Anti-Defection Act,1985
**Author: Aarti Khanduri, a student of DAV (PG) College, Dehradun, Uttarakhand
Introduction
The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament
and the state legislatures or the ground of defection from one political party to another.
For this purpose, it made changes in four Article of the constitution and added a new schedule
(the Tenth Schedule) to the Constitution.
This act is often referred to as the ‘anti-defection law’. Later, the 91st Amendment Act of 2003
made one change in the provisions of the Tenth schedule.
It omitted an exception provision i.e., disqualification on ground of defection not to apply in case
of split.
Provision of the Act
The tenth schedule includes the following provisions with regard to the disqualification of MPs
and MLAs on the ground of defection:
Ground for disqualification:
If an elected member gives up his membership of a political party voluntarily.
If he votes or abstains from voting in the 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 proceeding in relation to disqualification under this schedule are considered to be
proceeding in parliament or the Legislature of a state as is the case.
Exceptions
The above disqualification on the ground of defection does not apply in the following two cases:
i) If a member goes out of his party as a result of a merger of the party with another party. A
merger takes place when two thirds of the members of the party have agreed to such
merger.
ii) 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 this office.
It must be noted here that the provision of the tenth schedule pertaining to
exemption from disqualification in case of split by one-third members of legislature
party has been deleted by the 91th Amendment Act of 2003.
It means that the defectors have no more protection on ground of splits.
Deciding Authority
Deciding Authority any question regarding disqualification arising out of defection is to be
**decided by the presiding officer of the House.
Originally, the act provided that the decision of the presiding officer is final and cannot be
questioned in any court. However, 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 Supreme Court and the high court.
It held that the presiding officer, while deciding a question under the tenth schedule, function
as tribunal.
Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of
mala fides, perversity, etc. But, the court rejected the contention that the vesting of
adjudicatory powers in the presiding officer is by itself invalid on the ground of political bias.
Rule-making power
The presiding officer of a House is empowered to make rules to give effect to the
provision of the Tenth Schedule. All such rules must be placed before the House for 30
days.
The House may approve or modify or disapprove them. Further, he may direct that any
willful contravention by any member of such rules may 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 receives a complaint from a member of the House.
Before taking the final decision, he must give the member (against whom the
complaint has been made) a chance to submit his explanation.
He may also refer the matter to the committee of privileges for inquiry. Hence,
defection has no immediate and automatic effect.
Occurrences on Anti Defection Law
In 2020, the supreme court stated that the speakers should decide on the question of
disqualification within a “reasonable time”.
The case of Keisham Meghachandra v. the Hon’ble Speaker Manipur, Justice Rohinton
Nariman talked of the need to set an external means to deal with defection cases.
In his words, “Parliament may seriously consider amending the Constitution to
substitute the Speaker of the Lok sabha and Legislative Assemblies as an arbiter of
disputes concerning disqualification which arise under the Tenth Schedule.”
He further continued that it can be “with a permanent Tribunal headed by a retired
Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside
independent mechanism to ensure that such disputes are decided both swiftly and
impartially, thus giving real teeth to the provisions contained in the Tenth Schedule,
which are so vital in the proper functioning of our democracy”
o The political crisis that occurred in Maharashtra has also thrown new light on the roles of
Speaker and Governor and anti-defection Law.
Why in News:
Recently, the Supreme court on October 13 slammed Maharashtra Assembly Speaker
Rahul Narwekar for reducing the anti-defection proceedings against Chief Minister
Eknath Shinde and other MLAs to a “charade”, saying that he cannot “merrily” defer
hearings and has to decide before the next elections.
