_edited.png)
Article by - Gaurav Purohit (This article was written by his during tenure of his Internship as Legal Soch Foundation)
ABSTRACT
The Law of Anti Defection generally provides for the grounds under which a Member of Legislature or Member of Parliament can lose his rights and privileges as an Elected Representative of a party and therefore he or she can be disqualified from his or her respective party. These grounds of disqualification have been provided under the Tenth Schedule of the Constitution of India. This article will be covering various aspects related to the Anti Defection Law such as the definition of the term defection, a framework of anti-defection under the Indian Constitution, important case laws, the history of the law of anti-defection, exceptions, and the conclusion.
KEYWORDS - ANTI DEFECTION LAW, CONSTITUTION OF INDIA, ELECTED REPRESENTATIVE, TENTH SCHEDULE
INTRODUCTION
The Oxford Dictionary has defined the term Defection which means the Act of leaving one's own country or political party and joining the opposite party. A defector is also been defined as a person who is an elected member of the legislature and he or she had been allotted the reserved symbol of the political party. He or she can be said to have defected it after being elected as a member of either house of legislative council or legislative assembly or house of parliament of state or union territory and he or she voluntary renounces allegiance or association with such political party and provided that his or her action is not in consequence of the decision of the party concerned. The Law of Anti Defection provides that if a Member of Legislative Assembly or Member of Parliament Voluntary gives up the membership of the respective party. He or she votes or abstains from voting or defies any party ship He or she joins any other party .The Particular member will be disqualified from the party and he or she will not hold the position of nominated or an elected individual under the party. Thus he or she will lose his respective position such as Member of Parliament or Member of Legislative Assembly.
HISTORY OF LAW OF ANTI DEFECTION
There was a congress leader Gaya Lal who went from Congress Party to the Janata party and then again back to congress and again back to the Janata Party. So after this, there was a famous phrase of Aaya Ram Gaya Ram which dates back to 1967. It was estimated that till the year 1971 more than Fifty percent of the legislature has switched from one party to another.
ANTI DEFECTION FRAMEWORK UNDER THE INDIAN CONSTITUTION
The provision related to the Law of Anti Defection was added in the Constitution of India in the Tenth Schedule by the way of the Fifty-Second Constitutional Amendment in 1985. These particular provisions provide for disqualification of Member of Parliament under Article 10 clause 2 and Member of Legislative Assembly under Article 191 clause 2. The Legislators can be held disqualified if they are declared disqualified under the Tenth Schedule of the Constitution.
EXCEPTIONS
The concept of Disqualification as under the purview of Law of Anti Defection shall not apply in case of a merger or split of one-third or more of members of a party to any another party. The Disqualification shall not also apply in the case of the merger when one-third of members or more merge with any other party. This exception wherever 1/3rd members were but revised by the approach of 91st Constitutional Amendment within the constitution and when that it the supply of split was removed and currently it needs 2/3rd members of a party can merge with another party. This amendment revised these rules as there have been mass defections by legislators and this amendment brought modification in the requirements from 1/3rd members of the party to 2/3rd members and by removing the provision of the split from the party.
All of these circumstances impelling the government to create a statutory provision in the Indian Constitution to create punitive sanctions for those who are found guilty of such act or conduct.
IMPORTANT CASE LAWS
Ravi S Naik vs Union of India 1994- In this particular case the Apex Court gave a much wider perspective to resignation by voluntarily giving up the membership. The Court held that a person may voluntarily give up his membership of a political party even if he has or has not tendered resignation from the membership of that particular party. In the case of the absence of formal resignation from membership then inference can be drawn from the act of the member that he has voluntarily given up his membership of a particular party.
G Vishwanathan and Ors vs Hon’ble Speaker Tamil Nadu Legislative Assembly and Others 1996- In this particular case it was observed by the court that the act of voluntarily giving up membership in a political party can be implied or expressed. When a member has been expelled or thrown out of a political party that set him up and got elected and later on he joins another party then this act will amount to voluntary giving up of membership of an earlier party.
Rajendra Singh Rana and Ors v.s. Swami Prasad Maurya and ors 2007- In this particular case, the court held that the speaker has not made a finding about the split and had accepted the split through a claim made by the members. The court contended that ignoring a petition for disqualification is not an irregularity but also a violation of the constitutional duties of a speaker. So Speaker is not absolutely immune from the concept of judicial review and the immunity is provided under Para 6 of the Tenth Schedule of the Indian Constitution.Shrimanth Balasahib Patil V.s Hon’ble Speaker of Karnataka Legislative Assembly - In this particular case 15 MLA had resigned from the Congress and Janata Dal-Secular resigned from seats. The ruling government collapsed after this and the speaker disqualified the MLA for a period till the expiry of the assembly.
CONCLUSION
The Laws of Anti Defection should incorporate laws under which different committees should be constituted for an investigation into the cases of horse-trading between the parties and where the members are guilty of horse trading then punitive actions should be imposed on them. Further, an embargo should be imposed on them from contesting the elections so that these activities do not disturb the active democracy of the Nation.
REFERENCES
Sidharth Sharma anti-defection laws : a critical analysis August 12, 2020, https://blog.ipleaders.in/explained-anti-defection-laws/
Priya Singh Anti Defection Law 10th Jan 2020 https://www.legalserviceindia.com/legal/article-4090-anti-defection-law.html
Commentaires