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COALITION GOVERNMENT[1]: ANTI-DEFECTION LAW[2].
QUESTION BANK.
Q.1. Explain the modern trend of Coalition Government? State the Constitutional provisions against defection.
Q.2 Write a detailed note on Anti-defection Law.
SHORT NOTES.
- Coalition Government; Anti-Defection Law.
- Coalition Government.
I. INTRODUCTION:-
Gone are those days when the National Congress alone ruled the country by forming Government at the Centre and in the States. In today’s time, people prefer more to local parties compared to National Parties. No party on its own could form a Government in the Centre or the States. Therefore, the coalition Government has no alternative. Coalition Government means the Government of the different parties. The coalition government has been a trend in the Centre as well as in the States for many years (except for the recent BJP Government). No doubt it has merits as well as demerits. Proclamation of a National Emergency by Mrs Indira Gandhi in the country could become possible only due to the single-party government of the National Congress State Emergencies in various states resulting from single party government in the Centre. Therefore, in this sense, a coalition government has some advantages. At the very time, the coalition government also had some disadvantages, i.e., horse-trading of MLAs and MPs to form a majority became a practice in every election. Therefore, no political party is stable and able to implement it. Consequently, democracy has been threatened[3].
The defection of the Members of Parliament (MP) and Members of State Legislative Assemblies (MLA) from their parties creates many problems[4] and corruption. To avoid this defect[5] In a democracy, the Anti-Defection Law has been passed.
II. COMING INTO FORCE OF ANTI-DEFECTION LAW:-
The long-awaited Anti-Defection Bill came into operation on 15th February 1985 after President Gyani Zail Singh assented to it. The Bill, the first major legislation of Prime Minister Mr Rajiv Gandhi’s Government, was passed by the two Houses of Parliament at the end of January 1985.
This Act disqualifies any party member from membership of the Parliament or State Legislature if he defects the party after an election. However, separate provisions deal with splits and mergers of the political parties, which will not attract disqualification under the Act. A split[6], which will not attract disqualification, should have the backing of one-third of the total membership of the concerned party. For a merger[7], it should have the backing of two-thirds of the party’s total membership.
III. OBJECTS AND REASONS[8].
The evil of political defection has been a matter of national concern[9]. If it is not combated[10], it will undermine the very foundation of democracy[11] and the principles[12] which sustain it. With this objective, parliament passed the Anti-Defection Law.
VI. DISQUALIFICATION ON THE GROUND OF DEFECTION[13].
52nd Amendment has amended Articles 101,102, 190, and 191 and added a new Schedule, the Tenth Schedule[14] to the Constitution, which specifies the disqualification on the ground of defection. The amendment has added a new clause (2) to Articles 102 and 191, which provides that a member shall be disqualified for being a member of either the House of the Parliament or the State legislature if he incurs disqualification specified in the Tenth Schedule, i.e.-
(1) if he voluntarily gives up membership of the political party on which ticket he has been elected to the House or
(2) if he votes or abstains from voting in the House against any direction of the political party or by any person or authority authorized by (the party from which he is elected) on this behalf, without the prior permission of such party and unless the party has condoned it within 15 days from the date of voting or abstention; or
(3) if any nominated member joins any political party after the expiry of six months from the date when he takes his seat in the House (e.g., Speaker, Governor, etc.).
Exceptions[15]The above disqualification will, however, not apply-
- a) If a member of the Parliament or a State Legislature goes out of his party as a result of a split in the original party, provided such group consists of not less than 1/3 of the total membership of that party in the House,
- b) If a member goes out as a result of a merger of his original political party with another political party, provided 2/3 of the members of the legislative party have agreed to such merger, or
- c) If a member, after being elected as the presiding officer (e.g., Speaker or Deputy Speaker, etc.), gives up membership of the party to which he belonged or does not rejoin that party or becomes a member of another party.
