- The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.
- For this purpose, it made changes in four Articles of the Constitution and added a new Schedule (the Tenth Schedule) to the Constitution. This act is often referred to as the ‘antidefection law’.
- Later, the 91st Amendment Act of 2003 made one change in the provisions of the Tenth Schedule. It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.
PROVISIONS OF THE ACT
The Tenth Schedule contains the following provisions
1. Disqualification Members of Political Parties: A member of a House belonging to anypolitical party becomes disqualified for being a member of the House, (a) if he voluntarily gives up his membership of such political party; or (b) 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.
2. Exceptions: The above disqualification on the ground of defection does not apply in the following two cases:
(a) If a member goes out of his party as a result of a merger of the party with another party. (b) If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party.
Advantages: The following can be cited as the advantages of the anti-defection law:
(a) It provides for greater stability in the body politic by checking the propensity of legislators to change parties.
(b) It facilitates democratic realignment of parties in the legislature by way of merger of parties.
(c) It reduces corruption at the political level as well as non-developmental expenditure incurred on irregular elections.
(d) It gives, for the first time, a clear-cut constitutional recognition to the existence of political parties.
It came to be criticised on the following grounds:
1. It does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
2. Its banned only retail defections and legalised wholesale defections.
3. It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
4. Its discrimination between an independent member and a nominated member is illogical. If the former joins a party, he is disqualified while the latter is allowed to do the same.
5. Its vesting of decision-making authority in the presiding officer is criticised on two grounds.
91st AMENDMENT ACT (2003)
The reasons for enacting the 91st Amendment Act (2003) are as follows:
1. Demands have been made from time to time in certain quarters for strengthening and amending the Anti-defection Law as contained in the Tenth Schedule, on the ground that these provisions have not been able to achieve the desired goal of checking defections.
2. The Committee on Electoral Reforms (Dinesh Goswami Committee) in its report of 1990, the Law Commission of India in its 170th Report on “Reform of Electoral Laws” (1999 ) and the National Commission to Review the Working of the Constitution (NCRWC) in its report of 2002 have, inter alia, recommended omission of the provision of the Tenth Schedule pertaining to exemption from disqualification in case of splits.
The 91 st Amendment Act of 2003 has made the following provisions to limit the size of Council of Ministers, to debar defectors from holding public offices, and to strengthen the anti-defection law:
1. The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15 per cent of the total strength of the Lok Sabha (Article 75).
2. 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 (Article 75).
3. The total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 per cent 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 (Article 164).
4. A member of either House of Parliament or either 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.
5. The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted.
The Big Picture - Anti-Defection Law & Karnataka Political Crisis
- Political defections aren’t anything new. Any single party alone cannot be held accountable for what happened in the two southern states of Goa and Karnataka, as well as in the Rajya Sabha where four out of six TDP members resigned and joined the Treasury Benches.
- Crossing the aisle has been part of India’s democratic process ever since the first elections in 1952. The usual method of opposition parties has been to lure away ruling party/coalition legislators.
- The floor-crossing in States reached epic proportions in the 1960s and 1970s when MLAs in some States changed their political allegiances multiple times during the day. Parliament amended the Constitution in 1985 in an attempt to stop this menace, and brought in the anti-defection law.
What the incidents like that in Karnataka indicate?
• It has raised the question of whether one should link or delink resignation with disqualification.
- The situation is that a resignation has been tendered and there is a disqualification proceeding that is also initiated.
- The Speaker is in a fix, that is, whether to take a call on disqualification first, as a consequence of which, resignation becomes redundant or accept the resignation first, in which case perhaps the disqualification may become redundant.
• The incident calls for an interpretation of the three provisions of the Constitution: Article 190 ( vacation of seats), Article 164 (IB), and the Xth schedule of the Constitution.
- The Speaker has the power to not accept resignation if s/he comes to the conclusion that there are grounds to believe that the resignation is a consequence of coercion or any other kind of undue influence or inducement. Inducement could also mean some kind of post/position elsewhere,
- If the Speaker comes to a conclusion that resignation is effectively connected and linked to the aspect of defection, then perhaps that particular resignation can be kept on hold and it need not be accepted.
• The defection is happening due to the lure of money and ministerial offices.
• The decision to resign before disqualification is taken because it allows one to become a minister in the current House otherwise one cannot become a minister in the current House until one’s re-election or the expiry of term, whichever is earlier.
- What is the anti-defection law? It refers to the 'Aaya Ram, Gaya Ram' culture, a phrase coined after Haryana MLA Gaya Lai changed his party twice in one day and thrice within a fortnight in 1967. In response to this, Rajiv Gandhi’s government brought anti-defection law to prevent such political defections in the year 1985.
- The law is necessary because when a voter decides to cast his/her vote for a candidate, he/she is considers not only the candidate but also the party that the candidate stands for and the manifesto the party presented. Hence, when the defection takes place, it’s the electorate that is let down, making a mockery of democracy.
- That is why in the year 1985, amendment to the constitution was effected and Xth schedule was introduced. The amendment and the schedule are connected to Article 102 and Article 191 of the Constitution. Both the articles pertain to disqualification for membership.
- The purpose of this mini-legislation within the constitution is to create a deterrent for any kind of defections and it prescribes disqualification for doing so.
Role of the Judiciary
The practice so far is that courts do not interfere until a decision regarding disqualification is taken.
The Xth schedule is pretty clear that on such particular issues, there is a bar on the jurisdiction of courts.
Problems in the Anti-defection Law
- The real problem with the anti-defection law is that leaders have tried to solve a political problem using a law. If one tries to solve a political problem using law as a tool, it will always have limited applications because politics has its own ways and means of circumventing things.
- Politics is all about power and individuals tend to shift to the political group which can offer them more power.
- There can also be genuine cases where individual MPs or may be 6-10 MPs or MLAs are genuinely not convinced by the line taken by their party. Should s/he kill her/his conscience, then?
- Article 105 (2) and Article 194 (2) provide complete freedom of speech to MPs and also give them protection from any sort of consequences for anything said or vote given in the House. Xth schedule also goes against these articles.
- Can MLAs facing disqualification be tried under the Anti-Defection Law even after they resign?
One way is to go with the way judges are removed i.e. wherein, if removal proceedings are going against a judge and the judge chooses to resign, immediately that proceeding ends. Going by that, in such cases, once the resignations are accepted, the disqualification proceedings will be over automatically.
- Another way is to take some kind of inspiration from the Company Law where even after a person has resigned from his post as a director, he can be held accountable for actions that he took as a Director under Section 168 (2) of the Companies Act.
- It can happen that the Speaker accepts the resignation when it is tendered, on the belief that the same has been tendered in a bonafide fashion but after sometime if s/he comes to realise that there has been malafide reason behind the resignation, due action can be taken.
- The fact is that the Speaker does not have a legal tool in his hand to actually hold that particular person accountable and to return that particular resignation.
- Anti-Defection Law should be made applicable only in a situation where there is a vote for survival of the government or trust vote of no confidence motion.
- The Speaker’s power regarding such issue can be given to the governor or the President as in the case of Office of Profit or there should be a tribunal which can decide such cases.
- There has to be some way out for the cases in which the MPs or MLAs genuinely feel that they should not be voting on party lines. Also, there should be an option that a conscientious politician can resign and stand for election again, if he doesn't agree with the party line.
- There is a need to provide the Speaker with a timeline i.e. providing him/ her specified number of days for reviewing a resignation.
- The Speaker needs to strike a distinction between bonafide political reasons and malafide political reasons.