Anti Defection Law- UPSC Current Affairs

Why in the News?

Recently, the Vice-President of India has said that the time has come to amend the anti-defection legislation in the country to plug existing loopholes.

Probable Question

What are the grounds for disqualification under the anti-defection law? Do you think it is used by the political parties to stifle dissent?

About Anti-Defection Law

• It is a law to prevent political defections which may be due to reward of office or other similar considerations. 
• The 52nd CAA,1985 provided for the disqualification of the MPs and MLAs on the grounds of defection.
• It made changes to Articles 101, 102, 190,191 of the Constitution and also added the 10th Schedule.

Exceptions

The disqualification on the ground of defection does not apply in the following two cases:

• If a merger takes place when two-thirds of the members of the party have agreed to such a merger.
  • The provision of the Tenth Schedule pertaining to an exemption from disqualification in case of a split by one-third of members of the legislature party has been deleted by the 91st Amendment Act of 2003. 
• 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.

Upgrade your civils preparation with a video on the History of Indian Communal Riots | 1893 - 2021 by our UPSC expert, Sandeep Mishra:

Deciding Authority

• The 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 the Kihoto Hollohan case (1993), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, functions as a tribunal. Hence, a decision like that of any other tribunal is subject to judicial review on the grounds of mala fides, perversity, etc.

Impact of Anti-Defection Law on Legislators’ Decision-Making Abilities

The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides.

• However, this law also restricts a legislator from voting in line with his conscience, judgment and interests of his electorate.
• Such a situation impedes the oversight functions of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

Various Recommendations on Reforming the Anti-Defection Law

• Dinesh Goswami Committee on Election Reforms (1990): The issue of disqualification should be decided by the President/ Governor on the advice of the Election Commission.
  • The Election Commission called for this advice to be binding in nature.

• Halim Committee on Anti-defection Law (1998): The words ‘voluntarily giving up membership of a political party’ is not comprehensively defined.
  • Restrictions like the prohibition on joining another party or holding offices in the government be imposed on expelled members.
  • The term political party should be defined clearly.
• Election Commission: Decisions under the Tenth Schedule should be made by the President/ Governor on the binding advice of the Election Commission.
• Constitution Review Commission (2002): The vote cast by a defector to topple a government should be treated as invalid.
  • Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions). 

Download the PrepLadder app to prepare for UPSC CSE like a pro and to experience a revolution in UPSC CSE education.

You can also join our Telegram channel for UPSC exam preparation to apprise yourself with the latest information about the exam.

Own Your Dream

Team PrepLadder