Anti-Defection Law of India UPSC

Anti-Defection Law in India

Everything you need to know about Anti-Defection Law in India

Defection from one political party to another was grounds for disqualification under the 52nd Amendment Act of 1985, which allowed members of Parliament and state legislatures to be disqualified. It did so by amending four articles of the Constitution and adding a new Schedule to the Constitution (the Tenth Schedule). This statute is also known as the ‘anti-defection law.’

The 91st Amendment Act of 2003 makes one adjustment to the Tenth Schedule’s provisions. It deleted an exemption provision, which stated that disqualification for defection would not apply in the event of a split.

The Act’s provisions

The Tenth Schedule contains the following regulations regarding defection-related disqualification of members of Parliament and state legislatures:

Disqualification 
Members of Political Parties: A member of a House who is a member of a political party is disqualified from being a member of the House if he (a) voluntarily gives up his membership in such political party; or (b) votes or abstains from voting in such House in violation of any direction issued by his political party without obtaining prior permission from such party and such act is not condoned by the party within 15 days.

It is apparent from the preceding paragraph that a member elected on a party ticket must remain in the party and follow its rules.

Independent Members: If an independent member of the House is elected without being nominated by a political party, he is disqualified from remaining a member of the House if he later joins a political party.

Nominated Members: If a nominated member of a House joins a political party after six months from the day he takes his place in the House, he is disqualified from being a member of the House. This implies he can join any political party within six months of taking his House seat without risking being disqualified.

2. Exceptions

The aforesaid defection disqualification does not apply in the following two situations:
(a) If a member leaves his or her political party as a result of a merger with another political party. A merger occurs when two-thirds of the members of a political party agree to it.
(b) If a member willingly gives up his or her membership in his or her political party after being elected as the House’s presiding officer or rejoins it after he or she no longer holds that post. Because of the dignity and impartiality of this office, this exemption has been granted.

The 91st Amendment Act of 2003 repealed the clause in the Tenth Schedule pertaining to exemption from disqualification in the event of a split by one-third of the members of the legislature party. This means that the defectors are no longer protected by the divides.

3. Deciding Authority
The presiding officer of the House will determine on any question of disqualification arising from defection. Originally, the legislation stated that the presiding officer’s decision is final and cannot be challenged in court. The Supreme Court, however, deemed this clause invalid in the Kihoto Hollohan case (1993) because it sought to limit the Supreme Court’s and high courts’ jurisdiction. It was established that the presiding officer acts as a tribunal while deciding a question under the Tenth Schedule. As a result, his judgement, like that of any other tribunal, can be challenged in court for reasons such as mala fides, perversity, and so on. The court, however, rejected the argument that vesting adjudicatory powers in the presiding officer is unlawful in and of itself due to political prejudice.

4. Rule-Making Authority
The presiding officer of a House has the authority to enact rules to give effect to the Tenth Schedule’s requirements. All such rules must be presented before the House for a period of 30 days. They can be approved, modified, or rejected by the House. He may also order that any willful violation of such regulations by any member be dealt with in the same way as a breach of House privilege.

The presiding officer can only take up a defection issue if he receives a complaint from a member of the House, according to the rules. He must offer the member (against whom the complaint has been filed) an opportunity to submit an explanation before making a final decision. He may also refer the matter to the privileges committee for investigation. As a result, desertion has no immediate or automatic consequences.

The Act’s Evaluation
The anti-defection law, enshrined in the Tenth Schedule of the Constitution, is intended to prevent the damage or mischief caused by political defections motivated by the temptation of power, pecuniary gains, or other similar motives. Its goal is to strengthen India’s parliamentary democracy by reducing unethical and unprincipled political defections. Then-Prime Minister Rajiv Gandhi called it as the “first step toward cleaning up public life.” The unanimous passage of the 52nd Amendment Bill (anti-defection bill) by both Houses of Parliament, according to the then-Central law minister, was “a sign, if any, of the maturity and stability of Indian democracy.”

