ANTI DEFLECTION

LAW

Q. WHAT DOES “DEFLECTION” MEAN?

The term defection indicates revolt, dissent, and
rebellion by a person or a party. Generally, defection
refers to leaving an association to join another. In a
political scenario, it is a situation when a member of a
political party leaves his party and joins hands with
other parties.
Q. WHEN WAS THIS LAW ADDED?
This law was added to the constitution as the Tenth
schedule through the 52nd Amendment Act in the year
1985.
Q. WHAT DOES “ANTI-DEFLECTION LAW” DO?
The term "anti-defection law" refers to legislation
which prevents elected representatives from switching
parties or disobeying the directives of their party
leadership after being elected.
Q. WHY WAS THIS LAW NEEDED?
This law was necessitated due to several reasons:
1. Political Stability: India witnessed instances where
elected representatives switched parties frequently,
leading to political instability. These defections often
occurred for personal gain or as a result of political
manoeuvring, rather than genuine ideological
differences. Such frequent changes could destabilize
governments and compromise the functioning of
democracy.

2. Preserving Mandate: When voters elect

representatives from a particular party, they expect
them to uphold the manifesto and promises made by
that party during the election. Defections undermine
this mandate, as representatives may switch parties for
reasons unrelated to the interests of their constituents.
Anti-defection laws aim to ensure that elected
representatives remain accountable to the voters who
elected them.

3. Preventing Manipulation: Political parties may

engage in unethical practices to lure representatives
from other parties, including offering inducements or
making threats. This can lead to manipulation of the
democratic process and compromise the integrity of
the electoral system. Anti-defection laws help prevent
such manipulation by imposing penalties on defectors
and those who induce defections.

4. Party Discipline: Political parties play a crucial role in

the functioning of democracy, and internal discipline is
essential for their effective operation. Anti-defection
laws reinforce party discipline by discouraging elected
representatives from acting against the decisions and
policies of their respective parties. This ensures a more
cohesive and stable political environment.
5. Constitutional Mandate: The Tenth Schedule of the
Indian Constitution, commonly known as the Anti-
Defection Law, was introduced through the 52nd
Amendment Act in 1985. This amendment was a
response to the growing problem of defections and
aimed to strengthen the democratic fabric of India by
curbing this practice.

Overall, the anti-defection law was required in India to

uphold the principles of democracy, ensure political
stability, preserve the integrity of the electoral process,
and reinforce party discipline.
EVOLUTION OF ANTI-DEFLECTION LAW
It was Shri P. Venkatasubbaiah’s resolution which was
discussed in Lok Sabha on 8 December 1967. This
resolution was taken up because, in the elections of
1967, INDIAN NATIONAL CONGRESS won the elections
and Indira Gandhi became the prime minister of India.
During this time, a lot of ministers were deflecting from
one political party to another, which caused chaos
leading to political instability, to overcome this, this
resolution was introduced.
IMPORTANT FEATURES OF ANTI-DEFLECTION LAW
  The members disqualified under this law can stand
for elections from any political party for a seat in
the same house.
 DECIDING AUTHORITY
The deciding authority of this law is the presiding
officer, i.e. speaker of the house in the Lok Sabha
and the chairman in the Rajya Sabha.
 The law does not provide a time frame.
GROUNDS FOR DISQUALIFICATION
 If an elected member voluntarily gives up his
membership of a political party.
 If an independently elected member joins any
political party.
 If any nominated member joins any political party
after the expiry of six months.
FEW OF THE RECENT JUDGEMENTS REGARDING THE
ANTI DEFLECTION LAW
1. GIRISH CHODANKAR V SPEAKER, GOA
LEGISLATIVE ASSEMBLY
10 congress MLAs and two MGP MLAs, deflected
to BJP in 2019 are exempted from disqualification.
They were exempted because this was considered
as a merger of this group of congress MLAs is
 “deemed to be a merger” the original political
party with the BJP.
2. Rajendra Singh Rana v Swami Prasad Maurya
(2007).
Interpreted the term “voluntarily giving up
membership of a political party”;
“a person may be said to have voluntarily given up
membership of an original party though he or she
has not tendered resignation from membership of
the party.
SHORTCOMINGS OF THIS LAW

Undermining representative and parliamentary

democracy : due to the anti-defection law the chain of
accountability has been broken by making legislators
accountable primarily to the political party

Controversial role of the speaker : in many instances

the speaker (usually from the rolling party ) has
delayed deciding on the disqualification
No recognition of split: The 91st amendment does not
recognise a ‘split’ in the legislature party and instead
recognises a ‘merger’

Subversion of electoral mandates: by legislators who

get elected on the ticket of one party but then find it
convenient to shift to another.

