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

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:

• 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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