Explained: Anti-defection law, for independent legislators

What is the News?

An independent MLA from Gujarat has said he has joined the Congress “in spirit”. This is because, under the anti-defection law, an independent lawmaker becomes disqualified if the person joins a political party after the election.

What is Anti Defection Law?

The Tenth Schedule — popularly known as the Anti-Defection Law— was included in the Constitution via the 52nd Amendment Act, 1985.

The Act specifies the circumstances under which changing of political parties by legislators invites action under the law. 

What are the circumstances covered under the act?

The Act covers three scenarios with respect to the shifting of political parties by an MP or an MLA:

First Scenario: The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House against the wishes of the party. 

Second Scenario: The second is when a legislator who has won his or her seat as an independent candidate joins a political party after the election.

In both these instances, the legislator loses the seat in the legislature on changing (or joining) a party.

Third Scenario: The third relates to nominated MPs. In their case, the law gives them six months to join a political party, after being nominated. If they join a party after such time, they stand to lose their seat in the House.

Are there any exceptions under the law?

Yes, legislators may change their party without the risk of disqualification in certain circumstances. The 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.

Who decides Disqualification?

Under the anti-defection law, the power to decide the disqualification of an MP or MLA rests with the presiding officer of the legislature. The law does not specify a time frame in which such a decision has to be made.

As a result, Speakers of legislatures have sometimes acted very quickly or have delayed the decision for years — and have been accused of political bias in both situations. Last year, the Supreme Court observed that anti-defection cases should be decided by Speakers in three months’ time

Source:  This post is based on the article “Explained: Anti-defection law, for independent legislators” published in Indian Express on 29th Sep 2021.