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What is the Anti Defection Law?


CONTEXT
India’s first Member of Parliament to have been disqualified from the Lok Sabha has now been disqualified as an MLA in Mizoram.

  • Mizoram Assembly Speaker disqualifies Zoram People’s Movement MLA Lalduhoma.

Ground for disqualification
The disqualification was on the ground that Mr. Lalduhoma had declared himself as a representative of the Zoram People’s Movement (ZPM) despite being elected as an independent candidate from the Serchhip Assembly constituency.

  • He lost the character of an independent legislator because of the declaration.

What is the Anti-Defection Law?

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.

  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • The law applies to both Parliament and state assemblies.

When can a member be disqualified?

If a member of a house belonging to a political party:

  • Voluntarily gives up the membership of his political party, or
  • Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
  • If an independent candidate joins a political party after the election.
  • If a nominated member joins a party six months after he becomes a member of the legislature.

However, Legislators may change their party without the risk of disqualification in certain circumstances:

  • 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.
  • In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

Decision of the Presiding Officer is subject to judicial review:

The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.

  • However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.

Various Recommendations to overcome the challenges posed by the law:

Dinesh Goswami Committee on electoral reforms:

Disqualification should be limited to following cases:

  • A member voluntarily gives up the membership of his political party.
  • A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. Political parties could issue whips only when the government was in danger.

Law Commission (170th Report)

  • Provisions which exempt splits and mergers from disqualification to be deleted.
  • Pre-poll electoral fronts should be treated as political parties under anti-defection
  • Political parties should limit issuance of whips to instances only when the government is in danger.

Election Commission

Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

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