UPSC H TS
ANTI DEFECTION LAW/10 TH SCHEDULE OF THE CONSTITUTION
Present day Mind Map context/Relevance Global experience 1 What is a 14 2 Schedule?
13 What is meant 3 Recommendations by Defection? a. Who is a defector?
12 4 Reforms required in Relation between Anti-Defection Laws. Schedule 10th& Anti-defection Law
11 Challenges of 5 Historical anti defection law. Background a. Schedule 10th
10 Evolution of Limitation on scope of 6 anti-defection enquiry of the speaker law
9 8 Role of Courts- a. Bar on 7 What is the law of Jurisdiction. b. Powers of Court. Issues Associated Anti-Defection? c. Grounds for review of the with the a. Disqualifications. decision of Speaker Defections- Need of b. Exceptions. law. c. Anti Defection Provisions in the constitution. d. Powers to disqualify.
Telegram -https://t.me/ChangeIASPrelims website- www.changeias.com 120-4299141, 9773881981, 6201494386 Youtube: https://www.youtube.com/c/CHANGEIAS Mail us: [email protected] UPSC H TS Introduction: Why in News? • The Janata Dal-United received a major jolt in Arunachal Pradesh, with six of its seven MLAs shifting allegiance to the ruling BJP • Sitting MLAs in the Manipur government defected to the opposition creating instability in the state's polity. • 19 rebel MLAs of Rajasthan's ruling party (Congress) have filed a petition before the High Court challenging the disqualification notices issued to them by the Assembly Speaker under Anti Defection Law. • BahujanSamaj Party (BSP) has issued a whip in Rajasthan Assembly and asked all its six Member of Legislative Assemblies (MLAs) to vote against Indian National Congress (INC) government on floor test. What are schedules of the Indian Constitution? • Schedules are basically tables which contains additional details not mentioned in the articles. • Like a book contains appendices to explain things and provide extra info, the constitution contains various schedules. • Lengthy document and hence, not included in the original text of constitution but are very much part of the constitution. • Originally they were 8 in number, now they are 12. Definition of defection Defection is defined as “to abandon a position or association, often to join an opposing group” which essentially describes a situation when a member of a particular party abandons his loyalty towards that party and provide his support (in the form of his vote or otherwise) to another party. Who is a Defector? A defector is basically a person in politics who gives up his own political party and join other alliance for benefit. This term is also applied, often pejoratively, to anyone who switches loyalty to another religion, sports team, political party, or other rival faction. In that sense, the defector is often considered a traitor by his original side.
Terms used in common parlance/Associated with Defection 1.Crossing the floor. 2.Horse Trading 3.Aaya Ram Gaya Ram Politics Traditionally, this phenomenon is • Culture of ‘Aaya Ram Gaya Ram’, in which known as 'floor crossing' which legislators used to had its origin in the British House change parties frequently, was of Commons where a legislator witnessed in the Indian polity. changed his allegiance when he • Aaya Ram Gaya Ram was a phrase that crossed the floor and moved from became popular in Indian politics after a t h e G o v e r n m e n t t o t h e Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. opposition side, or viceversa. • The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
Relation between Schedule 10th& Anti-defection Law • 52nd Constitutional Amendment bill in 1985 brought in in the name of ‘Anti-Defection Bill’ inserted 10th Schedule in the Constitution. • Amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and State legislatures • These provisions provide for the disqualification of Member Parliaments under Article 102(2) and Member Legislative Assembly under Article 191(2). Under these Articles of the Constitution, the legislators can be disqualified if they are disqualified under the 10th schedule. Historical Facts Schedule 10 • By Constitution 35th Amendment Bill on 22nd February, 1975 a Tenth Schedule was added in the constitution. This amendment act was called Constitution (Thirty-fifth Amendment) Act, 1974. Also, a new article 2A was inserted after article 2 of thE constitution of India. Sikkim to be associated with the Union.
