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Adv. Ameet
Adv. Ameet
DEPARTMENT OF LAW
1.4 Hypothesis.
2.2Constitutional Provisions
8. CRITICAL APPRAISAL.
The judiciary can function and deliver the fruits only when it acts with free
and independent manner. But in the name of independence uncontrolled,
arbitrary actions cannot be tolerated because honesty and conviction with
justice are the principles on which the trust of whole judicial system is
erected. This requires not only judicial independence but also a supportive
control over it, so that the independence would be promoted and arbitrariness
is restricted.
IV. Enable the points or the lacunas on which we can develop this
laws
V. we can suggest for judiciary to perform more active role for the
stability Indian politics
1.4 OBJECTIVES OF STUDY:-
1.5 HYPOTHESIS:-
TENTH SCHEDULE
[Articles 102(2) and 191(2)]
Provisions as to disqualification on ground of defection
(i) where he is a member of any political party on the date of his nomination
as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he
becomes, or, as the case may be, first becomes, a member before the expiry
of six months from the date on which he takes his seat after complying with
the requirements of article 99 or, as the case may be, article 188.
(2) An elected member of a House who has been elected as such otherwise
than as a candidate set up by any political party shall be disqualified for
being a member of the House if he joins any political party after such
election.
(ii) in any other case, be deemed to be an elected member of the House who
has been elected as such otherwise than as a candidate set up by any political
party for the purposes of sub-paragraph (2) of this paragraph or, as the case
may be, be deemed to be a nominated member of the House for the purposes
of sub-paragraph (3) of this paragraph.
(i) that he has voluntarily given up his membership of his original political
party; or
(ii) that he has voted or abstained from voting in such House contrary to any
direction issued by such party or by any person or authority authorised by it
in that behalf without obtaining the prior permission of such party, person or
authority and such voting or abstention has not been condoned by such party,
person or authority within fifteen days from the date of such voting or
abstention; and
(b) from the time of such split, such faction shall be deemed to be the
political party to which he belongs for the purposes of sub-paragraph (1) of
paragraph 2 and to be his original political party for the purposes of this
paragraph.
(a) have become members of such other political party or, as the case may
be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group,
and from the time of such merger, such other political party or new political
party or group, as the case may be, shall be deemed to be the political party
to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and
to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the erger of the
original political party of a member of a House shall be eemed to have taken
place if, and only if, not less than two-thirds of the members of the
legislature party concerned have agreed to such merger.
(a) if he, by reason of his election to such office, voluntarily gives up the
membership of the political party to which he belonged immediately before
such election and does not, so long as he continues to hold such office
thereafter, rejoin that political party or become a member of a another
political party; or
(b) if he, having given up by reason of his election to such office his
membership of the political party to which he belonged immediately before
such election, rejoins such political party after he ceases to hold such office.
Provided that where the question which has arisen is as to whether the
Chairman or the Speaker of a House has become subject to such
disqualification, the question shall be referred for the decision of such
member of the House as the House may elect in this behalf and his decision
shall be final.
(b) the report which the leader of a legislature party in relation to a member
of a House shall furnish with regard to any condonation of the nature referred
to in clause
(c) the reports which a political party shall furnish with regard to admission
to such political party of any members of the House and the officer of the
House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to in sub-paragraph (1)
of paragraph 6 including the procedure for any inquiry which may be made
for the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a House under sub-
paragraph (1) of this paragraph shall be laid as soon as may be after they are
made before the House for a total period of thirty days which may be
comprised in one session or in two or more successive sessions and shall take
effect upon the expiry of the said period of thirty days unless they are sooner
approved with or without modifications or disapproved by the House and
where they are so approved, they shall take effect on such approval in the
form in which they were laid or in such modified form, as the case may be,
and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the
provisions of article 105 or, as the case may be, article 194, and to any other
power which he may have under this Constitution direct that any wilful
contravention by any person of the rules made under this paragraph may be
dealt with in the same manner as a breach of privilege of the House.
The whip upholds the party directives in the House as the authorised voice of
the party. On defection of elected members of his party, the whip can send a
petition on the alleged defection to the Chairman or the Speaker of a House
for their disqualification. He can also expel the members from the party. But
The members so disqualified can stand for elections from any political party
for a seat in the same House. But he, naturally cannot get a ticket from his
former party.
Does the anti-defection law, which was legislated to deter rampant floor-
crossing in parliament, curtail freedom of MPs who feel powerless and
"stifled" to express their views freely in parliament?
