ANTI-DEFECTION LAW

ANTI-DEFECTION LAW

  • The 52nd amendment act of 1985 is often referred to as “Anti-defection law”. it made changes in four Articles of the Constitution i.e. Articles 101, 102, 190 and 191 which relate to the vacation of seats and disqualification from membership of Parliament and the state legislatures.
  • This amendment added a new schedule (the Tenth Schedule) to the constitution.
  • It provided for the disqualification of the members of Parliament and State legislatures on the ground of defection from one party to another.

 

91ST AMENDMENT ACT (2003):

The 91st Amendment Act of 2003 has made the following provisions to limit the size of Council of Ministers, debar defectors from holding public offices, and to strengthen the anti-defection law:

  1. The total number of ministers, including the PM, in the Central Council of Ministers and total number of ministers, including the Chief Minister, in the Council of Ministers in a state shall not exceed 15 per cent of the total strength of the Lok Sabha (Article 75) and Legislative Assembly of that state (Article 164) But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
  2. A member of either House of Parliament (Article 75) or either house of state legislature (Article 164) belonging to any political party who disqualified on the ground of defection shall also be disqualified to be appointed as a minister.
  3. A member of either House of Parliament or either House of a State Legislature belonging to any political party who is disqualified on the ground of defection shall also be disqualified to hold any remunerative political post.
  4. The provision of the Tenth Schedule (anti-defection law) pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted. It means that the defectors have no more protection on grounds of splits.

 

PROVISIONS OF THE ANTI-DEFECTION LAW

 

DISQUALIFICATIONS
 

 

Members of Political Parties:

A member of House belonging to any political party becomes disqualified for being a member of the house:

a.       If he voluntarily gives up his membership of such political party; or

b.       If he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

 

Independent Members:

An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.
 

 

Nominated Members:

A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House. This means that he may join any political party within six months of taking his seat in the House without inviting this disqualification.

 

 

Exceptions:

 

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

a.       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.

b.       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.

 

 

Deciding Authority:

 

•         Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

•         However, Supreme Court in Kihoto Hollohan Case (1993) declared finality of decision of Speaker under tenth schedule as unconstitutional and open to judicial review on the grounds of mala fides, perversity, etc.

 

 

Rule-Making Power:

 

•         The presiding officer of a House is empowered to make rules to give effect to the provisions 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.

•         Presiding officer can take up a defection case only when he receives a complaint from a member of the House.

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

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