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• 16 May 1975, Sikkim officially became the 22nd state of the Indian Union through Constitution 36th Amendment Act and the monarchy was abolished. • The Article 2A, which was added by 35th amendment act was repealed by this 36th amendment act and Schedule 10 was also omitted. • The Constitution (Fifty-second Amendment) Bill, 1985 again added a New 10th Schedule which was related to Anti Defection Law. Evolution of anti defection Law? 1. The genesis of the endeavours towards bringing forward a legislation in India for curbing the malaise of defections can be traced to Fourth Lok Sabha, When Shri P. Venkatasubbaiah's resolution in Lok Sabha was under discussion, the propriety of legislators changing their allegiance from one party to another and their frequent crossing of the floor and its effect on the growth of Parliamentary democracy was actively deliberated upon in the Presiding Officers' Conference held in New Delhi on 14 and 15 October 1967. 2. A Committee on Defections, as mentioned earlier, was set up by the Government under the chairmanship of the then Union Home Minister, Shri Y.B. Chavan. Recommended- a) no person who was not a member of the lower House should be appointed as Minister/Chief Minister. • In 1967, some sixteen states had b) Constitutional amendment in this regard gone to polls. without affecting the existing incumbents in office. • The Congress lost majority in them and was able to form c) a defector should be debarred for one year or till government only in one state. such time he resigned his seat and got re-elected, from appointment to the office of a • Beginning of coalition era in Minister, Speaker, Deputy Speaker or any post carrying salary and allowances to be paid India. This election also set off a from the Consolidated Fund of the Union or the States or from the funds of the large scale defections. Government Undertakings. • Between 1967 to 1971, some d) a Committee of the representatives of the parties in Parliament and State Assemblies 142 MPs and over 1900 MLAs be constituted to draw up a code of conduct for the political parties with particular migrated their political parties. reference to the problem of defections and to observe its implementation by • Governments of many states, discussions among themselves. beginning from Haryana, 3. The Constitution (Thirty-second Amendment) Bill, 1973 collapsed. The defectors were awarded with plum ministries in a) disqualification of a member from continuing as a member of either House of the governments. Parliament • issue was not - if he voluntarily gave up membership of his political party which sponsored him as a addressed immediately. candidate at elections It took further 17 years - r if he without Genesis of the Law 1 prior permission voted or abstained from voting to pass the anti- in the House contraiy to any direction issued by the political party to which he belonged. defection law in 1985 - such person shall not be disqualified if he voluntarily gave up his membership of such a political party by reason of a split therein. - The Bill did not apply to members of unrecognized political parties, independents and nominated members. 4. The Constitution (Forty-eighth Amendment) Bill. 1978 I. Independent and nominated members were allowed to join political parties after election only once. ii. A member belonging to a political party would be disqualified if he voluntarily gave up the membership of the political party to which he belonged or he was expelled from the party for voting against party direction without prior permission subject to expulsion within 30 days from such voting. iii. In case one-fourth of the members of legislature party or where the strength was less than 20, not less than five members formed a new political party and such party had been recognized by the Presiding 8 Anti-Defection Law in India and the Commonwealth Officer or registered with the Election Comnission, the members of the new political party would not be disqualified. iv. The Bill applied to the members of those political parties only, which were registered with the Election Commission or recognized by the Presiding Officer.
Telegram -https://t.me/ChangeIASPrelims website- www.changeias.com 120-4299141, 9773881981, 6201494386 Youtube: https://www.youtube.com/c/CHANGEIAS Mail us: [email protected] UPSC H TS What is the anti-defection law? • 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 decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his/her decision is final. • The law applies to both Parliament and State Assemblies.
Disqualifications 1. Voluntarily gives up the membership of his political party, or
2. Votes, or does not vote in the legislature, contrary to the directions of their political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
3. If an independent candidate joins a political party after the election.
4. If a nominated member joins a party six months after he becomes a member of the legislature.
5. Voluntarily joins another party
Exceptions under the law: Legislators may change their party/Go against the party whip without the risk of disqualification in certain circumstances. 1. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. 2. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification. 3. If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of the office. 4. Anti defection laws does not apply to Presidential Polls
Anti-Defection Provisions Under the constitution: 1. Article 102(2): A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. 2. Article 191(2): A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.
Powers to disqualify: 1. The Chairman or the Speaker of the House takes the decision to disqualify a member. 2. If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.
