Anti-Defection Law: Tenth Schedule Explained for UPSC SSC

Origin and Purpose

The Anti-Defection Law was introduced in India to curb the frequent practice of 'Aaya Ram Gaya Ram' (literally, 'Ram came, Ram went'), which referred to the defection of legislators from one party to another. This phenomenon led to significant political instability, particularly in state governments, where governments would frequently collapse due to members changing their party allegiance. The law aims to strengthen democracy by preventing such opportunistic defections and ensuring that elected representatives remain accountable to the party on whose ticket they were elected. It seeks to bring stability to the government and the legislative process, ensuring that the mandate of the voters is respected.

The law was enacted through the 52nd Amendment Act of 1985. This amendment added the Tenth Schedule to the Indian Constitution. The primary objective was to prevent political defections which were often motivated by personal gain or ministerial berths, rather than ideological differences. Before this law, there was no legal framework to penalize such defections, leading to a chaotic political landscape. The Tenth Schedule lays down the provisions for disqualification of Members of Parliament (MPs) and Members of State Legislatures (MLAs) on grounds of defection.

Grounds for Disqualification

A member of a House belonging to any political party shall be disqualified if they voluntarily give up their membership of such political party. This means that if a legislator resigns from their party, they can be disqualified. Another ground for disqualification is 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 an act is commonly known as defying the party whip. However, if the party condones such voting or abstention within fifteen days from the date of such voting or abstention, the member shall not be disqualified.

Independent members, who are elected without being sponsored by any political party, also fall under the purview of this law. An independent member shall be disqualified if they join any political party after their election. Nominated members, who are appointed by the President or Governor, are also covered. A nominated member shall be 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. This six-month window allows nominated members to decide their political affiliation without immediate disqualification.

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 political party, where one-third of the members of a legislative party could form a separate group without attracting disqualification. However, this provision was often misused, leading to further instability. To address this loophole, the 91st Amendment Act of 2003 removed the 'split' provision. Now, the only exception is a 'merger' of a political party with another political party.

Under the merger provision, a member shall not be disqualified if their original political party merges with another political party. This exception applies only if not less than two-thirds of the members of the legislative party concerned have agreed to such a merger. This high threshold of two-thirds aims to ensure that the merger is a genuine decision of a substantial majority of the party's legislative wing, rather than a few individuals defecting. The Speaker or Chairman of the House is the final authority in deciding cases under the Anti-Defection Law.

Role of Presiding Officer

The ultimate authority to decide on questions of disqualification under the Tenth Schedule rests with the Presiding Officer of the House. This means the Speaker in the Lok Sabha and State Legislative Assemblies, and the Chairman in the Rajya Sabha and State Legislative Councils. The decision of the Presiding Officer is final. However, this finality was challenged in the Supreme Court. In the landmark Kihoto Hollohan v. Zachillhu case (1992), the Supreme Court ruled that the decision of the Presiding Officer is subject to judicial review. This means that while the Presiding Officer makes the initial decision, it can be challenged in the High Courts and the Supreme Court.

This judicial review provision is crucial for ensuring fairness and preventing arbitrary decisions by the Presiding Officer, who may sometimes belong to the ruling party. The Court clarified that judicial review should be limited to cases of mala fide (bad faith) or perversity. The Presiding Officer acts as a tribunal in deciding defection cases. The law does not specify a time limit within which the Presiding Officer must decide on a defection petition, which has often led to delays and criticism. This lack of a time limit has been a point of contention and has been highlighted by various committees and judicial pronouncements.

Important Keywords Explained

Tenth Scheduleconcept

This schedule was added to the Indian Constitution by the 52nd Amendment Act of 1985. It contains provisions for the disqualification of Members of Parliament and State Legislatures on the grounds of defection. Its primary aim is to prevent political instability caused by legislators frequently changing parties.

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 bill or motion. Defying a party whip without prior permission can lead to disqualification under the Anti-Defection Law, unless condoned by the party within 15 days.

Kihoto Hollohan Caseconcept

This landmark Supreme Court judgment of 1992 upheld the constitutional validity of the Anti-Defection Law. Crucially, it ruled that the decision of the Presiding Officer (Speaker/Chairman) on disqualification petitions is subject to judicial review, ensuring a check on their powers.

91st Amendment Act, 2003act

This amendment significantly modified the Anti-Defection Law. It removed the 'split' provision (which allowed one-third members to split without disqualification) and made the 'merger' provision more stringent, requiring two-thirds of the legislative party for a valid merger.

Additional Facts & Context

• The 52nd Amendment Act was passed during the Rajiv Gandhi government.
• The 'Aaya Ram Gaya Ram' phrase originated in 1967 with Haryana MLA Gaya Lal.
• The 91st Amendment Act also capped the size of the Council of Ministers at 15% of the total strength of the Lok Sabha/State Assembly.
• The Anti-Defection Law applies to both Parliament and State Legislatures.
• There is no specific time limit for the Presiding Officer to decide on defection cases.