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Anti-Defection Law

Initially, Anti-Defection Law was not in the Constitution of India. That time, when the Constitution of India was formed, there was only one major political party i.e Indian National Congress. Gradually, multiple political parties were formed after the Independence. Because of multiple political parties, many members of different parties started switching to other which was affecting the stability of the government.

The reason behind switching the parties was only that they will get more benefit after joining another party. It became the serious problem because so many members of political party switch to another party after the general election of 1967. The Anti-Defection law was passed during the Rajiv Gandhi government in 1985 and they tried to solve that issue which was emerging that time.

After considered it a significant complication, parliament came with the Anti-Defection law in the 52nd amendment, 1985 in which if any member wants to quits the membership of one party and joins another party then in that case if any position was hold by him such position will be ceased. It was a great step taken by the parliament to facilities democratic realignment of parties.

Another 91st Constitutional Amendment came in 2003. After this amendment, parties could be merged into any other party after the consent of 2/3rd member of such party.

The 52nd Constitutional Amendment, 1985

The 52nd Constitutional Amendment Act, 1985 provided the provisions related to the Anti Defection Law in India. Article 101, 102, 190 and 191 of the Constitution were changed in this amendment. Mainly, it was stated the provisions which provide grounds of defection for disqualification of members of parliament as well as member of legislative assembly. Tenth Schedule was inserted by this amendment to provide clear view related to the disqualification of the members.

Grounds For Disqualification As Member Of House:
  • Any member of one political party joins any other party.
  • Cast the vote against the discretion of his party or abstain from voting in such house.

Exception:
  1. If such member has taken prior permission regarding voting or doesn't condoned by other members of his own party within fifteen days then such member can't be disqualified on this ground.
     
  2. If any party merges in any other political party. A merger takes place when two-third of the members of the party has agreed to such merger.
    • If any Independent candidate elected in the elections and became the member of house joins any other party.
    • If any Nominated member switches to other party, then the ground of disqualification will arise after the six months from the date when he becomes the member of legislature.
       

The 91st Constitutional Amendment, 2003

The provision of the Tenth Schedule contains anti defection law which pertains to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the members who leave such party have no more protection on ground of splits. Parties can also be merged after the consent of Two-Third members of such political party.

Decision Of Presiding Officer

The decision determined regarding the disqualification of Member of Parliament exercise by the presiding officer of the house i.e Speaker/ Chairman. Speaker/ Chairman have the discretionary power to disqualify any member on accusation made by the chief member of that party. Such decision must have been taken within three months. After three months if decision not determined, such power will automatically be ceased. The decision of the presiding officer is always appealable in the Supreme Court but no such guidelines issued by the Hon'ble Supreme Court.

Disqualification
  • Members of Political Parties:
    If members of political party discussed to cast vote in favour of a particular person then if any member betrays the party and don't cast his vote or cast against the will of other members then in that case it becomes the ground for disqualification.
     
  • Independent Member:
    If any member who elected in the election independently and became the Member of Parliament or Member of Legislative Assembly, joins another party then such member will be disqualified.
     
  • Nominated Member:
    The President nominates twelve members and if any member joins any other party then in that case, no disqualification can be made till six months. After six months, such nominated member can be disqualified on this ground alone by the presiding officer.

Advantages
Anti-Defection Law facilates democratic realignment of parties. This law is mandatory for stabilizing the government to smoothly run the economy as well as nation. When this law was not enforced, that time corruption was increased multiple times and if any party want to weaken any strong party, then they will offer huge amount to the members of that party and took them in their party. This law helped to reduce the corruption between political parties.

The stability of the government in force is very crucial because to develop the nation and boost the growth of economy, it is necessary that the government in force should be strong so that major important decision can be taken with permanence, effective and efficient way.

Criticism
There is no difference between dissent and defection, suppose if any person joins a party but after certain time if he feels that party is not going on the right way or for which purpose he joined, not fulfilled. In that case, such member has right to leave that political party but if he was holding any position prior to leave then such position will also be ceased.

This law is applicable only on the members of parliament or members of legislative assembly, not on the members outside the parliament. Other political parties still have the way to weaken the strongest party.

There is also discrimination between independent member and nominated member even though there is no such reason behind it to give six months period of relaxation to nominated members and not to give to independent members.

The power of disqualification is given to the presiding officer who is likely from the ruling party and by this there may be a chance of biased decision. If any member don't think that whatever is going is right going there may come several differences between the thoughts in the political party and with this right to freedom of speech restricts.

Case Laws
Keshwananda Bharti and Ors. v. State of Kerala and Anr.[1]
In this case, Hon'ble Supreme Court held that the judicial review is the basic feature of our Constitution and any amendment can't be done beyond the basic structure.

Kihoto Hollohon v. Zachilhu and Ors.[2]
In this case, Hon'ble Supreme Court upheld the validity of Anti-Defection Law. The presiding officer of the house is the guardian of the rights and privileges of the house. The provisions of the tenth schedule don't violate the democratic rights. Another observation by the judge also came that time which was that there may be chance of biasness on the part of speaker as his /her tenure depend on the majority of the house. It was also cleared that court' jurisdiction would not come into play unless the speaker passes an order, no intervention prior to adjudication.

Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP [3]
In this case, the Hon'ble Court held that if any member of the political party publically gives statement in favor of another party or make allegation against his own party then such act is to be considered wrong act and deemed to be a resignation from the party.

Conclusion
Every law requires some changes over time. Anti-defection law enforced by the 52nd Constitutional Amendment Act, 1985, that time so many members switched the parties. Corruption between political parties was also increased. After this, many things going good but gradually, loopholes were also raised. Anti-defection law should need amendment to work in a more effective and efficient way.

Dinesh Goswami Committee, 1990 also advised that President/ Governor should be competent authority who should decide over the disqualification of member upon the advice of the Election Commission. Last but not least, this law will be the backbone of stable government if some changes will be done.

End-Notes:
  1. (1973) 4 SCC 225
  2. 1992 SCR (1) 686
  3. January 27, 2008

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