In 1985, the 52nd Constitution Amendment Act on Anti-Defection Law was passed, & the Indian Constitution’s 10th Schedule was inserted through this Act of 185. The disqualification of the Members of Parliament & State Legislatures on the grounds of defection is provided under this. It enacted anti-defection legislation by adding a new Tenth Schedule to the Constitution in order to deter political defections motivated by power or pecuniary gain. Both houses of Parliament overwhelmingly approved the 52nd amendment. Defection to another political party after an election was made unlawful by the Act. Any member who defected to another party after the elections will be barred or disqualified from sitting as a member in parliament or the state legislature.
It does, however, allow a group of MPs/MLAs to join (i.e. merge with) another political party without incurring the defection penalty. It also makes no distinction between political parties that encourage or welcome defecting legislators.
A ‘merger’ was defined under the 1985 Act as a ‘defection’ by one-third of a political party’s elected members. However, the 91st Constitutional Amendment Act of 2003 amended this, requiring at least two-thirds of a party’s members to be in favor of a “merger” for it to be legal or valid in the eyes of law.
Members who are disqualified under the legislation can compete for a seat in the House from any political party. Questions of disqualification based on defection are referred to the Chairman or Speaker of such House for a decision, which is subject to ‘judicial review.’ However, the statute (law) does not provide a deadline for the presiding officer to make a decision in a defection case.
Aim and Intention of the 52nd Constitution Amendment Act or Anti-Defection Law
The main aim and intent of this law as well as schedule was to minimize political defections and improve democracy by establishing political stability & making parliamentarians more accountable and loyal to their parties. A political defection occurs when a member of a political party changes parties, either voluntarily or for other reasons. It also establishes a mechanism through which a legislator may be disqualified for defection by the legislature’s presiding officer. This Schedule applies to both the federal and state governments.
The tenth schedule is broken down into eight paragraphs. The following is a quick synopsis of the Schedule:
1st PARAGRAPH: The part on interpretation is included in this paragraph. It specifies terms like house, legislature party, original political party, and others that are used in legislation.
2nd PARAGRAPH : Disqualification on the grounds of defection.
A member of any state or federal legislature can be removed from office if:
- He resigns from such a political party of his own choice.
- He disobeys his political party’s directives or votes or does not vote in the legislature.
- He joins another political party after the election.
- If a nominated member joins a political party after six months after becoming a member of the legislature.
3rd PARAGRAPH : After the 91st Amendment in 2003, this section was removed.
4th PARAGRAPH: Disqualification for defection is not applicable in the case of a merger.
In the event of a merger, member disqualification is not applied. With the permission of at least two-thirds of its legislators, the party may combine with or into another party. In such a circumstance, neither the member who chooses to combine nor the person who chooses to remain in the original party may be disqualified on the grounds of defection.
5th PARAGRAPH: Exemption
The speaker, chairman, as well as deputy chairman of various legislative chambers are exempted from disqualification on the ground of defection under this paragraph.
6th PARAGRAPH: Determination Regarding Disqualification Due To Defection
If an issue about a member’s disqualification arises, it will be addressed to the chairman or speaker of the legislative house, whose judgment will be final and binding.
7th PARAGRAPH: Bar of Courts’ Jurisdiction
The part of this Schedule prohibits any court from having jurisdiction over a member’s disqualification. However, under Articles 32, 137, & 226 of the Indian Constitution, this provision is not implemented, or used by the court.
8th PARAGRAPH: Rules
This section of the Schedule gives the Chairman and Speaker the authority to set the rules for the disqualification of members of their different houses of the legislature.
Advantages of Anti-Defection Law
The following are some of the advantages of anti-defection law:
- It provides stability to the government by preventing the shifts of party relations.
- It ensures that the candidate will be faithful to his party, and that residents will vote for him.
- It also encourages party cohesion & discipline.
- It permits political parties to merge without disqualifying a member on the grounds of defection.
- It also aids in the reduction of political corruption by curbing party switching.
- It establishes a mechanism for persons who defects from one political party to another.
Challenges with 52th Constitutional Amendment Act
- Against the true spirit of representative democracy: The anti-defection law aims to maintain government stability by preventing legislators from switching sides.
This law, however, prohibits lawmakers from voting in accordance with their conscience, judgment, as well as the interests of their electorate.
- Impedes legislative control over government: The anti-defection law obstructs the legislature’s oversight duty over the administration by assuring that members vote based on party leadership decisions.
In other words, if parliamentarians are unable to vote on legislation independently, they will be unable to serve as an effective check on the government.
In effect, the Anti-Defection Law weakens the separation of powers between the Executive & the Legislature – and concentrating authority in the hands of the executives.
- The presiding officer of the house has the following roles: Legislators can be disqualified for defection by the Presiding Officer of a legislature based on a petition by any other member of the House, according to the legislation.
However, there are other cases in which presiding officials serve the vested interests of a political party or government in power.
Furthermore, the statute makes no provision for the Presiding Officer to make a decision on a disqualification plea within a specific time frame.
As a result, the ruling is sometimes based on the presiding officer’s whims & preferences.
- Affect the debate and discussion: In India, the Anti-Defection Law has established a democracy based on parties & numbers rather than debate & discussion.
In this way, it does not make a distinction between both dissent & defection & weaken the Parliamentary deliberations on any law.
Amendments to existing law
In 2003, a change to the Tenth Schedule was suggested in order to improve the effectiveness of the existing legislation in addressing the regular defections. The Constitution (Ninety-first Amendment) Bill was suggested by a committee led by Pranab Mukherjee, who noted that the exception given by permitting a split, granted in paragraph three of the Schedule, was being extensively misused, leading to numerous divides in different political parties. The committee also noted that the lure of personal wealth contributed significantly to defections and led to political horse trading. The Lok Sabha passed the law on December 16, 2003, in a single day, and the Rajya Sabha followed suit on December 18. The Constitution (Ninety-First Amendment) Act of 2003 was notified in the Indian Gazette on January 2, 2004, after receiving presidential approval on January 1, 2004.
A member disqualified for defection should not take a ministerial position or any other profitable political position until the term of his office as a member expires, according to the amended act. The 2003 amended act quashes the provisions from the 10th Schedule in order to authorize the defections arising out of splits . Additionally, the modified act mandated that the proportion of ministers in each state and union territory should not exceed 15% to the total number of members in each house.
The effort to resolve what is basically a political issue through the legal system creates the main political issue.
Parties should enhance their internal systems if people are defecting from their parties, as defection was the problem for the stability of the government.
There is an urgent need for legislation due to which political parties in India are governed. Due to such legislation political parties come under Right to Information (RTI) & also strengthen intra-party democracy.
The scope of the anti-defection law can be limited to just those laws where the defeat of the government can result in loss of confidence in order to protect representative democracy from the detrimental effects of the anti defection law.
A more rationalized version of anti-defection laws is required in order to help in establishing a truly representative democracy, even though the political instability brought on by the frequent and unholy switching of allegiance on the part of our country’s legislators has been greatly reduced as a result of these laws.
- Roy, Chakshu (July 2019). “Explained: The limits of anti-defection”. PRS Legislative Research. Retrieved 21 June 2022.
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