Background Note for the Conference on Effective Legislatures The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”. There are several issues in relation to the working of this law which need to be discussed. Does the law, while deterring defections, also lead to suppression of healthy intra-party debate and dissent? Does it restrict representatives from voicing the concerns of their voters in opposition to the official party position? Should the decision on defections be judged by the Speaker who is usually a member of the ruling party or coalition, or should it be decided by an external neutral body such as the Election Commission? In this note, we summarise the main features of this law and interpretation by the Courts and the presiding officers. We also see which other democracies have similar provisions.
Main Features of the Anti-Defection Law
Table 1: Anti-Defection provisions under the Tenth Schedule Subject Provision in the Tenth Schedule Disqualification a. 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. b. If an independent candidate joins a political party after the election. c. If a nominated member joins a party six months after he becomes a member of the legislature. Power to a. The Chairman or the Speaker of the House takes the decision to disqualify a member. Disqualify b. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision. Exception Merger A person shall not be disqualified if his original political party merges with another, and: He and other members of the old political party become members of the new political party, or He and other members do not accept the merger and opt to function as a separate group. This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger. Sources: Tenth Schedule of the Constitution; PRS.
We summarise the main arguments for and against an anti-defection law in Table 2. Table 2: Advantages and disadvantages of Anti-Defection Law Advantages Disadvantages Provides stability to the government by preventing shifts of By preventing parliamentarians from changing parties, it party allegiance. reduces the accountability of the government to the Parliament and the people. Ensures that candidates elected with party support and on Interferes with the member’s freedom of speech and the basis of party manifestoes remain loyal to the party expression by curbing dissent against party policies. policies. Also promotes party discipline. Sources: G.C. Malhotra, Anti-Defection Law in India and the Commonwealth, Lok Sabha Secretariat, 2005; PRS.
Anirudh Burman firstname.lastname@example.org
PRS Legislative Research Centre for Policy Research Dharma Marg Chanakyapuri Tel: (011) 2611 5273-76, Fax: 2687 2746 www.prsindia.org
November 23, 2009
New Delhi – 110021
The Anti-Defection Law
PRS Legislative Research
Some important Judgements and Rulings on the Tenth Schedule in India Table 3 gives details of some important judgements by the Supreme Court related to the working of the Tenth Schedule. Table 4 summarises some important recent rulings of the Speaker of Lok Sabha. Table 3: Important judgements on disqualification and the Tenth Schedule by the Supreme Court. Main Issue(s) in the case Whether the right to freedom of speech and expression is curtailed by the Tenth Schedule. Judgement...