Anti-Defection Law

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act (Rajeev Gandhi Government).

• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
• The law applies to both Parliament and state assemblies.

Why Anti-Defection law was brought?

1. To stop phenomena of “AAYA RAM GAYA RAM” (Known for political horse trading)
2. To provide stability to Government as defection was leading to fall of government
3. To strengthen fabric of parliamentary democracy by curbing unprincipled and unethical political defections.
4. To prevent lure of office or material benefits to legislators.
5. It makes members of parliament more accountable and faithful to the parties with which they were aligned at the time of their election

When a member can be disqualified?

If a member of a house belonging to a political party:

1. Voluntarily (Term subjected to interpretation) gives up the membership of his political party, or
2. Votes, or does not vote in the legislature, contrary to the directions of his political party (against direction of whip). 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.
3. If an independent candidate joins a political party after the election.
4. If a nominated member joins a party six months after he becomes a member of the legislature.

Changes introduced by 91^st C.A.A, 2003

1. Total no of ministers (PM included) should not be more that 15% of the strength of Lok Sabha Art. 75(1A)
2. Article 75 Clause (1-B) provides that a member of either House of Parliament belonging to any party who is disqualified for membership in that House due to defection under paragraph of the Tenth Schedule is also disqualified for appointment as a minister under Clause (1) of Articles 75 and 164 of the Constitution until he is elected again.
3. The amendment deleted paragraph 3 of the Tenth Schedule, which provided that if one-third of a political party defected, they would not be disqualified under the defection statute. (split was now not a ground for defection)
4. A member of either House of Parliament or the House of a State Legislature from any political party who is disqualified for defection from any political party is also barred from holding any remunerative political office.
5. Any member of either House of Parliament or state legislature who is disqualified from serving as a member due to defection is likewise barred from serving as a minister.

NOTE: MERGER IS NOT PROHIBITED i.e. if more than 2/3^rd members of a political party dissociate from original party then members of that group not to attract disqualification and can merge with other parties.

Concerns regarding anti-defection law

1. The Anti-defection statute has failed to prevent defections in the past. This is due to the fact that it does not distinguish between disagreement and defection. For the sake of party loyalty, it limits the legislator’s right to dissent and freedom of conscience.
2. The distinction drawn between individual and collective defection is completely irrational.
3. Even the distinction it creates between independent and nominated members is illogical. If the former joins a political party, s/he is disqualified, whereas the latter is permitted to do so.
4. It encourages horse-trading of legislators, which clearly contradicts the values of a democratic system.

Judicial Pronouncements

1. 1. Kihoto Hollohan v. Zachillhu and others (1992)

The Supreme Court ruled that judicial review could not be obtained prior to the Speaker/Chairman making a decision. Interference would also be prohibited during an interlocutory stage of the proceedings presided over by the Speaker/Chairman. Prior to this case, the Speaker/decision Chairman was regarded as final and not subject to judicial review. The Supreme Court ruled that this clause was unlawful.

1. 2. Ravi S Naik v. Union of India (1994)

The Supreme Court in this decision granted “resignation by willingly giving up membership” a broader meaning. The Court stated that a person can voluntarily leave a political party even though he has not formally resigned from such party. Even in the absence of a formal resignation from membership, it is possible to conclude from a member’s actions that he has willingly resigned from the political party to which he belongs.”

Suggested Reforms:

Dinesh Goswami Committee on electoral reforms:

Disqualification should be limited to following cases:

1. A member voluntarily gives up the membership of his political party.
2. A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. Political parties could issue whips only when the government was in danger.

Law Commission (170th Report):

1. Provisions which exempt splits and mergers from disqualification to be deleted.
2. Pre-poll electoral fronts should be treated as political parties under anti-defection
3. Political parties should limit issuance of whips to instances only when the government is in danger.

Constitution Review Commission (2002):

1. It urged that the defectors be barred from entering the public office or any other political position for the remainder of their mandates.
2. A vote cast by a defector to overthrow a government shall be regarded as void.

Election Commission:

1. Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

Defamation and Disqualification

Rahul’s Conviction

1. Section 500 of IPC- prescribes for defamation a simple imprisonment for a term which may extend to 2 years, or with fine, or with both.
2. Disqualification: 3 Routes-

1. Article 102(1) and 191(1): Grounds are

1. Office of Profit
2. Unsound Mind
3. Insolvent
4. Not having valid citizenship
5. If disqualified by or under any law made by parliament

2. 10^th Schedule and Article 102(2)(52^nd Constitutional amendment inserted it)

1. On ground of defection

3. Under RPA 1951: Several provisions that deal with disqualification under RPA

1. Section 8 – deals with disqualification for conviction of offences, aimed at preventing criminalisation of politics and keeping tainted lawmakers from contesting elections.

• Section 8(1)- includes specific offences such as

• Promoting enmity between 2 groups
• Bribery
• Undue influence or impersonation at an election
• NOTE: Defamation doesn’t fall in this list

• Section 8(2)- list offenses such as

• Hoarding or profiteering
• Adulteration of food or drugs
• For conviction and sentence of at least 6 months for offense under any provisions of Dowry Prohibition Act.

• Section 8(3) – A person convicted of any offense and sentenced to imprisonment for not less than 2 years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his\her release. (Note- Rahul Gandhi disqualification comes under this)

2. Section 9- Deals with disqualification for

• Dismissal for corruption or disloyalty and
• For entering into government contract while being a lawmaker

3. Section 10- deals with disqualification for failure to lodge an account of election expenses
4. Section 11- deals with disqualification for corrupt practices

How does disqualification operate?

The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of convicted lawmaker. In a 2018 decision in LOK PRAHARI VERSUS Union of India, Supreme Court clarified that disqualification will not operate from the date of stay of conviction by the appellate court and not on suspension of sentence. So, stay cannot merely be a suspension of sentence under section 389 of CRPC but stay of conviction.

LILY THOMAS CASE- Earlier, Section 8(4) of RPA said- Disqualification takes effect only “after 3 months have elapsed” from the date of conviction. In LILY THOMAS CASE (2013), Supreme Court struck it down as ultra vires the constitution.