Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

PROJECT ON

{Antidefection law}

Submitted by

[Anamika Srivastava]

[B.Com.LL.B/2018-19/50]

Academic Session: 2018-19

Under the Supervision of

Bhanu sir
Faculty of law
ACKNOWLEDGEMENTS

First and foremost, I am thankful to sir. Bhanu Pratap Singh for allotting me the

topic “ Antidefection law”. He has been very kind in providing inputs for this

work, by way of suggestions materials.

I would also like to thank my dear colleagues and friends in the University, who

have helped me with ideas about this work. Last, but not the least I thank the

University Administration for equipping the University with such good library

and internet facilities, without which, no doubt this work would not have taken

the shape in correct time.

Anamika Srivastava

Enrollment no.- B. Com.LLb-2018-19/50

CONTENTS

1. Acknowledgements
2. Analytical school
3. Meaning of positivism
4. Feature of Theory
5. Jeremy Bentham
6. Jeremy Bentham's views On ‘Law' and Legal positivism
7. Bentham's Utilitarianism
8. Criticism of Bentham theory
9. Conclusion
10. Bibliography
Introduction

Initially, the Constitution of India did not have any mention about the political
parties. But, gradually when the multi-party system evolved, there had have
been defections in the Indian Parliamentary System where there have been shift
of people from one political party to another which resulted in breaking down
of public confidence in a democratic form of Government.

Defection is “desertion by one member of the party of his loyalty towards

his political party” or basically it means “When an elected representative
joins another party without resigning his present party for benefits”.

This practice of elected members switching the political sides to get office is
also known as Horse- Trading. It is also known as “Floor Crossing” in U.K.
and “Carpet Crossing” in Nigeria. The person who does such act of been
elected from one party and enjoys benefits from other party is known as
“Defector” or “Fence Sitters” or “Turn Coats”.

There was uncontrolled Horse- Trading and corruption been prevailed in the
political parties. One of the major incidents in the India’s Political History
occurred after 1967 elections; where about 142 MP’s and 1900 MLA’s had
switched their respective

political parties. So, in order to restrain such practice, the Rajiv Gandhi
Government in 1985 introduced Anti-Defection laws in the Indian Constitution.
It was introduced by way of the 52 nd Amendment in the Constitution, which
inserted tenth Schedule in the Constitution; which is known as the Anti –
Defection law. This amendment helped to restrict the elected members
belonging to a political party to leave that party and switch to another party in
Parliament.
Objectives

The word politics comes from the Greek word “Politika” which means “of, for,
or relating to citizens”. The politicians though make promises to do things for
the benefits of citizens but hardly fulfil all of them. The main objective for
which The Anti-Defection Laws was introduced in the Constitution was to
combat “the evil of political defections”.

The law was passed after the Late Rajiv Gandhi became the Prime Minister of
the country. This law would not have been enacted if there had been no
Government of Rajiv Gandhi and the majority to pass it. This law was passed so
that it restricts the defections in the politics but the increasing hunge legislatures
and with our legal fraternity it was not a difficult task to find loopholes in this
law; which will be discussed later.

International scenario on Anti Defection Law

Anti- defection law is not only practiced in India but it is prevalent in various
other countries like Bangladesh, Kenya, South Africa, etc. Article 70 of the
Bangladesh Constitution says a member shall vacate his seat if he resigns from
or votes against the directions given by his party. The dispute is referred by the
Speaker to the Election Commission.

Section 40 of the Kenyan Constitution states that a member who resigns from
his party has to vacate his seat. The decision is by the Speaker, and the member
may appeal to the High Court.

Article 46 of the Singapore Constitution says a member must vacate his seat if
he resigns, or is expelled from his party. Article 48 states that Parliament
decides on any question relating to the disqualification of a member. Section 47
of the South African Constitution provides that a member loses membership of
the Parliament if he ceases to be a member of the party that nominated him.
The 52nd Constitutional Amendment:-

nd
The 52 Amendment Act, 1985 lead to amendment in Article 101, 102, 190 and 191 of the
Constitution to provide the grounds for vacation of seats for the disqualification of the
members ; and also inserted Tenth Schedule.

The statement of objects and reasons been given for the amendment is:

“The evil of political defections has been a matter of national concern. If it is not

combated, it is likely to undermine the very foundation of our democracy and the principles
with sustain it.” 1

Rule 2- tenth schedule lays the grounds for disqualification of the member’s i.e.:

1. If a member of a house belonging to a political party:

a. Has voluntarily given up his membership of such political party, or
b. Votes, or abstain from voting in such House, contrary to the direction of his
political party.

typing

as secular, positivistic and empirical. In fact, it was Austin who propounded the
theory of positive law, the foundation of which was laid by Bentham.
Meaning of Positivism

The term ‘positivism’ has 5 meanings:

(1). Law commands.

(2).The analysis of the legal concepts is distinct from the sociological and
historical inquiries and critical evaluation.

(3).pre-determined rules can deduce decisions.

(4).Moral judgments cannot be accepted or defended by rational arguments.

(5).Law, as it is (actually), has to be kept separate from the law that ought to be.

(6).The fifth meaning is correctly associated with positivism.

Features of the Theory

 The purpose of the analytical school of jurisprudence is to analyze the first
principles of law.

 The main task of the analytical school is the articulate and systematic
exposition of the legal ideas.

 One motive of the analytical school is to gain an accurate and intimate

understanding of the fundamental working concepts of all legal reasoning.

 The analytical school takes law as the command of the sovereign.

 It puts emphasis on legislation as the source of law. The whole is based on

It's concept of law

Jeremy Bentham

Jeremy Bentham heralded a new era in tha history of legal thought in England.

