Anti-defection law in India contrversy supreme court

Anti-defection Tenth Schedule:

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Anti-defection law enshrined through the introduction of the Tenth Schedule in the Constitution of India comprises 8 paragraphs. The following is a brief summary of the contents of the law:

• Paragraph-1: Interpretation. definitions of distinct terms used in the legislation.

 

• Paragraph-2: Disqualification on grounds of defection.This section deals with the crux of the legislation, specifying factors on which a member could be disqualified from the Parliament or the State assembly. Provisions in

para 2.1(a) provide disqualification of a member if he or she "voluntarily gives up the membership of such political party", whereas

paragraph 2.1(b) provisions, addresses a situation when a member votes or abstains from any crucial voting contrary to the directive circulated by his/her respective political party.

Paragraph 2.2 states that any member, after being elected as a representative of a certain political party, shall be disqualified if he/she joins any other political party after the election.

Paragraph 2.3 states that a nominated member shall be disqualified if he/she joins any political party after six months from the date he/she takes his seat.

 Lok sabha – 2 - Constitutional (One Hundred and Fourth Amendment) Act, 2019. The amendment removed the nomination-based representation of the Anglo-Indian community in Lok Sabha and Legislative Assemblies.

Rajya sabha - 12

• Paragraph-3: No more available  - Omitted after amending the schedule by the Ninety-first Amendment act – 2003, which exempted disqualifications arising out of splits with one-third of the members defecting from a political party..
• Paragraph-4: Disqualification on ground of defection not to apply in case of merger.This paragraph excludes from disqualification in the case of mergers of political parties. Provided if the said merger is with two-thirds of the members of the legislative party who have consented to merge with another political party. If some members decide not to join, they will not disqualify.
• Paragraph-5: Exemption.This paragraph provides exemptions to the Speaker, Chairman and Deputy-Chairman of various legislative Houses.
• Paragraph-6:Decision on questions as to disqualification on ground of defection. This provision mandates the Chairman or the Speaker of the respective legislative house to be the ultimate decision-making authority in case of any disqualification that arises.
• Paragraph-7:Bar of jurisdiction of courts. This provision bars any court jurisdiction in the case of disqualification of a member under this schedule. This paragraph was declared unconstitutional by the Supreme Court of India in Kihoto Hollohon vs Zacillu, 1992.

The Court held that the decision of the speaker or chairman is subject to judicial review under Article 32 and 226 of the Indian Constitution.

• Paragraph-8: Rules.This paragraph deals with framing the rules for disqualification. The schedule allows the Chairman and the Speaker to frame rules concerning their respective legislative houses to deal with the disqualification of members of their various houses of the legislature. This does not mean he can disregard above rules, what he is free to do frame rules regarding application of the above rules.

A 5-Judge Constitution Bench led by Chief Justice of India D.Y. Chandrachud, in its Judgement on a batch of petitions connected with the political crisis in the Maharashtra Legislative Assembly that saw a change in government in June 2022 amidst the emergence of two factions of Shiv Sena.

 

Who can recommend disqualification?

Party whip in the house decides and directs members to vote in a particular way.

 

Who appoints whip?

Whip is appointed by the members of the party legislature.

 

What happens if party splits in legislature & appoints separate whips?

Party constitution lays down the rules, which should have been submitted to election commission and duly uploaded and party’s internal election. Elected National executive will have the final say, there will no more be valid split’s, whoever goes against the party decision loses membership of house, or is disqualified from being a member of the house.

 

Why party members of legislative assembly(MLA’s) cannot decide split or merger in case of conflict?

Since all members are given party symbol to fight election to legislative assembly by National executive, it is supreme.

What represents a legal split?

Idea of split is no more valid because there can only be one decision, by group that controls the national exective of the party, anyone who goes against stands disqualified.