Devshree Dangi
Indore Institute of Law
Siyasati affairs have always been the center of attraction in India. Gone are the days when the MLA who won after the election would change his party and it would directly affect the stability of the government leading to a loss for the party. The law was amended in this regard to avoid such fiascos and though the situation has become much better than before yet recent developments have revealed that this problem has not been completely diagnosed and removed yet.
To ensure the stability of the Government, the 52nd Constitutional Amendment was passed through which the tenth schedule has been inserted in the constitution which provides the Anti Defection law. Under this law it was provided that if a person belonging to any political party voluntarily resigns then he will be disqualified from the legislative assembly but with the exceptions that if the merger is supported by 1/3rd of the members of the party that he belongs to, then he will not be disqualified from the Legislative Assembly. Later through the 91st Amendment Act, 2003 the provision was changed and the new provision was introduced that the merger should be supported by at least 2/3rd of the members of the party that the defecting candidate belongs to.
There were some more provisions such as the conditions for independent members and the nominated members that if the independent member after wining the election of Legislative Assembly joins any party then he will be disqualified and on the other hand the nominated members has given the time of six months to change the party before the joining of Legislative Assembly and in case the Speaker of Legislative Assembly resigns from his party in order to be neutral and joins his party again after the completion of his tenure then he will not be disqualified from Legislative Assembly.
According to 52nd Amendment it was provided that the courts have no jurisdiction on the matters of disqualification of members of the assembly and later in 91st Amendment also it has not been changed but this provision was struck down by the Supreme Court and now the courts have the power to hear such matters which fall within the ambit of Anti defection law which comes under the judicial review of courts.
Supreme Court has dealt with many cases regarding the disqualification of members of legislative assembly under 10th schedule of Indian Constitution till now.
Recently in the matter of Rajasthan crisis, the High Court of Rajasthan was dealing with the matter of disqualification of the Deputy Chief Minister of Rajasthan along with 18 other MLA’s.
Now again the well established law has not been that successful as there is no such provision as that if the members of the legislative Assembly give bribe to the member of opposition party in order to form their government then they should be disqualified from the Legislative Assembly. Nowadays this issue of horse trading has become a very serious issue as it directly affects the stability of government, though to prevent the government from such instability the law has always been amended, the law can never be challenged but the problem is same as before. Why are we turning around and coming back to where we started, is there no way to get rid of this problem completely?
Further, Anti Defection law has always been criticized as the democracy is also a basic structure of the Constitution, the people choose a person as their leader at the time of election, now if that leader having some personal or a valid reason to leave the party then he can’t because the tenth schedule does not allow him to do so. It is the deprivation of the democratic Rights of the people. The Anti Defection law is an essential element for maintaining the stability of the Government but still it has some drawbacks.
It is necessary to change the law for the needs and changing circumstances of the nation over time. Such matters of disqualification should be investigated properly so that no one can be deprived of their Rights. It is a matter of national interest and not individual interest because a leader represents the whole state and not himself before the assembly so there is a deprivation of the expectations of the people too.
REFERENCES:
- Indian constitution, 52 Amendment Act, 1985
- Indian Constitution, 91 Amendment Act, 2003
- HT Correspondent, Rajasthan HC defers order in Pilot vs. Gehlot case: issues and
implications, Hindustan Times New Delhi, (July 24, 2020 16:37 IST)
https://www.hindustantimes.com/india-news/what-the-rajasthan-high-court-order-
entails/story-VvBf3yoASOQdZGKzb4iTHI.html - Vibhor Relhan, The Anti Defection Law explained, PRS Legislative Research ( Dec 6,
2017)
https://www.prsindia.org/theprsblog/anti-defection-law-explained
