Constitution and Law procedure
ANTI DEFECTION LAW IN INDIA
11 May 2016  |  Views: 292  | 
Tushar Bhargava
Advocate

ANTI DEFECTION LAW IN INDIA

INTRODUCTION

The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”. It was made to bring stability to structure of political system by preventing the frequent change of parties by members. This law bars that once a person is elected as member of House, he cannot not change its party after the elections.   There are various grounds of defections which can lead to disqualification that is pointed out in Tenth Schedule.

The main grounds of defection are:-

The member of House voluntarily give up his membership from such party

The phrase ‘voluntarily giving up’ is not explained in the Schedule. In a case  G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly  question arose that - Whether a member can be said to  voluntarily give up his membership of a  party if he joins another party after being  expelled by his old political party? The court ruled that 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.  In another case Ravi S Naik v. Union of India another question arose that - Whether only resignation constitutes voluntarily giving up membership of a political party? The court decided that the phrase “voluntarily giving up membership” have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.  Also various committees have given view in relating to this. One of which is Halim Committee on  anti-defection law  (1998) which  suggested that the words ‘voluntarily giving up membership of a political party’ be comprehensively defined. Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members. The term political party should be defined clearly. 

 

If he votes against the directions of ruling party or abstain from voting for such party.

The constitution validity of this provision has been challenged in Court. The Constitution provides for free voting in Parliament.  Generally, courts have regarded voting by ordinary citi­zens to be a part of speech on the grounds that it is a tool of expressing feel­ings, sentiments, ideas or opinions of an individual.The right to vote for the candidate of one’s choice is nothing but freedom of voting, and it is the essence of democratic polity. While the right to vote is a statutory right, the freedom to vote is considered a facet of the fundamental right enshrined in Art. 19(1)(a). Every person has the right to form his opinion about any candidate. Casting a vote in favor of one or the other candidate is tantamount to expression of this preference. This final stage in the exercise of voting marks the accomplish­ment of freedom of speech of the voter. Extending this finding to voting in Parliament, voting becomes an essential element of the freedom under Art. 105(1). Voting by members must not thus, be restricted.

On this point in a case   Kihota Hollohon vs. Zachilhu, The court decided that the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. It does not violate their conscience. The provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.

If member of a political party joins any other party after his election as member of House.

This issue was raised in a recent case Imkong Imchen vs Union Of India And Ors. regarding constitutional validity of anti-defection law in respect of  imposing unreasonable restriction on the elected independent members of Legislative Assemblies by way of dis-allowing them to join any political party. It was contended that it was in direct violation of Article 14 of Constitution. The Hon'ble Apex Court held that fundamental rights are not absolute and the legislature is competent enough to make reasonable classifications even within the same category of persons

Exceptions to these grounds are:-

 

  1.  If a member of house splits up into a group which consist of one third members of the legislature party concerned.
  2. If a member of house merges with newly formed political party with majority vote of two third members of party.

 

These exceptions have been criticized by various lawyers and reports of commission. Law Commission (170th Report, 1999) suggested that the provisions which exempt splits and mergers from disqualification to be deleted.

AUTHORITY UNDER THIS ACT

The question as to whether a member of a House of Parliament or State Legislature has become subject to disqualification will be determined by the Chairman/Speaker of the House and his decision will be final. Where the question is with reference to the Chairman/Speaker himself it will be decided by a member of the House elected by the House in that behalf and his decision will be final.  Court cannot intervene in decisions taken by Speaker.

CHALLENGES FACED BY THIS ACT

Even though anti defection law is an efficient way to structure political party so that members don’t engage in scrupulous activities by supporting opposite party. Still few issues are needed to be focused on which was reiterated by Law Commission in its report-

  1. Pre-poll electoral fronts should be treated as political parties under anti-defection law.
  2. Political parties should limit issuance of whips to instances only when the government is in danger.
  3. Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.

Recently in Uttrakhand crisis , the nine congress MLA’s was disqualified from voting in floor test. But if BJP government would have split it government with support these nine rebels then it could have adverse affect on political system.These provisions relating to split should therefore be deleted.

CONCLUSION

From the above discussion, it can be concluded that anti defection law needed to be amended to be in consonance with current facts and circumstances. However it depend more on judicial interpretation of such law.  The menace of corruption and bribery is yet to be cured which is nowhere dealt in 10th Schedule. The power given to Speaker can be exercised arbitrarily as his decision is considered final. So, in a way you are giving all right to parliamentarian which should not be in democratic country like India.

 

 

 

 

 

 

 


 

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