Many MPs may think so, and have expressed the need to take a relook at a
law that was enacted in 1985 to check the aya-ram-gaya-ram syndrome - so
called because of the phenomenon of MPs crossing the floor repeatedly to
switch party affiliation lured by the prospect of office or other
blandishments.
"Political parties in India are undemocratic and have turned into feudal
parties being controlled by individuals or group of individuals. Party bosses
who are not even in parliament decide what stand an MP should take or not
(in parliament)," Siddiqui rued, as he strongly recommended a relook at the
legislation.
The legislation, which was the 52nd amendment to the constitution, made
legislators liable to for suspension if they did not always vote according to
their party whip-unless one-third of a party's bench strength defected and
formed a new party.
Siddiqui, also a journalist, had to quit as Samajwadi Party (SP) MP last year
after he crossed over to the BSP over the India-US civil nuclear deal. The SP
was initially opposing the pact but later supported the Manmmohan Singh
government in the confidence vote.
"We need this law but legislators should have more say given the
undemocratic functioning of political parties," he said. Verghese said most of
intra-party defections are "based on convenience and not conviction".
"He/she should abide by the laws of the party. The member has to face
disqualification if he/she decides to join some other party or votes against his
party," Natchiappan said while admitting that the "problems" in the law can
be solved through "democratic process in political parties".
A serious attempt to tackle this problem, was made in 1985 with the passage
of the Anti-Defection Law as was contained in the Constitution (Fifty-
second) Amendment Act. The Act sought to curb individual defections in the
Legislatures by providing for disqualification of the defecting member while
it allowed splits, if it involved one-third of the strength of the party in the
legislature, and mergers of political parties under certain conditions, thereby
seeking not to suppress political dissent, an essential pre-requisite for a
healthy democracy. However, the fact remains that the operation of the Act,
over the years, indicated many grey areas in the law. Breaking away with the
support of one-third of the members of the party appeared easy and
defections could not be checked, specially so far as smaller parties were
concerned.
Under the provisions of the Tenth Schedule to the Constitution, the Presiding
Officers of the Houses of legislature have been given the authority to decide
questions of violation of the provisions of the Anti-Defection Law. However,
over the years the exercise of this power by Presiding Officers has caused
controversy and in many cases allegations of political considerations being
applied by the Presiding Officers in deciding the matters of defection have
been made, which considerably affects the dignity of the high office of the
Presiding Officer. It may be that in some occasions unfortunately there have
been causes to justify prima facie such allegations.
The exercise of power and jurisdiction by the Presiding Officer of any House
should not be subjected to such scrutiny, which considerably affects the
status and the position of the Presiding Officers. With all respect to the
Judiciary, whose jurisdiction cannot be denied, it will be fit and proper and
indeed, to my mind, desirable that the Presiding Officers do not continue to
be under such judicial scrutiny which in many cases has given rise to, in my
opinion, avoidable tension between the two constitutional authorities.
It is almost fifty-six years since India had awoken to freedom. And our
Constitution gives us a Sovereign, Socialist, Secular Democratic Republic.
These words are enshrined in the Preamble of the Constitution. Democracy
means power to the people and power to the people means Citizens' Right to
elect representatives for the governance of the country. Democracy and
election are synonymous or in other words these two are the two sides of the
same coin. As we are living in a democratic country, we ought to cast our
vote after every five years (if there is no mid-term election). It is our
obligation to our democratic set up.
The first elected Parliament came into being in May 1952, half a century ago,
but the tragedy in our Indian democracy is that the behavior of the elected
representatives becomes more and more rude, flirts and power hungry. Split
in a party or defection of the legislators, change of sides, withdrawal of
support became common phenomena with the coming of coalition era. Our
systems of election have been wading through the dirty water of corruption
for the past few decades.
But in order to win elections, in the quest for power, the Parliament or the
Legislative Assemblies should not be a den of defectors.
This is the reason behind the annexation of another schedule known as 'The
Tenth schedule' in the Constitution which is widely known as Anti-Defection
Law.
This is the drawback in the existing Anti-Defection Law. MPs and MLAs for
defection are not available in retail but available in whole sale. This
encourages splits in political parties. So we have seen the splits of many
political parties and birth of new political parties, majority of them having
the alphabetical suffix to their parent parties.
