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Report No. 255

Chapter V

Anti Defection Law in India

A. Introduction

5.1. Originally, the Constitution of India carried no reference to political parties and their existence. However, the existence of political parties is explicit in the nature of the democratic form of Government that our country has adopted. Kanhaiya Lal Omar v. RK Trivedi, AIR 1986 SC 111, para 10 India is now a federalised multi-party system.

5.2. The emergence of a large number of political parties within the Indian electoral landscape was accompanied by increasing defections. In fact, nearly 438 defections occurred within the period between March 1967 and February 1968.178 The malaise of defection resulted in an increase in political corruption and instability of governments.

Principally, frequent defections made a mockery of the party system and made the electoral system vulnerable to frequent and unnecessary elections which inevitably would cost a significant amount to the exchequer. Defections revealed the inner state of party politics which was fraught with division, fragmentation and factionalism.179

178. Subhash C. Kashyap, Parliamentary Procedure: Law, Privileges, Practice and Precedents 779 (3rd edn., 2014)

179. Vandana Mishra, Crisis of Indian Parties, MAINSTREAM WEEKLY, Vol. XLVII, No. 13, March 14, 2009,
<http://www.mainstreamweekly.net/article1230.html>

5.3. The increase in the number of defecting legislators between 1967 and 1969 necessitated the framing of an adequate anti-defection law. The mid-sixties witnessed numerous instances of elected representatives leaving the parties on whose ticket they were elected, to join the opposition parties. Hence, the need for an anti-defection law became increasingly urgent.

The Committee on Defections, under the Chairmanship of then Home Minister, Mr. YB Chavan submitted its report in January 1969 where it noted that there were multiple acts of defections by the same person(s) and also, indifference on the part of defectors to political proprieties, constituency preference and public opinion.180

Even though the Committee could not reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislature, legislative proposals to usher in an anti-defection law soon followed. Based on the recommendations of the Committee, the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eighth Amendment) Bill, 1979 were introduced in the Lok Sabha.

These legislative attempts towards framing an anti-defection law contemplated an amendment to the Constitution with a view to disqualifying a defector from his continued membership of the legislature.181 However, while the former Bill lapsed due to dissolution of the Lok Sabha, the latter was opposed at the stage of introduction itself and was withdrawn by the leave of the House.

180. Arvind P. Datar, Commentary on the Constitution of India, Vol. 2, 21st edn. (2010), at 2253

181. Constitution (Thirty-second Amendment) Bill, 1973, Statement of Objects and Reasons

5.4. Finally, after the general elections in December 1984, the Constitution (Fifty-second Amendment) Bill was introduced in the Lok Sabha in January 1985. The object of this anti-defection law was to curb the evil of political defections motivated by the lure of office or other similar considerations that endanger the foundations of our democracy. Kihota Hollohon v. Zachilhu, AIR 1993 SC 412.

Pursuant to this ideal, the amendment inserted the Tenth Schedule into the Constitution in order to curb the evil of political defections. The 521st Amendment Act, 1985 also amended Articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures.

5.5. The purpose of the Tenth Schedule is to prevent the breach of faith of the electorate. Where a constituency returns a candidate to the Legislature, it does so on considerations based on the ideologies of the political party he represents and it is only logical that where the candidate, after being elected, leaves that party or acts contrary to its policies, he should be recalled for betrayal of the faith of the electorate.183 Essentially, the provisions in the Tenth Schedule give recognition to the role of political parties in the political process. Kihota Hollohon v. Zachilhu, AIR 1993 SC 412.

183. Datar, supra note 180, at 2253

5.6. Paragraph 2(1) of the Tenth Schedule provides that a member of Parliament or State Legislature belonging to any political party shall be disqualified for continuing as such member, if he:

(i) has voluntarily given up his membership of such political party; or

(ii) votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by him in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within 15 days from the date of such voting or abstention.

5.7. Further, Paragraph 2(2) provides that if a member elected as an independent candidate joins any political party after his election, he shall also stand so disqualified. Paragraph 2(3) provides that a nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat upon taking an oath or affirmation as a member of either House of Parliament, or of the Legislative Assembly or the Legislative Council of the State.



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