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The 2003 Amendment: 91st Constitution Amendment Act • The provision pertaining to exemption from disqualification in case of split by one-third members of legislature party was deleted. Number of council of Ministers at Union & • Incorporated the 1967 advice of the Y B Chavancommittee :limiting the size of State Level (After 91st Constitution the Council of Ministers to debar defectors from holding public offices, and (Amendment) Act, 2003.) 1. Art 75 (1A) The total number of Ministers, to strengthen the anti-defection law, preventing defecting legislators from including the Prime Minister, in the Council joining the Council of Ministers until their re-election. of Ministers shall not exceed fifteen per cent. • Earlier, a defection by one-third of the elected members of a political party was 2. Art 164(1A )The minimum strength of considered a ‘merger’. The amendment changed it to at least two-thirds. council of ministers including the CM in a state as per Constitution is 12 and • A member of either House of Parliament belonging to any political party maximum is 15 percent of strength of who is disqualified for being a member of that House under paragraph 2 of Legislative Assembly. 3. In the case of smaller States like Sikkim, the Tenth Schedule shall also be disqualified to be appointed as a Minister Mizoram, Goa, Arunachal Pradesh having under clause (1) for duration of the period commencing from the date of his 32, 40 and 40 members in the Legislative Assemblies respectively, a minimum disqualification till the date on which the term of his office as such member strength of seven ministers is prescribed would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected • Articles Included/ Amended: Articles 75 & 164 (Clause 1(B) were added to both), Art 361(B) The Law did three broad things. • It made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature — the penalty being the loss of their seats in Parliament or the state legislatures. • Protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging). • Presiding Officer of the concerned legislature the sole arbiter of defection proceedings Issues with Defections- Need of law • Subversion of electoral mandates: Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains. • Affects the normal functioning of government: The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s. The defection leads to instability in the government and affects the administration. • Promote horse-trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
Telegram -https://t.me/ChangeIASPrelims website- www.changeias.com 120-4299141, 9773881981, 6201494386 Youtube: https://www.youtube.com/c/CHANGEIAS Mail us: [email protected] UPSC H TS Role of Courts • Bar on Jurisdiction: The law initially stated that the decision of the Presiding Officer is not subject to judicial review. • Power of Court: Although paragraph 7 imposes a bar on the jurisdiction of courts, in KihotoHollohan v. Zachillhu&Ors the Supreme Court held that the office of the Speaker is a quasi-judicial authority, whose decisions are amenable to judicial review. • Thus the Tenth Schedule does not oust the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. • It is also incumbent upon the Speaker of the House to follow the principles of natural justice whilst adjudicating proceedings under the Tenth Schedule. • However, it held that there may not be any judicial intervention until the Presiding Officer gives his order. • Court rejected the argument that the vesting of adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias. • Grounds for review of the decision of Speaker: ShrimanthBalasahibPatil v Hon’ble Speaker of Karnataka legislative assembly (Karnataka legislative assembly case),2019, Supreme Court laid down grounds for review of the decision of the speaker. a. If it is in violation of constitutional mandate b. If it is made in a mala fide way. c. If the decision of speaker is perverse. d. If it is in non¬compliance with rules of natural justice and perversity
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Various Supreme Court Judgments & Recommendations on Anti-defection Law (A) KihotaHollohon vs. Zachilhu and Others (1992) 1. Issue: If the 10th schedule curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislatures. SC Judgement: The 10th schedule neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members. The 10th schedule is constitutionally valid. 2. Issue: Whether paragraph 7 of the Schedule barring the jurisdiction of courts in cases of disqualification is constitutional. SC Judgement: The paragraph seeks to change the operation and effect of Articles 136, 226 and 227 of the Constitution which give the High Courts and Supreme Court jurisdiction in such cases. Any such provision is required to be ratified by state legislatures as per Article 368(2). 