The 52nd Amendment Act of 1985 introduced important rules to prevent politicians from switching parties, which is known as defection. This was a significant move because it aimed to maintain stability in the political system. Before this amendment, lawmakers could change their party affiliation without facing any consequences, which often led to instability in governments.

To incorporate this change, the 52nd Amendment amended four articles of the Indian Constitution and added a new section called the Tenth Schedule. The Tenth Schedule specifically outlines the conditions under which a member of Parliament or a state legislature can be disqualified if they defect from their political party. This law is commonly known as the "anti-defection law". Under this law, if an elected representative switches parties after the election, they can be disqualified from their position.

The objective of the anti-defection law is to discourage the practice of party hopping and to ensure that elected officials remain loyal to the parties that brought them to power. This is crucial for the health of democracy in India, as it helps to maintain the integrity of political parties and ensure that they can govern effectively.

Later, in 2003, the 91st Amendment Act made an important modification to the anti-defection law. It removed a provision that allowed for exemptions in cases where a political party had a split. Previously, if a faction within a party broke away, those members were not automatically disqualified, but with this change, the disqualification rule became stricter. This amendment aimed to further strengthen the anti-defection law by ensuring that disloyalty to a party would have serious consequences, thereby encouraging party cohesion.

These amendments and the laws surrounding them can be found in Articles 102 and 191 of the Indian Constitution, which deal with disqualifications for membership of Parliament and state legislatures, respectively. The anti-defection provisions reflect India's commitment to uphold democratic principles by discouraging political opportunism.

Overall, the introduction and amendment of the anti-defection law demonstrate India's efforts to create a more stable political environment, where elected representatives are accountable to their political parties and, by extension, to the citizens who elected them.

Understanding the Tenth Schedule of the Indian Constitution

The Tenth Schedule of the Indian Constitution is an important law that deals with the issue of disqualification of members of Parliament and state legislatures due to defection, which refers to the act of switching political allegiance. This Schedule helps maintain the integrity of political parties by ensuring that elected representatives remain loyal to the party they were elected from.

Disqualification of Members

First, let's discuss the rules regarding the disqualification of members based on their political affiliations:

Members of Political Parties: If a member of a legislative House belongs to a political party, they can be disqualified if they do any of the following:

1. Voluntary Resignation: They voluntarily give up their membership in that party.
2. Voting Against Party's Direction: They vote or abstain from voting against the party's directives without prior permission and if their actions are not accepted by the party within 15 days.

These rules emphasize that members elected on a political party ticket must continue to be active members of that party and comply with its instructions.

Independent Members: Members who are elected without the support of any political party are classified as independent members. If an independent member joins a political party after the election, they become disqualified.

Nominated Members: Nominated members, those who are appointed to the House instead of being elected, have a bit more flexibility. They may join a political party within six months of assuming office. However, after this period, if they choose to join a party, they will be disqualified.

Exceptions to Disqualification

There are certain exceptions to these disqualification rules:

1. Merger of Parties: If a political party merges with another party and at least two-thirds of the members of the original party agree to this merger, then members who leave their party for this reason are not disqualified.
2. Presiding Officers: If a member is elected as the presiding officer of the House (like a Speaker), they can leave their party or rejoin it after they finish serving in this position, without facing disqualification.

It is important to note that the 91st Amendment Act of 2003 removed the previous provision that allowed members of a legislature party to avoid disqualification if a split occurred within the party.

Authority on Disqualifications

The presiding officer of the House (like the Speaker) is responsible for deciding cases related to disqualification due to defection. There is no specific time frame within which they must make a decision. Initially, the law stated that the presiding officer's decision could not be challenged in court. However, this was changed in the famous Kihoto Hollohan case in 1992 by the Supreme Court, which ruled that the presiding officer’s decisions could be reviewed by the courts if there’s evidence of bias or if the decision is unreasonable.

