Dr. Shakuntala Misra National Rehabilitation University: Lucknow Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University: Lucknow Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University: Lucknow Faculty of Law
Faculty of Law
PROJECT ON
{Antidefection law}
Submitted by
[Anamika Srivastava]
[B.Com.LL.B/2018-19/50]
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
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
Anamika Srivastava
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.
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.
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.:
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
(2).The analysis of the legal concepts is distinct from the sociological and
historical inquiries and critical evaluation.
(5).Law, as it is (actually), has to be kept separate from the law that ought to be.
The main task of the analytical school is the articulate and systematic
exposition of the legal ideas.
Jeremy Bentham
Jeremy Bentham heralded a new era in tha history of legal thought in England.
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’
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.
BENTHAM'S UTILITARIANISM
CONCLUSION
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/