The anti-defection law in India refers to provisions under the Tenth Schedule of the Constitution of India that aim to prevent political defections by elected Members of Parliament (MPs) and Members of Legislative Assembly (MLAs). The law sets out the procedures for disqualifying MPs and MLAs who defect from their political parties. Here’s an overview of the research on the anti-defection law and the procedure for disqualification:
1. Anti-Defection Law:
The anti-defection law was enacted in 1985 to address the issue of political instability caused by defections. It seeks to maintain the stability of the government and to uphold the principles of party discipline and loyalty. The law applies to both Parliament (MPs) and state legislatures (MLAs) and applies to all political parties.
2. Grounds for Disqualification:
The law outlines specific grounds under which an MP or MLA may be disqualified. These grounds include:
a. Voluntarily giving up membership of a political party.
b. Voting or abstaining from voting against the party’s directions.
c. Joining another political party.
d. Holding an office of profit under the government (for MPs only).
3. Role of the Presiding Officer:
The Presiding Officer of the concerned legislative body plays a crucial role in deciding disqualification cases. When a disqualification petition is filed, the Presiding Officer examines the evidence and hears the concerned parties. The decision of the Presiding Officer can be challenged in the respective High Court and ultimately in the Supreme Court.
4. Time Frame for Disqualification:
The law does not specify a fixed time frame for deciding disqualification cases. However, the Supreme Court has held that the Presiding Officer should decide the matter within a reasonable time, typically within three months. Delays in deciding cases have been a matter of concern, and efforts have been made to expedite the process.
5. Exceptions to Disqualification:
The law provides certain exceptions where defection does not attract disqualification. These exceptions include splits or mergers of political parties, and when two-thirds of the members of a party merge with another party.
6. Implications of Disqualification:
If an MP or MLA is disqualified under the anti-defection law, they lose their seat in the legislative body. A by-election is then conducted to fill the vacant seat. Disqualified members are also barred from holding any ministerial or remunerative political positions during the remainder of the term for which they were elected.
The procedure for the disqualification of an MLA (Member of Legislative Assembly) or MP (Member of Parliament) after defection is governed by the Tenth Schedule of the Constitution of India and the laws and rules made under it. Here is a step-by-step overview of the procedure:
1. Filing a Disqualification Petition: A petition seeking the disqualification of an MLA or MP is filed by either a political party or any other member of the concerned legislative body. The petition must be submitted to the Speaker/Chairperson of the legislative body in which the member is serving.
2. Examination by the Presiding Officer: The Presiding Officer (Speaker/Chairperson) examines the petition and decides whether it meets the requirements for initiating disqualification proceedings. The Presiding Officer may seek additional information or evidence if necessary.
3. Issuance of Notice: If the Presiding Officer is satisfied with the petition, a notice is issued to the concerned member, informing them about the disqualification proceedings and providing an opportunity to present their case.
4. Submission of Reply: The member who is facing disqualification has a specified period (usually 7 days) to submit a written reply to the notice. They can provide their explanation, present their evidence, and argue against their disqualification.
5. Hearing: After receiving the reply, the Presiding Officer schedules a hearing. Both the petitioner (the political party or member who filed the petition) and the respondent (the member facing disqualification) are given an opportunity to present their arguments and evidence. The Presiding Officer may also call witnesses or experts if required.
6. Decision by the Presiding Officer: Based on the evidence, arguments, and relevant legal provisions, the Presiding Officer makes a decision regarding the disqualification. The decision can either be in favor of disqualification or against it. The Presiding Officer should ideally decide the case within a reasonable time, typically within three months, although there have been delays in some cases.
7. Appeal: If the member is disqualified, they have the right to appeal against the decision of the Presiding Officer. The appeal can be filed in the respective High Court within a specified period (usually 30 days) from the date of the decision. Further appeals can be made to the Supreme Court if required.
8. Execution of Disqualification: Once the disqualification is upheld by the higher courts (if appealed), the disqualified member loses their seat in the legislative body. A vacancy is created, and a by-election is conducted to fill the vacant seat.
Power of the Speaker
The power to dismiss or disqualify an MP (Member of Parliament) or MLA (Member of Legislative Assembly) after defection lies with the Presiding Officer (Speaker/Chairperson) of the respective legislative body. Here’s an explanation of the power of the Presiding Officer to dismiss or disqualify members after defection:
1. Dismissal Power:
The Presiding Officer, such as the Speaker of the Lok Sabha or the Speaker/Chairperson of a State Legislative Assembly/Council, has the authority to exercise the power of dismissal in certain situations. If a member engages in disorderly conduct, disrupts proceedings, or fails to follow the rules and decorum of the legislative body, the Presiding Officer may order their dismissal from the House. The Presiding Officer’s power of dismissal helps maintain order and discipline within the legislative body.
2. Disqualification Power:
The Presiding Officer, under the provisions of the Tenth Schedule of the Constitution of India (anti-defection law), has the power to disqualify members who defect from their political parties. When a member is alleged to have violated the provisions of the anti-defection law, a disqualification petition can be filed with the Presiding Officer. The Presiding Officer serves as the competent authority to decide on such petitions and determine whether the member should be disqualified or not.
3. Adjudication of Disqualification Petitions:
Upon receiving a disqualification petition, the Presiding Officer examines the evidence, hears the concerned parties, and decides whether the member should be disqualified. The Presiding Officer acts as an impartial arbiter in the proceedings, giving the member an opportunity to present their case and ensuring a fair hearing. The decision of the Presiding Officer can be challenged in the respective High Court and, ultimately, in the Supreme Court.
4. Certification of Disqualification:
If the Presiding Officer finds a member to be disqualified, they issue a certificate to that effect. The certificate of disqualification issued by the Presiding Officer is considered final and conclusive unless it is challenged and overturned by a higher judicial authority. The disqualified member loses their seat in the legislative body, and a by-election is conducted to fill the vacant seat.