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PLEASE NOTE: The anti defection law is
applicable only to the current (present) members of
·
Lok Sabha
·
Rajya Sabha
· State Legislative Assemblies
· State Legislative Councils
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ü Before
the year 1985 there is no provision for disqualifying a member if he joins
other political party.
ü This
is considered to be an insult to the democracy where the people have a voted
for a person by looking at the party.
ü This
was seriously discussed hence the 10th schedule of the Indian
Constitution.
ü Defections
mean jumping from one political party to the other after getting elected.
ü The
anti-defection law is meant for disqualification of members of Parliament or
State Legislatures on the grounds of defections from one political party to the
other.
ü These
provisions are added to the Constitution of India through the 52nd
amendment.
ü A
new schedule in the form of 10th schedule has been added to the Constitution.
ü The
10th schedule was added to the constitution in the year 1985 through
52nd amendment.
ü In
Parliament and State Legislatures there are three categories of members
present.
ü Political
Party members
ü Independent
members (Most of the times these members are present)
ü Nominated
members
ü All
categories of members can be disqualified under the grounds of defections.
DISQUALIFICATION
OF MEMBERS OF POLITICAL PARTIES:
ü Note:
A political party member is a person who contests in the election on the name
of a political party and gets elected.
ü A
member of a political party can be disqualified
ü If
that member after getting elected voluntarily resigns to the political party on
whose ticket he/she got elected to the house
OR
ü if
the member votes against to the whip (Direction) issued by the concerned
political party
OR
ü If
the member abstains against the direction issued by the concerned political
party without permission from the party.
EXCEPTIONS:
ü A
member going out of a party through Split is not disqualified on the grounds of defections.
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WHAT IS SPLIT?
ü
If minimum 1/3rd members of a political party gets
separated from the parent party and forms a new party it is called Split.
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ü The
speaker or the chairman if satisfied recognizes the split group as a new party.
ü Note:
The Split group cannot join any political party. If so, the
group is disqualified.
ü Please Note: The Split by 1/3rd members of a party
have been deleted through the 91st amendment Act of 2003. This means
the members can no more take shelter under the split.
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WHAT IS MERGER?
ü
If a 2/3rd of a political party forms a
separate group and joining another political party is called merger.
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ü If
a member goes out as a result of merger, the member is not disqualified.
ü If
a member after being elected as the Presiding officer of the house, voluntarily
gives up the membership of the party and rejoins it after he ceases to hold
that office.
ü A
member may be suspended by the political party for violating the discipline of
the party. A suspended member from a political party is not disqualified from
the membership of the house.
INDEPENDENT
MEMBERS:
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WHO IS AN INDEPENDENT MEMBER?
ü
An independent member is an elected member of the house who does not belong
to any political party. She/he got elected because of their personal image
among the people of the respective constituency.
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ü If
an independent member joins any political party then the member is disqualified
from the membership of the house.
ü Note:
An independent member can continue as an associated member of a political
party.
NOMINATED
MEMBERS:
ü These
are the members who are nominated by the President for Parliament and by the
Governors for the State Legislatures.
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DO YOU REMEMBER?
·
The President nominates 2 members who belong to the Anglo-Indian community to the Lok
Sabha.
·
The President nominates 12 members with special knowledge or practicle experience to the
Rajya Sabha.
·
The Governor nominates 1 member of who belongs to Anglo-Indian to the state Assembly.
·
The Governor nominates 1/6th of the total members to the State
Legislative Council.
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ü A
nominated member is disqualified for being a member of a house if the member
joins any political party after the expiry of 6 months from the date on which
he takes his seat in the house.
EXCEPTION FOR A NOMINATED MEMBER:
ü If
a nominated member joins a political party within 6 months of his nomination to
the house is not disqualified.
WHO IS THE
DECIDING AUTHORITY REGARDING THE DISQUALIFICATION OF A MEMBER:
ü The
deciding authority is the Presiding officer (Speaker/chairman).
ü Initially
the decision of the chair was not subjected to the judicial review.
ü In
the year 1993,
in Kihoto Hollohan V. Zachilhu case the Supreme Court declared
that this provision is unconstitutional on the ground that it seeks to take away
the jurisdiction of Supreme Court and High Courts.
ü Hence
since 1993, the decision chair is subject to the judicial review.
ü It
means the disqualification of a member can be challenged in a court of law on
the grounds of malafides.
Miscellaneous:
ü The
Presiding officer can take up a defection case only when he/she receives a
complaint from a member of the house.
ü The
speaker need not take the decision immediately.
ü Before
taking the final decision the presiding officer must give a chance to the
member against whom the complaint has been made.
ü In
the year 2007 in Uttar Pradesh 13 MLA’s (BSP) were disqualified under
Anti-defection law.
ü In
the year 2010 then Karnataka Assembly Speaker K G Bopaiah 11 BJP and 5
independent MLAs. Then the MLAs moved the Karnataka High Court and the court
upheld the decision of the Speaker. Later the disqualified MLAs moved the
Supreme Court and the Apex Court ordered for the reinstating of the MLAs and
thus avoided the possible by elections in Karnataka.
ü In
the year 2013 in Andhra Pradesh Assembly 15 MLAs have been disqualified for
defying their respective party whips.