Anti-Defection Law

•What is the Anti-Defection Law?

The Tenth Schedule — popularly known as the Anti-Defection Act — was included in the Constitution in 1985 by the Rajiv Gandhi ministry and sets the provisions for disqualification of elected members on the grounds of defection to another political party.

The law was added via the 52nd Amendment Act, 1985, soon after the Rajiv government came to power with a thumping majority in the wake of the assassination of Prime Minister Indira Gandhi. The Congress had won 401 seats in the Lok Sabha.

•What are the grounds for disqualification under the Anti-Defection Law's Articles 102 (2) and 191 (2)?

a) If an elected member voluntarily gives up his membership of a political party;
b) 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.

•What were the loopholes?

As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’. Such defections were not actionable against. The Dinesh Goswami Committee on Electoral Reforms, the Law Commission in its report on "Reform of Electoral Laws" and the National Commission to Review the Working of the Constitution (NCRWC) all recommended the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split.
Finally the 91st Constitutional Amendment Act, 2003, changed this. So now at least two-thirds of the members of a party have to be in favour of a "merger" for it to have validity in the eyes of the law. "The merger of the original political party or a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger," states the Tenth Schedule.

•Under which circumstances is a split in a party not considered a ‘defection’?

A split in a political party will not be considered a defection if an entire political party merges with another; if a new political party is formed by some of the elected members of one party; if he or she or other members of the party have not accepted the merger between the two parties and opted to function as a separate group from the time of such a merger.

•What are the powers of a party whip under the Constitution in case of a defection?

The whip upholds the party directives in the House as the authorised voice of the party. On defection of elected members of his party, the whip can send a petition on the alleged defection to the Chairman or the Speaker of a House for their disqualification. He can also expel the members from the party. But this does not necessarily mean that the members so expelled lose their seats in the House. They continue to hang on to their seats as long as the Chairman or the Speaker of a House gives a final decision on their disqualification from the House after a proper enquiry on the basis of the petition filed by the party whip.

•What are the options before a disqualified elected member?

The members so disqualified can stand for elections from any political party for a seat in the same House. But he naturally cannot get a ticket from his former party.

•Who is the deciding authority?

The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House and his decision is final. All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction.