Anti-Defection Law (52nd Constitution Amendment Act, 1985)

The 52nd Constitution Amendment Act, 1985, also known as the Anti-Defection Law, marked a significant step in the political and legislative framework of India. This blog will provide a detailed analysis of the Act, focusing on its background, provisions, implications, and critical evaluations. This comprehensive guide is tailored for UPSC aspirants who need to understand the intricate details and impacts of this legislation.

Anti-Defection Law

The 52nd Constitution Amendment Act, 1985, was enacted to address the rampant problem of political defections in India. Defection refers to the practice of elected representatives switching parties, often in pursuit of personal gain, which undermined the stability and integrity of the democratic process. The Anti-Defection Law aimed to curb this menace and maintain the sanctity of the electoral mandate.

Historical Background

• Pre-Independence Era: The problem of political defections was not new to Indian politics. Even during the pre-independence period, instances of politicians switching allegiances were observed.
• Post-Independence Era: After independence, the problem became more pronounced with frequent defections causing instability in governments. The period between 1967 and 1983 saw over 2,700 defections at the central and state levels.
• Need for Legislation: The necessity for a legal framework to address this issue became evident as defections often led to the fall of governments, necessitating frequent elections and undermining public confidence in the political system.

Provisions of the 52nd Constitution Amendment Act

The 52nd Amendment introduced significant changes to the Indian Constitution:

• Introduction of Tenth Schedule: The Amendment added the Tenth Schedule to the Constitution, which laid down the provisions for disqualification of members on grounds of defection.
• Grounds for Disqualification:
  • Voluntary Giving Up of Membership: If a member of a political party voluntarily gives up his membership, he is disqualified.
  • Voting Against Party Whip: If a member votes or abstains from voting contrary to the directive of his political party without prior permission.
  • Independent Members: If an independent member joins a political party after the election.
  • Nominated Members: If a nominated member joins a party after six months of being nominated.
• Exceptions: The law provided exceptions in cases of mergers and splits:
  • Mergers: If two-thirds of the members of a party agree to merge with another party, they are exempt from disqualification.
  • Splits: Initially, the law allowed splits with one-third members breaking away, but this provision was later removed by the 91st Amendment Act, 2003.

The anti-defection law is applicable only to the current (present) members of:

• Lok Sabha
• Rajya Sabha
• State Legislative Assemblies
• State Legislative Councils

Before the year 1985, there was no provision for disqualifying a member if he joins other political parties. This is considered to be an insult to the democracy where the people have voted for a person by looking at the party.

This was seriously discussed hence the 10th schedule of the Indian Constitution.

Defections mean jumping from one political party to the other after getting elected. The anti-defection law is meant for the disqualification of members of Parliament or State Legislatures on the grounds of defections from one political party to the other.

These provisions are added to the Constitution of India through the 52nd amendment.

A new schedule in the form of the 10th schedule has been added to the Constitution.

The 10th schedule was added to the constitution in the year 1985 through the 52nd amendment.

In Parliament and State Legislatures, there are three categories of members present.

• Political Party members
• Independent members (Most of the times these members are present)
• Nominated members

All categories of members can be disqualified under the grounds of defections.

DISQUALIFICATION OF MEMBERS OF POLITICAL PARTIES:

Note: A political party member is a person who contests in the election on the name of a political party and gets elected.

A member of a political party can be disqualified

If that member after getting elected voluntarily resigns to the political party on whose ticket he/she got elected to the house

OR

if the member votes against to the whip (Direction) issued by the concerned political party

OR

If the member abstains against the direction issued by the concerned political party without permission from the party.

EXCEPTIONS:

A member going out of a party through Split is not disqualified on the grounds of defections.

WHAT IS SPLIT?

If minimum 1/3rd members of a political party get separated from the parent party and form a new party it is called Split.

The speaker or the chairman if satisfied recognizes the split group as a new party.

Note: The Split group cannot join any political party. If so, the group is disqualified.

Please Note: The Split by 1/3rd members of a party have been deleted through the 91st amendment Act of 2003. This means the members can no more take shelter under the split.

WHAT IS MERGER?

If a 2/3rd of a political party forms a separate group and joining another political party is called merger.

If a member goes out as a result of the merger, the member is not disqualified.

If a member after being elected as the Presiding officer of the house, voluntarily gives up the membership of the party and rejoins it after he ceases to hold that office.

