and some even three years. There are
cases that are disposed - off after the term is over.

 No Recognition of Split:
o Due to the 91st Constitutional Amendment Act, 2003, the anti-
defection law created an exception for anti-defection rulings.
o However, the amendment does not recognize a ‘split’ in a
legislature party and instead recognizes a ‘merger’.

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  Allows only Wholesale Defection:
o It allows wholesale defection, but retail defection is not allowed.
Amendments are required to plug the loopholes.
o He raised concern that if a politician is leaving a party, s/he may do
so, but they should not be given a post in the new party.

 Affects the debate and discussion:

o The Anti-Defection Law has created a democracy of parties and
numbers in India, rather than a democracy of debate and discussion.
o In this way, it does not make a differentiation between
dissent and defection and weaken the Parliamentary
deliberations on any law.

How are Other Countries dealing with Defections:-

 UK: Political defections in the UK are not explicitly prohibited by law, but
defectors may face repercussions from their party and constituents.
Consequences may include losing party privileges, facing disciplinary action,
and risking legal challenges such as recall petitions or by-elections.

 USA: Similarly, the USA lacks a specific law against political defections. While
rare, defections may occur for ideological or strategic reasons. Backlash from
the former party, constituents, and media is possible, but defectors may also gain
new support. Running for re-election under the new party label presents both
challenges and opportunities, depending on the political climate.

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  Conclusion:-

The Anti-Defection Law in the Indian Constitution aims for democratic stability by curbing
political defections. Despite its importance, challenges such as restricting legislators' freedom
and procedural issues underscore the necessity for reforms. Inspired by international
experiences, proposed steps aim to balance stability and accountability. Recognizing
exemptions for party mergers and public interest, the law must evolve to remain relevant in
India's dynamic political landscape, ensuring a robust democracy.

 Questions asked by shraddha mane ma’am :-

1. Which one the schedules of the constitution of india contains provision

regarding to anti- defection law.?
Ans - Tenth schedule
2. Which is landmark case related to anti- defecation law ?

Ans- Kihoto Hollohan v . Zachillhu & others.

THANK YOU

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 “YASHWANTRAO CHAVAN LAW COLLEGE PUNE ”

LAW TEACHING STUDENTS FEED BACK SHEET

Name of student :- ANIL JAYKANT LAMB

(LLM-I,Semi-II ,Roll.no-30)
Subject of Law Teaching :- Anti- defection law

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