Anti-Defection law

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Introduction
Defection simply by dictionary meaning means withdrawing support or help despite allegiance or responsibility. In relation to politics, defection means withdrawing one’s loyalty towards his own political party & accepting other party’s membership. Defection was very common in 1980’s and 1990’s and hence the Anti-Defection law was enacted in 1985 so as to maintain the political stability.
 
What is Anti-Defection Law?
  • Anti-Defection is the law by which the persons who do defection are punished according to the rules of the law.
  • A person so found doing defection is disqualified to be a member of Parliament or state legislature (as the case may be).
Some points to remember about Anti-Defection Law
  • Anti-Defection Law created by 52nd Amendment Act, 1985.
  • It changed four articles in the constitution & added tenth schedule to the constitution.
  • By 91st Amendment Act, 2003, a provision was omitted in the law. It omitted an exception provision i.e. disqualification on ground of defection not to apply in case of split.
Note on the Anti-Defection Law
Under the tenth schedule following provision are given for the disqualification of members of parliament and state legislature on the ground of defection:
 
1. Power of the Presiding officer
The presiding officer can make rules to give effect to the provision of the tenth schedule, all such rules must be placed in house before the 30 days. The members of house may approve or modify or disapprove it. The presiding officer can resort to defection only if any member of house gives a complaint against it (by new Supreme Court Decision – Any person who is not even the member of the house can complaint to the Presiding officer about the defection). Presiding officer has to give a chance to the accused person to put his side in front of the house before taking the final decision.

2. Disqualification:
A. For a Political party member
A person is disqualified of being a member of the house if
  • That member votes or doesn’t give vote which is contrary to his political party’s decision. Prior permission of the party is needed in such a case.
  • That member gives up his membership of the political party on his own i.e. by self-decision.
In short, a member of a political party has to obey all the directions given by the party.
 
B. For an independent member
An independent member is disqualified to be a member of the house if he joins any political party after the elections. This provision has been put because an independent member win’s election on his own & not because of any political party. Joining a party amounts to corruption & that is why such a provision has been put.
 
C. For a nominated member
Nominated members of the house are allowed to join any political party which they wish for. But they have to do this in a definite time frame. They need to join a political party (if they wish) within a period of six months from the date of joining of any of the house. If they join any political party after six months from the date of joining the house, they are disqualified to be a member of that house.
 
3. Some Exceptions to the law
Disqualification because of defection does not apply in the following two cases:
  • If any member of the house resigns from his political party because of the reason that his political party has got merged with some another political party. (Merger takes place if two-third members of the political party in question are ready for such a merger)
  • If any member of house resigns from his political party because of the reason that such a member has been elected as the presiding officer of that house. (Presiding officer of Lok Sabha – Speaker, Deputy-Speaker. Presiding officer of Rajya Sabha – Vice-Chairman. Chairman is not included in this case as he is the Vice-President of India.)
4. Decision making authority
  • All the decisions in regard to defection under the tenth schedule is decided by the presiding officer of the house (In case of Lok Sabha – Speaker/Deputy-Speaker. In case of Rajya Sabha – Chairman/Vice- Chairman)
  • Initially the decision of the presiding officer was considered as final & was not allowed to be questioned in the court of law.
  • But Supreme Court in Kihoto Hollohan Case (1993) ruled that the way in which the presiding officer function under tenth schedule is like a tribunal. Hence, unlike all other tribunals, the decision of the presiding officer is subject to review. In short, Supreme Court declared the provision of “presiding officer’s decision as final” as constitutionally invalid & as it takes away the power of Supreme Court & High Court.
USES OF THE ACT
  • discourage and prevent political defections.
  • It stabilizes the political parties.
  • Its main intension is to strengthen the Indian parliamentary democracy by curbing unprincipled and unethical political defection.
ADVANTAGES
  • It reduces the political corruption.
  • It gives the greater stability in political bodies by avoiding the moving from one political party to another.
  • It gives constitutional recognition to the existences of political parties.
CRITICISM
⇒ Vesting all the decision making power on such an important matter of i.e. defection in the presiding officer is criticized on two grounds:
1. Presiding officer may not act in an impartial manner as he also belongs to one or the other party.
2. Presiding officer lacks the legal knowledge and experience to give decisions on such cases.
 
  • Defection Vs. Dissent: No difference has been put about these two terms. Dissent means using one owns opinion in case of voting on some topic in the house. According to Anti-Defection law, a member has to follow his party’s decision & he can’t use his own opinion while casting a vote. In short, this law makes the political party the boss & hence the high command culture flourishes.
  • Nominated Vs. Independent: This law is biased against nominated & independent members of the house. Any nominated member is allowed to join any political party while an independent member is not allowed to join any political party.
  • Individual Vs. Group Defection: This law works only in the case of individual defection. If a group in any political party defects, then this law can’t be applied in that case.
  • This law does not provide for expulsion of a legislator from his party for his activities outside the legislature.
Amendment
91st Amendment Act of 2003 brought about some changes which helped to limit the size of the Council of Ministers, so that defectors (persons found under defection) can’t hold any public office.
 
  • For Center: The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15% of the total strength of the Lok Sabha.
  • For State: The Total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15% of the total strength of the Legislative Assembly of the state. But the number of ministers, including the Chief Minister, in a state shall not be less than 12.
  • A defector can’t be appointed as a minister. (it applies in the case of central as well as state legislature.
  • A defector (in central or state legislature) can’t hold any remunerative political post.
  • The provision of the tenth schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of the legislature party has been deleted. It means that the defectors have no more protection on grounds of splits.
Practice Questions
Q1
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