Anti Defection, Role Of Speaker, 10th Schedule [UPSC

Notes for GS II]

Anti Defection, Role Of Speaker, 10th Schedule

Topic: Parliament and State Legislatures-structure, functioning, the conduct of business, powers &
privileges and issues arising out of these.

The 10th Schedule of the Indian Constitution (which talks about the anti-defection law) is designed to
prevent the mischief or evil of political defections prompted by the lure of office or material benefits or other
like considerations.
 The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was
inserted by the 52nd Amendment (1985) to the Constitution.
 ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing
group”.
 The anti-defection law was enacted to ensure that a party member does not violate the mandate of
the party and in case he does so, he will be disqualified from participating in the election.
 The aim of Anti-Defection Law is to prevent MPs from switching political parties for any personal
motive.

PROVISIONS OF THE ACT

The Tenth Schedule includes the following provisions with regard to the disqualification of MPs and MLAs
on the ground of defection:

Grounds for disqualification:

 If an elected member gives up his membership of a political party voluntarily

 If he votes or abstains from voting in such House, contrary to any direction issued by his political
party.
 If any member who is independently elected joins any party.
 If any nominated member joins any political party after the end of 6 months.
 The decision on disqualification questions on the ground of defection is referred to the Speaker or
the Chairman of the House, and his/her decision is final.
 All proceedings in relation to disqualification under this Schedule are considered to be proceedings
in Parliament or the Legislature of a state as is the case.

Exceptions under the law:

 In the situation where two-thirds of the legislators of a political party decide to merge into another
party, neither the members who decide to merge, nor the ones who stay with the original party will
face disqualification.
 A split in a political party won’t be considered a defection if a complete political party merges with
another political party.
 Any person elected as chairman or speaker can resign from his party, and rejoin the party if he
demitted that post.
 Earlier, the law allowed parties to be split, but at present, this has been outlawed.

Deciding Authority

 Any question regarding disqualification arising out of defection is to be decided by the presiding
officer of the House.
Is the decision of the Presiding Officer subject to judicial review?

 Originally, the act provided that the presiding officer’s decision was final and could not be
questioned in any court of law. But, in Kihoto Hollohan case (1993), the Supreme Court declared
this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the SC
and the high courts.
 The court held that while deciding a question under the 10th Schedule, the presiding officer function
as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject to judicial review
on the grounds of malafides, perversity, etc. But, the court rejected the argument that the vesting of
adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias.
 However, it held that there may not be any judicial intervention until the Presiding Officer gives his
order. A good example to quote in this respect is from 2015, when the Hyderabad High Court,
declined to intervene after hearing a petition which alleged that there had been a delay by the
Telangana Assembly Speaker in taking action against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer should decide?

 There is no time limit as per the law within which the Presiding Officers should decide on a plea for
disqualification. The courts also can intervene only after the Officer has made a decision, and so the
only option for the petitioner is to wait until the decision is made.
 There have been several cases where the Courts have expressed concern about the unnecessary
delay in deciding such petitions.
 In a few cases, there has been situations where members who had defected from their political
parties continued to be House members, because of the delay in decision-making by the Speaker or
Chairman.
 There have also been instances where opposition members have been appointed ministers in the
government while still being members of their original political parties in the state legislature.

Rule-Making Power

 The presiding officer of a House is authorised to frame rules to give effect to the provisions of the
10th Schedule.
 All such rules must be placed before the House for thirty days.
 The House may modify or approve or disapprove these rules. Further, he/she may direct that any
willful contravention by any member of such rules may be dealt with in the same manner as a
breach of privilege of the House.
 According to the rules made so, the presiding officer can take up a defection case only when he/she
receives a complaint from a member of the house. Before making the final decision, he/she must
give the member (against whom the complaint has been made) an opportunity to submit an
explanation regarding the matter.
 He/she may also refer the matter to the committee of privileges for inquiry. Hence, defection has no
immediate and automatic effect.

How have the Courts interpreted the law while deciding on related matters?

 The SC has interpreted different provisions of the law.

 The phrase ‘Voluntarily gives up his membership’ has a wider suggestion than resignation.
 The law says that a member can be disqualified if he or she ‘voluntarily gives up his membership’.
However, the SC has interpreted that without a formal resignation by the member, the giving up of
membership can be inferred by his conduct.
 In other judgments, members who have publicly expressed opposition to their party or support for
another party were considered as having resigned. Recently, the Chairman of the Upper House of
Parliament disqualified two Janata Dal leaders from the house based on the allegation that
indulging in anti-party politics, they had “voluntarily” given up their membership of the party (which is
not synonymous to resignation as per the SC orders).

Does the anti-defection law affect the legislators’ ability to make decisions?
  The anti-defection law aims to maintain a stable government by ensuring the legislators do not
switch sides. However, this law also limits a legislator from voting according to his conscience,
judgement and electorate’s interests.
 This kind of a situation hinders the oversight functions of the legislature over the government, by
making sure that members vote based on the decisions taken by the party leadership, and not
based on what their constituents would like them to vote for.
 Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of
the issue.
 Anti-defection does not provide sufficient incentive to an MP or MLA to examine an issue in-depth
and ponder over it to participate in the debate.
 The Law breaks the link between the elected legislator and his elector.
 Importantly, several experts have suggested that the law should be valid only for those votes that
determine the stability of the government (passage of the annual budget or no-confidence motions).

Several recommendations have come up regarding this issue:

 Dinesh Goswami Committee: Recommendations include that disqualification should be only for
cases such as:
o Member giving up his membership to his political party voluntarily.
o Member voting or abstaining from voting, opposed to party directions.
 Law Commission 170th Report:
o Delete the exemption in case of splits and mergers.
o Consider the pre-poll electoral fronts as one party under the 10th Schedule.
o Parties should issue whips only to critical situations or votes.
 Election Commission:
o Make the President/Governor the decision maker with respect to disqualification subject to a
binding advice from the election commission on the line of disqualifications based on
Representation of Peoples Act provisions regarding Office of Profit.

To conclude, regulation of the 10th Schedule along with the correct working directives that adhere to
transparency and accountability in a democracy is the need of the hour. However, this provision is required
to have stability in the government which would decrease corruption and augment the focus of the
parliamentarians/legislators towards governance.