The political crisis in Maharashtra has given rise to the question whether the Shiv Sena rebels can avoid disqualification under the anti-defection law.
GS-II: Polity and Constitution (Constitutional Provisions, Legislature and Elections, Executive, Separation of Powers)
Dimensions of the Article:
- What is Defection?
- 10th Schedule of the Indian Constitution (Anti-Defection Law)
- When do the Legislators face risk of disqualification?
- Issues with having an Anti-defection law
What is Defection?
- ‘Defection’ has been defined as, “To abandon a position or association, often to join an opposing group”.
- A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
- The law applies to both Parliament and state assemblies.
- The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
10th Schedule of the Indian Constitution (Anti-Defection Law)
- The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act and technically the Tenth Schedule to the Indian Constitution is the anti-defection law in India.
- It is designed to prevent political defections prompted by the lure of office or material benefits or other like considerations.
- It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
- The law applies to both Parliament and State Assemblies.
When do the Legislators face risk of disqualification?
- Disqualification of a legislator (member of the parliament or legislative assemblies) is possible when the member:
- Gives up his membership of a political party voluntarily
- Votes or abstains from voting in the House, contrary to any direction issued by his political party (Party Whip is an official of a political party who acts as the party’s ‘enforcer’ inside the legislative assembly or house of parliament.)
- Joins any party after being elected as independent candidate
- Joins any political party after 6 months of being nominated as a legislative member
The Supreme Court mandated that in the absence of a formal resignation, the giving up of membership can be determined by the conduct of a legislator, such as publicly expressing opposition to their party or support for another party, engaging in anti-party activities, criticizing the party on public forums on multiple occasions, and attending rallies organised by opposition parties.
- Legislators can change their party without the risk of disqualification to merge with or into another party provided that at least two-thirds of the legislators are in favour of the merger, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
- Earlier, the law allowed parties to be split (this used to allow for legislators to hold their position while actually “defecting” to either of the split parties), but at present, this has been outlawed.
- Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.
Who takes the decision on Defection?
- 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.
- The Presiding Officer has NO time limit to make his decision
- 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.
- The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.
- There is no time limit as per the law within which the Presiding Officers should decide on disqualification for defection.
Issues with having an Anti-defection law
- The principle of the Anti-defection law basically forces members vote based on the decisions taken by the party leadership, and not based on what their constituents would like them to vote for – can be considered as a hindrance to the “functioning of the legislature” in the true sense of the word. It limits a legislator from voting according to his/her own conscience, judgement and electorate’s interests.
- The core role of an MP to examine and decide on a policy, bills, and budgets is side-lined. Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
- It can also be said that this provision goes against the concept of representative democracy.
- In the parliamentary form, the government is accountable daily through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha. In India, this chain of accountability has been broken by making legislators accountable primarily to the political party. Thus, anti-defection law is acting against the concept of parliamentary democracy.
-Source: Indian Express