Anti-Defection Law: How do politicians lose their MP/MLA status?

The Supreme Court has asked the Speaker of the Rajasthan Legislative Assembly to respond to a plea filed by the Bahujan Samaj Party (BSP) against the merger of six BSP MLAs into the ruling Congress party in Rajasthan. In this context, let us look at the law on disqualification of legislators on the grounds of defection.

What is political defection?

Indian legislators (members of legislative bodies, such as MPs or MLAs) may change their political allegiance and jump from one political party to another. Political defection or shifting of party allegiance becomes problematic when it is done as a result of bribes, or an offer of a powerful political position or other benefits. 

What is the law on political defection?

To tackle the problem of political defection, also known as floor-crossing, the Parliament added the Tenth Schedule to the Constitution of India, 1950. The Schedule lays down the process by which legislators may be disqualified on grounds of defection.

Under the Tenth Schedule, a person can be disqualified from being a member of the:

• Lok Sabha
• Rajya Sabha
• State Legislative Assembly
• Legislative Council of a State

Disqualification means that the person cannot be a member of any of these legislative bodies. In other words, upon disqualification, a person belonging to a political party cannot compete in elections for a seat in these houses and cannot become a legislator.

How can legislators get disqualified?

Disqualification of a legislator can happen in two ways:

• A legislator will be disqualified if they voluntarily give up their political party membership, generally through a formal resignation. Sometimes, even without a formal resignation, it is possible to conclude from a person’s behaviour/conduct that they have given up their party membership. 
• Legislators have to vote on various issues in the Parliament/State legislative bodies. Every political party has its own opinion on any issue, and will decide whether party members will vote in favour of an issue or against it. If a member of a political party goes against party orders and does not vote according to the party’s decision, then they will be disqualified. However, the disqualification will not happen if the party decides to accept its member’s vote within fifteen days from the date of voting.

Sometimes, a person who is not a member of any political party gets elected to be a member of a legislative body. In this case, the person will be disqualified if they join any political party after the election.

Can a legislator change their political party without facing disqualification?

Yes, there are certain circumstances in which legislators may change their party without facing disqualification. The law allows a political party to merge with another party if at least two-thirds of its legislative members have agreed to the merger. In a merger situation, the party’s legislative members will not face disqualification, irrespective of whether they have agreed to the merger, or chosen to function as a separate group without merging.

Who decides whether a legislator should be disqualified?

The decision of whether a legislator should be disqualified or not, is taken by the Chairman or Speaker i.e., the Presiding Officer of the legislative body. A legislator is allowed to appeal against the Presiding Officer’s decision in court.