- The anti-defection law punishes individual MPs/MLAs for leaving one party for another.
- It allows a group of MP/MLAs to join (i.e. merge with) another political party without inviting the penalty for defection.
- 52nd Amendment Act of 1985 deals with Anti-Defection Law
- Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection
- Amended in 91st amendment act 2003 à Omitted the exception provision i.e. disqualification on grounds of defection not applicable in case of split.
- Parliament added it to the Constitution as the Tenth Schedule in 1985. Its purpose was to bring stability to governments by discouraging legislators from changing parties.
- It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
Anti-Defection Law: Grounds of Disqualification
- Member of Parliament or State Legislature belonging to a political party is deemed to have defected if he either voluntarily resigns or gives up the membership of his political party, or he disobeys the directives of the party leadership on a vote or abstains from voting without taking prior permission. However, he can seek the permission of party before 15 days.
- An independent candidate joins the party after the election. (discriminatory viz a viz nominated member.
- A nominated member joins a party six months after becoming an MP/MLA.
Provisions of 91st CAA, 2003 w.r.t. Anti-Defection Law
- Total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15 per cent of the total strength of the Lok Sabha.
- The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 per cent of the total strength of the Legislative Assembly of that state. However, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
- A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
- A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
- A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
- The provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted.
- Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post, as practiced in Britain.
- A party could be merged into another if at least two-thirds of its party legislators voted for the merger.
- Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House. (i.e. Speaker in Lok Sabha and Chairperson in Rajya Sabha.)
- Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.
- Kihoto Hollohan judgement (1993) à Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the High Court.
- Further, SC held that the presiding officer, while deciding a question under the Tenth Schedule, function as a Tribunals. Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.
Rule Making Power
- The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule.
- According to the rules made so, the presiding officer can take up a defection case only when he receives a complaint from a member of the House.
- Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation.
- He may also refer the matter to the committee of privileges for inquiry.
- No immediate and automatic effect.
How long does it take for deciding cases of defection?
- The law does not provide a time-frame within which the presiding officer has to decide a defection case.
- There have been many instances when a Speaker has not determined the case of a defecting MLA until the end of the legislature term.
- There have also been instances of defecting MLAs becoming ministers while a defection petition against them has been pending before the Speaker.
- Last year, the Supreme Court dismissed a minister in Manipur when the Speaker did not decide the defection petition against him even after three years.
- The court held that ideally, Speakers should take a decision on a defection petition within three months.
Advantages of Anti-Defection Law
- Provides stability to the government by preventing shifts of party allegiance.
- Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies.
- It facilitates democratic and ideological realignment of parties in the legislature.
- Help in reducing non-developmental expenditure incurred on irregular elections.
- For the first time, it gave clear-cut constitutional recognition to the existence of political parties.
- It promotes party discipline.
- It prevents breach of trust of people due to defection.
Criticism of Anti-Defection Law
- does not make a differentiation between dissent and defection
- distinction between individual defection and group defection is irrational
- does not provide for the expulsion of a legislator from his party for his activities outside the legislature
- discrimination between an independent member and a nominated member is illogical
- vesting of decision-making authority in the presiding officer is criticised on two grounds. Firstly, he may not exercise this authority in an impartial and objective manner due to political exigencies. Secondly, he lacks the legal knowledge and experience to adjudicate upon the cases.
Have any suggestions been made to improve the law?
- Some commentators have said the law has failed and recommended its removal. Former Vice President Hamid Ansari has suggested that it apply only to save governments in no-confidence motions.
- The Election Commission has suggested it should be the deciding authority in defection cases.
- Others have argued that the President and Governors should hear defection petitions.
- And last year, the Supreme Court said Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
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