Fifty-Second Amendment Act, 1985 of Indian Constitution

The Fifty-Second Amendment Act provided specific provisions for the disqualification of the members of Parliament and state legislatures on the grounds of defection, that’s why the Fifty-Second Amendment is popularly called as Anti-Defection Law. During the tenure of Rajiv Gandhi’s government, the Parliament of India passed the Fifty-Second Constitution Amendment Act (52^nd CAA), in 1985. Anti-Defection Law prevented the defection by ministers from one party to another for certain political gains. In this article, we shall discuss the 52nd Amendment Act in detail.

Provisions of Fifty-Second Amendment Act, 1985

• This act amended the Article 102 of the Constitution and added the following clause:
  • Any person who is disqudisqualifiedon the 10th schedule shall also be disqualified to be a member of the Parliament.
• This act amended the Article 192 of the Constitution and added the following clause:
  • Any person who is disqualified based on the 10th schedule shall also be disqualified to be a member of the state legislative assembly or state legislative council.
• The act also added a new schedule i.e. 10th schedule to the constitution. Provisions of the 10th schedule have been discussed below.

What is the Tenth Schedule of the Indian Constitution?

This schedule was added byFifty-Secondecond Amendment Act, of 1985. This schedule lays down the following conditions for the disqualification of a person to be a member of the state legislature or Parliament. The conditions vary depending upon the fact that whether the person is nominated, independently elected, oa member of a political party. The conditions laid down in the 10th schedule are as follows:

Members of Political Parties

A member of a political party is disqualified on the grounds of defection due to the following reasons:

• if the person gives up the membership of the political party voluntarily.
• if the person abstains from voting or votes against the directions of his political party. Such an act of the person should not be condoned within 15 days.

Independently Elected Members

If an independently elected member joins any political party after his election to the house, then he/ she is considered to be disqualified under the 10th schedule.

Nominated Members

If a nominated person joins any political party after 6 months of his nomination to the house, then he/ she is considered to be disqualified on the grounds of defection.

The tenth Schedule has placed certain exceptions to these conditions for defection which are:

• A person shall not be disqualified on grounds of defection in the case of:
  • The merger of a political party with another party or split in a political party does not disqualify a member. This means that if 2/3rd of the members of a party agrees to join another party then a person is not disqualified under the 10th schedule.
  • If a person is elected as the presiding officer of the house and temporarily leaves the party to impart his duties as the presiding officer, then it is not considered defection.

Deciding Authority For Defection

The 10th schedule rests the power to decide upon the matter of defection and disqualification of a member with the presiding officer of the particular house. It is the speaker in the case of Lok Sabha and the Vice President of India or Chairman in the case of Rajya Sabha. It also made the decision of the presiding officer final and immune from judicial review, however, Supreme Court of India, in Kihoto Hollahan Case rule that the decision of presiding officer is subject to judicial review and can be challenged on the ground of malafide and perversity.

• 52nd CAA also made the provision that the presiding officer of the house can make rules to give effect to the provisions of the 10th schedule.
• The rules so made must be placed before the house for 30 days. The house may accept or reject the rules so made.
• The presiding officer can consider the disqualification of a member only if he receives a complaint from the members of the house.
• The person to be disqualified has to be given a chance for explanation.
• The presiding officer may also reject the disqualification if he feels that the defection was not voluntary but made under pressure.

Amendments to Anti-Defection Law

91st Amendment Act, 2003 made certain amendments to the provisions added by Fifty Second Amendment Act in the 10th schedule. It removed the provision that prevented the disqualification of a person due to split in the political party. Thus, a person can now be disqualified to be a member of the Parliament or state legislature even in case of split in political party. However, this act upheld the validity of the second provision that prevented the disqualification of a person if he is elected as the presiding officer of the house.

Significance of The Fifty Second Amendment

Fifty Second Amendment Act has the following significance:

• It keeps a check on the corruption in the political parties and defections to acquire power.
• It provided a sense of stability to the political parties and the legislature and the Parliament.
• It facilitates merger of political parties, thus paving the way for era of coalition governments.
• It also provided recognition to the political parties for the first time.

Criticism of The Fifty Second Amendment Act

Fifty Second Amendment Act had certain limitations and faced criticism due to this. The criticism of this act is mentioned below:

• It puts a restraint on the right to free speech and expression of the member of the house as he/ she will always be under the pressure of the whip and can neither participate in the discussions freely nor dissent the decision of the legislature contrary to his party.
• The act makes no provisions for the disqualification of a person for acts done by him outside the house.
• It still allows merger of political parties which may be misused.
• Nominated members are allowed to join a party within 6 months whereas independently elected members cannot join any party after their election. This was considered a bias between the two.
• The presiding officer may lack necessary knowledge and skill required to investigate the matter. Many a time the presiding officer of the house has expressed his lack of skills to decide the matter.
• ARC suggested the creation of a special body to decide the matter of defection.

Conclusion

Despite some loopholes fifty second amendment act has proven to be a great move to curb the problem of defection in the Indian political setup. The recommendations by various committees can be followed in order to strengthen the anti defection law. But still Fifty Second amendment act has been a great step to ensure greater stability in the democratic setup of the country. It has also been very successful to check the defection by ministers and other members and made them more responsible to the legislature and their political party as well as country.

FAQs on Fifty-Second Amendment Act, 1985

1. When was Fifty Second Amendment Act passed?

Ans: Fifty Second Amendment Act was passed in 1985.

2. Who was the Prime Minister of India when 52nd CAA was passed?

Ans: Rajiv Gandhi was the Prime Minister of India when 52nd CAA was passed.

3. Which case made the decision of the presiding officer subject to judicial review?

Ans: In Kihoto Hollahan Case, SC of India made the decision of presiding officer in case of defection subject to judicial review on grounds of malafide and perversity.

4. What is the provision for disqualification of a nominated member?

Ans: If a nominated member joins a political party after 6 months of the date on which he takes up his seat in the house, then the person is considered to be disqualified under anti-defection law.

5. Who has been given the power to decide upon the matter of defection?

Ans: Presiding officer of the house has been given the power to decide upon the matter of defection.

6. Which act made amendments to the 52nd CAA, 1985?

Ans: 91st CAA, 2003 made amendments to the 52nd CAA, 1985.

7. What is the provision for disqualification of an independently elected member?

Ans: If an independently elected member joins any political party after he assumes his seat in the house, then the person is said to be disqualified under anti-defection law.

8. Mention the significance of the Fifty Second Amendment Act, 1985?

Ans: Fifty Second Amendment Act has the following significance:

• It keeps a check on the corruption in the political parties and defections to acquire power.
• It provided a sense of stability to the political parties and the legislature and the Parliament.