He is considered to be the founder of positivism in the mordern sense of the

term .It has been rightly said that Austin owes much to Bentham and on many
points his propositions are merely the para-phasing of Bentham's theory.
Bentham’s classic works reveal that truly speaking,he should be considered to
be father of analytical positivism and not john Austin as it is commonly
believed.
Bentham was the son of wealthy London Attorney.His genius was of rarest
quality.He was talented person having the capacity and accused of a jurist and a
logician. Dicey in his book ‘law and public opinion in 19th century’ has
sketched Bentham’s ideas about individulism,Law and league reforms which
have affected the growth of english law in positive direction.

Bentham’s divides jurisprudence in two types:

1. Expositorial jurisprudence

2. Censorial jurisprudence

1. It concern with the law. It is without any regard to it's moral or immoral
character

2. It concern with the science of legislation that is ‘ what the law ought to be’

Jeremy Bentham's views on ‘law ‘ and legal positivism

English law as it existed at the end of 18th century, when bentham was
still in his youth and developed almost in a haphazard way as a result of
customs Or modes of thought which prevailed at difference period. The
laws which we're then existence were not enacted with any definite
guiding principles behind them. The law of Europe,had grown out of
occasion and emergency.lt is for this reason that it is often said that
England law had in fact grown, rather than made.

Jeremy Bentham define law ‘as an assemblage of signs declarative of a

volition conceived or adopted by the sovereign in state, concerning the
conduct to be observed in a certain case a certain person or class of
person, who in the case in question are Or are supposed to be subject to
his power ; such volition trusting for it's accomplishment to the
 expectation of certain events which it is intended Such declaration
should upon occasion be a means of bringing to pass and the prospect of
which it is intended should act as a motive upon those whose conduct is
in question

BENTHAM'S UTILITARIANISM

Bentham as an individualist believed that the function of law is to

emancipate individual from the bondage and restraint upon his freedom.
He supported the economic principle of ' laissez-faire' which meant
minimum interference of the state in the economic activities of
individuals. Bentham propounded the principle of utilitarianism.
According to this theory, the right aim of legislation is the carrying out of
the principle of utility. In other words,the proper end of every law is the
promotion of the greatest happiness of the 'greatest number '. Bentham
defined 'utility' as 'the property or tendency of a thing to prevent some
evil or procure some good '. According to him, the consequences of good
and evil are respectively 'pleasure' and 'pain'.

Around 1830, Bentham's utilitarianism had become the most popular

creed of English legislative reforms. Bentham proceeded from the axiom
that nature has placed mankind government of two sovereign masters i.e.,
pleasure and pain. They alone point out to us what we ought to do and
what we should refrain from doing. The good or evil of an action should
be measured by the quality of pain and pleasure resulting from it.

The task of government according to Bentham, was to promote happiness

of society by furthering enjoyment of pleasure and affording security
against pain. He was convinced that if individuals comprising society was
happy and contented, the whole body politic would enjoy happiness and
prosperity

Bentham believed that happiness of the social order is to be understood in

the objective sense and it broadly includes satisfaction of certain needs,
 such as need to fed, clothed, housed, etc. According to him, happiness
changes its significance in the same way as the meaning of happiness also
undergoes changes with the changes in societal norms

As state earlier, Bentham desired to ensure happiness of the community

by attaining four major goals, namely,. (1) subsistence, (2) abundance, (3)
equality, and (4) security for the citizens. Therefore, the function of law
must be to meet these ends i.e. to provide subsistence, to produce
abundance, to favour equality, and to maintain security. Of these four
ends of legal regulation, security was of foremost importance to him as it
was related to protection of honour, property and status of a person. He
pointed out that individual liberty, though a highly important branch of
security, must sometimes yield to consideration of general security. In the
opinion, it is not liberty but security and equality which should form the
main objective of legal regulation.

Bentham never questioned the desirability of economic individualism and

property. He firmly believe that people's right to property must be
respected for the welfare of the state. Society should encourage private
enterprise so as to promote opportunities for subsistence and abundance.
Bentham rejected natural rights and recognised no limitations on
parliamentary sovereignty.

Criticism of Bentham’s Theory

There are two shortcomings of Bentham’s theory.

1. Bentham’s abstract and doctrinaire rationalism

2. Bentham’s weakness to develop clearly his own conception of the balance

between individual and community interests.

John Austin and Analytical Positivism

John Austin is the originator of the analytical school. He is the father of Engish
Jurisprudence. The scientific treatment of Roman Law influenced Austin. For
that reason, he started the scientific arrangement of English law. Like Bentham,
Austin was of the opinion that ‘law’ is only an aggregate of individual laws. In
his lecture book titled ‘The Province of Jurisprudence Determined’, Austin dealt
with the nature of law, sources of law and showcased an analysis of the English
legal system. The major thrust in Austinianpositive law was on the separation of
law from morals. Salmond has criticized Austin’s theory of law which
completely deprives law from morality.

CONCLUSION

The founder of positivism is Jeremy Bentham. Austin owes much to Bentham

and on many points, his prepositions are merely the ‘paraphrasing of Bentham’s
Theory’. According to Betham, there are different aspects of the law.
 1. Source

2. Subjects

3. Objects

4. Extent

5. Aspect

6. Force

7. Remedial appendages

8. Expression

Bibliography
•https://www.tandfonline.com/doi/abs/10.1080/01440369108531028?
journalCode=flgh20

•https://www.legalbites.in/analytical-school-jurisprudence/

•http://www.legalservicesindia.com/article/2228/Analytical-Legal-
Positivism.html

•https://www.toppr.com/guides/legal-aptitude/jurisprudence/schools-of-
jurisprudence-analytical-positivism/