The Union Cabinet in a meeting on the 24th April this year, chaired by the
Prime Minister had decided to curb 'bulk defection' through legal splits by
amending the Tenth Schedule of the Constitution by deleting the Para three
of the schedule that pertains to exemption form disqualification in case of
splits.
The existing Tenth Schedule had failed to achieve the goal of checking
defections and demands have been made from many quarters from time to
time. The Dinesh Goswami committee on electoral reforms, The Law
Commission Report and the Constitution Review Commission had already
recommended the deletion of the Para that recognized splits.
The NDA Government at the Centre has hinted at strengthening the Anti-
Defection Law and determined to bring legislation in this regard in this
current session itself.
Under the new amendments, the defectors should be debarred to hold any
public office of a Minister or any other post of profit till they win the next
election that is till the defector is re-elected.
In the coming elections, most probably in the coming Lok Sabha Elections,
many front pages of the newspapers will be occupied by the bio-datas of the
candidates, their past records, their source of income since it has becomes
mandatory of each candidate to file an affidavit showing all these things and
the copies of the affidavit should be made available to the print and
electronic medias.
Let us hope that the amendment bill pass without any hindrance in this
session so that the days of Aya Ram Gaya Ram come to an end.
‘Uneasy lies the head that wears the crown’ – This maxim holds true for all
the time for all the heads that wear a crown and for all the hands that hold a
scepter and the head of our Chief Minister Ibobi is not an exception. Uneasy
lies more in his head than the heads of the Chief Minister of other States.
In retrospect, the year 2003 was not altogether a favorable year for Ibobi.
Many unfortunate events came hand in hand; many untoward incidents came
one after another during the last year. The controversy over the grading of
minimum qualifying marks for the SC and ST candidates for MBBS/BDS
course, the intrusion of 13 NSCN (IM) men with arms inside the territory of
Manipur, the kidnap and murder of Lungnila Elizabeth, the daughter of one
of his Cabinet colleagues, these are some of the major events which the Chief
Minister wants to forget once and for all.
The Chief Minister had spent many sleepless nights in 2003 in guarding his
fort, in trying to calm down the tremor that shook his seat and at the same
time to counter the blows inflicted upon him from the Opposition DPA to
But the severest blow from the DPA came in the last week of the previous
year. All fingers were crossed, all eyes were focused on the Chief Minister’s
Bungalow and it was the exception of all from a street vendor to an erudite
scholar that the fall of SPF was eminent and there would be a new
Government in Manipur in 2004.
The scathing attack of the Opposition DPA to snatch away some Ministers
(almost all the MLAs in the SPF are Ministers) from the ruling SPF was so
great that O Ibobi had no alternative but to deport some of his Minister with
whom he had the suspicion of having divided loyalty both on the SPF and the
DPA and could be lured away by the latter to outside the State under the
careful eyes of his trusted lieutenants. During the blows of the Opposition, he
hid like a snake coiling its body around its head while exposing its whole
body to the external blows. Ibobi deliberately forgot the obligation of calling
the requisite number of Assembly session in a calendar year. His efforts
finally bore fruits.
Now with the coming of 2004, whether it is fortune that favors the brave or
not but fortune began to smile on Ibobi. The amendment in the Anti-
Defection Law (the 97th Constitutional Amendment) comes as a last savior
for Ibobi as well as the SPF. This Amendment deletes Para (3) of the 10th
Schedule of the Constitution (Anti-Defection Law of 1985) which allows
‘bulk defection’ (one third of the total legislature of a party) as a legal split.
In the new amendment the defectors (except those expelled from the party)
will not be allowed to hold any Ministerial post on any post of profit till they
contest and win a new election.
From now onwards, if any legislator wishes to change sides, he will neither
gain the head nor the tail. The importance of a Speaker, who is often labeled
as an engineer of defection under the previous defection law has been
reduced almost to naught in the new law while the scepter of the party
president becomes longer and tougher.
Ibobi is now holding the duel post in the Congress party in the State much to
advantage, one leading the Congress Legislature Party as a Chief Minister of
the coalition SPF Government and the other, holding the rein of MPCC (I).
He can face any challenge in his leadership in the Congress Legislature Party
for the time being. The Congress High Command in Delhi will not allow any
crisis brewing in the State before the Parliament election, which will only
help to tarnish the image of the party.
