Critical Analysis of the Anti-Defections Laws in India

Anti-Defection law is stated under the Tenth Schedule of the Constitution of India. Defection has been a cause of distress for the Indian parliamentary system for quite some time, especially with respect to the state level. Defection basically means shifting of a member of parliament from one political party to another and this causes instability in the government as it may topple the entire government as the supporters of the government shift to   an opposition party which may convert the party from a minority party to that of a majority. The practice of defection is undemocratic in nature as it affects the electoral verdicts as the members of parliament are elected on the basis of their ideology or the political parties they represent, and due to defection the political parties that gained less number of seats in the election are going on to gain majority and this is in violation of the mandate of the people, thus defection is undemocratic in nature.

In 1997 in the case of Mayawati v Markendeya Chand in Uttar Pradesh the existing government was collapsed by the BJP with support of ministers belonging to the Samajwadi party and the Indian National Congress and formed a government wherein Kalyan Singh was appointed as the Chief Minister of the state. This was an unprecedented event as the council of ministers consisted of 94 members of parliament where in almost all the defectors were appointed as ministers. This particular event brought notice to the concept of defection as this particular act which is morally wrong, done for the lust of power and it completely disrespected the decision of that of the electorate. Thus, it was essential to contain the undemocratic act of defection as it undermines the entire foundation of democracy of India and thus particular laws have to be enacted to prevent defection.

Thus, in 1985 The Constitution (Fifty second Amendment) Act was passed where four articles of the constitution of India were changed which are Article 101(a)(3), Article 102(2), Article 190(3)(a) and Article 191(2) and the Tenth schedule of the constitution was added and thus this was referred to as Anti-Defection laws. In the Tenth Schedule if a member of parliament voluntarily gives up his or her membership in the parliament or abstains from voting or votes in the house against his or her political party  or against any direction prescribed by it then he or she is said to be liable to disqualified from their membership. Under Article 102(2) a person is said to be disqualified from their membership from either houses of the parliament is they are said to be disqualified under the Tenth Schedule. Under this schedule it gives the Chairman and the speaker of the assembly the powers to set up a tribunal. Thus, the final authorities to make the decision with respect to disqualification of the Member of Parliament are the Speaker or the Chairman of the house. The role of the speaker or the chairman is merely ascertain the facts and all the relevant facts are gathered where it states that a particular member or a group of members of the parliament have collectively committed a particular act which comes within the purview of the Tenth Schedule then the disqualification of the member will be held valid and the speaker and the chairman have to make a decision to that effect. The speaker or the chairman has to be involved in the adjudication process, fairness to the member in fault as that particular member should be given an opportunity to explain their position and if they are not allowed to then it is said to be a violation of the principle of Natural Justice.

In Rajendra Siingh Rana v Swami Prasad Maurya the supreme court constructing paragraph 3 of the Tenth Schedule of Article 102 and Article 191, does not permit the determination of the question to split or merger separately from a motion before the speaker seeking a disqualification of members or members concerned nor does the speaker have an independent power to decide that there has been a split or merger of a political party as contemplated by the paragraphs 3 and 4 of the tenth schedule.

In 2007, in the case of Rajendra Singh Rana v Swamy Prasad Mauryathe speaker has decided that certain members of the assembly are not disqualified on the grounds of defection but the Supreme Court in this case stated that the decision is unconstitutional and inter alia as the decision given by the speaker was not based on any evidence. Thus, Under Schedule 10 the speaker of the house are granted with powers of that of a sole arbitrator and thus since the speaker is appointed by the majority party there are certain instances where the speaker of the house have misused their power and this is violation of the principle of representative democracy.

Article 32, 136, 226 and 227of the constitution guarantee judicial review of legislative and administrative actions and protection of fundamental rights. In Keshavananda Bharati case where judicial review has been declared as a basic feature. Justice Khanna stated “as long as fundamental rights are a part of the constitution, the power of judicial review has to be exercised with a view to see that the guarantees afforded by those rights are not contravened.”  The powers conferred upon the Speaker/Chairman under Tenth Schedule grant them the immunity from judicial review or any sort of judicial scrutiny in the light of Paragraph 6 and Paragraph 7.

The basic structure doctrine laid down in Keshavananda Bharati case explicitly states that judicial review is a basic feature and therefore any decision made as per the discretion of an authority will be subject to it and therefore such statutory finality cannot abrogate the concept of judicial review.

 

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