Promote horse trading: Of legislators who go against

the mandate of a democratic setup
 ELECTORAL
REGISTRATION
OFFICER RULES
(1960)

The Electoral Registration Officer Rules (1960) in India

provide guidelines and procedures for the
appointment, powers, duties, and functions of Electoral
Registration Officers (EROs) under the Representation
of the People Act, 1950 and the Representation of the
People Act, 1951. These rules govern the process of
electoral registration, which is crucial for the conduct
of free and fair elections in India. Here are some key
provisions of the Electoral Registration Officer Rules
(1960):
1.Appointment of EROs: The rules specify the process
for appointing Electoral Registration Officers (EROs) by
the Election Commission of India (ECI). EROs are
typically government officials responsible for
overseeing the electoral registration process in their
respective jurisdictions, such as districts or
constituencies.
 2. Powers and Duties: The rules outline the powers
and duties of EROs, including the responsibility to
compile and maintain electoral rolls, conduct
revisions and updates to the rolls, and ensure the
accuracy and completeness of voter lists. EROs are
also tasked with supervising the work of Booth
Level Officers (BLOs) and other election officials
involved in the registration process.

3. Preparation of Electoral Rolls: EROs are responsible

for the preparation and revision of electoral rolls in
accordance with the provisions of the Representation
of the People Act, 1950 and the Representation of the
People Act, 1951. This includes the inclusion, deletion,
and correction of names and other details of eligible
voters, as well as the conduct of special revision
campaigns and door-to-door verification exercises.

4. Publication of Draft Rolls: The rules specify the

procedures for publishing draft electoral rolls and
inviting objections and claims from the public. EROs are
required to display draft rolls at designated locations
and provide opportunities for citizens to verify their
details and raise objections or submit claims for
inclusion or correction.

5. Finalization of Rolls: After considering objections

and claims received during the objection period, EROs
are responsible for finalizing the electoral rolls and
preparing the revised voter lists for publication. The
final rolls are then certified by the ERO and submitted
to the Election Commission for approval.

6. Training and Supervision: The rules may also include

provisions for the training and supervision of EROs and
other election officials to ensure uniformity and
efficiency in the electoral registration process. Training
programs may cover topics such as electoral laws,
procedures, and the use of electoral management
software.

Overall, the Electoral Registration Officer Rules (1960)

play a crucial role in regulating the electoral
registration process in India, ensuring that eligible
citizens have the opportunity to exercise their right to
vote in free and fair elections. These rules help
maintain the integrity and credibility of the electoral
rolls and contribute to the smooth conduct of
democratic elections in the country.
DECLARATION OF
ASSETS
It is common knowledge that individuals contesting
elections have to file an affidavit, declaring
(i) their criminal records (if any)
(ii) assets & liabilities and
(iii) educational qualification.
What is not widely known is that after getting elected,
Members of Parliament are required to file a
declaration of assets and liabilities with the Speaker of
Lok Sabha and the Chairman of Rajya Sabha. The rules
to this effect were made in 2004 under the
Representation of Peoples Act, 1951. These
declarations have to be made by MPs within 90 days of
taking their seat in Parliament. Rules for Lok Sabha
MPs an be found hereand those for Rajya Sabha MPs
can be found here. The Rajya Sabha rules specify that
the declarations made by MPs shall be made availaible
to any person with the written permission of the
Chairman. The rules also specify that Rajya Sabha
MPs are required to update their declarations every
year. The Lok Sabha rules specify that the declarations
made by the Lok Sabha MPs shall be treated as
confidential and shall not be made available to any
person without the written permission of the Speaker.
The rules also do not contain an express provision for
the declaration made by the MPs to be updated in case
there is a change in the status of their assets and
liabilities. Such rules under the Representation of
Peoples Act currently do not exist for MLAs in States.
These provisions aim to promote transparency,
accountability, and integrity in governance. Here are
these provisions at a glance :
Representation of the People Act, 1951:

Section 75A of the Representation of the People Act,

1951, mandates candidates contesting elections to the
Indian Parliament (Lok Sabha) and State Legislative
Assemblies (Vidhan Sabha) to file an affidavit disclosing
their assets, liabilities, educational qualifications, and
criminal record, if any, along with their nomination
papers. This provision aims to provide voters with
relevant information about the candidates' financial
status and background before casting their votes.

The Conduct of Elections Rules, 1961:

Rule 4A of the Conduct of Elections Rules, 1961,
further elaborates on the requirement for candidates
to submit affidavits declaring their assets and liabilities.
Candidates are required to provide details such as
movable and immovable assets, financial investments,
bank account balances, and any outstanding liabilities.
These affidavits are made available to the public by the
Election Commission of India (ECI) for scrutiny and
transparency.
Prevention of Corruption Act, 1988:
The Prevention of Corruption Act, 1988, requires public
servants to declare their assets and liabilities, including
those of their spouses and dependent children, at the
time of assuming office and annually thereafter. This
provision aims to prevent corruption and illicit
enrichment by public officials and to deter the
accumulation of disproportionate assets.

