Anti-Defection Law: Is Disqualification The Death Knell For Maintaining Parliamentary Democracies

Ananya Tiwari, O.P. Jindal Global University

ABSTRACT

This Research Paper aims to discuss the status of Anti Defection Laws in India and further delve into grounds of defection and discuss the challenges that come along the way of these aforesaid laws and further critically analyze the trajectory of cases that have aimed to discuss these challenges and prove certain clarity on the same.

The debate pertaining to the ongoing practice of the legislators of changing their political parties during their term is continuing unabated in the Indian legislatures, even after the insertion of the tenth schedule in the Constitution via the 52nd Amendment Act, 1985. Commonly called the ‘Anti-defection Law’, the objective was to bring stability to the government by arresting the ongoing practice of the legislators (individual members of the parliament, such as MPs and MLAs) from frequently changing their political affiliations during their term in office. The amendment was a response to the falling of multiple state governments because of party hopping MLAS post-general elections of 1967. However, interestingly, on the other hand, the law allows a group of MP/MLAs to join, also called a merger with another political party, and moreover does not even impose a penalty for such defection. As per the 91st constitutional amendment Act 2003, at least two-thirds of the members of a party must be in Favour of a "merger" for it to have validity in the eyes of the law. All decisions pertaining to disqualification on the ground of defection always refer to the speaker of the house or the chairman, further being subjected to judicial review. However, what is important to note here is that the law does not provide any such time frame before the presiding officer decides the case.