What is Defection?:- Defection by legislators occurs in many democracies. It can be argued that they can undermine the stability of the government, which is dependent on the support of the majority party’s own elected legislators and/or a coalition of those elected to represent other parties.
The argument follows that such instability can amount to a betrayal of the people’s mandate as voiced at the most recent prior election.
Almost 50% of the 4,000 legislators elected to central and federal parliaments in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.
A law was sought to limit such frequent defections in India.
In 1985, the Tenth Schedule of the 52nd Amendment to the Constitution of India was passed by the Parliament to achieve this.
Anti-Defection Law under Indian Constitution
The anti-defection law aims to punish legislative members (MPs/MLAs) for changing political parties.
The 52nd Amendment Act of 1985 added the 10th Schedule to the Constitution.
This act is commonly referred to as the ‘anti-defection law’.
The 52nd Amendment Act provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.
However, it also allowed mergers with another political party without inviting the penalty for defection.
The 91st Amendment Act of 2003 made one change in the provisions of the 10th Schedule.
As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
But the 91st Constitutional Amendment Act, 2003, amended this, and now at least two-thirds of the members of a party have to be in favor of a “merger” to bypass the anti-defection act.
What are the major Provisions of the Anti-defection Act?
Disqualification of Members of Political Parties: A member of a House belonging to any political party becomes disqualified for being a member of the House;If he voluntarily gives up his membership in such a political party.
If he votes or abstains from voting in contrary to any direction issued by his political party without obtaining prior permission from the party.
From the above provision, it is clear that a member elected on a party ticket should continue in the party and obey the party’s directions.
Independent Members: An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified if he joins any political party after such an election.
Nominated Members: A nominated member of a House becomes disqualified from being a member of the House if he joins any political party after the expiry of six months from joining the House.
This means that he may join any political party within six months of taking his seat in the House without inviting this disqualification.
What are some exceptions to Anti Defectionlaws?
Exceptions: The above disqualification on the ground of defection does not apply in the following two cases:
If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when 2/3rd of the members of the party have agreed to such a merger.
If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or re-joins it. This exemption has been provided because of the dignity and impartiality of this office.
Who will be deciding Authority in Anti Defection cases?
Deciding Authority: Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court.
However, in the KihotoHollohan case (1993), the Supreme Court declared the above provision unconstitutional and said that the decision of the presiding officer is subject to judicial review on the grounds of mala fides, perversity, etc.
Who has the power to make rules regarding Antidefection Laws?
Rule-Making Power: The presiding officer of a House is empowered to make rules to give effect to the provisions of the 10th Schedule.
All such rules must be placed before the House for 30 days. The House may approve or modify or disapprove them.
According to the rules, the presiding officer can take up a defection case only when he receives a complaint from a member of the House. Before making the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation.
He may also refer the matter to the committee of privileges for inquiry.
What are some Anti-defection Provisions under the 91st Amendment Act of 2003?
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.
A member of either House of Parliament belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
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 that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
A member of either House of a state legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
A member of either the House of Parliament or the House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
The provision of the 10th Schedule (anti-defection law) regarding exemption from disqualification in case of a split by one-third of members of the party has been deleted. It means that the defectors have no more protection on grounds of splits.
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