A member may be suspended by the political party for violating the discipline of the party. A suspended member from a political party is not disqualified from the membership of the house.

INDEPENDENT MEMBERS:

WHO IS AN INDEPENDENT MEMBER?

An independent member is an elected member of the house who does not belong to any political party. She/he got elected because of their personal image among the people of the respective constituency.

If an independent member joins any political party then the member is disqualified from the membership of the house.

Note: An independent member can continue as an associated member of a political party.

NOMINATED MEMBERS:

These are the members who are nominated by the President for Parliament and by the Governors for the State Legislatures.

The President nominates 2 members who belong to the Anglo-Indian community to the Lok Sabha.

The President nominates 12 members with special knowledge or practical experience to the Rajya Sabha.

The Governor nominates 1 member of who belongs to Anglo-Indian to the state Assembly.

The Governor nominates 1/6th of the total members to the State Legislative Council.

A nominated member is disqualified for being a member of a house if the member joins any political party after the expiry of 6 months from the date on which he takes his seat in the house.

EXCEPTION FOR A NOMINATED MEMBER:

If a nominated member joins a political party within 6 months of his nomination to the house is not disqualified.

WHO IS THE DECIDING AUTHORITY REGARDING THE DISQUALIFICATION OF A MEMBER:

The deciding authority is the Presiding officer (Speaker/chairman).

Initially, the decision of the chair was not subjected to the judicial review.

In the year 1993, in Kihoto Hollohan V. Zachilhu case the Supreme Court declared that this provision is unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and High Courts.

Hence since 1993, the decision chair is subject to judicial review.

It means the disqualification of a member can be challenged in a court of law on the grounds of malafides.

Miscellaneous:

The Presiding officer can take up a defection case only when he/she receives a complaint from a member of the house.

The speaker need not take the decision immediately.

Before taking the final decision the presiding officer must give a chance to the member against whom the complaint has been made.

In the year 2007 in Uttar Pradesh 13 MLA’s (BSP) were disqualified under Anti-defection law.

In the year 2010 then Karnataka Assembly Speaker K G Bopaiah 11 BJP and 5 independent MLAs. Then the MLAs moved the Karnataka High Court and the court upheld the decision of the Speaker. Later the disqualified MLAs moved the Supreme Court and the Apex Court ordered for the reinstating of the MLAs and thus avoided the possible by-elections in Karnataka.

In the year 2013 in Andhra Pradesh Assembly 15 MLAs have been disqualified for defying their respective party whips.

Implications of the Act

• Stabilizing Governments: The primary objective of the Act was to provide stability to governments by discouraging defections.
• Party Discipline: The Act reinforced party discipline by ensuring members adhere to the party’s policies and decisions.
• Curbing Corruption: By reducing the incentive for elected representatives to switch parties for personal gain, the Act aimed to curb corruption in the political system.

Critical Evaluation

• Positive Aspects:
  • Reduction in Defections: The Act significantly reduced the number of defections, leading to greater stability in governments.
  • Strengthening Democracy: By curbing opportunistic shifts in allegiance, the Act strengthened democratic principles and the electoral mandate.
• Negative Aspects:
  • Restrictions on Freedom: Critics argue that the Act restricts the freedom of speech and expression of legislators, forcing them to toe the party line.
  • Judicial Review: The decision of the Speaker or Chairman regarding disqualification is final and not subject to judicial review, raising concerns about potential misuse of power.
  • Limited Scope: The law’s focus on party loyalty may undermine the role of legislators as representatives of the people, prioritizing party interests over constituents’ needs.

Amendments and Judicial Pronouncements

• 91st Amendment Act, 2003: This amendment removed the provision for disqualification in cases of splits, thereby strengthening the anti-defection law.
• Judicial Interpretations: The Supreme Court of India, in various judgments, has upheld the validity of the Anti-Defection Law while also highlighting the need for fair and impartial application by the presiding officers.

The 52nd Constitution Amendment Act, 1985, remains a landmark legislation in the Indian political landscape. Its role in stabilizing governments and promoting party discipline is undeniable, though it continues to evoke debate on its implications for democratic freedoms. For UPSC aspirants, understanding the nuances of this Act is crucial, as it not only represents a significant legal development but also offers insights into the dynamics of Indian politics.