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52nd Constitutional Amendment: A Critical Study

The 52nd amendment deals with the anti-defection laws. Defection, as per the constitution means to abandon a position or association, often to join an opposing group[1]. This anti-defection law is also the subject matter of the 10th schedule. It was enacted by the Parliament in 1985. It basically brought changes in 4 articles. Some changes were also made to this anti-defection law with the introduction of 91st amendment, 2003.

A slogan "Aaya Ram, Gaya Ram" was raised as a large number of legislators continued defections. This brought attention to this problem and after some time this law was brought to offset the repercussions caused by such defections. If a person voluntarily gives up the membership of a political party, he/she shall be subjected to disqualification. Under this law, the Supreme Court also set a rule that the disqualified members cannot be barred in future for contesting elections.

It only disqualifies them from holding their current office which they are elected for. This research paper will discuss in depth about the constitutionality of anti-defection law, 91st amendment in relation to defection and the exceptions relating to anti-defection.

Introduction
Defection, according to the law means changing one's political party and joining another opposing party. Anti-defection law was brought through the 52nd amendment and some improvements and changes were made through the 91st amendment, 2003. The 52nd amendment provided for the disqualification of the members of the Parliament and the state legislatures on the ground of defection from one political party to another.[2]

During the earlier times, the 10th schedule had provisions related to Sikkim. Before making it an independent state, it was made an associate state and when it finally became a permanent state, the 10th schedule was removed then. It was re-introduced again in 1985 with the new anti-defection provisions. Its history goes back to 1967 elections. During the elections of 1967, Congress lost their majority in most of the states.

When they lost their majority, then the era of coalition government started. It was back then when the defections started to take place. People used to change their parties for higher political posts, monetary benefits etc.[3]It led to greater political instability and people started to change their loyalties with just a blink. But, still it took 17 years to bring this anti-defection law to correct this discrepancy.

It basically brought changes in the 4 articles of the constitution which basically relates to the vacation of seats in the Parliament, disqualification of membership of Parliament and state legislative assemblies. Earlier, it was taken that if 1/3rd of the people of a party, leave the particular political party and join some other party, it will be taken as a split and no one will be disqualified but with the introduction of the 91st amendment, this rule got overturned and was made to 2/3rd of the total members.[4]

It will then be regarded as a merger and no one will be disqualified. Also, this issue of defection is not just limited to India. There are 40 other countries as well who follow anti-defection laws.[5] Anyone disqualified on the grounds of defection in the state is ineligible to become a minister. A member of either house of Parliament or house of state legislature belonging to a political party who is disqualified on the grounds of defection shall also be disqualified to hold any remunerative political post.

Who can be disqualified?

  • Members Of Political Parties:
    A member of some political party can be disqualified if he resigns voluntarily from the party or votes against their said dictate until and unless the member has a prior permission for the same or if he/she gets condoned by the party within the 15 days of voting.[6]

    For instance, there is a bill introduced in the Lok Sabha and a particular party has ordered to cast their vote in the favour of the bill, then the members of that party cannot go against the orders, otherwise they will face disqualification.
     
  • Independent Members:
    Once an independent person gets elected, he/she cannot join a political party after becoming the member of the house.[7]
     
  • Nominated Members:
    The members who are nominated to the house by the President, they can only join a political party within the six months from their nomination. If they join any political party after six months, then that person can be disqualified.

Exceptions to the disqualification

If 2/3rd of the members of a political party leave the party and merge with some other party of form their own separate party, then it will not amount to disqualification of the members. It will be regarded as a merger which is the foundation of the 91st amendment. The members who are then left with the original party will also not face any disqualification.

Another exemption related to disqualification is that if a member of the house gets elected as the presiding officer of the house and he gives up his membership of the political party and then re-joins the party after his tenure gets over, it will not amount to disqualification.[8]

Who will decide the disqualification?
If a particular member of the House needs to be removed with respect to defection, then the presiding officer should get a complaint from some other member of the House. The presiding officer of the Lok Sabha is its speaker and the presiding officer of the Rajya Sabha is its chairman.[9]

According to the 52nd amendment, it was decided that the disqualification will be decided by the presiding officer and whatsoever he decides will be taken as final and cannot be questioned in any court of law, but afterwards in 1992, with the case of Kihota Hollohon vs. Zachilhu[10], the Supreme Court held this provision to be unconstitutional and highlighted that the judicial review is the basic structure of the constitution and this power is with both the High Courts and the Supreme Court, so any court can review the decision of the presiding officer.