Advantages
The following are some of the benefits of the anti-defection legislation:
(a) It contributes to improve political stability by limiting legislators’ willingness to switch parties.
(a) By merging parties, it facilitates democratic realignment of parties in the legislature.
(c) It decreases political corruption as well as non-developmental expenditures associated with irregular elections.
(b) It recognizes the existence of political parties for the first time in a clear-cut constitutional manner.

Criticism
Though the anti-defection law was lauded as a bold step toward purifying our political life and heralded as a new epoch in the country’s political life, it has revealed several flaws in its implementation and has failed to prevent defections in its whole. It was chastised for the following reasons:
1. There is no distinction made between dissent and desertion. It restricts the legislator’s right to dissent and conscience freedom. As a result, “it plainly elevates party bossism and sanctioned party tyranny in the name of party discipline.”
2. It makes an unreasonable distinction between individual and group defection. To put it another way, “it outlawed just retail defections while legalizing wholesale defections.”
3. It does not allow a politician to be expelled from his party because of his activities outside of the legislature.
4. It makes a reasonable distinction between an independent and a nominated member. If the former joins a political party, he is disqualified, whilst the latter is not.
5. Its decision-making authority is vested in the presiding officer, which is criticized for two reasons. For starters, due to political constraints, he may not be able to execute this authority in an impartial and objective manner. Second, he lacks the necessary legal understanding and experience to decide the cases. In fact, two Lok Sabha Speakers (Rabi Ray in 1991 and Shivraj Patil in 1993) have raised reservations about their capacity to arbitrate on situations involving defections.

Reasons for the 91st Amendment Act of 2003
The following are the grounds for implementing the 91st Amendment Act (2003):
1. There have been calls from time to time in some places to tighten and revise the Anti-defection Law as set forth in the Tenth Schedule, claiming that the measures have failed to accomplish the desired goal of preventing defections. The Tenth Schedule has also been chastised for allowing mass defections while making individual defections illegal. The provision in the Tenth Schedule allowing for exemption from disqualification in the event of splits has been heavily criticized due to its destabilizing effect on the government.
2. The Committee on Electoral Reforms (Dinesh Goswami Committee) in its report of 1990, the Law Commission of India in its 170th Report on “Electoral Laws Reform” (1999), and the National Commission to Review the Working of the Constitution (NCRWC) in its report of 2002 have all recommended omission of the provision of the Tenth Schedule pertaining to exemption from disqualification in the event of splits.
3. The NCRWC also believed that a defector should be punished for his actions by being barred from holding any public office, including ministerial or other remunerative political positions, for at least the remainder of the current Legislature’s term or until the next fresh elections, whichever comes first.
4. The NCRWC also noted that various governments at the federal and state levels were forming unusually large Councils of Ministers, and that this practice needed to be outlawed by law, with a maximum number of ministers in a state or the Union Government set at 10% of the total strength of the popular House of Representatives.

Provisions
To limit the number of the Council of Ministers, prevent defectors from holding public office, and reinforce the anti-defection statute, the 91st Amendment Act of 2003 introduced the following provisions:
1. The overall number of ministers in the Central Council of Ministers, including the Prime Minister, shall not exceed 15% of the Lok Sabha’s total strength.
2. Any member of either House of Parliament who is disqualified from serving as a minister due to defection is likewise prohibited from serving as a minister.

3. The overall number of ministers in a state’s Council of Ministers, including the Chief Minister, should not exceed 15% of the entire strength of that state’s Legislative Assembly. However, a state’s total number of ministers, including the Chief Minister, must not be less than 12.
4. A member of either House of a state legislature who is disqualified from serving as a minister due to defection is likewise prohibited from serving as a minister.
5. A member of either House of Parliament or either House of a State Legislature from any political party who is disqualified for defection is likewise disqualified from holding any remunerative political position. The term “remunerative political post” refers to I any office under the Central Government or a state government where the salary or remuneration for such office is paid out of the concerned government’s public revenue; or (ii) any office under a body, whether incorporated or not, wholly or partially owned by the Central Government or a state government and where the salary or remuneration for such office is paid by such body, except where such salary or remuneration
6. The clause of the Tenth Schedule (anti-defection statute) relating to exemption from disqualification in the event of a split in the legislature party by one-third of its members has been removed. This means that the defectors are no longer protected by the divides.

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