3. Issue: Whether paragraph 6 of the Tenth Schedule granting finality to the decision of the Speaker/ Chairman is valid. SC Judgement: To the extent that the provisions grant finality to the orders of the Speaker, the provision is valid. However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. (B) G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) Issue: If a member is expelled from old party and he joins another party after being expelled, will it be considered as having voluntarily given up his membership? SC Judgement: Once a member is expelled, he is treated as unattached member in the house but he continues to be a member of the old party as per the Tenth Schedule. If he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party. (C) Ravi S Naik v. Union of India AIR 1994 1. Issue: Whether judicial review by courts extends to rules framed under the Tenth Schedule. SC Judgement: Once a member is expelled, he is treated as unattached member in the house but he continues to be a member of the old party as per the Tenth Schedule. If he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party. 2. Issue: If only resignation constitutes “voluntarily giving up” membership of a political party. SC Judgement: There is a wider meaning of the words “voluntarily giving up membership”. The inference can be drawn from the conduct of the members also. (D) Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors. (2007) Issue: When can a court review the Speaker’s decision making process under the Tenth Schedule. SC Judgement: If the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties
Telegram -https://t.me/ChangeIASPrelims website- www.changeias.com 120-4299141, 9773881981, 6201494386 Youtube: https://www.youtube.com/c/CHANGEIAS Mail us: [email protected] UPSC H TS Challenges of Anti-Defection Law • By preventing parliamentarians from changing parties, it reduces the accountability of the government to the Parliament and the people. • More Focus on Stability of the government rather than ensuring accountability of the government, which is the key feature of Parliamentary Democracy. • Dilutes the separation of powers between the Executive and the Legislature – and centralises power in the hands of the cabinet. • The anti-defection law has also been criticised on the grounds that it infringes on the basic powers, privileges and immunities of members in exercising their freedom of speech and freedom of action, which includes the freedom to vote. • The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. • Political Biasness of the Speaker/Chairman of the House & Assembly. • By-elections are not anticipated by the incumbent’s challengers – and as a result, the incumbent candidate has a clear head start. What reforms are needed in Anti-defection law? • The decision making power of speaker / chairman needs review • The phrase “voluntarily giving up membership” is too vague and needs comprehensive revision. • Political parties should limit issuance of whips to instances only when the government is in danger
A Case for Distinguishing Dissent from Defection Parliamentarians are vested with numerous privileges to ensure their effective functioning. Art. 105 of the Constitution elucidates the nature of the privilege in the following words • Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. • No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof. This privilege grants a right akin to that enshrined in Art. 19(1)(a), which guarantees a fundamental freedom of speech and expression to all persons. Parliamentarians are provided this freedom only when inside the House. While reasonable restrictions apply in the case of Art. 19, no such restrictions have been imposed in case of Art. 105. This is indicative of the greater rights that parliamentarians enjoy. Members can, for instance, defame another without fear of censure unlike citizens under Art. 19. Aside from unrestricted speech, the Constitution provides for free voting in Parliament. Generally, courts have regarded voting by ordinary citizens to be a part of speech on the grounds that it is a tool of expressing feelings, sentiments, ideas or opinions of an individualand it is the essence of democratic polity. While the right to vote is a statutory right, the freedom to vote is considered a facet of the fundamental right enshrined in Art. 19(1). Extending this finding to voting in Parliament, voting becomes an essential element of the freedom under Art. 105(1). Voting by members must not thus, be restricted, which amounts to an inconsistent situation, seeing as the privilege of unrestricted speech is much wider in the case of parliamentarians. A common understanding of the freedom of speech would entail that a person has a right to his opinion. This opinion may fall in line with the majority or go against the majority and amount to dissent. Nowhere is this dissent more vital than in the Parliament. This is justified owing to the gradual development of a deliberative democracy.In Parliament, an inclusive debate is fostered only when parliamentarians can vote freely. If given this right, they should be allowed to vote in any manner they deem fit, even if they go against the whip issued by a party. Dissent is seen as a challenge to the party and the government, violation of party discipline.The underlying reasons for disallowing dissent are two-fold (1) Elections in India are seen as being conducted in order to vote parties into power, and not individual parliamentarians. (2) Expressing dissent in voting has been regarded as a sign of political instability and poor cohesion A parliamentarian’s allegiance lies both to his constituency as
