10th Schedule- Anti Defection Law.

 In News

  •  In July 2019 15 Rebel MLAs belonging to the Congress-Janata Dal (Secular) coalition government of Karnataka, Resigned from the membership of the Congress- Janata Dal (secular). The Series of Events led to the fall of the Government eventually. The BJP with 2nd highest number of legislators eventually formed the Government in Karnataka.

  • In August 2019, 10 MLAs of Sikkim Democratic Front (SDF) left the party and Joined BJP. Currently, the only MLA left in SDF is Pawan Kumar Chamling, who Was the longest serving Chief minister so far in India with 25 years in Office.

  • All These news bring us to the question – Is it really that easy to leave a weak party for a strong one? and what is the effectiveness of Anti- Defection Law ?

 

 THE ANTI-DEFECTION LAW.

What is the anti-defection law?

  • In order to demotivate frequent defectors in Political parties, the Tenth Schedule (Anti Defection Law) was inserted in the Constitution in 1985 by 52nd Amendment Act.

  • It lays down the process by which legislators (MP or MLA ) 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.

  • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.

  • The law applies to both Parliament and state assemblies.

Grounds of Disqualification.

  1. If he voluntarily gives up his membership of such political party; or

  2. 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.

  3. An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.

  4. A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in 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.

Are there any exceptions under the law?

  • Yes, legislators may change their party without the risk of disqualification in certain circumstances.

  • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.

  • In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

  • 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 after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.

91st Amendment 2003.

  • Before 2003, the Anti Defection law was not applicable, If one third members of a political party Decides to leave their party.

  • However the clause was deleted under 91st Amendment act 2003.

Who decides on the Disqualification based on Defection.

  • The Presiding officer of the House. i.e Speaker in lok Sabha or State Assemblies and Chairman in Rajya sabha or State legislature. 

Is there a time limit within which the Presiding Officer has to decide?

  • The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea.

Decision of the Presiding Officer is subject to judicial review:

  • The law initially stated that the decision of the Presiding Officer is not subject to judicial review.

  • This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.

  • However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.

  • In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.

Analysis :

Positives.

  1. The Law keeps a check on the Lure of Money and Position offered to legislators to weaken the political parties. Thus creating a stability in body politics. 

  2. Saves the exchequer money which otherwise would have been spent on frequent Elections due to instability caused by defectors.

Negatives.

  1. The law does’t differentiate between Dissent and Defection. It curbs the freedom of Individual Conscience.

  2. Against the Spirit of Representative Democracy : The MPs and MLAs  are chosen from regional constituencies. These legislators represents the issues of people who have chosen them.  However due to anti defection law the party’s ideologies and political agendas supersede the local expectations of people from there legislators.

  3. Final decision  on the matter lies with presiding officers. The presiding officer comes from ruling party.  It is often seen that the decisions taken by the presiding officer are partial and in favour of ruling parties.

  4. In many instances, it was observed that the presiding officer doesn’t take any decision on the matter of disqualification of a defector, if he or she is joining the ruling party. The current vice president Mr M venkaiah Naidu  commented that in many cases the defector members have enjoyed the full term of its membership in the house and even become minister in the ruling party.

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