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Anti-Defection Law
The Anti-Defection Law was established under the 52nd Amendment Act of 1985 to address the issue of political defection in India. It aimed to provide stability to the political system by disqualifying members of Parliament and state legislatures from changing their political affiliation.
Provisions of the Act
The Act added the Tenth Schedule to the Constitution, which outlines the conditions under which members can be disqualified due to defection.
1. Disqualification Criteria
Members of Political Parties:
- A member will be disqualified if:
- They voluntarily give up their membership of the political party they were elected from.
- They vote or abstain from voting contrary to the directions issued by their party without prior permission, and this action is not condoned by the party within 15 days.
- A member will be disqualified if:
Independent Members:
- An independent member (one who is not associated with any political party at the time of election) will be disqualified if they join a political party after their election.
Nominated Members:
- A nominated member becomes disqualified if they join a political party after six months from the date they take their seat in the House.
2. Exceptions to Disqualification
The provisions related to disqualification do not apply in the following cases:
Merger:
- If a party merges with another party and two-thirds of the members of the original party agree to the merger.
Presiding Officers:
- If a member is elected as the presiding officer (like a Speaker) of the House and later voluntarily resigns from their party, they are not disqualified, and may rejoin their party after their term as presiding officer ends.
3. Deciding Authority
- The question of disqualification due to defection is decided by the presiding officer of the House (Speaker in Lok Sabha or Chairman in Rajya Sabha).
- Initially, the law stated that the presiding officer’s decision was final and not subject to court review. However, this was challenged in the Kihoto Hollohan case (1993), where the Supreme Court ruled that the presiding officer functions as a tribunal and that their decisions could be subject to judicial review based on grounds of mala fides, unfairness, etc.
4. Rule-Making Power
- The presiding officer has the authority to make rules to implement the provisions of the Tenth Schedule.
- These rules must be presented to the House for 30 days and can be approved or modified.
- A defection case can be taken up by the presiding officer only upon receiving a complaint from a House member. Before making a final decision, the accused member must be given a chance to explain their position, and the matter may be referred to the committee of privileges for inquiry. This ensures that defection does not lead to immediate consequences without due process.
The Anti-Defection Law is a crucial component of India’s political framework, aimed at promoting stability and accountability within the legislative bodies. By clearly defining disqualification criteria and establishing procedural safeguards, the law seeks to deter political defection and ensure that elected representatives remain accountable to their constituents and party affiliations. However, the ongoing discussions around its implications highlight the delicate balance between political freedom and legislative stability.
Evaluation of the Anti-Defection Act
The Tenth Schedule of the Indian Constitution, which embodies the anti-defection law, was introduced through the 52nd Amendment Act of 1985 to prevent political defections that are often motivated by incentives such as office, monetary benefits, or other inducements. The law aims to reinforce the integrity of Indian parliamentary democracy by curbing unprincipled defections.
Significance
- The law was regarded as a substantial step towards improving public life. Former Prime Minister Rajiv Gandhi referred to it as the “first step towards cleaning up public life,” and its passage by a unanimous vote indicated the maturity and stability of Indian democracy.
Advantages of the Anti-Defection Law
1. Stability in Governance:
- The law enhances political stability by discouraging legislators from changing parties frequently, which could jeopardize government stability.
2. Facilitates Democratic Realignment:
- It allows for legal mergers of parties, thereby facilitating democratic realignment within the legislature.
3. Reduction of Corruption:
- By limiting the potential for political defections, the law curtails corruption and non-developmental expenditures associated with irregular electoral practices.
4. Recognition of Political Parties:
- For the first time, the law provides explicit constitutional recognition to political parties, solidifying their role in the governance structure.
Criticisms of the Anti-Defection Law
Despite its advantages, the anti-defection law has faced several criticisms:
1. Curbs Dissent:
- The law treats dissent within political parties as defection, thereby infringing on a legislator’s right to dissent and exercise freedom of conscience. Critics argue it places party leadership above individual elected representatives, enabling party bossism.
2. Irrational Distinction:
- The law differentiates between individual defection and group defection, prohibiting personal defections while allowing groups (or parties) to merge without retribution. This has led to claims that the law legalizes “wholesale defections” while banning “retail defections.”
3. Lack of Provision for Expulsion:
- It does not include measures for expelling a legislator from their party for actions or activities outside the legislature, leaving a gap in accountability.