AMIT ANIL SALUNKE LL.M.1st (2nd SEM) Page 25
On the other hand, the Opposition DPA had fallen prostrate. The alliance is
now knocked out from the ring bleeding severely and it is unlikely to flex
muscle with SPF in the near future. The DPA had been trying its best to
topple the SPF (this is what an Opposition party in Manipur ought to be!) and
no stone was left un-turned in searching for an inroad to the fortress of the
SPF during the last two years. Even at a gentle breeze which is not enough to
move away the ringlet curl from a girl’s cheek the DPA took it as a good
omen coming in their way
They had had the chance. In June 2003, when Arvind Dave took charge from
Ved Marwah as the Governor of the State, when Home Minister ID Swamy
lashed the Chief Minister and his SPF with the remarks that the SPF
Government had no moral rights to continue, there was a bright chance of
BJP-led Government in Manipur. This misunderstanding between Imphal
and Delhi offices of the BJP was that, the BJP State unit built castle in the air
that Article 356 will be used by the Centre to install a BJP led Government in
Manipur while the Centre insisted that the State unit had to muster majority
by hook or by crook. The NDA in the Centre did not want to repeat the
failure of dismissing Rabri Government in Bihar.
Now the crew of the ship under the captaincy of Ibobi has passed through the
rough weather. The foremost duty for him now is to project himself as one of
the ablest Chief Minister of the State and does something concrete in the
overall development of the State so that he can silence the storm within his
Congress party and at the same time lead the State triumphantly from the
present messes.
Defections and splits in parties have always been a feature of Indian Politics.
Every time the National Parliament or state legislatures return a less-than-
certain outcome, out come the "suitcases" and allegations of horse trading
drown out every other public discourse. In the mad circus that follows,
parties spirit their legislators away, hide them, suborn them, and then
triumphantly parade them before the world.
My MP, Shivajirao Patil, belongs to the Shiv Sena. Now in a perfect world,
he would be my constituency's representative in Parliament, and that his vote
in Parliament would reflect this. However, I cannot expect him to take
decisions based on what he thinks best for the constituency or his better
judgement. He will vote according to the line his party takes. His vote in
Parliament will be decided by his party boss, Bal Thackeray. The votes of
other MPs will likewise be decided by their party bosses. And that, in these
days of crumbling inner-party democracy, means that decisions are
ultimately made by people who are accountable to no one.
In a large country like India, direct democracy is not possible. We must have
a representative democracy. But Representative Democracy demands
legislators who actually represent their constituents. Indian legislators don't,
they represent their parties. This means that a government is responsible to
its people only at election time, not all the time as one would hope.
Legislation in India cannot be overturned by popular opinion, it is decided
solely by Party "High Commands". This is why anti-defection legislation is
so popular among parties. And the best thing is, legislators now cannot vote
against such laws, because it is against the policy of most parties and would
invite anti-defection penalties.
The reality is, anti-defection law in India has seriously weakened our
Democracy. Anger against defections by MPs and MLAs has been used by
political parties to appropriate more power at the expense of the people.
When the anti-defection law was enacted by Parliament back in 1985, it was
expected to effectively curb defections that has plagued Indian political life.
Sadly, experience has shown us otherwise, in Manipur as much as elsewhere.
The anti-defection law turned out to be a classic case of the remedy being
worse than the disease. One of its most glaring loopholes, the provision
sanctifying defection if it is done by one-third of a party?s legislators, was
gleefully pounced upon by opportunistic politicians to completely subvert the
spirit of the law while keeping to its letter. The fall of the VP Singh
government heralded the era of mass defections in Indian political history,
and of course, in Manipur, our own breed of netas were quick to learn the
lesson. In smaller Assemblies such as ours, it was not difficult to find a few
MLAs willing to change over, given the right inducements, and defections
have been shamelessly used both to bolster governments as well as to topple
them, all without attracting the provisions of the 10th Schedule, The result:
constant political instability and widespread public disillusionment with
politics and politicians.
Given this sorry state of affairs, the Union government?s recent decision to
drastically amend the anti-defection law is most welcome. Indeed, a
Consitutional amendment bill has been introduced in the current session of
Parliament, and if it is carried through, it can be expected to have a most
salutory effect on our political life. For one thing, the notorious paragraph
three of the 10th Schedule providing exemption to the disqualification
penalty in the case of defection of one-third the strength of the legislature
party is to be removed altogether. For another, the proposed amendment to
the anti-defection law envisages further penalising defections by prohibiting
the defector from holding any public office or remunerative political post for
a certain period. Concurrently, it is also proposed to limit the size of the
council of ministers in a state to ten percent of the size of the Assembly.
