The Constitution (Fifty-second Amendment) Act, 1985
Parliament of India
  • An Act further to amend the Constitution of India.
CitationThe Constitution (Fifty-Second Amendment) Act, 1985
Territorial extentIndia
Enacted byLok Sabha
Passed30 January 2001
Enacted byRajya Sabha
Passed31 January 1985
Assented to15 February 1985
Commenced15 February 1985
Legislative history
Bill introduced in the Lok SabhaThe Constitution (Fifty-Second Amendment) Bill, 1985
Bill published on24 January 1985
Introduced byRajiv Gandhi
Amended by
The Constitution (Ninety-First Amendment) Act, 2003
Related legislation
Addition of Tenth Schedule in the Constitution of India
Summary
Disqualification on grounds of defection.
Status: In force

Defection by legislators occurs in many democracies. It can be argued that they can undermine the stability of the government, which is dependent on the support of the majority party's own elected legislators and/or a coalition of those elected to represent other parties. The argument follows that such instability can amount to a betrayal of the people's mandate as voiced at the most recent prior election.

Prior to the introduction of the anti-defection law, both the central Government of India and the governments of some of its states and territories had experienced instances of perceived instability resulting from legislators changing their political allegiance. By one estimate, almost 50 per cent of the 4,000 legislators elected to central and federal parliaments in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in the country.[1]

A law was sought to limit such frequent defections in India. In 1985, the Tenth Schedule of the 52nd amendment to the Constitution of India was passed by the Parliament of India to achieve this. Following recommendations from many constitutional bodies, Parliament in 2003 passed the Ninety-first Amendment to the Constitution of India. This strengthened the act by adding provisions for disqualification of defectors and banning them from being appointed as ministers for a period of time.[2]

Background

Elections in a democratic country allow the people to assert their desire; political defections occurring between elections undermine that assertive act and thus the expressed will of the people. Defections were common in India even prior to the country's independence. Beginning around 1960, the rise of coalition politics increased the incidence of defections as elected representatives sought to occupy a berth in the cabinet of ministers.[3] An extreme example occurred in 1967 when the legislator Gaya Lal changed his allegiance three times in a single day, and gave rise to the infamous expression Aaya Ram Gaya Ram ("Ram has come, Ram has gone").[4]

Between 1957 and 1967, the Congress (I) party emerged as the sole beneficiary of defections. It lost 98 of its legislators but gained 419, whilst those who left other parties and who did not then join Congress (I) formed separate new parties with the aim of exerting power in the future through coalition government, rather than joining established governments. This situation gave Congress (I) a strong hold of power. In the 1967 elections, approximately 3,500 members were elected to legislative assemblies of various states and union territories; out of those elected representatives, around 550 subsequently defected from their parent parties, and some politicians crossed the floor more than once.[5]

To tackle the scourge of political defection, during the fourth Lok Sabha in 1967 a committee was formed under the chairmanship of Y. B. Chavan. This committee submitted a report in 1968 which led to a first attempt to submit an anti-defection bill in Parliament. Although the opposition was supportive of the bill, the Government, then led by Indira Gandhi, referred it for consideration by a Joint Select Committee; it did not emerge from committee before all other legislative proposals were voided by subsequent elections.[6]

1977–79 was one of the crucial periods in Indian politics when the first-ever national non-Congress Government, led by Morarji Desai, was driven out of power due to the defection of 76 parliamentarians. This caused political uncertainty until 1979, when Gandhi was elected by a clear majority. There was a definite trend in the political landscape of India during the 1970-80s. Whenever there was a Congress-led Government at the center, the regional governments fell due to the defection of non-Congress elected representatives. Then Chief Minister of Karnataka, Virendra Patil, called this trend a "goldrush". Though corruption was a global phenomenon, the Gandhi period saw the disruptive politics of defection become rampant in India.[6]

With rising public opinion for an anti-defection law, immediately after securing a clear majority in 1984, Rajiv Gandhi proposed the new anti-defection bill in the Parliament. After marathon debates, both the Lok Sabha and Rajya Sabha unanimously approved the bill on 30 and 31 January 1985, respectively.[7] The bill received the President's approval on 15 February 1985 and the act came into effect on 18 March 1985.[8] The law laid out the process for disqualifying an elected member for the remaining term, who defected either by resigning or by defying the party leadership and being absent on a crucial vote. However, the law allowed mergers and splits of political parties, allowing splits in the party by one-third of its members and merger (joining another party) by two-thirds of other party members. Experts believed defections should not be viewed in terms of numbers alone and should be seen in the context of how such political defections damage the people's mandate. But Ashoke Sen justified the act of allowing mass defections by terming it as freeing the legislators from "chains of obscurantism and orthodox politics".[6] Recently,[when?] Sachin Pilot and his MLAs (from Congress' Rajasthan constituency) moved to the high court and challenged the anti-defection law; stating that the provision should not jeopardize the fundamental freedom of speech and expression of a member of the house.They have also demanded the clause 2(1)(a), to be declared ultra vires (outside the scope) of the basic structure of the Constitution, and the freedom of speech and expression under Article 19(1)(a).