Rule-Making Powers

The presiding officer also has the authority to create rules to effectively enforce the Tenth Schedule’s provisions. These rules must be presented to the House for 30 days, during which members can approve, modify, or reject them.

If a member violates these rules, the presiding officer can treat this as a serious matter, similar to a breach of privilege, which can lead to disciplinary actions. Before making any final decision in a defection case, the presiding officer must give the accused member a chance to explain their actions. Additionally, the issue may be referred to a committee for further investigation. This ensures that there is a fair process in addressing allegations of defection.

Conclusion

In summary, the Tenth Schedule serves to curb political defection among elected representatives in India. By establishing clear rules about disqualification based on party loyalty and setting up a structured process for adjudicating disputes, it aims to uphold the democratic process and maintain stability within political parties. This framework is particularly important in a diverse country like India, where political loyalties can significantly impact governance and public policy.

Evaluation of the Anti-Defection Law in India

The Tenth Schedule of the Indian Constitution contains the anti-defection law, which aims to stop political defections that are often driven by the desire for office, money, or other benefits. The purpose of this law is to support healthy political practices and strengthen India’s parliamentary democracy by reducing dishonest and unethical behavior among politicians. When this law was introduced, then-Prime Minister Rajiv Gandhi called it the "first step towards cleaning up public life." The Central law minister at the time noted that the unanimous approval of the 52nd Amendment Bill by both Houses of Parliament demonstrated the maturity and stability of Indian democracy.

The advantages of the anti-defection law are noteworthy. First, it helps ensure greater stability in politics by discouraging lawmakers from switching parties frequently. This stability is crucial for effective governance. Second, it allows for a more organized merging of political parties within the legislature, facilitating smoother political realignments. Third, by targeting corruption and reducing the high costs linked to irregular elections, the law aims to foster integrity in political processes. Lastly, for the first time, the law offers a clear constitutional recognition of political parties, which is important for a functioning democracy.

However, the anti-defection law is not without its criticisms. Despite being considered a significant move to improve Indian politics, it has shown several flaws in practice and has not completely succeeded in preventing defections. Critics argue on several points. First, the law fails to distinguish between dissent and defection. It restricts a legislator's right to express disagreement with party decisions, which undermines their conscience and freedom. Many believe that this contributes to authoritarian practices within political parties, where leaders can exert control over the members.

Another criticism is regarding the law's approach to individual versus group defections. The anti-defection law prohibits individual members from changing parties (often referred to as "retail defections") but allows groups of lawmakers to merge with other parties (referred to as "wholesale defections"), which critics find illogical. Additionally, the law does not address instances where a legislator is expelled from their party for actions taken outside the legislature.

The law also treats independent and nominated members differently, creating an unfair situation. If an independent member joins a political party, they are disqualified, whereas nominated members can join without facing disqualification. Lastly, the authority to determine defection cases rests with the presiding officer of the legislature, a role that has raised concerns. Critics argue that these officers may not always make impartial decisions, influenced by political pressures. Moreover, there are concerns that they may lack the necessary legal expertise to address such cases. In fact, two former Speakers of the Lok Sabha, Rabi Ray in 1991 and Shivraj Patil in 1993, have openly questioned their ability to handle defection cases effectively.

In conclusion, while the Tenth Schedule and the anti-defection law have been important steps towards enhancing political accountability in India, they also reveal significant shortcomings. The hope is that through ongoing evaluation and possible reforms, the law can be strengthened to better serve its purpose in protecting the democratic process and maintaining the integrity of political practices in the country. The relevant articles in the Indian Constitution related to this issue include Article 102, which outlines disqualifications for membership in Parliament, and Article 191, which does the same for state legislatures.

91st Amendment Act (2003)

The 91st Amendment Act, passed in 2003, brought important changes to India’s Constitution regarding the Anti-defection Law, specifically detailed in the Tenth Schedule. This amendment was introduced due to growing concerns about how effectively the existing law was functioning.

