(Online Course) GS Concepts : Indian Polity – Anti-Defection Law

Subject : General Studies Concepts

Chapter : Indian Polity

Topic: Anti-Defection Law

Question: ‘Defections are a source of political
instability’. In this context examine the steps taken to address defections in
India.

Answer: Defections are a source of political
instability; breach or representative faith and indicate power-hunger among
legislators. Therefore, they need to be prevented and punished.
The Anti-defection Law made by the Constitution (Fifty-Second Amendment) Act,
1985 aims to do that. It amended Articles 101, 102, 190 and 191 of the
Constitution regarding vacation of seats and disqualification from membership of
Parliament and State legislatures respectively and inserted a new Schedule
(Tenth Schedule) to the Constitution setting out certain provisions regarding
disqualification from membership of Parliament and the State Legislatures on the
ground of defection, from the political party to which the Member belongs.

Anti-Defection Law details the grounds of defection and also
prescribes disqualification for the defectors for being Members of the House.
The grounds of detection are as under:

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  • If a member of the House belonging to a political party
    voluntarily gives up his/her membership of that political party.

  • if he/she abstains from the voting or votes contrary to
    the direction issued by the political party to which he/she belongs in the
    House.

  • If he/she defects from his/her party to any patty after
    elections.

  • If the nominated member joins any political party after
    six months after taking his scat.

  • An independent Member who joins a political party after
    his/her election.

  • Member who acts in defiance of party direction (Party
    Whip) and if such defiant action is not condoned by the Chief Whip within 15
    days. The Chief Whip may condone the same and recommend to the
    Speaker/Chairman that the member should not be disqualified

  • Originally, the law protected bulk defections’ in the
    nature of split (one third of legislature party). However, Constitution
    (Ninety-first Amendment) Act 2003 made splits illegal too.

Question: Exemptions given under the Anti-defection in India
is a major source of ineffectiveness of the law in preventing defections.
Elaborate.

Answer: Disqualification on ground of defection does
not apply in case of merger of political parties. A party may merged with
another or the two may form a new party. If 2/3rds of the members of the
legislature party decide to merge will another party, neither the 2/3rds nor the
remaining 1/3rd lose membership. If 1/3rd exist as a separate group.
(“Legislature party” mean members of the party in the legislature).

The provisions of disqualification, under the Tenth Schedule,
do riot apply to a member who on his election as the Speaker or the Deputy
Speaker of Lok Sabha or the Deputy Chairman of Rajya Sahha, or the Chairman or
the Deputy Chairman of the Legislative Council of a State or the Speaker or the
Deputy Speaker of the Legislative Assembly voluntarily gives up his membership
of the political party to which he belonged immediately before his election or
rejoins such political party after he ceases to hold such office.

The Chairman/Speaker has been given the final authority to
decide questions of disqualification of a member of a House under the provisions
of the Tenth Schedule to the Constitution.
There is a category of members that has no place in the law. The Law does not
talk of consequences of expulsion of a member from the party. The ruling of the
Speaker is that he should be considered ‘unattached’ member. He however, can not
join a political party.

There is another grey area in the law. It talks of members.
One becomes a member only after he is sworn in. The moot point is whether the
law applies to him from the lime of the declaration of the result till he is
sworn in.
With the addition of Tenth Schedule to the Constitution by the Anti-Defection
Law, political parties received Constitutional recognition which they did not
have earlier. They had no Constitutional identity before. Chief Whip also
receives Constitutional recognition.

Over the years, it was observed that these provisions have
been circumvented by the legislators to avert disqualification. The provision of
split has been grossly misused to engineer multiple divisions in the party, as a
result of which the defection has not been checked in the right earnest. Further
it is also observed the lure of office of profit plays dominant part in the
political horse-trading resulting in spate of defections and counter defections.

Therefore it was outlawed in 2003 as mentioned above.

Question :Examine how 91st Amendment Act tries to bridge the
loophole in the previous anti-defection law.

Ans. The committee on Electoral Reforms (Dinesh Goswami
Committee) in its report of 1990. the Law Commission of India in its 170 Report
on “Reform of Electoral Laws” (1999) and tile National Commission to Review the
Working of the Constitution (NCRWC) in its report of 2002 have recommended
outlawing split. The NCRWC is also of the view that a defector should be
penalised for his action by debarring him from holding any public office as a
Minister or any other remunerative political post for at least the duration of
the remaining term of the existing Legislature or until, the next fresh
elections whichever is earlier. The NOWC has also observed that abnormally large
Councils of Ministers were being constituted by various Governments at Centre
and States and this practice had be prohibited by law and that a ceiling on the
number of Ministers in a State or the Union Government be fixed In the light of
the above, the 93rd Amendment Act was made with the following changes.

  • Split is not valid

  • Article 361 A was amended to the following effect: A
    member disqualified for defection is disallowed to hold any remunerative
    political post for rest of the life of the House or till he is reelected
    which ever is earlier. The expression “remunerative political post” means
    any office that is wholly or partly owned by Government and the salary for
    such office is paid out of the public revenue.

  • State of the Council of Ministers should not he more than
    15% of the strength Lower house. Art.75 and 164 have been amended to this
    effect. However, in case of smaller States like Sikkim, Mizorarn and Goa
    having 32, 40 and 40 Members in the Legislative Assemblies respectively, a
    minimum strength of 12 Ministers is proposed.

Kihoto Hollohan

In 1992, the Supreme court, in its majority judgment in
Kihoto Hollohan vs Zachiliha and others, upheld the validity of the Tenth
Schedule but declared as invalid paragraph 7, which excluded judicial review.
The basis for nullification of Para 7 is that the Bill was not ratified by half
the state legislatures which were necessary to restrict judicial review under
Art.368. Doctrine of severability was applied and rest of the Act was declared
valid.
In the same verdict, the apex court ruled that the Speaker/Chairman acted as a
‘tribunal’ while adjudicating on the issue of disqualification for defection.
The Supreme Court observed that the anti defection law strengthened democracy
and the representative functions. It did not stifle the freedom of the
legislators. However, the orders of the Chief Whip that are binding on the
legislator pertain only to the following

  • Confidence or no-confidence motion and

  • On a policy matter that is a core of the party manifesto.

The limitation- is necessary for balancing the conscience of
the legislator with the need to be true to the electorate.
The Kihoto verdict resulted when the anti defection was challenged as invalid
for restricting the freedom of the legislators by making the directions of the
Chief Whip of the party binding.

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