Maharashtra PSC Exam: Anti-Defection Law

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  • The Parliament in 1985, by the 52nd Constitutional Amendment, sought to check this tendency.
  • The Act is negatively worded and provides for the disqualification of a Legislator.
  • However, the officers of the Union and the State Legislatures-the Speaker or the Deputy Speaker of the Lok Sabha, the Deputy Chairman of the Rajya Sabha, the Speaker and the Deputy Speaker of the Vidhan Sabha and the Chairman of the Vidhan Parishad shall not be disqualified under the Act, if they rejoin their political party (parties) after they cease to hold such offices.
  • Also according to the Act, any decision regarding the defection issue shall be made by the Chairman or the Speaker as the case may be, such decision shall be the final.
  • The Court shall have no right to inquire into this, the Supreme Court in a decision by the Constitutional Bench in November, 1991, upheld that such a clause takes away its exclusive right of ‘Judicial Review’ which is. a ‘Basic structure’ of the Constitution. Thus, the decision of the Chairman oTthe Speaker as the case may be, is final, subject to Judicial Review of the Court.

Grounds for Disqualification

According to the Act, following are the grounds for the disqualification of a Legislator:

  1. If a legislator voluntarily resigns from the political party on whose ticket he/she was elected.
  2. If a Legislator votes against the whip issued by the President of the political party to which he/she belongs, or abstains from voting contrary to any direction issued by his/her parent party, without obtaining prior permission of the political party, and if such voting or abstention is not condoned by the party within 15 days of the occurrence of the voting. The Supreme Court in a judgement in 1992 restricted the scope of whip only in the cases of the Confidence and. The No-Confidence Motions, Money Bills and Vote of Thanks to the President՚s Address. This means that a Legislator has the right to vote against the whip in other cases because according to the Supreme Court, a Legislator has a right to political dissent.
  3. If an independent member joins any political party.
  4. If a nominated Member of the legislature joins a political party after 6 months of his nomination. This means, if he/she does the same before this specified period, he shall not be disqualified.
  5. If, in this case of a split in the party, the splinter group has members less than the one-third of the parent party.
  6. If, in the case of a merger, the same is not endorsed by the two-third members of the party, which wants to merge itself.

Causes of Failure

  • There is no justification for a nominated member joining a political party within six months.
  • The law does not clearly say in what manner the principle of l/ 3rd for split or of rd in case of merger shall operate. The loops and holes remain in the Act and hence what cannot be done by a large group can be done after the split.
  • The law does not define whether the defection is a one time affair or a continuous one.
  • The law does not cover an event when a political party deliberately dismisses some of its members of the Legislature to deny them the split of the political party under this Act.
  • The Speaker has the sole right to decide on this and hence political coloring of the issue is possible.

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