ANTI-DEFECTION LAW IN INDIA: PROVISIONS AND EVALUATION
Author: Brahamdeep Kaur
Political parties are an essential concomitant of elections in a representative democracy. But there exist certain problems in these political parties which pose to be hindrances in the way of realizing the true motive of democracy and defection is one of them. Defection means floor-crossing by a member of one political party to another party. To combat it, the Lok Sabha, on December 8, 1967, unanimously passed a Resolution for setting up a higher-level Committee consisting of representatives of political parties and constitutional experts to consider the problem and make recommendations. Keeping in view the recommendations so made, a Bill was enacted for the purpose, which was enacted into the Constitution (Fifty-second) Amendment Act, 1985, which came into force on March 1, 1985. The Fifty-Second Amendment Act, 1985, made necessary changes in Articles 101, 102, 190, and 191. Further, it also inserted the Tenth Schedule in the Constitution consisting of the law relating to political defection. Later, the Constitution (Nine-one) Amendment Act, 2003, made one change in the provisions of the Tenth Schedule by omitting an exception provision i.e., disqualification on the ground of defection not to apply in case of a split.
DISQUALIFICATION ON GROUND OF DEFECTION
Paragraph 2 of the Tenth Schedule provides that a member of a House belonging to any political party shall be disqualified for being a member of the House if he voluntarily gives up his membership of such political party or if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs, without obtaining the prior permission of such political party. The act of voluntarily giving up the membership of the political party may be express or implied. Even in the absence of a formal resignation from membership, an inference could be drawn from the conduct of a member that he had voluntarily given up his membership of the political party to which he belonged. Further, an independent member shall be disqualified for being a member of the House if he joins any political party after such election. Furthermore, a nominated member shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date, he takes oath as a member of the House.
There are some exceptions to the disqualifications to be made under the Anti-Defection Law.
Paragraph 4 of the Tenth Schedule provides that a member shall not be disqualified for being a member of the House if his original political party has merged with another political party and he and many other members of his original political party have become members of such other political party or a new political party formed by such merger or have not accepted the merger and opted to function as a separate group.
Further, Paragraph 5 of the Tenth Schedule provides that a member of a political party having been elected as an Officer of the House, shall not be so disqualified under Paragraph 5 if because of his election to such House, he voluntarily gives up the membership of his party and does not re-join that party or other party so long as he holds at the office or he joins his original party after he ceases to hold such Office.
Paragraph 6 of the Tenth Schedule provides that if any question arises as to whether a member of the House has become subject to disqualification under this Schedule, the question shall be referred to for the decision of the Chairman or Speaker of such House, as the case may be, and his decision shall be fine. And the question, as to whether the Chairman or the Speaker of the House has become subject to such disqualification, shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
Paragraph 8 of the Tenth Schedule empowers the Presiding Officer of the House to make Rules for giving effect to the provisions of this Schedule. The Rules so framed are required to be laid before the House and are to take effect after the expiry of 30 days unless they are sooner approved or disapproved by the House. Any wilful contravention by any person of these Rules may be dealt with by the Speaker/Chairman in the same manner as a breach of privilege of the House.
The Rules framed under Para 8 have been held to be procedural and any violation of the same would amount to an irregularity in the procedure, which would be immune from judicial security, given Sub-para (2) of Para 6 of this Schedule.
ADVANTAGES OF THE ACT
The Anti-Defection law has proved to be very beneficial. It provides for greater stability in the body politic by checking the tendency of legislators to change parties. It enables the democratic realignment of parties in the legislature by way of the merger of parties. It diminishes corruption at the political level as well as non-developmental expenditure incurred on irregular elections.
CRITICISM OF THE ACT
There have been many lacunae in the operation of this Act and it has failed to prevent defections. It does not make a distinction between dissent and defection. It checks the legislator’s right to dissent and freedom of conscience. Its distinction between individual defection and group defection is unreasonable. It does not provide for the eviction of a legislator from his party for his activities outside the legislature. Its entrusting of decision-making authority in the presiding officer is criticized on two grounds. Firstly, he may not exercise this authority in an unbiased and objective manner due to political pressures. Secondly, he lacks the legal knowledge and experience to decide upon the cases.
CONSTITUTION (NINETY-ONE) AMENDMENT ACT
From time to time, many demands had been made for strengthening and amending the Anti-defection law as contained in the Tenth Schedule, on the ground that these provisions have not been able to realize the set goal of checking defections. Further, that it allows bulk defections while declaring individual defections as illegal. As regards defection, the Act of 2003 made many provisions which are as follows:
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. Further, the provision of the Tenth Schedule (Anti-Defection law) of exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits.
The Anti-Defection Law, no doubt, has been a very bold step to curb the bane of defection in the Indian Political System by disqualifying the members therein, but it still needs to be made stricter so that no lacunae could be there and India can get a better and stable political system.
· Kumar, Narender. (2020). Constitutional Law of India. Faridabad: Allahabad Law Agency.
· Laxmikanth, M. (2017). Indian Polity. Chennai: McGraw Hill.