Author: Manya Pankaj Kumar Prabhakar, Shree L.R. Tiwari College of Law
ABSTRACT
Defection defines as when an individual MPs/MLAs change his/her parties for another parties. After the general election of 1967 when the defection crises started growing, anti-defection law was introduced to the constitution by 52nd amendment to bring the stability in governance. This article examines the meaning of anti- defection law, its provisions, exceptions, legal judgements
INTRODUCTION
In a parliamentary democracy like India, where multi-party system exists, a political stability is vital for good governance. In a mid-1990s, a politician from Haryana named Gaya Lal changed his political parties 3 times in the span of 15 days which created rampant among political parties and after that famous informal term was established “Aaya Ram Gaya Ram”. The aftermath of the 1967 general election saw a spike in defections, an anti-defection bill was introduced but eventually failed to pass and lapsed. In 1985 when Rajiv Gandhi became prime minister, he took an action and anti-defection law finally introduced in Parliament to avoid the defection.
Anti-Defection law / 10th schedule of the Indian constitution was included to the constitution by the 52nd amendment in 1985. It says that if a MP/ MLAs change his parties for another, there party ticket will be disqualified. However, there is certain exemptions given in 52nd amendment that says if a 1/3 members split out from their party, then disqualification will not occur, but with 91st amendment the provision of split got abolished. Despite of anti- defection law, party- defection has not stopped for example recently in Maharashtra government anti- defection crisis came into light when shiv sena party splitted.
PROVISION OF ANTI-DEFECTION LAW
- If a member of Parliament or state legislature gives up their party membership on their own accord, they become subject to disqualification.
- If an independent member after the election, join other party then it will be called as anti-defection and will be disqualified.
- Twelve nominated members of Rajya Sabha, if wants to join the other party have to join within 6 months, after 6 months they are liable to be disqualified.
- If a MLA/MPs don’t follow the whip of their party, then they are liable to be disqualified.
Disqualification of members of Rajya Sabha and Lok Sabha will be presided by speaker or chairperson.
EXCEPTIONS
- Mergers: If at least two-third of the legislators of political party merges into another party, then there will be no disqualification.
- Anti- defection law does not apply to Speaker or Chairman of the legislature.
KEY AMENDMENTS:
52nd Amendment Act of 1985:
- Introduced the 10th schedule to the constitution.
- Laid down the provision for disqualification of elected members on ground of defection.
- Allowed exception for split (one-third member forming new group) and merger (two-third member joining another party)
91st Amendment Act of 2003:
- Abolished the provision for disqualification exemption in case of split (part 3 of the 10th schedule deleted.)
- The strength of the council of ministers is capped at 15% of the total membership of the Lok Sabha or the respective State Legislative Assembly.
- Art 164(B) was inserted to prevent disqualified members from being appointed as ministers.
91st amendment was introduced after many legislatures exploited the loophole given in the part 3 of the 10th schedule, which led to the widespread instability.
LEGAL JUDGEMENTS
KIHOTO HOLLOHAN V. ZACHILHU (1992)
FACTS:
Multiple petitions were filed challenging the constitutional validity of the 10th schedule introduced by 52nd constitutional amendment in1985(anti-defection law)
JUDGEMENT
SC upheld the validity of anti-defection law but clarified that the speaker acts as a quasi-judicial authority under the 10th schedule and therefore his decision can be challenged through judicial review if it is found to be mala-fide, unsupported by evidence, or in breach of principle of natural justice.
RAVI S. NAIK V. UNION OF INDIA (1994)
JUDGEMENTS: The court broadened the interpretation of voluntarily giving up membership and held that voluntarily giving up includes not just resignation but also indicate departure for party loyalty.
RAJENDRA SINGH RANA V. SWAMI PRASAD MAURYA (2007)
FACTS:
The speaker of the UP Legislative Assembly accepted a claim of a party split and did not disqualify 13 MLAs.
JUDGEMENT:
The court held speaker’s decision invalid as there was no formal split had occurred under the law (prior to 91st amendment).
This case set a precedent for exacting evidentiary standards in disqualification cases and reinforced judicial oversight.
SHRINATH BALASAHEB PATIL V. SPEAKER OF KARNATKA LEGISLATURE ASSEMBLY (2020)
FACTS:
The disqualified Karnataka MLAs challenged the speaker’s decision which had barred them from contesting elections for the remainder of the legislative term.
JUDGEMENT:
The apex court validated the MLA’s disqualification by the speaker for the current term, yet ruled that this disqualification under the tenth schedule does not extend to a ban on future electoral participation.
The court emphasized the speaker to act impartially and efficiently.
SUBHASH DESAI V. PRINCIPAL SECRETARY, GOVT. OF MAHARASHTRA AND ORS. (2023)
FACTS:
After a split up in the Shiv Sena between Uddhav Thackrey and Eknath Shinde Factions, disqualification petitions were filed against MLAs on both sides. The matter escalated after the governor decision to invite Shinde to form government.
ISSUES:
Whether the speaker can decide disqualification petitions in a factional dispute.
Examining the constitutionality of the Governor’s directive to convene a floor test.
Does the SC possess the authority to mandate that the speaker make decision within a fixed period.
JUDGEMENT
The court found that the Governor lacked sufficient factual basis to justify summoning a floor test.
The authority to decide whether the Eknath Shinde camp had defected from Shiv Sena lied within the Speaker’s jurisdiction.
Refrained from re-instating the Uddhav Thackrey government since he resigned voluntarily.
The speaker must act impartially and efficiently in deciding disqualification matters.
The governor must act with constitution propriety.
MANISH KUNJAM V. SPEAKER OF CHATTISGARH LEGISLATIVE ASSEMBLY (2023) Ongoing case in SC
OBSERVATIONS: The SC observed delays in the speaker’s decision on disqualification petition and emphasized that inaction or delay defeats the purpose of the 10th schedule.
The court is actively considering whether to fix a limit lime for the speaker to decide on disqualification matters.
CONCLUSION
With the growing defection crisis after the general election of 1967 which led to the widespread instability. Anti-defection law was passed by 52nd amendment. It brought forth the provisions and exemptions outlined under the anti-defections law. Later 91st amendment was introduced that brought some amendments to 53rd amendments. Despite of law being in existence, defection has still been seen among political parties. Various Judgements was passed by the SC for example Karnataka and Maharashtra anti- defection crisis case upholding the integrity of provisions of law. Hence, as per my opinion, Anti-defection law is boon for India as it aims to curb the practices of elected representatives switching political parties after elections. Thereby promoting political stability.
FAQs
Q. What is Defection?
Ans: It defines as if a MLA/MPs change party for another party, it will call as defection.
Q. What is Anti-defection law. Why it was introduced?
Ans: Anti-defection law also known as 10th schedule was introduced by 52nd amendment to the constitution. It was introduced to bring the political stability in governance amid the growing defection cases among politics.
Q. Under which PM, law was passed?
Ans: Law was passed in 1885 when Rajiv Gandhi was PM of India.
Q. What was the exceptions laid down in 52nd amendment?
Ans: Provision of split was laid down in 52nd amendment which says if one-third of legislators split out from their party, then they will not be liable for disqualification. However later this provision was abolished.
