Tenth schedule of Constitution of India – Anti Defection Law

Tenth schedule of Constitution of India – Anti Defection Law

Anti Defection Law is contained in the 10^th Schedule of the constitution. It was introduced by the 52^nd Constitutional Amendment of the Constitution by the Rajiv Gandhi government. It came into effect on 1^st March 1985. It lays down the process by which legislators may be disqualified for defection. Later, the 91^st Constitutional Amendment made a change in the provision of the 10^th schedule by omitting an exception provision i.e. disqualification on the ground of defection will not be applied in case of a split.

For a long time, the Indian political scene was damaged by political defections by members of the legislature. This situation brought about greater instability in the political system.  Aaya Ram Gaya Ram was a phrase that became popular in India after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. This caused serious concerns to the right-thinking political leaders of the country.

The anti-defection aims to prevent such political defections which may be due to the reward of office or other similar considerations and to provide a stable government by ensuring that the legislatures do not switch sides and reduce the government to a minority in midway  before completing its tenure.

Various grounds for disqualification of legislators are:-

• If a member of a house belonging to any political party gets disqualified from being a member of that house if he voluntarily gives up his membership of that political party or if he votes or abstains from voting in such House contrary to any directions issued to him by his/her political party without obtaining prior permission of the political party
• If an independent member(elected without being set up as a candidate by any political party) of the House joins any political party after his/her election, will be disqualified to be a member of that house
• If a nominated member of the house joins any political party within 6 months from the date on which he takes a seat in the house, he/she will be disqualified from being a member of that house. He/she can join any political party after 6 months of nomination.

Exceptions under the law:-

1. If a legislator joins any other political party as a result of a merger of the party with another political party. This merger should take place when two-third of the legislators agree. Before the 91^st Constitutional Amendment Act, this limit was 1/3^rd of the total number of legislators. This provision resulted in large-scale defections and the lawmakers were convinced that the provision of a split in the party was being misused. Therefore, they decided to amend this provision.
2. If a member voluntarily gives up the membership of the house after being elected as the presiding officer of the house, he/she shall not be disqualified as a legislator of that house.

Any question regarding the disqualification of legislators arising out of defection is to be decided by the presiding officer of the House i.e. Speaker in the case of Lok Sabha and state legislative assemblies and Chairman in the case of Rajya Sabha. The presiding officer of the house is empowered to the provisions of the 10^th schedule and all such rules must be placed before the house for 30 days. But the presiding officer can take up a defection case only when he/she receives a complaint from a member of the house. He/she must also give a chance to the member against whom the complaint has been made, to submit his application, before making any decision. He/she may also refer the matter to the committee of privilege for any inquiry. In the year 1993, in Kihoto Hollohan vs Zachilhu case, the Supreme Court ruled that the decision of the Presiding officer of the house is subject to judicial review thus can be challenged in the court of law.

Various advantages of the Anti defection law are:-

1. It provides stability in politics by checking the propensity of the legislators to change parties
2. It facilitates the democratic re-alignment of parties in the legislature by way of merger of parties
3. It helps in reducing corruption at the political level as well as non-developmental expenditure incurred on irregular election.
4. It gives a clear-cut recognition to the existence of political parties.

The Presiding officer of the house has been illustrated with numerous powers who are not generally impartial in their duties. Article 190 of the constitution provides that, if the Speaker is satisfied that the resignation is not voluntary he may not accept such resignation. The Supreme Court has clarified this point by ruling that the presiding officer, who acts as a tribunal, has to draw a reasonable inference from the conduct of the legislator.

Since 2003, the parties in power have started misusing the expansive powers of the Presiding officer’s house in deciding matters of disqualification. The vesting of decision-making authority of the Speaker is criticized on the ground that he may not exercise his authority in an objective or impartial manner.

The law has been able to curb the evil of defection to a great extent. But, a very alarming trend of legislators defecting in groups to another party in search of greener pastures is visible. In recent times, we have seen a number of examples where the political parties have found loopholes in the law and are misusing its provisions for their own benefits. Government formation in the states has become a messy affair with political parties frequently resorting to quarantine their MLAs at various places to avoid horse-trading in a bid to retain their majority. Recent examples can be seen in Maharashtra, Karnataka, Puducherry, and Telangana.

Devender Aswal, former Additional Secretary of the Lok Sabha, says “The way the anti-defection law has been brazenly thwarted, time and again and over time, calls for its review, including the need to debar anyone from becoming a Minister without first getting elected to the legislature.”

Author: Yatharth Tripathi,
1st year, Faculty of Law, University of Delhi/ Student