These changes are in line with the recommendations of the National
Commission to Review the Working of the Constitution, NCRWC.
One can imagine how much of a nightmare it would be to our MLAs and
netas if these provisions go through. Rather than the rich rewards reaped in
years past, defection would mean automatic disqualification, and forfeiture
of one?s seat in the Assembly. And with a limit imposed on the size of
In this context, it is rather unfortunate that the Union government has not
seen fit to include another change proposed by the NCRWC, which was to
take away the power to decide on disqualification from the hands of the
Assembly Speaker, and vest it in the Election Commission of India. As we
have seen time and again in Manipur, a partisan Speaker can wreak havoc in
a House using the anti-defection law as a weapon, and more than one
Speaker have used the post as a stepping stone for gaining the chief minister?
s chair. Empowering the Election Commission would have taken away a
weapon from the hands of the Speaker that is prone to misuse, and ensure a
quick and objective decision on the issue of disqualification in the case of
defection.
There are also those who say that the proposed amendment would severely
curtail the democratic right of dissent, and there is certainly a grain of truth
in this. But it is equally true to say that the average Indian politician has yet
to prove that he has a conscience, rather than being driven by selfish motives.
By all means, make sure that the proposed law has enough safeguards to
avoid giving unbridled dictatorial powers to party leaderships, but that
should not be used as an excuse to stall the proposed amendments, which are
solrely needed if electoral politics is to have any meaning.
The law also recognises splits in and mergers of parties. A split is recognised
if at least one-third of the total membership of the legislature party defects. If
more than two-thirds of the number of legislators of a party decide to join
another party, it is recognised as a merger; in that case, the remaining
legislators of the parent party will not be disqualified.
A note prepared by the Government recently states that the law has failed to
prevent bulk defections. On the other hand, the law has been criticised on the
grounds that it curtails the powers, privileges and immunities of members in
regard to freedom of speech and freedom of action, including freedom of
vote.
Former Lok Sabha Speaker Shivraj Patil told Frontline that the stipulation in
the law on recognition of splits was introduced so as not to stifle legitimate
dissent.
A section of the Janata Dal is against amending the law at this point of time.
This section, led by former Prime Minister H.D. Deve Gowda (who is
reported to have some interest in the political developments in Karnataka
where the ruling Janata Dal is troubled by dissensions), warned against
amending the Constitution hastily to appease the Congress. Another section
favoured a Congress proposal to make it mandatory for one-half of the
legislature party to defect for a split to be recognised. This was not favoured
by the Left.
CPI(M) Rajya Sabha member and member of the party's Polit Bureau S.
Ramachandran Pillai said his party favoured an amendment to ensure that the
decision on the question of disqualification of alleged defectors was taken
within a reasonable time. He said the CPI(M) would seek an amendment to
provide for the involvement of the Election Commission in adjudicating the
cases of disqualification arising out of defection. Ramachandran Pillai said:
"The Speaker can be removed by a majority of the members of the House;
hence he cannot be impartial."
According to a senior BJP leader, the party supports the position that all
defectors, irrespective of their strength, should lose their seats, but it has
opted to be "pragmatic" as long as the law exists.
The first momentous ruling under the Act was passed in the Lok Sabha in
November 1990 when Speaker Rabi Ray declared 28 members of the Janata
Dal "unattached" after they were expelled from the party by the Janata Dal
leader in Parliament, V.P. Singh. The law does not provide for the
recognition of some members as "unattached", but neither does it provide for
disqualification of members who have been expelled from a party.
Shivraj Patil took quite some time to pronounce his verdict on the splits that
occurred in the Janata Dal when he was Speaker. In the case of the first split
that occurred when Ajit Singh and 20 other MPs broke away from the Janata
AMIT ANIL SALUNKE LL.M.1st (2nd SEM) Page 34
Dal, he took nine months to pronounce his judgment. In the second instance,
when seven members quit the Ajit Singh faction, he took two years to
recognise the split.
The law also requires that a split in the legislature party be a consequence of
the split in the party's organisational wing. Observers, however, note that it is
difficult for Speakers to judge whether a split has taken place in the party's
organisation.
BIBLIOGRAPHY:-
WEBLIOGRAPHY:-
1. http://www.uscourts.gov/supremecourt.html
2. http://www.lib.memphis.edu/govpubs//courts.htm
3. http:// www.wikipedia.com
4. http://www.legalservice.com
5. http://www.indiakanoon.com