Code of Conduct for Public Servants:

Various government departments and institutions have

their own codes of conduct and guidelines that
mandate public servants to declare their assets and
liabilities periodically. These declarations are often
required to be made to the appropriate authority
within the department or institution and may be
subject to verification and scrutiny.

While these provisions exist to promote transparency

and integrity in public life, enforcement and
compliance vary, and instances of non-disclosure or
incomplete disclosure of assets by public officials have
been reported. Efforts to strengthen mechanisms for
asset declaration, enhance transparency, and hold
public officials accountable are ongoing, with periodic
revisions and amendments to existing laws and
regulations.
 GOVERNING FROM
JAIL

The Indian Constitution does not explicitly prohibit

individuals from governing or holding public office
while being incarcerated. However, some certain legal
provisions and principles may impact the ability of a
person to govern from jail:

1. Disqualification under the Representation of the

People Act, 1951:
 Section 8 of the Representation of the People Act,
1951, disqualifies individuals who are convicted and
sentenced to imprisonment for certain offences from
contesting elections or holding public office for a
specified period. However, this disqualification may not
apply if the conviction is stayed or overturned on
appeal, or if the sentence is suspended.

2. Right to Representation and Political Participation:

The Indian Constitution guarantees the right to

representation and political participation to all citizens,
subject to certain restrictions and qualifications. While
being incarcerated does not automatically disqualify a
person from exercising their political rights, practical
considerations such as access to communication,
participation in electoral campaigns, and physical
presence may pose challenges to effective governance
from jail.

3. Legal and Administrative Considerations:

 Even if a person holds public office while in jail, they
may face practical limitations in performing their
duties, such as attending meetings, conducting official
business, or interacting with constituents. In such
cases, alternative arrangements may need to be made
to ensure the smooth functioning of government and
the delivery of public services.

4. Judicial Interpretation and Legal Precedents:

Judicial interpretation of constitutional provisions and

legal precedents may influence the extent to which
individuals can govern from jail. Courts may adjudicate
specific cases involving the eligibility or disqualification
of elected representatives who are incarcerated, taking
into account constitutional principles, statutory
provisions, and the facts of each case.

LOOKING AT THE RECENT ARREST OF THE CHIEF

MINISTER OF DELHI: ARVIND KEJRIWAL
A public interest litigation has been filed before the
Delhi High Court for allowing Chief Minister Arvind
Kejriwal, who is in judicial custody in the liquor policy
case, to run the government from jail.
The plea moved by Shrikant Prasad, an advocate by
profession, seeks for necessary arrangements for
Kejriwal to interact with cabinet ministers through
virtual conferencing.
It seeks to restrain the media houses from creating
“pressure and airing sensational headlines” regarding
Kejriwal's resignation and imposition of presidential
rule in the national capital.
The PIL also seeks to restrain Virendra Sachdeva, BJP
Delhi president, from making any “undue pressure” by
protest or statement by “illegal means” for Kejriwal's
resignation and to initiate action against him for
gathering “illegal assembly” for protest at DDU Marg
on April 10.
It alleges that Sachdeva is arranging “tremendous
pressure” by holding mass-level protests and affecting
traffic and peace with “politically motivated malafides.”

The petition submits that the governance of Delhi for

the last 7 years has an excellent track record, in the
education and health sector.
It adds that the present situation of the national capital
is an “extreme denial of fundamental right violations of
Delhi people” under Articles 21,14 and 19 of the
Constitution of India. The PIL states that neither the
Constitution of India nor any law has prohibited any
ministers including, the chief minister or prime
minister, from running the government from jail.

The petitioner, Shrikant Prasad, has said that he is

approaching the court on behalf of the poor and
marginalized people of Delhi who are getting benefits
from Delhi Government schemes but are not aware of
their rights.
“Petitioner is a citizen of this country, and he is
aggrieved with the non-functionary of Delhi
government because the Hon’ble chief minister is in
Tihar prison complex jail In judicial custody due to
political malafides and virtual false implication in Delhi
liquor policy case but considering the best governance
of Delhi in the country in terms of education, health etc
and due to constitutional safeguards we pray for urgent
hearing of this petition seeking permission to run
government from jail and therefore the urgency to list
the matter as soon as possible,” the urgent application
annexed with the petition reads.

