Anti-Defection Law

• The 52nd Amendment Act of 1985 introduced the disqualification of members of Parliament and state legislatures on the ground of defection.
  • It made changes in Articles 101, 102, 190, and 191 of the Constitution.
  • It added the Tenth Schedule to the Constitution, often called the 'anti-defection law'.
• The 91st Amendment Act of 2003 modified the Tenth Schedule by removing the exception for disqualification in the case of a split.

Provisions of the Act (Tenth Schedule)

• Disqualification:

  • Members of Political Parties: A member is disqualified:
    • If he/she voluntarily gives up membership of the political party.
    • If he/she votes or abstains against party direction without prior permission, and the act is not condoned within 15 days.
  • Independent Members: Disqualified if joining any political party after election.
  • Nominated Members: Disqualified if joining any political party after six months from taking their seat.

• Exceptions: Disqualification does not apply:

  • In case of a merger of the party with another party, if two-thirds of the members have agreed to the merger.
  • If a member, after being elected as the presiding officer of the House, voluntarily gives up party membership or rejoins after ceasing to hold that office.

• The 91st Amendment Act of 2003 deleted the provision pertaining to exemption from disqualification in case of split by one-third members of the legislature party.

Deciding Authority

• The presiding officer of the House decides on disqualification arising from defection.
• Originally, the presiding officer's decision was final and not subject to judicial review.
• The Supreme Court, in Kihoto Hollohan case (1992), declared this provision unconstitutional.
• The presiding officer functions as a tribunal and is subject to judicial review on grounds of mala fides, perversity, etc.

Rule-Making Power

• The presiding officer can make rules to give effect to the provisions of the Tenth Schedule.
• Rules must be placed before the House for 30 days and can be approved, modified, or disapproved.
• The presiding officer can take up a defection case only upon receiving a complaint.
• The member against whom the complaint is made must be given a chance to submit their explanation.

Evaluation of the Act

• Aims to prevent defections motivated by the lure of office or material benefits.
• Intended to strengthen Indian parliamentary democracy by curbing unethical defections.

Advantages

• Provides greater stability by checking the propensity of legislators to change parties.
• Facilitates democratic realignment of parties through mergers.
• Reduces corruption and non-developmental expenditure on irregular elections.

Criticism

• Does not differentiate between dissent and defection, curbing the legislator's right to freedom of conscience.
• Distinction between individual and group defection is irrational.
• Does not provide for expulsion for activities outside the legislature.
• Discrimination between independent and nominated members is illogical.
• Vesting decision-making authority in the presiding officer is criticized due to potential political bias and lack of legal knowledge.

91st Amendment Act (2003)

Reasons for Amendment

• To strengthen the Anti-defection Law
• To stop bulk defections
• The provision for exemption from disqualification in case of splits

Recommendations for amendment

• The Committee on Electoral Reforms (Dinesh Goswami Committee)
• The Law Commission of India in its 170th Report on "Reform of Electoral Laws" (1999)
• The National Commission to Review the Working of the Constitution (NCRWC) in its report of 2002

Provisions of the Act

• The total number of ministers, including the Prime Minister, in the Central Council of Ministers shall not exceed 15 per cent of the total strength of the Lok Sabha.
• The 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 Legislative Assembly of that state. But, the number of ministers, including the Chief Minister, in a state shall not be less than 12.
• A member of either House of Parliament/State Legislature disqualified on the ground of defection is also disqualified to be appointed a minister or to hold any remunerative political post.
• 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.