What is anti-defection?

• • It is disqualification when a member of parliament or legislature chooses to join another party after being elected as some party.
  • In 1985, the 52nd amendment act was passed by the Parliament to achieve this by introducing Tenth Schedule in the Constitution.

• The law applies to both Parliament and state assemblies.

Disqualification is done when:

• Member voluntarily gives up party membership
• If he abstains from the direction given by the party’s whip 
• If an independent candidate joins any political party after their election to legislature
• If a nominated member joins a party after 6 months of his/her nomination.

Exception:

• If a presiding officer, after being elected, gives up party for impartiality then he is not disqualified. He can re-join the party after getting down from the post.   
• The original act introduced in 1985 protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party.
• The 2003 amendment to the law deleted the one-third split provision which offered protection to defectors.

Deciding Authority:

• The Presiding officer will be the final authority to decide the disqualification on the ground of anti-defection. The decision can be challenged in court. 
• 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.
• 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 Hollohan 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?

• An independent MLA from Gujarat has joined the Congress , having been elected as an independent.
• The Tenth Schedule of the Constitution, popularly known as the anti-defection law, specifies the circumstances under which changing of political parties by legislators invites action under the law. 
• It includes situations in which an independent MLA, too, joins a party after the election.

Reference:

1. https://indianexpress.com/article/explained/jignesh-mewani-joins-congress-anti-defection-law-for-independent-legislators-7540457/