In this landmark judgement, it was also held that it doesn't infringe the rights of the elected members and also does not snatch the freedom of speech and expression.[11] It also brought to attention the fact that the disqualification related to the votes shall be limited to such which is crucial to the existence of the Government and o the matters integral to the electoral programme of the party so that it does not fully take away the independence of freedom of speech of the members.

After the disqualification, they have to seek re-election. When a presiding officer takes up a case relating to defection, then he works as a tribunal and tribunal and there is a provision of judicial review available against the tribunal, so the review application is possible.

Advantages of the Law:

  • It also gave constitutional recognition to the political parties because of the 52nd amendment.
  • This act gives greater political stability to the ruling party. It prevents moving of members to other political parties and keep the loyalties of the members in check.
  • It keeps an internal check within the parties. It ensures discipline within the party.
  • It also reduces corruption at the political level as other parties do not bribe with money or political seats due to the implementation of this law.
  • It creates a moral and ethical pressure on the legislators, thus they avoid indulging in any such activities.
  • It also facilitates merger between the parties. With the help of this law, it keeps a balance and a check on the working of different political parties and their allegiance.[12]
  • It also saves a lot of time, costs, and efforts which would have otherwise been used to conduct elections time and again.

Loopholes in the Law

  • By preventing the legislators from changing the parties, it makes them less accountable to the general public.
  • In many cases, there is usually a bias involved with respect to the decision regarding the disqualification of a particular member because the presiding officer will usually belong to a particular political party.[13]
  • The presiding officer has no legal, judicial, or legislative knowledge which makes them less competent for the adjudication of such cases. They are usually not neutral and have some political bias which reflects in their decision.
  • The leaders of the political party will give the instructions regarding the vote of a bill or any important decision. There is no say of the other members and if they vote against their dictate, they will have to face disqualification.
  • Freedom of conscience gets lost and in this manner, the power gets concentrated in the hands of a few.
  • The major drawback of this act is that individual defection is checked and punished whereas group defection which is considered as a merger is allowed.
  • In case of disqualification due to defection, there is also discrimination between a nominated member and an independent member. It allows a nominated member to join any political party within six months of their election whereas refrains an independent member to join any political party.

Critical Evaluation
In earlier times, it was finalized that the speaker of the Lok Sabha or the chairman of the Rajya Sabha have the final say and the courts have no jurisdiction in matters of disqualification due to defection. But, then it was amended and made that the High Courts and the Supreme Court can exercise the judicial review under Constitution. But the judicial review cannot take the lead. Judicial review should take place after the decision of the presiding officer.[14]

It was also seen that if a member gets expelled from a party, he will be regarded as an unattached member of the house. But, as per the tenth schedule, he still continues to be a member of the old party and if he joins another new party after he gets expelled then it will fall under the ambit of 'voluntarily giving up membership of the party'. This will be regarded as defection then. It was also held that the speaker cannot review his own decision to disqualify a member. This power is not provided in the 10th schedule.[15]

It was also recommended that the disqualification should be limited up to the voluntarily giving up of membership and not because of votes in favour or against any act. It was felt that somehow it will disregard an individual's opinion and will erode the basic structure of our constitution which was laid down in the case of Kesavananda Bharati v. State of Kerela.[16]

Conclusion
Anti-defection law was brought through the 52nd amendment in 1985. With this, some provisions related to the anti-defection law were made and added in the 10th schedule of the constitution. It was brought to check the corruption level and to achieve a greater political stability. People used to change parties for their own personal gains initially which led to the changing loyalties of the legislators.

This needed to be checked. For its correction this law was introduced which earlier said that if 1/3rd of the members of a political party leave the party and join some other party, it will be regarded as a split but still this problem prevailed and then to correct this, 91st amendment was brought. This changed the total number of members from 1/3rd to 2/3rd. It will not be regarded as disqualification if 2/3rd of the members form their own party or join hands with some other party.

