Anti-Defection Act,1985

Anti-Defection Act,1985

 **Author: Aarti Khanduri, a student of DAV (PG) College, Dehradun, Uttarakhand

Introduction

• The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures or the ground of defection from one political party to another.

• For this purpose, it made changes in four Article of the constitution and added a new schedule (the Tenth Schedule) to the Constitution.

• This act is often referred to as the ‘anti-defection law’. Later, the 91st Amendment Act of 2003 made one change in the provisions of the Tenth schedule.

• It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

Provision of the Act

• The tenth schedule includes the following provisions with regard to the disqualification of MPs and MLAs on the ground of defection:

• Ground for disqualification:

• If an elected member gives up his membership of a political party voluntarily.

• If he votes or abstains from voting in the house, contrary to any direction issued by his political party.

• If any member who is independently elected joins any party.

• If any nominated member joins any political party after the end of 6 months.

• The decision on disqualification questions on the ground of defection is referred to the speaker or the Chairman of the House, and his/her decision is final.

• All proceeding in relation to disqualification under this schedule are considered to be proceeding in parliament or the Legislature of a state as is the case.

Exceptions 

The above disqualification on the ground of defection does not apply in the following two cases:

1. If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two thirds of the members of the party have agreed to such merger.

2. If a member, after being elected as the presiding officer of the house, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.

• It must be noted here that the provision of the tenth schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91th Amendment Act of 2003.

• It means that the defectors have no more protection on ground of splits.

Deciding Authority

• Deciding Authority any question regarding disqualification arising out of defection is to be **decided by the presiding officer of the House.

• Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court. However, in Kihoto Hollohan case (1993), the supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the high court.

• It held that the presiding officer, while deciding a question under the tenth schedule, function as tribunal.

• Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc. But, the court rejected the contention that the vesting of adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias.

 Rule-making power

• The presiding officer of a House is empowered to make rules to give effect to the provision of the Tenth Schedule. All such rules must be placed before the House for 30 days.

• The House may approve or modify or disapprove them. Further, he may direct that any willful contravention by any member of such rules may dealt with in the same manner as a breach of privilege of the House.

• According to the rules made so, the presiding officer can take up a defection case only when he receives a complaint from a member of the House.

• Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation.

• He may also refer the matter to the committee of privileges for inquiry. Hence, defection has no immediate and automatic effect.

• Occurrences on Anti Defection Law

• In 2020, the supreme court stated that the speakers should decide on the question of disqualification within a “reasonable time”.

• The case of Keisham Meghachandra v. the Hon’ble Speaker Manipur, Justice Rohinton Nariman talked of the need to set an external means to deal with defection cases.

• In his words, “Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok sabha and Legislative Assemblies as an arbiter of disputes concerning disqualification which arise under the Tenth Schedule.”

• He further continued that it can be “with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy”

• The political crisis that occurred in Maharashtra has also thrown new light on the roles of Speaker and Governor and anti-defection Law.

Why in News:

Recently, the Supreme court on October 13 slammed Maharashtra Assembly Speaker Rahul Narwekar for reducing the anti-defection proceedings against Chief Minister Eknath Shinde and other MLAs to a “charade”, saying that he cannot “merrily” defer hearings and has to decide before the next elections.