This article has been written by Bijendra Shandilya, a student studying BBA-LLB from Indian Institute of Management, Rohtak . The author is a 1st year law student.
When I try to understand anti defection laws in india my mind click one name that popular name is Aaya Ram, Gaya Ram. So, let’s understand anti defection law.
Aaya Ram Gaya Ram was a phrase that becomes popular in indian politics after a Haryana MLA Gaya Lal switching parties three times on the same day in 1976. The Anti Defection Law aimed to stop political defection which may be to rewards of the office or other similar considerations. It happened in 1967. The 10th Schedule to the Indian Constitution was added with the help of the case, which Parliament used as justification. As a result of a petition by any other member of the House, this law defines the process by which legislators may be disqualified for defecting by the presiding officer of a legislature. A politician violates the law when he leaves his party on purpose or goes against the leadership’s instructions during a vote in the House of Commons. It is assumed that the legislator’s actions are a violation of the party whip.
In 1985, the Tenth Schedule was added to the Constitution. It outlines the procedure by which lawmakers may be disqualified from serving on a legislative body on the basis of defection upon the petition of any other member of the house. A legislator is judged to have defected if he either voluntarily leaves his party or defies the leadership’s order over a vote. This suggests that a lawmaker who defies (abstaining from voting or voting against) the party whip on any matter risked losing his seat in the House. Both the Parliament and state legislatures are subject to the statute.
Parliament added anti defection law to the constitution as the Tenth schedule in 1985. Purpose of law was to bring stability to governments by the discouraging legislators from changing one parties to other. Tenth schedule is popularly known as the Anti- Defection Act was added in the constitution via a amendment that is 52nd Amendment Act, 1985. It sets the guidelines for disqualifying elected members on the grounds of defection to another political party.
However, It permits a group of MPs or MLAs to join or merge with another political party without inviting the consequences/ penalty for defection. Additionally, political parties are not punished for supporting or accepting defecting legislators.
As per the Act of 1985, a defection by one third of the elected members of a political party was considered a merger. However, this was changed by the 91st Constitutional Amendment Act of 2003, and today, in order for a “merger” to be considered legal, at least two-thirds of the members of a party must be in favour of it.
Let’s see historical evolution of anti defection law.
We held the first general elections in our nation after the Constitution was put into effect in 1950, and Congress easily won. But over time, the political landscape changed, and coalition administrations appeared in a number of nations. The onset of floor crossing set off a vicious cycle of defections and floor crossing. The majority of defectors in the late 1960s were from Congress. The Bhartiya Lok Dal fielded 94 renegade candidates in 1977, including 21 from the Congress. Once it became evident that Indira Gandhi was going to win the 1980 elections, many of them moved back to the Congress. In Indian politics, this timeframe is viewed as the Congress’s weakest point. The most notable defection during this period, despite all the others, involved Mr. Gaya Lal, who ran as an independent in the state assembly elections. As a result, he alternated between Congress and the United Front three times per day. The president was ultimately compelled to impose President Rule in the state, which gave rise to Aaya Ram, Gaya Ram politics in our nation.
The conditions under which a legislator may be excluded from serving as a member of the house are outlined in Article 102 of the Indian Constitution. The first section of Article 102 details a number of circumstances in which such a disqualification may be carried out, including if the person holds any unregistered office-for-profit under the government, if a court of competent jurisdiction declares him to be insane, if he is an undischarged insolvent, etc.
The second part of Article 102 gives authority to the tenth schedule of the constitution to disqualify member. This tenth schedule is what is commonly referred to as the anti defection law.
The Tenth Schedule significantly altered the situation at the time in three ways.
- It made it possible to start disqualification proceedings against a legislator for behavior/conduct both within and outside the House. As a result, the legislator run the risk of losing their position in the House.
- The only person or the authority to decide on the disqualification proceedings was the Speaker of the House.
- However, lawmakers were exempt from disqualification in situations when a party split or merged with another party.
Legislators and political parties started stress-testing the law soon after it was passed. In the famous case of Kihoto Hollohan v. Zachillhu and others, the legality and constitutionality of the Tenth Schedule were contested before the Supreme Court in 1992. To determine the scope of a Speaker’s authority and the actions of a legislator outside of the House that could result in disqualification proceedings, the judiciary was required to step in. The Supreme Court at the time supported the Speaker’s authority to decide on disqualification procedures but also established that the Speaker’s decision would be subject to judicial review.
The provisions governing the protection provided to parliamentarians in circumstances of a split in the party under the Tenth Schedule were abolished as a result of the introduction of the Constitution (91st Amendment) Act in the Parliament in 2003. The attraction of power for profit, according to a commission led by Pranab Mukherjee, who later went on to become the President of India, is a significant factor in fostering political horse-trading and defection. According to the new law, anyone who is ineligible under the Tenth Schedule is likewise immediately excluded from holding a ministerial position, whether at the Centre or State level. Even though the modification was introduced with the goal of strengthening the anti-defection statute, it still had some serious, ongoing issues.
A deadline for deciding disqualification proceedings against a legislator is not specified by law. Disqualifications were either decided immediately or kept pending indefinitely depending on which of the two suited the political party that the Speaker was formerly involved with as the job of the Speaker of the House became more and more political as a result of this statute. A judicial remedy could only be sought against the Speaker’s decision or on his inaction in deciding the disqualification proceedings because the Courts lack authority over disqualification procedures. This rendered the Tenth Schedule processes mostly meaningless and did not deter legislators from defecting. However, the Supreme Court ruled in 2020 that Speakers must make a decision regarding the disqualification procedures that are now before them in a “reasonable period.”
In the conclusion of article, based on my understanding of the topic anti defection laws in India, Although the 10th Schedule of the Indian Constitution has significantly lessened political instability brought on by our country’s legislators’ frequent and unholy switching of allegiances, a more rationalised version of the 10th Schedule is still required to help establish a truly representative democracy.
Justice Nariman stated that “it is time that parliament have a rethink on whether disqualification petitions ought to be entrusted to a speaker as a quasi judicial authority when such speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the constitution to substitute the speaker of the lok sabha and legislative assemblies as arbiter of disputes concerning disqualification which arise under the tenth schedule with a permanent tribunal headed by a retired supreme court judge or a retired chief justice of a high court or some other independent mechanism to ensure that such disputes are decided both quickly & 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 critical recommendations made by the Supreme Court, however, have not been implemented by Parliament, rendering the Tenth Schedule little more than a toothless tiger.
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