Anti-Defection Law: Tenth Schedule Explained for UPSC SSC

Origin and Purpose

The Anti-Defection Law was enacted through the 52nd Amendment Act of 1985. This amendment added the Tenth Schedule to the Indian Constitution. The primary purpose of this law was to curb the practice of 'Aaya Ram Gaya Ram' politics. This phrase originated in 1967 when an MLA, Gaya Lal, changed his party three times in a single day. Such frequent defections led to political instability and undermined the mandate of the voters. The law aimed to prevent legislators from switching parties for personal gain or political opportunism, thereby ensuring greater stability in government and upholding the integrity of the electoral process. It sought to strengthen the party system and ensure that elected representatives remain loyal to the party on whose ticket they were elected.

Grounds for Disqualification

A Member of Parliament (MP) or a Member of Legislative Assembly (MLA) can be disqualified under the Anti-Defection Law on several grounds. Firstly, if an elected member voluntarily gives up membership of their political party. This does not necessarily mean formally resigning; actions like publicly opposing the party or joining another party can be interpreted as voluntarily giving up membership. Secondly, if a member votes or abstains from voting in the House contrary to any direction issued by their political party, without obtaining prior permission. Such a vote or abstention must not be condoned by the party within 15 days of the incident. Thirdly, an independent member is disqualified if they join any political party after their election. Lastly, a nominated member is disqualified if they join any political party after the expiry of six months from the date on which they take their seat in the House. These provisions aim to enforce party discipline and prevent floor-crossing.

Exceptions to Disqualification

The Anti-Defection Law provides for certain exceptions where disqualification does not apply. Originally, the law allowed for a 'split' in a party if one-third of the members of a legislative party defected. However, this provision was removed by the 91st Amendment Act of 2003. Currently, the main exception is a 'merger' of a political party with another political party. If two-thirds of the members of a legislative party agree to merge with another party, they will not be disqualified. This means that if a political party merges with another party, and at least two-thirds of the members of the legislative party agree to such a merger, neither the members who decide to merge nor those who choose to remain with the original party will face disqualification. This exception aims to facilitate legitimate political realignments while preventing individual defections.

Deciding Authority and Judicial Review

The presiding officer of the House, either the Speaker in the Lok Sabha/Assembly or the Chairman in the Rajya Sabha/Legislative Council, is the final authority to decide on disqualification petitions under the Tenth Schedule. Their decision is generally considered final. However, the Supreme Court, in the landmark Kihoto Hollohan v. Zachillhu case of 1992, ruled that the decision of the presiding officer is subject to judicial review. This means that the High Courts and the Supreme Court can examine the Speaker's decision on grounds of mala fide (bad faith) or perversity. The Court clarified that judicial review should only be available after the Speaker has made a decision, not at an interlocutory stage. This ruling ensures a check on the powers of the presiding officer and upholds the principles of natural justice.

Criticisms and Reforms

Despite its noble intentions, the Anti-Defection Law has faced several criticisms. Critics argue that it stifles dissent and individual freedom of speech for legislators, forcing them to adhere to party lines even on matters of conscience. It has been observed that the law strengthens the power of party high commands over elected representatives. Another major criticism is the delay in decisions by the presiding officers, who often belong to the ruling party and may use their position to delay or manipulate outcomes. There have been calls for reforms, such as limiting the law's applicability only to votes of confidence or no-confidence motions and money bills, rather than all legislative matters. Some suggest that the power to decide on disqualification should be vested in an independent body, like the Election Commission, to ensure impartiality and timely decisions. The law's effectiveness in truly curbing defections, especially through mass resignations or 'resort politics,' also remains a subject of debate.

Important Keywords Explained

Tenth Scheduleconcept

This schedule was added to the Indian Constitution by the 52nd Amendment Act of 1985. It contains provisions relating to the disqualification of members of Parliament and State Legislatures on the ground of defection. It is popularly known as the Anti-Defection Law.

Whipconcept

A whip is a directive issued by a political party to its members in a legislature. It instructs them on how to vote on a particular issue or to be present in the House. Disobeying a whip can lead to disqualification under the Anti-Defection Law.

Kihoto Hollohan Caseconcept

This landmark Supreme Court judgment of 1992 upheld the constitutional validity of the Anti-Defection Law. It also ruled that the decision of the Speaker/Chairman on disqualification petitions is subject to judicial review, though only after a final decision is made.

91st Amendment Actact

Enacted in 2003, this amendment made significant changes to the Anti-Defection Law. Most notably, it removed the provision that allowed for a 'split' in a party (one-third members defecting) without disqualification, making the law stricter against individual defections.

Additional Facts & Context

• The 52nd Amendment Act was passed during the Rajiv Gandhi government.
• The 'Aaya Ram Gaya Ram' phenomenon refers to an MLA, Gaya Lal, who changed parties thrice in 1967.
• The presiding officer (Speaker/Chairman) decides on disqualification petitions.
• The law applies to both Parliament and State Legislatures.
• The 91st Amendment Act of 2003 also capped the size of the Council of Ministers at 15% of the total strength of the Lok Sabha/Assembly.