One of the main reasons for this amendment was that many people believed the Anti-defection Law was not doing enough to prevent politicians from changing parties, which is known as "defection." The Tenth Schedule of the Constitution had faced criticism because it allowed groups of lawmakers to switch parties together—often called "bulk defections"—while penalizing individuals who made the same choices. Critics argued that allowing splits in parties could weaken the stability of governments, as it encouraged members to switch sides for personal or political gain.

Several important committees made recommendations for changes before this amendment was enacted. For instance, the Dinesh Goswami Committee in its 1990 report suggested improving the Anti-defection Law. Similarly, in 1999, the Law Commission of India issued its 170th report, focusing on the need for reforms in electoral laws, including a review of the Tenth Schedule. The National Commission to Review the Working of the Constitution (NCRWC) in 2002 also pointed out that the anti-defection rules needed to be stricter.

The NCRWC suggested that individuals who defected should face consequences, such as being barred from holding any public office for the remaining term of the current legislature. Additionally, they noted that large councils of ministers were being formed, which could lead to inefficiency and misuse of power. Therefore, the NCRWC recommended that the number of ministers in both state and central governments should not exceed 10% of the total strength of the elected house.

The provisions related to defection are primarily encapsulated in Article 102(2) of the Indian Constitution, while the Tenth Schedule outlines the law around it. The 91st Amendment Act made significant changes by emphasizing the importance of party stability and ensuring that ministers are accountable for their actions. By tightening the rules around defection, the amendment aimed to bolster the political system and ensure that elected representatives serve their constituents without being swayed by the lure of party-switching.

This amendment represented a crucial step in reinforcing the integrity of India's electoral democracy, aiming to create a political environment where parties and their representatives were more stable and reliable, thus fostering a stronger governance structure.

The 91st Amendment Act, passed in 2003, introduced some important changes to India's political system, especially regarding the size of the Council of Ministers and the laws about switching political parties, known as the anti-defection law.

First, the Act sets a limit on how many ministers can be part of the Central Council of Ministers, which includes the Prime Minister. According to the law, the total number of ministers cannot be more than 15% of the total number of members in the Lok Sabha (the lower house of Parliament). This rule applies to ensure that the cabinet remains manageable in size and fits within a limit, promoting a more efficient government.

Furthermore, if a member of either the Lok Sabha or the Rajya Sabha (the upper house of Parliament) decides to switch parties, they face disqualification. This means that anyone who is disqualified for defecting from their party cannot be appointed as a minister. The same rule applies to state legislatures, where the total number of ministers, including the Chief Minister, in any state cannot exceed 15% of the total strength of the Legislative Assembly. However, there is a minimum requirement that states must have at least 12 ministers, including the Chief Minister.

The Act also extends the disqualification to holding any remunerative political post if a member defects. A "remunerative political post" refers to any government office or any position in a body owned fully or partially by the central or state government, where the person receives a salary or other financial benefits. However, if a person receives compensation for their role rather than a salary, that may not count under this rule.

Another significant change brought about by the 91st Amendment is the removal of a prior exemption in the anti-defection law related to splits in political parties. Previously, if one-third of the members of a legislative party decided to split and form a new group, they would not face disqualification for defecting. However, this provision has been eliminated with the 91st Amendment, meaning that these members no longer have protection against disqualification when they switch sides.

This amendment strengthens the anti-defection law, which is mainly contained in the Tenth Schedule of the Indian Constitution. The Tenth Schedule outlines the provisions that define what constitutes a defection and the circumstances under which members of legislative bodies can be disqualified. The goal of these changes is to maintain the stability of political parties and prevent frequent changes in allegiance that could disrupt governance.

In essence, the 91st Amendment Act plays a crucial role in regulating the size and conduct of the government and its members in India, ensuring that political stability is not jeopardized by opportunistic switching of parties for personal gain. These regulations are part of broader provisions designed to uphold democratic principles and accountability in governance.