Understanding anti-defection law for independent MLAs

Understanding anti-defection law for independent MLAs

The anti-defection law found its roots following the 1967 Lok Sabha elections where numerous defections were observed

Independent Gujarat MLA Jignesh Mevani. Credit: PTI File Photo

As Kanhaiya Kumar joined the Congress on Tuesday, many expected Jignesh Mevani, an independent MLA from Gujarat, to also join the grand old party. 

Mevani, who was beside Kanhaiya when he addressed the press as a party member, said that he has joined the Congress 'in spirit'. He added that he could not join the Congress formally due to "technical reasons." Mevani, however, made it clear that he would fight the Gujarat elections as a Congress candidate. 

Also Read — Kanhaiya, Mevani entry likely to boost Congress bets in Bihar, Gujarat

Mevani explained that he could not enter the party ranks due to the anti-defection law. "I could not join the Congress formally due to technical reasons. I am an independent MLA and if I join a party, I cannot continue as an MLA... I am part of the Congress ideologically, and will fight the upcoming Gujarat polls from the Congress symbol," he said.

Read more: Kanhiaya joins Congress, Mevani to fight next Gujarat polls as Cong candidate

So, what is the anti-defection law and how does it affect independent legislators?

Under the anti-defection law, an independent MLA would have to give up their seat if he or she chooses to join a political party after being elected. Even if a member elected on the ticket of a political party “voluntarily gives up” membership of the party and joins another party, he or she is subjected to anti-defection law where they lose their elected seat.

The law has gathered prominence over the years as instances of legislators contesting an election on a party ticket and then switching boats after winning the seat have risen. 

The anti-defection law or the Tenth Schedule of the Constitution found its roots following the 1967 Lok Sabha elections where numerous defections were observed. Despite as many as 176 independent legislators joining a party, a 1969 Y B Chavan-chaired committee, addressing the issue, did not order any action against the 176 legislators. This was because of the lack of provisions for defection by independent candidates under the laws that existed then, according to a report by The Indian Express. 

However, the law was amended in 1985 to extend the ambit of the law to independent and nominated legislators. Independent legislators are those who contest elections by themselves, without being affiliated with a certain party, whereas nominated members are those who are picked by the party in majority to fill up a certain number of seats reserved for nominated members. 

After the changes to the anti-defection law in 1985, independent legislators were disallowed from joining a party, and a period of six months was allotted to nominated legislators to join one.

What are the scenarios covered by the anti-defection law?

1. If an MLA/MP voluntarily gives up the membership of a party after winning the election on that party's ticket, or votes in the House against the wishes of the party, he or she would need to give up their seat. 

2. If an independent legislator wins a seat and then decides to join a party, then too he or she would have to give up their seat. 

3. Nominated MPs are given six months to join a party after being nominated. They can lose their seat in the House if they fail to join a party during the six months' time.

Who has the power to disqualify defectors?

The Speaker has the power to disqualify a member of the House under the anti-defection law. The Speaker should take the decision to disqualify an MP or MLA within three months based on the Supreme Court's 2020 observation.

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