What is anti-defection law and why is there a demand to strengthen it in poll season?

Last week, Bahujan Samaj Party (BSP) chief Mayawati called for a more stringent anti-defection law amid a string of politicians switching parties ahead of the Uttar Pradesh assembly election beginning next month.

“There is a need for a strict law to prevent these opportunist politicians from changing parties before the elections,” she said.

The former Uttar Pradesh chief minister was referring to recent defections from the Bharatiya Janata Party (BJP) and the BSP to the Samajwadi Party in the recent past.

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The practice of politicians deserting parties just ahead of elections is not unusual. And every time there are defections, the anti-defection law, which penalises individual lawmakers for switching parties, comes into the picture.

Moneycontrol takes a look at the anti-defection law and why it has not helped much in discouraging defections.

What is the anti-defection law?

The Tenth Schedule of the Constitution, popularly known as the anti-defection law, was inserted in the charter in 1985 to punish individual lawmakers for switching parties. The law lays down the process by which individual lawmakers, in Parliament and state assemblies, can be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House.

Also read: In-Depth | Carnival of turncoats: As defections rise ahead of Assembly polls, a look at its chequered history, impact and more 

A member of the legislative assembly (MLA) or a member of Parliament (MP) is deemed to have defected if he either voluntarily gives up membership of his party or disobeys the directives of the party leadership during voting in the House.

What are the exceptions?

There are exceptions for politicians to switch parties without the risk of disqualification. Defections are allowed only if a party as a whole merges with another party provided that at least two-thirds of its lawmakers are in favour of the merger.

In 2019 in Goa, 10 of the 15 Congress MLAs merged their legislature party with the BJP. In Rajasthan, six BSP MLAs merged their party with Congress in the same year. In the latest case, over two-thirds of Congress MLAs joined Mamata Banerjee’s Trinamool Congress in Meghalaya.

Have there been demands for strengthening the law?

Experts have suggested scrapping the law since it has failed to discourage defections. According to PRS Legislative Research, many expert committees have in the past recommended that rather than the presiding officer, who is usually a member of the ruling party, the decision to disqualify a defector should be made by the President (in the case of MPs) or the governor (in the case of MLAs) on the advice of the Election Commission.

Also, read : Needed, new measures to strengthen anti-defection laws

“Of course, the law needs improvement. For example, when a number of MLAs of a particular party merge with another party. How is it valid unless the national leadership of both the parties decide to merge?” PDT Achary, former secretary-general of the Lok Sabha, told Moneycontrol. The law doesn’t clarify that, he said.

Achary suggested the person who defects should also not be allowed to vote until his case is decided.

“An MLA who defects is free to vote until disqualified. The right to vote should freeze as soon as an MLA or MP decides to defect,” he said.

The law doesn’t provide a time frame for a disqualification decision to be taken. In 2020, however, the Supreme Court prescribed a maximum time of three months for a presiding officer to decide on an anti-defection law petition.

Can the courts intervene?

Courts have, in certain cases, intervened in the workings of a legislature. In 1992, a five-judge constitutional bench of the Supreme Court held that the anti-defection law proceedings before the Speaker are akin to a tribunal and, thus, can be placed under judicial review.

In January 2020, the Supreme Court asked Parliament to amend the Constitution to strip legislative assembly speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.

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“An independent tribunal ought to be appointed instead to determine the fate of an MP or an MLA who has switched sides for money and power,” the top court said

In March 2020, the Supreme Court removed Manipur minister Thounaojam Shyamkumar Singh, against whom disqualification petitions were pending before the speaker since 2017, from the state cabinet and restrained him “from entering the legislative assembly till further orders”.

The Mukul Roy case

Mukul Roy, who left the BJP to rejoin the Trinamool Congress in June last year, is a classic example of how the anti-defection law has failed to discourage defections. The Opposition BJP in West Bengal has been trying to get him disqualified from the state assembly under the anti-defection law since then. His disqualification petition has been pending before the speaker of the Bengal assembly since July 2021.

The matter reached the courts as well. In November last year, the Supreme Court asked the West Bengal assembly speaker to decide “expeditiously” the petition for Roy’s disqualification.