The anti-defection law — political facts, legal fiction

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The anti-defection law — political facts, legal fiction

  • Crisis in Maharashtra and earlier instances are reminders of what the Tenth Schedule can and cannot do.

Anti-defection law

Tenth Schedule

  • Added by 52nd Amendment Act, 1985.
  • Commonly known as ‘anti-defection law’.
  • Aimed to refrain legislators from changing political affiliations during their term in office.

Law on defections - ‘mergers’

  • Paragraph 4: Exception for mergers between political parties by
  • Original political party: A political party to which a member belongs (this can refer to the party generally, outside of the House).
  • Legislature party: A group of all elected members of a House for the time being belonging to one political party
  • Deemed merger: When the original party merges with another political party and at least two-thirds members of party should agree.
  • Impact: individual Members remain vulnerable to disqualification while group defections remain exempted.
  • Need:
  • To protect principle merger of political groups from disqualification
  • To strike a compromise b/w right of dissent and party discipline

Way forward

  • Abide by the recommendations of the Law Commission, 1999 and NCRWC, 2002 to delete Paragraph 4.
  • Academic revisiting of Tenth Schedule by SC to guide future use of the anti-defection law.