V. DISPUTE RELATING TO DISQUALIFICATION: –
Suppose any question arises as to whether a member of a House has become subject to any of the disqualifications under the Tenth Schedule. In that case, the question shall be referred to the Chairman or the Speaker of such House, whose decision shall be final. The presiding officer’s decision shall not be called into question in any court of law.
There is no doubt that the Anti-Defection Law has proved important, but some instances reveal that the provisions of the Anti-Defection Act have failed to eradicate[16] the evil of defection. Under the anti-defection law, the Speaker had the power to decide whether or not a legislator had defected from the party. His decision in this matter was final, and the courts were barred from interfering[17] in his decision. How the Speakers have exercised this power in various States has left enough scope for controversy. The decision of the Lok Sabha Speaker, Mr Rabi Ray, to declare 25 “unattached members” without giving them the opportunity of hearing and later on agreeing to reconsider his decision was highly objectionable[18]. He knew that the Janata Dal had split and dissidents had formed a new party under the leadership of Mr Chandra Shekhar, and its strength was more than 1/3 of the original party and thus beyond the purview[19] of the defection law. The tenth Schedule does not mention the words “unattached members”. If there is a split and the group has the strength of 1/3 of the original party, it becomes a new political party straightway. Still, if the strength of the dissidents is less than 1/3, they should be disqualified under the anti-defection law1.
In a landmark judgment of Kihota Hollohon v. Zachithu2:
Facts—The Supreme Court has struck down Para 7 of the Anti-defection Law (Tenth Schedule), which provides that the Speaker’s decision regarding the disqualification shall be final and that no court can examine its validity.
Held—The Court held that the speaker’s function while applying the anti-defection Law is like that of a Tribunal and, therefore, is open to judicial review.
VI. SUGGESTION[20]: –
It is, therefore, suggested that a provision for appeal to the Court from the decision of the Speaker should be made in the Tenth Schedule. “Judicial review”[21] is an essential feature of the Constitution. Courts should have the power to examine the extent and scope of constitutional authorities’ powers.
In India, the Constitution is supreme and not the Parliament.
Supreme Court is a guardian of the Constitution. Therefore, judicial review cannot be prohibited.
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[1] आघाडी सरकार
[2] फूट विरोधी कायदा (आयाराम गयाराम विरोधी कायदा)
[3] पाठी सोडून जाणे
[4] समस्या
[5] दोष दाखविणे
[6] दुफळी
[7] विलीनीकरण
[8] कायदयाचे ध्येय व धोरणे
[9] राष्ट्राच्या दृश्टीने चिंतेची बाब
[10] पायबंद घालणे
[11] लोकशाहीचा पाया
[12] तत्वे
[13] फूटीच्या आधारावर अपात्रता
[14] दहावे परिषिश्ठ
[15] अपवाद
[16] समूळ उच्चाटन करणे
[17] हस्तक्षेप
[18] आक्षेपार्ह
[19] दृश्टीक्षेप
1 During 1990 three Nagaland Governments fell due to defections. In Nagaland, the Speaker disqualified 10 members of the breakway group of the Congress-I whose defection led to the fall of the S. C. Jamir Ministry, which had come to power after elections in January 1990. Later on, the Speaker declared these members “qualified”. The Chishi led U. L. F. also collapsed after 28 days in the similar manner when 17 of the 24 N. P. C. members in a House of 50 withdrew their support to the Chief Minister. Mr. Vomuzo, who had toppled the Chishi led Front and had became the Chief Minister on June 1990 with the Congress I support. Later on 12 members of N. P. C. withdrew support to the Chief Minister. Following withdrawal of support by 12 M. L. A’s, the ruling party was reduced to minority. But the Chief Minister claimed that he would prove his majority in the House. A day before the Assembly Session the Chief Minister expelled two M. L. As. out of the 12 M. L. As., who had withdrawn support to the Chief Minister.
2 (1992) 1 SCC 309.
[20] सूचना
[21] न्यायिक पुनर्विलोकन