4. Discriminatory Treatment:
- The law distinguishes between independent members and nominated members. An independent member joining a party is disqualified, while a nominated member can do so within six months without facing disqualification, which critics find illogical.
5. Authority in Decision-Making:
- The law places the authority to adjudicate defection cases in the hands of the presiding officer of the House (Speaker), which raises concerns about impartiality and expertise. There are doubts regarding the presiding officer’s ability to make objective decisions due to potential political biases, and past Speakers have questioned their suitability for this adjudicative role.
The Anti-Defection Act represents a significant attempt to enhance the integrity of the political system in India by limiting opportunistic political behavior. However, the criticisms highlight shortcomings that need to be addressed to ensure that the law functions effectively without infringing on democratic principles, such as dissent and autonomy of individual legislators. Striking a balance between party discipline and individual rights remains a crucial challenge in strengthening governance and political accountability in India’s multi-party system.
91st Amendment Act of 2003
The 91st Amendment Act was enacted in 2003 to address and strengthen the existing Anti-Defection Law as enshrined in the Tenth Schedule of the Indian Constitution. It aimed to limit the size of the Council of Ministers and establish stricter repercussions for legislators who defect from their parties.
Reasons for Enacting the 91st Amendment Act
1. Need for Strengthening Anti-Defection Law:
- There were ongoing demands for reforming the Anti-Defection Law due to its ineffectiveness in preventing defections. Criticism was particularly directed towards the law allowing group defection (or “split”) while classifying individual defections as illegal, thus destabilizing governments.
2. Recommendations from Various Committees:
- The Dinesh Goswami Committee(1990) and the Law Commission of India (170th Report, 1999) recommended the removal of the provision permitting disqualification exemptions for splits.
- The National Commission to Review the Working of the Constitution (NCRWC)(2002) also advocated penalizing defectors, preventing them from holding public office for the duration of the existing legislature or until the next elections.
3. Control Over Council Size:
- Concerns over excessively large Council of Ministers prompted the NCRWC to suggest a legal ceiling on the number of ministers at 10% of the total strength of the respective House.
Provisions of the 91st Amendment Act
The 91st Amendment introduced several significant changes to strengthen the Anti-Defection Law and regulate the size of the Councils of Ministers:
1. Council of Ministers Limit:
- The total number of ministers in the Central Council of Ministers, including the Prime Minister, cannot exceed 15%of the total strength of the Lok Sabha.
2. Disqualification of Ministers:
- A member of either House of Parliament who is disqualified due to defection will also be ineligible for appointment as a minister.
3. State Council of Ministers Limit:
- The total number of ministers in a state’s Council of Ministers, including the Chief Minister, cannot exceed 15%of the total strength of the state’s Legislative Assembly. However, the number of ministers must not fall below 12.
4. Disqualification for State Legislators:
- Similar provisions apply to members of a state legislature, who are disqualified from being appointed as ministers if they are disqualified due to defection.
5. Public Office Disqualification:
- Legislators disqualified on the grounds of defection are also barred from holding any remunerative political post. This includes any office under the Central or state governments where remuneration comes from public revenue or offices under state-owned or partially owned entities.
6. Removal of Split Provision:
- The previous provision in the Tenth Schedule that exempted members from disqualification in the event of a split (if one-third of the members of a legislature party defected) was deleted. As a result, defectors no longer have protection based on splits.
Suggestions
- Dinesh Goswami Committee on electoral reforms (1990) suggested that?the issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
- Halim Committee on anti-defection law suggested that the words ‘voluntarily giving up membership of a political party’ and the term ‘political party’ be comprehensively defined.
- Law Commission (170th Report, 1999) suggested that the Political parties should limit issuance of whips to instances only when the government is in danger.
- Election Commission suggested that decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
- Constitution Review Commission (2002) suggested that the vote cast by a defector to topple a government should be treated as invalid and that the defectors should be barred from holding public office for the duration of the remaining term.
The 91st Amendment Act of 2003 represents a significant step towards reinforcing the integrity and stability of India’s political system by tightening the regulations surrounding defections and the size of the Council of Ministers. By eliminating exemptions for splits and imposing strict disqualifications on defectors, the amendment aims to create a more accountable and responsible political environment. This amendment reflects an ongoing effort to ensure that political parties and their members adhere to principles of integrity and democratic accountability.
