HCS exam current affairs Anti Defection Law : Frontier IAS
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HCS exam current affairs Anti Defection Law
- The 10th Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.
- 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 can a member be disqualified?
If a member of a house belonging to a political party:
- Voluntarily gives up the membership of his political party, or
- Votes, or does not vote in the legislature, contrary to the directions of his 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.
- If an independent candidate joins a political party after the election.
- If a nominated member joins a party six months after he becomes a member of the legislature.
However, Legislators may change their party without the risk of disqualification in certain circumstances:
- 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.
- In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
- Members who chose neither options and wants to form a separate party from the time of such a merger are also exempted from disqualification.
- Also, if a new political party is created by the elected members of one party.
91st Constitutional Amendment Act, 2003:
- It aimed at limiting the size of the Council of Ministers to debar defectors from holding public offices and to strengthen the anti-defection law.
- Earlier, a defection by one-third of the elected members of a political party was considered ‘merger’. The amendment changed in to at least two-thirds.
IMPORTANT SUPREME COURT JUDGEMENTS
Important Supreme Court Judgements:
Kihota Hollohon vs. Zachillu (1992):
- In this judgement, the Supreme Court clarified that the 10th schedule is constitutionally valid. It neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members.
- It also upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
- However, it also held that Presiding Officer’s decisions of disqualification shall be open to judicial review.
Ravi S Naik vs. Union of India, 1994:
- In this case, the Supreme Court interpreted the phrase ‘voluntarily giving up his membership’ and said that the phrase is not synonymous with ‘resignation’ and have a wider meaning.
- A person may voluntarily give up his membership of a political party even though he has not submitted his resignation from the membership of that party.
Vishwanathan vs. Speaker, Tamil Nadu Legislative Assembly (1996):
- The Court held that a member can be said to voluntarily give up his membership of a party if he joins another party after being expelled by his old political party.
Rajendra Singh Rana vs. Swami Prasad Maurya and Others (2007):
- The Supreme Court states that 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.
ISSUES ASSOCIATED WITH DEFECTION
Issues associated with Defection:
Against the concept of representative democracy:
- This law enforces a restriction on legislators from voting in line with their conscience, judgement and interests of his electorate.
- Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
- The legislator is accountable to voters and the government is accountable to legislators.
- In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
- This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.
Weakening of the stability:
- The political system has found ways to topple governments by reducing the total membership through resignations.
- In other instances, the Speaker, usually from the ruling party has delayed taking a decision on the disqualification.
- The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
- Many defectors in States such as Karnataka and Madhya Pradesh are being re-elected in the by-polls which were held due to their disqualification.
ANTI-DEFECTION LAW - WAY FORWARD
Recommendations by Dinesh Goswami Committee on electoral reforms:
Disqualification should be done only when:
- 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.
Recommendations of Law Commission (170th Report):
- Provisions which exempts 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.
Rational use of the anti-defection law:
- Several experts have suggested that the law should be valid only for those votes that determine the stability of the government. Ex., passage of the annual budget or no-confidence motions.
- Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
Independent authority to deal with disqualification:
- Justice Verma in Hollohan Judgement said that tenure of the Speaker is dependent on the continuous support of the majority in the House and therefore, he does not satisfy the requirement of such independent adjudicatory authority.
- If parties attract members on the basis of ideology and they have systems for people to rise within the party hierarchy on their capabilities rather than inheritance, there would be a greater exit barrier.
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