Anti-Defection Law

Anti-Defection Law

‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.

Politics of Defection

  • Surge in defection was first seen after 4th Lok Sabha in 1967 when out of 16 states , Congress wasn’t able to get clear Majority in 8 states
  • No party was in clear majority and as a result frequent Defections were seen to topple the governments. In 17 months, 17 governments changed in states due to defectors 

Reasons of Defection

  • Death of main leader resulting in fight between earlier equals (ie Ministers) to become Chief Minister or Prime Minister
  • Total absence of ideology in Politics. As a result of its absence, legislators don’t shy while changing parties
  • Various factions within the parties. When particular faction  perceive that other faction is getting more power, they indulge in defections
  • Lure of Ministerial Posts
  • Tremendous gap between emoluments , status and other benefits to Minister and Ordinary Legislator

52nd Amendment Act,1985  &  91st Amendment Act,2003

  • In our original constitution , there wasn’t any provision for Anti Defection
  • These were added through 52nd Amendment, 1985 & 91st Amendment ,2003
  • It added 10th Schedule to Indian constitution.

Provisions of 10th Schedule

Provision 1 : Provisions for Members elected as officers of the house

  • They are allowed to leave their party  while in the office  but they are not allowed to leave their own party & join other party

Provision 2 : Members who are elected but are independent

  • If he join any political party after election , then he would be charged under Anti Defection Laws

Provision 3 : Nominated Members

  • If any member is nominated & he doesn’t belong to any party , he/she has full freedom to join any party within 6 months of nomination but after expiration of this period ,he would be liable to be tried under Anti Defection laws 

Provision 4 : Elected Member belonging to any political Party

There are two grounds for application of Anti Defection Laws

  • If he/she  voluntarily gives up the membership of the party
  • Votes or abstains from voting in legislature, contrary to the direction (whip) of the party. 

Supreme Court in it’s previous judgements has ruled that “voluntarily giving up the membership of the party” is not synonymous with “resignation”. It could be “implied” in participation of the member in anti-party activities

Provision 5 : Exceptions to 10th Schedule

There were two exceptions in original Amendment (52nd Amendment ,1985) ie Split and Merger but 91st Amendment repealed Split.

Split This has been repealed  through 91st Amendment
Exemption from disqualification in case of split  by 1/3rd members of part  
Merger This provision is still present
Will not be disqualified  when atleast 2/3rd members agrees to such merger

Provision 6 : Deciding Authority

  • Chairman of House & his decision shall be final

Provision 7 : Caveat

  • There is no time limit for leader/chairman of house to decide on matter of disqualification

Kihoto Hollohan vs Zachilhu, 1993

  • Supreme Court declared this provision to be unconstitutional
  • Supreme Court Argued
    • It bars jurisdiction of Supreme Court & High Court . To bar jurisdiction of Supreme Court /High Court , Amendment must be passed by Special Majority by both houses + ratified by 50% of state legislature
    • While operating under the Anti-defection Law, the Speaker was in the position of a tribunal and therefore, his decisions like those of all tribunals were subject to judicial review.’
  • Present Situation : there may not be any judicial intervention until the Presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.

Advantages of Anti Defection Law

  1. Provides greater stability in the politics of nation
  2. Facilitates democratic realignment of parties in legislature by way of merger of parties
  3. Reduces corruption at political level
  4. Give clearcut constitutional recognition for existence of political parties for first time

Criticism of Anti Defection Law

  1. It’s vesting of decision-making authority in the Presiding officer is criticized on two grounds.
    • He may not exercise this authority in an impartial manner due to political exigencies.
    • He lacks the legal knowledge and experience to adjudicate upon the cases. 2 Speakers of the Lok Sabha (Rabi Ray-1991 and Shivraj Patil-1993) have themselves accepted this
  2. Increased High Command Culture as  MP’s  cannot  vote  on any  issue  independently.  
  3. Reduced democratic accountability : MPs are elected by people to represent constituency . But due to Anti Defection Law, MP cant go against party line even it is against the interest of people he / she is representing .
  4. Against the basic freedom of association and opinion guaranteed by the Fundamental Rights . Freedom of association and opinion did include the freedom of changing associations and opinions.
  5. Coalition and pre-poll alliances are not covered under Tenth Schedule
  6. It is against Articles 105 and 194 which guarantees the freedom of speech and expression in the Houses of Legislatures at the Center and in the States.

Changes needed in Anti-Defection Law

  1. Disqualification  provision  should  be applicable when Legislators  votes  contrary to  matters  which  are core  to  the  party’s  manifesto
  2. Anti-Defection cases shouldn’t be handed by Chairperson /Speaker of RS/LS . Dinesh Goswami Committee Recommendation :The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
  3. Time in which such cases should be disposed off should be clearly defined because Speakers don’t take up matter for Months and even Years related to Defection. 
  4. Law Commission Recommendation : Pre-poll electoral fronts should be treated as political parties under anti-defection law.

Jan 2020 : Supreme Court asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide on the matter of disqualification under the anti-defection law

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