Intent

The primary intentions of the law were:

The Chavan committee suggested that a member who changes party allegiance for monetary benefit or other forms of greed, such as a promise of executive office, should not only be removed from parliament but also barred from contesting elections for a specified time.[11]

The law

The 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 on the contents of the law:

Speaker's role

After enactment, some legislators and parties exploited loopholes in the law.[16] There was evidence that the law did not fulfill the purpose of bringing a halt to political defection, and in fact legitimised mass defection by exempting from its provisions acts that it termed splits. For example, in 1990, Chandra Shekhar and 61 other parliamentarians did not receive penalties when they simultaneously changed allegiance.[17] The Speaker of the Lok Sabha did not allow the defecting members of the breakaway faction of Janata Dal to explain their point of view.[18] Another aspect of the law which was criticised was the role of the Speaker in deciding the cases arising out of political defections. Impartiality of the Speakers of various houses was questioned in regard to granting official recognition to different factions of political parties. Questions were raised about the nonpartisan role of the Speaker due to his/her political background with the party from which he/she was elected as the Speaker.[19][18] In 1991, Janata Dal (S) was accused of undermining the spirit of the anti-defection law by keeping defecting members in ministerial posts. Later, all the opposition members of the house submitted an affidavit to the President of India, appealing to him to dismiss the ministers. Finally, responding to pressure to save the fallen dignity of the Speaker and of the House, the Prime Minister discharged the defecting members from their ministerial posts.[18]

Some legal luminaries of the time suggested that a legitimate remedy be made accessible to legislators to seek protection from the Speaker's decision. They further proposed that the Speaker's decision pertaining to disqualification on grounds of defection should not be final, and recommended that a process of judicial review be made available to the members by empowering a judicial tribunal for dealing with such cases.[20]

Amendment

To make the existing law more effective in dealing with the frequent defections, an amendment was proposed to the Tenth Schedule in 2003. A committee headed by Pranab Mukherjee proposed the Constitution (Ninety-first Amendment) Bill, noting that the exception provided by allowing a split, granted in paragraph three of the Schedule, was being grossly exploited, causing multiple divisions in various political parties. Further, the committee observed, the lure of personal gain played a significant aspect in defections and resulted in political horse-trading.[13] The bill was passed in one day by the Lok Sabha on 16 December 2003, and similarly passed by the Rajya Sabha on 18 December. Presidential consent was obtained on 1 January 2004 and the Constitution (Ninety-First Amendment) Act – 2003 was notified in the Gazette of India on 2 January 2004.[21]

The amended act maintained that the a member disqualified due to defection should not hold any ministerial post or any other remunerative political post until the term of his office as a member expired. The 2003 amended act excluded the provisions from the Tenth Schedule for authorizing the defections arising out of splits.[22] The amended act also stipulated that the number of ministers in states and union territories should not exceed fifteen percent of the total number of members in the respective house.[21]

Recommended reforms

Reforms suggested by various bodies—including the Law Commission, Election Commission, National Constitution Review Commission, Dinesh Goswami Committee on electoral reforms, and Halim Committee on anti-defection law—can be read under following heads.[23]

See also

References

  1. ^ Venkatesh Kumar (May 2003). "Anti-defection Law: Welcome Reforms". Economic and Political Weekly. 38 No.19 (19): 1837–1838. JSTOR 4413541.
  2. ^ Malhotra 2005, p. Foreword.
  3. ^ Malhotra 2005, p. 5.
  4. ^ Relhan, Vibhor (December 2017). "The Anti-Defection Law Explained". PRS Legislative Research. Retrieved 9 April 2020.
  5. ^ Kashyap, Subhash (March 1970). "The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India". Asian Survey. 10 (3): 196. JSTOR 2642574.
  6. ^ a b c Kamath, P. M. (1985). "Politics of Defection in India in the 1980s". Asian Survey. 25 (10). JSTOR 2644180.
  7. ^ Sachdeva, Pradeep (June 1989). "Combating Political Corruption : A Critique of Anti-Defection Legislation". The Indian Journal of Political Science. 50 (2): 160. JSTOR 41855903.
  8. ^ Kashyap, Subhash (December 1989). "The Journal of Parliamentary Information". Journal of Parliamentary Informatiin. xxxv (4) – via Lok Sabha, Digital Library.
  9. ^ Sachdeva, Pradeep (June 1989). "Combating Political Corruption : A Critique of Anti-Defection Legislation". The Indian Journal of Political Science. 50, No.2 (2): 157. JSTOR 41855903.
  10. ^ Kashyap, Subhash (March 1970). "The Politics of Defection: The Changing Contours of the Political Power Structure in State Politics in India". Asian Survey. 10 (3): 201. JSTOR 2642574.
  11. ^ Roshni Sinha, Prachi Kaur (December 2019). The Anti-Defection Law: Intent and Impact (PDF). PRS Legislative Research. pp. 3–4.
  12. ^ "The Constitution (Ninety-First Amendment) Act, 2003" (PDF). Govt. of India. 2003. Retrieved 13 April 2020.
  13. ^ a b Roy, Chakshu (July 2019). "Explained: The limits of anti-defection". PRS Legislative Research. Retrieved 13 April 2020.
  14. ^ Narayan, Jenna. "'Defect-Shun': Understanding Schedule X to the Constitution of India". The India Law Journal. Retrieved 13 April 2020.
  15. ^ "The Constitution (Fifty-Second Amendment) Act, 1985". Govt. of India. 1985. Retrieved 13 April 2020.
  16. ^ Gehlot 1991, p. 338.
  17. ^ Gehlot 1991, pp. 327, 333.
  18. ^ a b c Gehlot 1991, p. 336.
  19. ^ Gehlot 1991, p. 331.
  20. ^ Gehlot 1991, p. 377.
  21. ^ a b Malhotra 2005, p. 10.
  22. ^ Malhotra 2005, p. Preface.
  23. ^ Kothandaraman, R. (Ramanujam), 1937– (2006). Ideas for an alternative anti-defection law. Parliamentary Research Cell, Govt. of Nagaland. LCCN 2008307685. OCLC 222668909.CS1 maint: multiple names: authors list (link)

Bibliography

Further reading