Updated: Sep 4, 2022
Anti-defection Law : 10th Schedule to the Constitution added by the 42nd Amendment 1985. Provisions as to disqualification of MPs and MLAs on grounds of DEFECTION.
The Anti-defection Bill was passed, unanimously, by the Lok Sabha on 31 January 1985. The Bill was later passed by the Rajya Sabha and assented to by the President. This is the 42nd Amendment Act.
The main objective of this Amendment is to outlaw political defections and to cleanse public life to some extent.
Salient Features : By the 42nd Amendment
(i) Arts. 101,102, 190 and 191 and the 9th Schedule of the Constitution have been suitably amended. The major changes are in Art. 121 and the 9th Schedule.
(ii) One controversial clause in the Bill provided for dis- qualification of the members of the Parliament or of State Legislatures, on the basis of their conduct outside their respective legislatures. This clause was omitted by the government which had piloted the Bill.
(iii) The Amendment applies to Members of Parliament and the Members of State Legislatures only.
(iv) An elected member of a House shall be deemed to belong to the Political Party by which he was set up as a candidate for election. In respect of a nominated member, he shall be considered as a member of that Party which he represented as on date of nomination.
(v) 'Defection' from his party disqualifies the Member according to the 9th and 10th Schedules. 'Disqualification' means:-
(a) Voluntarily giving up his membership;
(b) Voting or abstaining in the House, contrary to the whip.(But, prior permission or condoning will not disqualify.)
(vi) Does not apply to Split: 1/3 of the members of the Legislature party may split from the main Political Party. From the time of such split such a faction or group may be deemed to be a Political Party.
(vii) Does not apply to Mergers : A Political party may merge with another Political Party or may form a new party if 2/3 of the Members of each of such Political Parties have agreed to such merger.
(viii) Rules relating to defection do not apply to the Speaker, Deputy Speaker, Chairman or Deputy Chairman, who may by virtue of his office voluntarily give up his Political Party.
(ix) Decisions on disqualifications : As the proceedings to decide the question of disqualification are considered as "Proceedings of the House", no court has any jurisdiction in respect of any matter connected with disqualification of member of the Parliament or State Legislature. This part of the Amendment was struck down as void and ultra vires by the Supreme Court in Kihoto V zachilhu 1992.
(x) Conclusion : Although this Amendment is not a panacea to cure the ills of defection and of changing of colours—like a chemeleon—by the politicians, still, the step taken to cleanse the public life is a welcome feature. Suitable amendments will have to be made to peg-up the loop-holes (especially to cover cases when the Houses are not in session). By itself, the Amendment is a bold step forward to arrest the spree of defections