ANTI DEFECTION LAWS


INTRODUCTION

Initially, the Constitution of India failed to have any mention concerning the political parties. But, step by step once the multi-party system evolved, there are defections within the Indian Parliamentary System where there has been a shift of people from one political party to a different one that resulted in the breaking down of public confidence in a democratic style of Government.

Defection is desertion by one member of the party of his loyalty towards his political party or primarily it suggests that “When an elected representative joins another party while not resigning his present party for benefits.

The main objective that The Anti-Defection Laws was introduced within the Constitution was to combat “the evil of political defections”. The law was passed when the Late Rajiv Gandhi became the Prime Minister of the country. This law would not have been enacted if there had been no Government of Rajiv Gandhi and therefore the majority to pass it. This law was passed in order that restricts the defections within the politics however the increasing hunger of our legislatures and with our legal fraternity, it absolutely was not a difficult task to search out loopholes in this law, which can be mentioned later.


HOW ANTI-DEFECTION LAWS WERE ESTABLISHED IN INDIA

This practice of elected members switching the political sides to induce office is also referred to as Horse- trading. it is conjointly referred to as “Floor Crossing” in the U.K. and “Carpet Crossing” in Nigeria. The one who does such act of been elected from one party and enjoys advantages from other party is known as “Defector” or “Fence Sitters” or “Turn Coats”

There was uncontrolled Horse- trading and corruption prevailed within the political parties. one of the key incidents within India’s Political History occurred after the 1967 elections, where 142 MP’s and 1900 MLA’s had switched their respective political parties. So, to restrain such practice, the Rajiv Gandhi Government in 1985 introduced Anti-Defection laws within the Indian Constitution. It had been introduced by means of the 52nd amendment within the Constitution, which inserted the tenth Schedule in the Constitution, which is known as the anti –Defection law. This change helped to limit the elected members belonging to a party to leave that party and switch to a different party in Parliament.

The 52nd Amendment Act, 1985 result in amendments in Articles 101, 102, 190, and 191 of the Constitution to produce the grounds for vacation of seats for the disqualification of the members; and inserted Tenth Schedule.


VIEWS OF THE COMMITTEE ON ANTI-DEFECTION LAW

Dinesh Goswami Committee on Electoral Reforms (1990) Disqualification ought to be restricted to cases wherever a member voluntarily offers up the membership of his party, and a member abstains from voting, or votes contrary to the party whip in an exceeding motion of vote of confidence or motion of no-confidence. The issue of disqualification should be set by the President/ Governor on the recommendation of the commission.

Law Commission (170th Report, 1999) where the Provisions exempts splits and mergers from disqualification it should be deleted. Any pre-poll electoral fronts should be regarded as political parties under the anti-defection law. Political parties should limit the provision of whips to instances only if the govt. is in danger.

Election Commission under this the Tenth Schedule is to be made by the President or the Governor on the binding recommendation of the commission.


CHALLENGES TO ANTI-DEFECTION LAW

The first challenge to the anti-defection law was made within the Punjab and Haryana high court. one among the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held that so far as the right of a member under Article 105 is concerned, it's not an absolute one and has been made subject to the provisions of the Constitution and therefore the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and therefore the same may be regulated or curtailed by making any constitutional provision, like the 52nd Amendment.


LOOPHOLES IN THE ANTI DEFECTION LAW

  • Power to the Speaker- as per Rule 6 of the schedule, the Speaker of the House or the Chairman has been given wide and absolute powers to decide the case related to disqualification of the members on the grounds of defection. The Speaker still remains as the member of the party which had nominated him/her for the post of speaker.

  • Mr. K.P. Unnikrishnan, a member of Congress party in the Lok Sabha, had said that “by making the speaker the sole repository of all the judgment, you are allowing them to play havoc”.

  • One of the major criticisms of this power is that not necessary the speaker has legal knowledge and expertise to look upon and perform such acts in such cases.

  • Judicial Review- as per Rule 7, which bars the jurisdiction of the courts in any matter connected with disqualification of a member of a House, which states that it is outside the jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Article 226 and 227 of the Constitution to review the decisions made by the Speaker in this regard. This can have terrible consequences in the light of the difficulties enumerated above. The legislature in a way tried to restrict the power of the judiciary provided under the Constitution, which is not tenable.

The rule barring the jurisdiction of Courts has been challenged multiple times before the courts and the Court, in Kihoto Hollohon v. Zachilhu and Others[1], held that the law is valid in all respects except on the matter related to the judicial review, which was held as unconstitutional. Any law affecting Articles 136, 226, and 227 of the Constitution is required to be ratified by the States under Article 368(2) of the Constitution. As the required number of State assemblies had not ratified the provision, the Supreme Court declared the rule to be unconstitutional.


INTERNATIONAL SCENARIO ON ANTI DEFECTION LAW

Anti-defection law isn't solely practiced in India; however, it's prevailing in varied different countries like Bangladesh, Kenya, an African country, etc. Article 70 of the Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the commission. Section 40 of the Kenyan Constitution states that a member who resigns from his party should vacate his seat. the choice is by the Speaker, and therefore the member could appeal to the tribunal.

Article 46 of the Singapore Constitution says a member should vacate his seat if he resigns or is expelled from his party. Article 48 states that Parliament decides on any question about the disqualification of a member. Section 47 of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that appointed him.


CONCLUSION

The introduction of the Tenth Schedule within the Indian Constitution was aimed toward curb political defections. although the law has succeeded in a reasonable way because of several loopholes, it has not been able to achieve the best it can. Corrupt politicians have, through their dishonesty, been ready to realize the defects in the law to suit their desires in the absolute best means. The changes in the law might help it to develop to the best possible extent. Some changes are that the law must explicitly set out what it means by the words ‘voluntarily giving up Membership’ to avoid any confusion. The law must be reviewed to end any conflicts between the legislature and the judiciary based on the Schedule.






[1] AIR 1993 SC 412

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