Kejriwal was arrested by the Enforcement Directorate

(ED) on the night of March 21. His judicial custody is
expiring on April 23.
On April 10, the Delhi High Court dismissed Kejriwal's
plea challenging his arrest, observing that ED was able
to place enough material, statements of approvers and
AAP's own candidate stating that Kejriwal was given
money for Goa elections.
The Delhi Chief Minister has challenged the said order
of the Delhi High Court bench of Justice Swarana Kanta
Sharma before the top Court. The Supreme Court has
issued notice on the plea but refused to grant any
interim relief.
AAP leaders Manish Sisodia and Sanjay Singh are also
accused in the case. While Sisodia continues to remain
in jail, Singh was recently granted bail by the Supreme
Court under a concession given by the ED.
ED has alleged that Arvind Kejriwal is the "kingpin" of
Delhi excise scam and is directly involved in the use of
proceeds of crime accounting for over Rs. 100 crores.
It is ED's case that the excise policy was implemented
as part of a conspiracy to give wholesale business profit
of 12 per cent to certain private companies, although
such a stipulation was not mentioned in the minutes of
meetings of the Group of Ministers (GoM).
The Central agency has also claimed that there was a
conspiracy that was coordinated by Vijay Nair and
other individuals along with South Group to give
extraordinary profit margins to wholesalers. Nair was
acting on behalf of Chief Minister Arvind Kejriwal and
Manish Sisodia, according to the agency.
Overall,
while the Indian Constitution does not expressly
address the issue of governing from jail, various legal
and practical considerations may affect the ability of
individuals to hold public office or exercise political
authority while incarcerated. These considerations may
include disqualification under electoral laws, logistical
challenges, and judicial interpretation of constitutional
principles.
 ELECTORAL BOND
SCHEME

The Electoral Bond Scheme is a financial mechanism

introduced by the Government of India in 2018 to
enable political donations to political parties in a more
transparent manner. Under this scheme, individuals
and corporate entities can purchase electoral bonds
from designated branches of specified banks. These
bonds can then be donated to registered political
parties, who can encash them through their designated
bank accounts.

Here are some key features of the Electoral Bond

Scheme:

1. Anonymity of Donors: One of the main features of

the Electoral Bond Scheme is the anonymity it provides
to donors. The identity of the donor is not disclosed to
the public or the recipient political party. This aims to
protect donors from potential retribution or
harassment due to their political affiliations.
2. Validity Period: Electoral bonds are issued for a
specified period and can be encashed only within that
timeframe. Initially, the bonds had a validity period of
15 days, during which they could be used to make
donations. The validity period was later extended to 30
days to facilitate larger donations.

3. Denominations: Electoral bonds are issued in fixed

denominations ranging from Rs. 1,000 to Rs. 1 crore
(approximately $14 to $140,000). This allows donors to
make contributions of varying amounts according to
their financial capacity.

4. Eligible Recipients: Only registered political parties

are eligible to receive electoral bonds. These parties
must meet certain criteria, including having secured at
least 1% of the votes polled in the previous general
election or state assembly election.

5. Transparency: While the Electoral Bond Scheme

aims to enhance transparency in political funding,
some critics argue that it falls short in this regard. Since
the identity of the donor is not disclosed, there are
concerns about potential misuse of the scheme for
money laundering or opaque political financing.

6. Legal Framework: The Electoral Bond Scheme is

governed by rules notified by the Government of India
under the Reserve Bank of India Act, 1934, and the
Representation of the People Act, 1951. These rules
outline the procedures for the issuance, encashment,
and accounting of electoral bonds.
7. Purchase and Encashment
 Electoral bonds can be purchased digitally or
through cheques.
 Encashment only through the authorised bank
account of the political party.
 Parties must disclose their bank account with the
Election Commission of India.
 Political parties are obligated to explain the
utilisation of the funds received.
8. Purchasing time: The bonds can only be purchased
between the 10-day window falling in the months of
January, April, July and October
Overall, the Electoral Bond Scheme was introduced as a
means to promote transparency and accountability in
political funding by providing a legal route for making
donations to political parties. However, it has been a
subject of debate and controversy, with critics raising
concerns about its impact on transparency and fairness
in the electoral process.

RECENT DEVELOPMENTS ON THE ELECTORAL BOND

SCHEME

In a landmark judgment on February 15, 2024, a five-

judge Bench of the Supreme Court of India declared
the electoral bond scheme unconstitutional. This was a
scheme which opened the floodgates of unlimited
anonymous funding of political parties and
consolidated the role of big money in the Indian
political system.
It was said that the electoral bond scheme is violative
of THE RIGHT TO INFORMATION under Article 19(1)(a),
and hence unconstitutional.

ALL OF THE CONCERNS WHICH LED TO THIS DECISION

 Contradicting to its basic idea.
 Possibility of extortion
 A Blow to Democracy
 Favouritism towards rich corporates
 Compromising the right to know
 Against free and fair elections
 Crony capitalism