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1. What is a whip? well as his political party. Allegiance to the party is reflected greatly in the fact A whip is an official of a political party that the Member is bound by the directions of the Whip. To balance his who acts as the party's 'enforcer' inside the legislative assembly or house of interests, however, he cannot ignore the interests of his constituency and must parliament. In India, every major political give credence to the same when appropriate. It is fallacious to consider such party appoints a whip who is responsible for the party's discipline and behaviour conduct as being disloyal to the party or as reflecting poorly on the cohesion of on the floor of the House. A whip is an the party. Members belonging to the same political party may obviously have important office-bearer of the party in the Parliament. Parties appoint a senior different opinions on a matter and expression of such difference of opinion may member from among their House result in modification or withdrawal of proposals under consideration. Such a contingents to issue whips — this member is called a Chief Whip, and result is possible only if members express dissent. Intra-party dissent or intra- he/she is assisted by additional Whips. party debates, both a core element of intra-party democracy, are contingent on India inherited the concept of the whip the willingness of the leaders to allow members to vote against party lines. from the British parliamentary system. 2. Limitations of whip The right to dissent is There are some cases such as stifled by the frequent use of whips by political parties in order to protect their Presidential elections where whips cannot direct a Member of Parliament interests. This results in the unnecessary issuance of whips for trivial matters or (MP) or Member of Legislative Assembly as a fake display of party cohesion. The misuse of anti-defection law greatly (MLA) to vote in a particular fashion. reduces the authority that a member can exercise when called upon to vote.His 3. Legality of Whips Issued Whips are not governed by any law or right to dissent is rarely or never exercised during voting. rules framed under the 10th Schedule or This is one of the reasons why the Law Commission Rules of procedure & Conduct in the Lok Sabha/ Rajya Sabha. It is regulated as a recommended that the Government should restrict issuing whips only to matter of party discretion. situations when the Government is in danger. Defections are seen as an action subverting the democratic nature of the Parliament. Being disloyal to the party, on the strength of which a member has come to power, was widely seen as an act stemming from corruption and bribery. Consider the case of parliamentarians who aid the toppling of their own government and then jump ship to become ministers in consequent governments. It would surely require a leap of faith to consider that such acts stem from uncoloured dissent and not from an illegal incentive. In light of this short history, it is clear that Schedule X is seen as a tool of tackling corruption as well. Various Recommendations to overcome the challenges posed by the law: 1. Dinesh Goswami Committee on electoral reforms: a. Disqualification should be limited to following cases: • A member voluntarily gives up the membership of his political party • A member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no- confidence. Political parties could issue whips only when the government was in danger. b. The issue of disqualification should be decided by the President/ Governor on the advice of the 2. Halim Committee on anti-defection law (1998) • The words ‘voluntarily giving up membership of a political party’ be comprehensively defined. • Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members. • The term political party should be defined clearly. 3. Law Commission (170th Report): • Provisions which exempt splits and mergers from disqualification to be deleted. • Pre-poll electoral fronts should be treated as political parties under anti-defection. • Political parties should limit issuance of whips to instances only when the government is in danger. 4. Election Commission: • Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission. 5. NCRWC: • Defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term. • The vote cast by a defector to topple a government should be treated as invalid. • ‘Block vote' proposal in order to correct lacunae in the concept and implementation of the anti-defection law. • Gives the option of a group of parties registering itself as a pre-election coalition so that all its constituents together shall have one block vote during the term of the House so constituted. • Deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split.
Telegram -https://t.me/ChangeIASPrelims website- www.changeias.com 120-4299141, 9773881981, 6201494386 Youtube: https://www.youtube.com/c/CHANGEIAS Mail us: [email protected] UPSC H TS Manipur Case: Recent Supreme court recommendation/Observation on Speaker’s Authority Question: Whether courts have the power to direct Speakers to decide petitions seeking disqualification within a fixed time frame. The question had arisen because several presiding officers have allowed defectors to bolster the strength of ruling parties and even be sworn in Ministers by merely refraining from adjudicating on complaints against them. Some States have seen enmasse defections soon after elections.
