- 52ndAmendment Act of 1985 provided for the disqualification of the members of Parliament and state legislature on the ground of defection.
- Tenth Schedule deals with Anti-defection law.
- 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.
- Member of the House disqualified,
- If he voluntarily gives up his membership of his political party (or)
- If he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
- Independent Members:An Independent members of a House becomes disqualified if he joins any political party after such election.
- Nominated Members:A nominated members becomes disqualified if he joins any political party after the expiry of six months from the date on which he takes his seat in the house.
Power to Disqualify
- The Chairman or the Speaker of the House takes the decision to disqualify a member.
- If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.
Disqualification does not apply in the following two cases:
- If a member goes out his party as a result of merger of the party with another party. The merger takes place when two-thirds of the members of the party have agreed to such merger (This was later, deleted by 91stAmendment Act 2003).
- If a member, after being elected as the presiding officer of the house, voluntarily gives up his membership of his party or re-joins it after he ceases to hold that office.
91st Amendment Act of 2003 has made the following provisions:
- Total number of Minister including PM/CM shall not exceed 15% of total strength of Lok Sabha / Legislative assembly.
- Member of Parliament / State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to be appointed as Minister.
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.
- Challenging the decision of the presiding officer in the courts:
- The law states that the decision is final and not subject to judicial review. There are several instances that presiding officers take politically partisan view.
- The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.
- 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.