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Sansad TV: 75 Years: Laws that Shaped India- The Constitution (Fifty-Second Amendment) Act, 1985

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Introduction:

The anti-defection law was passed in 1985 through the 52nd Amendment to the Constitution. The Amendment added the Tenth Schedule to the Indian Constitution, with an intent to curb “the evil of political defections” motivated by the lure of office or other similar considerations.

What is the anti-defection law?

  • The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
  • The law applies to both Parliament and state assemblies.

Court interpretations on anti defection law:-

  • The Tenth Schedule says the Speaker’s/Chairperson’s decision on questions of disqualification on ground of defection shall be final and can’t be questioned in courts. In Kihoto Hollohan vs Zachillhu and Others (1991), an SC Constitution Bench declared that the Speaker’s decision was subject to judicial review.
  • In 1996 – Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule.  So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.
  • The Speaker of a House does not have the power to review his own decisions to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either
  • If the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties

Committee interpretations on anti defection law:-

  • Following demands that disqualification not be decided by speakers as they failed to be impartial, the Dinesh Goswami Committee and the Constitution Review Commission headed by Justice MN Venkatachaliah (2002) had recommended such a decision be made by the President or the Governor on the Election Commission’s advice, as in the case of disqualification on grounds of office of profit.
  • Dinesh Goswami Committee on electoral reforms (1990)
    • Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence.  .
  • Law Commission (170th Report, 1999)
    • Pre-poll electoral fronts should be treated as political parties under anti-defection law.
    • Political parties should limit issuance of whips to instances only when the government is in danger.

Advantages of anti-defection law:

  • Provides stability to the government by preventing shifts of party allegiance.
  • Ensures that candidates remain loyal to the party as well the citizens voting for him.
  • Promotes party discipline.
  • Facilitates merger of political parties without attracting the provisions of Anti-defection
  • Expected to reduce corruption at the political level.
  • More concentration on governance is possible.
  • Provides for punitive measures against a member who defects from one party to another.

Challenges posed by anti defection law:

  • The law doesn’t touch on the time period for the speaker to decide on disqualification.
  • The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.
  • Resignation v/s Disqualification as seen in Karnataka politics.
  • The law impinge on the right of free speech of the legislators:
    • This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
  • Doubts regarding “voluntarily” resigning from a party:
    • According to a Supreme Court judgment, “voluntarily giving up the membership of the party” is not synonymous with “resignation”.
    • It has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
    • In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned
  • Regarding Whips:
    • Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
    • It restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
    • Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

Speaker should not be the final decider because:-

  • The Speaker has been assigned the role of an impartial arbiter. But the conduct of speakers has left much to be desired.
  • A lawmaker elected as Speaker/Chairman is allowed to resign from his/her party, and rejoin it if he/she demits office. But speakers have invariably allowed themselves to be used for gain of their party or leader.
  • There have been many instances which show there is a need for more clarity:-
    • The Uttarakhand Assembly Speaker disqualified nine MLAs from the ruling party in 2016, despite the MLAs not leaving the Congress or voting against it in the Assembly. Furthermore, while the MLAs had voiced dissenting notes against the Budget, the Budget itself was declared passed without voting by the Speaker.
    • Such instances highlight the need for greater clarity in the interpretations associated with the Anti-Defection Law. Perhaps, it might be better for such critical decisions, associated with representative disqualification, to be determined by the President instead, with inputs from the Election Commission.

Way Forward:

  • Final decision on disqualification should be taken by President or Governor because too much importance has been given to speaker as per anti defection law is concerned.
  • More stringent and effective law is a need of hour.
  • Tribunal needs to be created for dealing with cases like this.
  • Proper division of power should be put in place between Legislature, executive and judiciary.
  • Disqualification procedure should continue even after resignation.

Conclusion:-

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. The true objective to enhance the credibility of the country’s polity by addressing rampant party-hopping by elected representatives should be pursued rather than using it as a political tool to pursue narrow interests of party.