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Anti Defection law: Case laws and 10th Schedule


Anti Defection case laws 10th Scheduled

Content:

The anti-defection law in India was enacted through the 52nd Amendment to the Constitution in 1985. It added the Tenth Schedule to the Constitution, which lays down the process by which legislators may be disqualified from holding their seats on the grounds of defection from their political party.


Background and Need

Prior to 1985, the problem of legislators defecting from one political party to another for personal gain was rampant, especially at the state level.


This caused instability in governments, as a party that failed to get a majority could induce defections from other parties and form the government.


Such unprincipled defections were seen as a negation of the electoral mandate and undemocratic.


To curb this evil of political defections and strengthen parliamentary democracy, the Constitution was amended to provide for disqualification of defecting legislators.


Defection, often referred to as "floor-crossing," involves a member of one political party switching allegiance to another party.


This practice has historically led to government instability, as a ruling party could lose its majority due to defections, allowing the opposition to form a government.


Such actions undermine the democratic process and the electoral verdict, as they can negate the mandate given by the voters.


Provisions of 10th Schedule

The key provisions of the Tenth Schedule, which deals with anti defection laws are:

  1. Disqualification on grounds of defection (Paragraph 2): A member of a House belonging to a political party will be disqualified if they voluntarily give up membership of that party or vote/abstain from voting contrary to the party's directive without obtaining prior permission. Independent members would be disqualified if they joined a political party after being elected.

  2. Exceptions for splits and mergers (Paragraphs 3 and 4): Originally, a group of at least one-third members could split from their party without being disqualified. This exception was later removed in 2003. However, the exception for merger of parties with the support of two-thirds members continues.

  3. Decision on disqualification (Paragraph 6): The decision on disqualification is to be taken by the Chairman/Speaker of the respective House, subject to judicial review.

  4. Bar on judicial review (Paragraph 7): This paragraph originally barred judicial review of the Speaker's decision. However, it was struck down by the Supreme Court in 1992 as unconstitutional.


SC Decisions(Case laws)


  1. Kihoto Hollohan vs Zachillhu (1992): In this landmark 3:2 majority judgment, the Supreme Court upheld the validity of the anti-defection law but ruled that the Speaker's decision was subject to judicial review on grounds of malafides, violation of constitutional mandate, non-compliance with principles of natural justice, etc.

  2. Mayawati vs Markandeya Chand (1998): The Supreme Court was divided on whether the Speaker's decision on a split in the BSP could be reviewed. This led to the removal of the split exception in 2003.

  3. Rajendra Singh Rana vs Swami Prasad Maurya (2007): The Supreme Court set aside the Speaker's decision as unconstitutional and itself decided on the disqualification of members, without remanding the matter back.


Here are some additional important case laws related to the Anti-Defection Law in India:

  1. Ravi S. Naik v. Union of India (1994): The Supreme Court held that the provisions of the Tenth Schedule do apply to an independent member who joins a political party after being elected to the House.

  1. G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly (1996): The Court ruled that there is no concept of an 'unattached' member under the Tenth Schedule. If a member is expelled from their original party, they incur disqualification if they join another party.

  1. Rajendra Singh Rana v. Swami Prasad Maurya (2007): The Supreme Court set aside the Speaker's decision as unconstitutional and decided on the disqualification itself, without remanding it back to the Speaker.

  1. Jagjit Singh v. State of Haryana (2006): The Court held that proceedings for disqualification under the Tenth Schedule are not comparable to a court trial or departmental proceedings. Principles of natural justice are applicable but their application depends on facts and circumstances.

  1. Sanjay Singh v. U.P. Legislative Assembly (2022): The Court reiterated that the Speaker's decision on disqualification is subject to judicial review on grounds like malafides, violation of constitutional mandate, non-compliance with principles of natural justice, etc.

  1. Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2020): The Court held that the Speaker cannot employ delaying tactics and has to decide the disqualification petition within a reasonable period.


These cases highlight various aspects like the applicability of the law to independent members, the role of the Speaker, judicial review of the Speaker's decision, principles of natural justice, and the need for timely adjudication of disqualification petitions.


Issues and Criticisms

  1. Role of the Speaker: There have been concerns about the Speaker's impartiality in deciding defection cases, given their political affiliations. Suggestions have been made to vest this power in an independent body like the Election Commission.

  2. Lack of clarity: Several issues like defiance of whip, expulsion from party, etc. need clarification in the law.

  3. Delays in decisions: Delays by Speakers in deciding defection cases have reduced the law's effectiveness.

  4. Bulk defections: The earlier provision allowing splits encouraged bulk defections, defeating the law's purpose. This led to its removal in 2003.


While the anti-defection law was a well-intentioned measure to combat the evil of political defections, its implementation has been marred by controversies and allegations of partisan decisions by Speakers.


Periodic reviews and amendments, along with vesting the decision-making power in a truly independent body, could help strengthen this law and uphold the integrity of the parliamentary democratic system in India.

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