It will then be regarded as a merger. Another issue under this act is that the phrase 'voluntarily giving up membership' IS very vague and can be referred to with different meanings. It is subject to open comprehension of the same and it depends on the personal whim of the speaker as to its conclusion.

The election commission has also recommended that the decisions which fall under the 10th schedule should be made by the President in case of Centre and Governor in case of states, on the advice of election commission. There are both advantages and flaws of this act. The politicians have moulded the loopholes of this anti-defection law according to their convenience.

Defection only disqualifies them from holding the current elected office.[17] The anti-defection law has curbed a lot of political instability but it is yet to achieve greater results with the help of some modifications and amendments which will make it a whole law in this regard with full implementation.

End-Notes:
  1. BYJU'S, https://byjus.com/questions/the-52nd-amendment-act-of-1985-provided-for-the-disqualification-of-the-members-of-parliament-and-the-state-legislatures-on-the-ground-of-a-deflection-of-one-political-party-to-another/, (Visited on July 23, 2021, 10:40 A.M.).
  2. The Constitution (Fifty Second Amendment) Act, 1985.
  3. DRISHTI, https://www.drishtiias.com/daily-updates/daily-news-editorials/anti-defection-law-1, (Visited on July 23, 2021, 11:00 A.M.).
  4. GKTODAY, https://www.gktoday.in/topic/anti-defection-law-in-india-history-provisions-issues-and-analysis/, (Visited on July 25, 5:00 P.M.).
  5. Roshni Sinha, Prachi Kaur, Anti defection law: Intent and Impact, PRS, (Visited on July 25, 6:30 P.M.), https://prsindia.org/files/parliament_track/Anti-Defection%20Law%20Intent%20and%20Impact_0.pdf
  6. Sumit Mitra, PM Rajiv Gandhi enforces anti-defection law, brightens government's image, INDIA TODAY, (Visited on July 25, 8:30 P.M.), https://www.indiatoday.in/magazine/indiascope/story/19850215-pm-rajiv-gandhi-enforces-anti-defection-law-brightens-government-image-769788-2013-11-26.
  7. Ibid.
  8. LEGAL BONANZA, https://www.legalbonanza.com/post/what-is-anti-defection-law-and-its-exceptions-advantages, (Visited on July 26, 11:30 A.M.).
  9. Sakshi Rewaria, Analysis of Anti-Defection Laws in India, LATEST LAWS, (Visited on July 26, 2021, 1:15 P.M.), https://www.latestlaws.com/articles/analysis-of-anti-defection-laws-in-india-by-sakshi-rewaria/.
  10. HINDUSTAN TIMES, https://www.hindustantimes.com/india/here-is-all-you-wanted-to-know-about-the-anti-defection-law/story-49d09jR4iSNmKI5w83u2IL.html, (Visited on July 26, 2021, 2:00 P.M.).
  11. Supra 2.
  12. INSIGHTS IAS, https://www.insightsonindia.com/wp-content/uploads/2017/12/Anti-defection-Law.pdf, (Visited on July 26, 2021, 4:40 P.M.).
  13. Shivansh Sharma, Anti-Defection Law: An Analysis of the Effectiveness and Loopholes in the Law, e-ISSN: 2581-6705, 161-164, 2021, https://www.lawaudience.com/anti-defection-law-an-analysis-of-the-effectiveness-and-loopholes-in-the-law/.
  14. LEGAL SERVICES INDIA, http://www.legalservicesindia.com/article/1937/Anti-defection-law-the-challenges.html, (Visited on July 28, 2021, 11:40 A.M.).
  15. Ibid.
  16. Kesavananda Bharati v. State of Kerela AIR 1973 SC 1461.
  17. T. Ramakrishnan, Disqualified legislators can contest bypolls, says CEC, THE HINDU, (Visited on July 28, 1:40 P.M.), https://www.thehindu.com/news/national/tamil-nadu/disqualified-legislators-can-contest-bypolls-says-cec/article25340017.ece.
Written By: Meera Bansal

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