What is the anti-defection law?

• For a very long time, the Indian political system was impacted by political defections by members of the legislature. This situation brought greater political instability in the system.
• The anti-defection law contained in the 10th Schedule of the Constitution sought to prevent such political defections which may be due to reward of office or other similar considerations.
• The Tenth Schedule lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature .
• The law applies to both Parliament and state assemblies.

When does it apply?

• If an MP/MLA who belongs to a political party voluntarily resigns from his party or disobeys the party “whip”, he is disqualified.
• Members independent of any political party will lose their membership if they join one after their election to legislature.
• An MP/ MLA who is nominated (to the Rajya Sabha or upper houses in state legislatures) will be disqualified if he/ she joins a political party after 6 months of nomination. 

Exceptions:

• The anti-defection 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.
• Any person to be  elected as Chairman or Speaker voluntarily gives up the membership of the political party to which he belonged immediately before such election and rejoins such political party after he ceases to hold such office.

Deciding Authority:

• Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House i.e, Speaker in case of Lok Sabha and Chairman incase of Rajya Sabha.
• And if the  question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect on this behalf and his decision shall be final.

Does the decision of the Presiding Officer subject to judicial review?

• The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This was struck down by the Supreme Court in 1992.
• It held that  while deciding a question under the 10th Schedule, the presiding officer should function as a tribunal. Hence the decision of the Presiding Officer was subject to Judicial Review.
• But it held that there may not be any judicial intervention until the Presiding Officer gives his order.

Challenges:

• The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. But this could lead to a restriction on legislators from voting in line with their conscience, judgement and interests of their electorate.
• The anti-defection law delays the oversight function of the legislature over the government,  by making sure that members vote based on the decisions taken by the party leadership, and not based on what their constituents would like them to vote for.
• The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.

Recommendations:

• The 170th Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside.The parties should listen to the opinions of the members and have discussions giving the freedom of speech and expression and promote inner-party democracy.
• Justice Verma in Kihoto Hollohon judgment said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority. So there is a need for an independent authority to deal with the cases of defection.
• The Election Commission recommended that decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

Why in News?

The Supreme Court in a case relating to disqualification in Manipur Assembly had ruled that the Speaker of the Legislative Assembly while dealing with cases under the Tenth Schedule, is bound to decide disqualification petitions within 3 months. 

The apex court also called for an independent mechanism including a Permanent Tribunal to decide the disputes under 10th Schedule.