• The Supreme Court has recently held that disqualification petitions under the tenth schedule should be adjudicated by a mechanism outside Parliament or Legislative Assemblies. • Suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice as a new mechanism- Require an amendment to the Constitution. • Court said the Speakers should decide Tenth Schedule disqualifications within a “reasonable period”. What is ‘reasonable’ would depend on the facts of each case. • Unless there are “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months.
Merger of Parties: Q: Is “merger” allowed under the constitution? The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers. • Paragraph 4 (2) of the Tenth Schedule: only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification. • The “merger” referred to in Paragraph 4(2) is seen as legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense. Q: Can a state unit of a national party be merged without the party being merged at the national level? Tenth Schedule identifies this dichotomy between state units and national units. • As per Paragraph 4(2), “merger” of a party means merger of a legislative party of that House. Constitutional Experts on Merger: 1 2 P D T Shubhash chary Kashyap
There should be Party whichich setsets upup caannddidates for a erger between thethe elelectioction iiss the partparty whihichch hhaas twotwo originoriginalal popolliitiiccal to mergeununddeer the Tenentth Schedulule. parties.
Subsequently,2/3 rd ofof tthhee 2/3rd MLAs of that party members of that should aaggrreeee toto thethe mermerggerer. House belonging to that party sshoulhould acceceptpt thethe merger. If 2/3rd of thethe 3. Faizan Mustafa: membberers ddoo nonott accepacceptt itit, then ththe meerrgeerr doesn’t • This would mean that the legislative party will not have any right to merge happpepenn aass perper the llaaww. with anybody in any state. • Definition of ‘Legislature Party’ under the Tenth Schedule, which is defined as a ‘group consisting of all the members of that House’. • The merger has to be seen “locally” and not at the national level. Mustafa also pointed out that nowhere does the Tenth Schedule talk about how a ‘national party’ should split or a ‘regional party’ should split.
Telegram -https://t.me/ChangeIASPrelims website- www.changeias.com 120-4299141, 9773881981, 6201494386 Youtube: https://www.youtube.com/c/CHANGEIAS Mail us: [email protected] UPSC H TS Global Experience: Regulation of defection in some countries 1. Several democracies have not adopted an anti-defection law, even though legislators often switch to the other side. 2. In the U.K., Australia and the U.S., parliamentarians and senators often take positions contrary to their parties or vote against the party’s view, yet continue within the same party.
Experience Law on Law on DefectionThe Law on Defection Country of Defection Defection Bangladesh Yes Yes Article 70 of the Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The dispute is referred by the Speaker to the Election Commission.
Kenya Yes Yes Section 40 of the Constitution states that a member who resigns from his party has to vacate his seat. The decision is by the Speaker, and the member may appeal to the High Court. Article 46 of the Constitution says a member must vacate his seat if he resigns, Singapore Yes Yes or is expelled from his party. Article 48 states that Parliament decides on any question relating to the disqualification of a member. Southafrica Yes Yes Sections 47 of the Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party that nominated him. Australia Yes No Canada Yes No France Yes No Germany Yes No Malaysia Yes No USA Yes No United Kingdom Yes No
Questions which we can answer now • What is the Anti-Defection Law? • What are the grounds for disqualification under the Anti-Defection Law's Articles 102 (2) and 191 (2)? • What were the loopholes? • What are the powers of a party whip under the Constitution in case of a defection? • What are the options before a disqualified elected member? • Who is the deciding authority? • Are there any exceptions under the law? • Is there a time limit within which the Presiding Officer has to decide? • Does the anti-defection law affect the ability of legislators to make decisions?
From UPSC perspective, the following things are important : • For Prelims : 1. Names of Various Committees and commissions with regard to Anti Defection Law 2. Decision of Presiding officer Vs Judicial Review 3. Split of Political Parties Vs Mergers 4. Relevant supreme court cases & Verdicts 5. Is Anti-Defection Law applicable to The Presiding Officer • For Mains : 1. “52nd constitution amendment act has curbed the evil of political defection and made Indian polity more stable”. Critically Analyse. 2. Examine the provisions of Anti-Defection Law. Has this law largely Failed to meet its objective?
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