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Anti-Defection Law

Posted on March 17, 2021 by admin1  558

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Recently, Nominated MP Swapan Dasgupta resigned from Rajya Sabha, a year before completion of his term.

  • Trinamool Congress MP Mahua Moitra had raised the issue of his disqualification from Rajya Sabha under the anti-defection law after the BJP had fielded Dasgupta as its candidate for the Tarakeswar constituency in the West Bengal Assembly elections.

Nominated Members of Rajya Sabha

  • The Constitution provides that the Rajya Sabha shall consist of 250 members, of which 12 members shall be nominated by the President from amongst persons having special knowledge or practical experience in respect of such matters as literature, science, art and social service; and not more than 238 representatives of the States and of the Union Territories.
  • The President nominates such individuals as recommended by the Centre.
    • Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.
  • Elections to the Rajya Sabha are indirect; members representing States are elected by elected members of legislative assemblies of the States in accordance with the system of proportional representation by means of the single transferable vote, and those representing Union Territories are chosen in such manner as Parliament may by law prescribe.
  • The Rajya Sabha is not subject to dissolution; one-third of its members retire every second year.
  • Rajya Sabha, at present, has 245 seats. Of these, 233 members represent the States and the Union Territories, and 12 members are nominated by the President.

About Anti-defection Law

  • The Tenth Schedule was inserted in the Constitution in 1985 to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
  • Its enactment was catalysed by the political instability after the general elections of 1967.
    • This was the time when multiple state governments collapsed after MLAs changed their political loyalties.
  • The law specifies the circumstances under which changing of political parties by MPs invite action under the law.
  • Provisions
    • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
    • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
    • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. 
      • The law applies to both Parliament and state assemblies.
  • Exceptions
    • Legislators may change their party without the risk of disqualification in certain circumstances.
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
      • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
  • Interpretation of  Supreme Court
    • The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
    • In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
    • The law initially stated that the decision of the Presiding Officer is not subject to judicial review.
      • This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.
      •  However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
      • In 2015, the Hyderabad High Court refused to intervene after hearing a petition which alleged that there had been a delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.
  • Issues
    • This law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
    • Such a situation impedes the oversight function 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.
    • Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.

Way Forward

  • The law needs to recognise the thin line of difference between defection and dissent.
  •  An independent committee chaired by the President/Governor and consisting of two judges of the Supreme Court/ High Court, Speaker of the House, and Chief Election Commissioner must be set up to decide defection matters.
  • A permanent and independent Commission must be set up with an aim to strengthen intra-party democracy.
    • The Commission, to remain independent, must consist of members from the judiciary, legislature and the executive.
  • There is an ardent need for legislation that regulates political parties in India.
    • Such a law should bring political parties under RTI, strengthen intra-party democracy, etc

Source: IE

 
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