India being a parliamentary form of government and multilevel party at the different level throws an opportunity of horse trading and game of corruption by parties in order to gain majority and form government at different level. Member of the political parties uses the concept of party hopping in order to gain the position offered by another party. In order to curb this concept of party hopping the anti-defection law was passed by parliament in 1985. Anti-Defection Law is in the Tenth Schedule of the Constitution, which was introduced by the 52nd Amendment in 1985 during tenure of Rajiv Gandhi.
What do you mean by Defection?
Defection defined as “to abandon a position or association, to join an another group or party”. Defection describes a situation in which a member of any particular party abandons his position or support to another party in order to gain political position. Articles 101, 102, 190 and 191 were changed through this amendment. This amendment laid down the process by which legislators may be disqualified on grounds of defection.
The Tenth Schedule to the Constitution, popularly known as the Anti-Defection Law, introduced by the Constitution (Fifty-second Amendment) Act, 1985 as amended by the Constitution (Ninety-First Amendment) Act, 2003 lays down the conditions regarding disqualification, on ground of defection.
The main provisions of the Tenth Schedule are summarized below:
(i) An elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of political party at the time he takes his seat would be disqualified on the ground of defection if he voluntarily gives up his membership of such political party or votes or abstains from voting in the House contrary to any direction of such party.
(ii) An independent member of Parliament or a State Legislature will also be disqualified if he joins any political party after his election.
(iii) A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months.
(iv) Provisions have been made with respect to mergers of political parties. No disqualification would be incurred when a legislature party decides to merge with another party and such decision is supported by not less than two-thirds of its members.
(v) Special provision has been made to enable a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of People or of the Legislative Assembly of a State or to the office of the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of Legislative Council of a State, to sever his connections with his political party without incurring disqualifications.
(vi) The question as to whether a member of a House of Parliament or State Legislature has become subject to the disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself it will be decided by a member of the House elected by the House on that behalf.
(vii) The Chairman or the Speaker of a House has been empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules shall be laid before the House and shall be subject to modifications/disapproval by the House.
This issue of Anti-defection law was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy.
Presiding officer of different houses were made the sole authority to take final decision on the matter of disqualification of any member. The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court.
Recently some of the favorable decisions made by the presiding officers in order to protect or delay the decision about disqualifying any member of his/her parental parties or near- dear one. Recent examples of Arunachal Pradesh and Telangana has shown the loopholes of the anti-defection law. Indian government has to consider this issues as some changes are needed to be done in order to curb these issues. Government has to introduce the concept of time based manner of decision making for the presiding officers in order to short the problem of disqualification and secondly the final authority must be transferred to election commission while taking the decision of disqualification for any member.