The anti-defection law is applicable only to the current (present) members of:
Before the year 1985, there was no provision for disqualifying a member if he joins other political parties.
This is considered to be an insult to the democracy where the people have voted for a person by looking at the party.
This was seriously discussed hence the 10th schedule of the Indian Constitution.
Defections mean jumping from one political party to the other after getting elected.
The anti-defection law is meant for the disqualification of members of Parliament or State Legislatures on the grounds of defections from one political party to the other.
These provisions are added to the Constitution of India through the 52nd amendment.
A new schedule in the form of the 10th schedule has been added to the Constitution.
The 10th schedule was added to the constitution in the year 1985 through the 52nd amendment.
In Parliament and State Legislatures, there are three categories of members present.
- Political Party members
- Independent members (Most of the times these members are present)
- Nominated members
All categories of members can be disqualified under the grounds of defections.
DISQUALIFICATION OF MEMBERS OF POLITICAL PARTIES:
Note: A political party member is a person who contests in the election on the name of a political party and gets elected.
A member of a political party can be disqualified
If that member after getting elected voluntarily resigns to the political party on whose ticket he/she got elected to the house
if the member votes against to the whip (Direction) issued by the concerned political party
If the member abstains against the direction issued by the concerned political party without permission from the party.
A member going out of a party through Split is not disqualified on the grounds of defections.
WHAT IS SPLIT?
If minimum 1/3rd members of a political party get separated from the parent party and form a new party it is called Split.
The speaker or the chairman if satisfied recognizes the split group as a new party.
Note: The Split group cannot join any political party. If so, the group is disqualified.
Please Note: The Split by 1/3rd members of a party have been deleted through the 91st amendment Act of 2003. This means the members can no more take shelter under the split.
WHAT IS MERGER?
ü If a 2/3rd of a political party forms a separate group and joining another political party is called merger.
If a member goes out as a result of the merger, the member is not disqualified.
If a member after being elected as the Presiding officer of the house, voluntarily gives up the membership of the party and rejoins it after he ceases to hold that office.
A member may be suspended by the political party for violating the discipline of the party. A suspended member from a political party is not disqualified from the membership of the house.
WHO IS AN INDEPENDENT MEMBER?
An independent member is an elected member of the house who does not belong to any political party. She/he got elected because of their personal image among the people of the respective constituency.
If an independent member joins any political party then the member is disqualified from the membership of the house.
Note: An independent member can continue as an associated member of a political party.
These are the members who are nominated by the President for Parliament and by the Governors for the State Legislatures.
The President nominates 2 members who belong to the Anglo-Indian community to the Lok Sabha.
The President nominates 12 members with special knowledge or practical experience to the Rajya Sabha.
The Governor nominates 1 member of who belongs to Anglo-Indian to the state Assembly.
The Governor nominates 1/6th of the total members to the State Legislative Council.
A nominated member is disqualified for being a member of a house if the member joins any political party after the expiry of 6 months from the date on which he takes his seat in the house.
EXCEPTION FOR A NOMINATED MEMBER:
If a nominated member joins a political party within 6 months of his nomination to the house is not disqualified.
WHO IS THE DECIDING AUTHORITY REGARDING THE DISQUALIFICATION OF A MEMBER:
The deciding authority is the Presiding officer (Speaker/chairman).
Initially, the decision of the chair was not subjected to the judicial review.
In the year 1993, in Kihoto Hollohan V. Zachilhu case the Supreme Court declared that this provision is unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and High Courts.
Hence since 1993, the decision chair is subject to judicial review.
It means the disqualification of a member can be challenged in a court of law on the grounds of malafides.
The Presiding officer can take up a defection case only when he/she receives a complaint from a member of the house.
The speaker need not take the decision immediately.
Before taking the final decision the presiding officer must give a chance to the member against whom the complaint has been made.
In the year 2007 in Uttar Pradesh 13 MLA’s (BSP) were disqualified under Anti-defection law.
In the year 2010 then Karnataka Assembly Speaker K G Bopaiah 11 BJP and 5 independent MLAs. Then the MLAs moved the Karnataka High Court and the court upheld the decision of the Speaker. Later the disqualified MLAs moved the Supreme Court and the Apex Court ordered for the reinstating of the MLAs and thus avoided the possible by-elections in Karnataka.
In the year 2013 in Andhra Pradesh Assembly 15 MLAs have been disqualified for defying their respective party whips.