Constitution 52nd Amendment Act, 1985

Constitution 52^nd Amendment Act, 1985 provided provisions related to anti-defection in India. In this amendment, articles 101, 102, 190 and 191 were changed. It laid down the process by which legislators may be disqualified on grounds of defection and inserted schedule 10.

Key Provisions

It laid down the process by which legislators may be disqualified on grounds of defection. As per this process, a Member of Parliament or state legislature can be disqualified on the following grounds:

Members of a Political Party

• When voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote.
• When does not vote / abstains as per party’s whip. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

Independent Members

If a member has been elected as “Independent”, he / she would be disqualified if joined a political party.

Nominated Members

Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

Exceptions

• If a person is elected as speaker or chairman then he could resign from his party, and rejoin the party if he demitted that post. No disqualification in this case.
• A party could be merged into another ifat least one-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been made two-third.

10^th schedule

• The amendment added the Tenth Schedule to the Constitution which contains provisions as to disqualification on the ground of defection.
• Bar of jurisdiction of courts: no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under tenth Schedule.

Article 102 of the Constitution was amended to provide that a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. Similarly Article 191 was amended to provide that a person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.

Implications

When this law was passed, it was met with severe oppositions on logic that it impinged on right to free speech of legislators. A PIL was filed in the Supreme Court in the form of famous Kihoto Hollohon vs Zachillhu and Others (1992). This PIL had challenged the constitutional validity of the law. But SC upheld the constitutional validity of 10th schedule. Court also decided that the law does not violate any rights of free speech or basic structure of the parliamentary democracy.

However, Supreme Court also made some observations on Section 2(1) (b) of the Tenth schedule. Section 2(1) (b) reads that a member shall be disqualified if he votes or abstains from voting  contrary to any direction issued by the political party. The judgement highlighted the need to limit disqualifications to votes crucial to the existence of the government and to matters integral to the electoral programme of the party, so as not to ‘unduly impinge’ on the freedom of speech of members. This further resulted in 91st Amendment Act, 2003. {Anti-defection law has been discussed in detail here}