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A Summarisation of Anti-Defection Laws under the Constitution of India

The 52nd Amendment Act, 1985 lead to amendment in Article 101, 102, 190 and 191 of the Constitution to provide the grounds for vacation of seats for the disqualification of the members ; and also inserted Tenth Schedule.

The statement of objects and reasons been given for the amendment is:
“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles with sustain it.”

Rule 2- Tenth Schedule

  • Lays the grounds for disqualification of the member’s i.e.:
  • If a member of a house belonging to a political party:
    1. Has voluntarily given up his membership of such political party, or
    2. Votes, or abstain from voting in such House, contrary to the direction of his political party.

      However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
    3. If an independent candidate joins a political party after the election.
    4. If a nominated member of a house joins any political party after the expiry of six months from the date when he becomes a member of the legislature.

Rule 3

  • State that there will be no disqualification of members if they represent a faction of the original political party, which has arisen as a result of a split in the party.
  • A defection by at least one-third members of such a political part was considered as a spilt which was not actionable.

Rule 4 and 5

  • States the exemption from disqualifications i.e.:
  • A member of the house shall not be disqualified where his original political party merges with another political party, and he and any other member of his political party:
    1. Have become members of the other political party, or of a new political party formed by such merge
    2. Have not accepted the merger and opted to function as a separate group.

Loopholes in the Anti Defection law:

  1. Power to the Speaker

    • As per Rule 6 of the schedule, the Speaker of the House or the Chairman has been given wide and absolute powers to decide the case related to disqualification of the members on the grounds of defection.
    • The Speaker still remains as the member of the party which had nominated him/her for the post of speaker.
       
  2. Judicial Review

    • As per the Rule 7, which bars the jurisdiction of the courts in any matter connected with disqualification of a member of a House, which states that it is outside the jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Article 226 and 227 of the Constitution to review the decisions made by the Speaker in this regard.

      1. Kihoto Hollohon v. Zachilhu and Others
        • Held that the law is valid in all respects expect on the matter related to the judicial review, which was held as unconstitutional
        • Any law affecting Articles 136, 226 and 227 of the Constitution is required to be ratified by the States under Article 368(2) of the Constitution.
        • As the required number of State assemblies had not ratified the provision, the Supreme Court declared the rule to be unconstitutional.
        • The Court also held that the Speaker, while deciding cases pertaining to defection of party members, acts as a tribunal and nothing more than that, and that his/ her decisions are subject to the review power of the High Courts and the Supreme Court.
        • Mentioning a rule of caution, the Supreme Court warned against the exercise of power of judicial review prior to making of any decision by the Speaker.
           
  3. No individual stand on part of members

    According to the Rule 2 it can be seen that the anti-defection law puts the members of the party into a bracket of obedience in accordance with the rules and policies of the party, restricting the legislator’s freedom to oppose the wrong acts of the party, bad policies, leaders and bills.
     
  4. What amounts to voluntarily giving up

    • Rule 2(1)(a) of the Tenth Schedule mentions that the member of the House would be disqualified from the party if he voluntarily gives up his membership of the political party.
    • But the Schedule does not clarify what “voluntarily giving up” means.

      1. Ravi Naik v. Union of India
        • Court while interpreting the phrase held that it has a wider connotation and can be inferred from the conduct of the members.
        • The words ‘voluntarily gives up his membership' were not held synonymous with ‘resignation'.
        • It was held that a person may voluntarily give up his membership of a political party even without tendering his resignation from the membership of that party.
           
      2. G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly
        • A question arose whether joining another political party after being expelled from the original party would amount to voluntarily giving up the membership or not.
        • It was held in this case that on being expelled from the party, the member, though considered ‘unattached’, still remains the member of the old party for the purpose of the Tenth Schedule.
        • However, if the expelled member joins another political party after expulsion, he is considered to have voluntarily given up the membership of his old political party.
           
      3. Rajendra Singh Rana v. Swami Prasad Maurya and Others
        • It was held in the case that a letter by an elected party member to the Governor requesting him to call upon the leader of the opposite party to form a Government would by itself amount to an act of voluntarily giving up membership of the party of which he is an elected member.
           
  5. Problem with merger provision

    • While Rule 4 of the Tenth Schedule seems to provide some exception from disqualification of members in the cases relating to mergers, there seems to be some loophole in the law.
    • The provision tends to safeguard the members of a political party where the original political party merges with another party subject to the condition that at least two-third of the members of the legislature party concerned have agreed to such merger.
    • The flaw seems to be that the exception is based on the number of members rather than the reason behind the defection.

Role of Presiding Officers in Context of Anti-Defection Law:

  • The 10th Schedule provides presiding officers of legislatures with the power to decide cases of defection
  • However, it has been noted that as the Speaker is dependent upon continuous support of the majority in the House, he may not satisfy the requirement of an independent adjudicating authority.
  • In the past, decisions of the Speakers with regard to disqualifications have been challenged before courts for being biased and partial.
  • Several expert committees and commissions, including the Dinesh Goswami Committee (1998), Commission to Review the Constitution (2002) and the Law Commission (2015) have therefore recommended that defection cases must be decided by the President or Governor for centre and states respectively, who shall act on the advice of the Election Commission.
  • This is the same practice that is followed for deciding questions related to disqualification of legislators on other grounds, such as holding an office of profit or being of unsound mind, under the Constitution
  • However, note that the Supreme Court has upheld the provision granting the presiding officer the power to take these decisions on the ground that
  • The Speakers/Chairmen hold a pivotal position in the scheme of parliamentary democracy and are guardians of the rights and privileges of the House.
  • They are expected to take far reaching decisions in the functioning of parliamentary democracy.
  • Vestibule of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable.

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