ANTI-DEFECTION LAW IN MODERN

DEMOCRACY
ANTI-DEFECTION LAW IN INDIA
I.INTRODUCTION

Defection has been defined as, To abandon a position or

association, often to join an opposing group The Advanced Law
Lexicon defines defection as, crossing the floor by a member of a
Legislature is called defection. In short, defection is an act by a
member of a particular party of disowning his loyalty towards that
particular party and pledging allegiance to another party. This is
what the Law Lexicon describes as crossing the floor. The politics of
defection has been the bane of the parliamentary system in India.
The vice of defection has been rampant in India for quite some time,
especially at the State level.
In order to fill the lacuna that existed in our polity, the Indian
Parliament, under the able leadership of Mr. Rajiv Gandhi brought an
Amendment to the Indian Constitution in the year 1985. In this
amendment Art 102 and Art 191 was made more effective by adding
a clause of disqualification under Tenth Schedule for defection. Also,
in the same amendment the Tenth Schedule was incorporated in
parlance to Art 102(2) & Art 191(2) so to specifically tackle the evil
of defection, which is so omnipresent. Section 16 of the Government
of the National Capital Territory of Delhi, Act, 1991 provides for
disqualification of Members of the Delhi Assembly on grounds of
defection. In pursuance of the powers conferred under the provisions
of the Tenth Schedule and the GNCT Act, the Members of Delhi
Legislative Assembly (Disqualification on Ground of Defection) Rules,
1996 was framed.
The reasons for the addition of this Schedule were explained by the
Statement of Objects and Reasons of the Fifty-second Amendment
(1985) to the constitution in the following words1 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

The evil of political defections has been a matter of national

concern. If it is not combated, it is likely to undermine the very
foundations of our democracy and the principles which sustain it.
With this object, an assurance was given in the address by the
President to Parliament that the government intended to introduce
in the current session of Parliament an anti-defection Bill. This Bill is
meant for outlawing defection and fulfilling the above assurance.
The purpose underlying the anti-defection law is to curb defections,
but, at the same time, not to come in the way of democratic
realignment of parties in the house by way of merger of two or more
parties, or a split in the existing party. The anti-defection law has
been hailed as a bold step to clean public life in India, but, in course
of time, certain defects therein have become apparent which have
very much compromised the effectiveness of the law to achieve its
objectives. This has very much hampered on the term
representative
In simple words, for example:- If a person joins a political party it is
presumed that he will follow the policies and programmes of the
party when he is elected to the legislature as a candidate of the
party again it is presumed that voters have entrusted their faith by a
majority not only to him but also to that party.
However,after being so elected if that elected member or a group of
Members does not support that Political Partys ideology or conducts
against the partys instructions or joins another Political Party or
make a new Political Party either by merger or split than member of
group of member should be disqualified of that holds the practise of
acquiring membership of another Political Party or making a
separate or without giving up the membership of that House is
commonly known as Defection.

2 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

BACKGROUND BEHIND ANTI-DEFECTION LAW

In India, the need to tackle defection arose only after 1967. Prior to
1967, there were only about 500 instances of defection and that too,
mostly at the State level. Such defections occurred mostly for
ideological reasons and not due to the lure of office. These
defections further strengthened the fabric of Indian Democracy and
curbing such defection would have been akin to undermining and
eroding the freedom required setup. After the Fourth General
Elections in the country however, the practice of defections took an
alarmingly unprecedented turn. Many Legislators switched sides
thanks to the use of office and as abruptly switched back when the
promises made to them were not fulfilled. Between 1967 and 1972
more than 50% of the legislators switched at least once. This
practice of switching sides to gain office came to be known as
Horse- Trading 1
The first attempt to analyses this malady came in December, 1967
when the Lok Sabha appointed a high level committee to look into
the problem and to make recommendations. The committee was
constituted under the chairmanship of the then Union Home Minister
Y.B.Chavan and consisted of legal and political luminaries such as
M.C.Setalvad, Jayaprakash Narayan, H.N.Kunzru, M.Kumaramanglam
and Madhu Limaye among others. The Committee placed its report
before the Parliament in February 1969. The committees
recommendations included that:
i. Political parties should arrive at a Code of Conduct among
themselves.
ii. In cases of defection for ideological reasons, the defector should
be disqualified from continuing as a legislator but is allowed to stand
again.
iii. In cases of defection due to the lure of the office or pecuniary
gans the defector should not only be disqualified from office but also
be prevented from standing for a specified period.

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3 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

What stands is that no definite stand for or against defection was

taken. It was proposed to regulate defection and only a certain
category of defections were sought to be prohibited. However these
recommendations were not acted upon immediately. It was only in
May 1973 that the Government introduced the Constitution (32nd
Amendment) Bill, 1973 to give effect to recommendations made 4
years earlier. However, there was a strong opposition to the Bill and
it became a matter of Public debate. This bill was then referred to a
joint committee of the 2 Houses. However the Lok Sabha was
dissolved before this committee could complete its deliberations and
the Bill lapsed. ANTI-DEFECTION LAW IN INDIA. It was not until 5
years later when the Janata Party came to power in 1978 that an
attempt was made to bring forward a Bill on defection. However this
was opposed at the stage of introduction itself not only by the
Opposition but also by some members of Ruling party and the
motion for introducing the Bill was withdrawn.

THE CHAVAN COMMITTEE REPORT AND THE ANTI-DEFECTION

BILLS OF THE 1973 AND 19782
A committee of constitutional experts and representatives of
political parties was set up on March 1968, under the chairmanship
of the then Home Minister, Y.B. Chavan to consider the problem of
legislators changing their allegiance from one party to another and
their frequent crossing of the floor, in all its aspects and to make
recommendations in that regard.
In drawing up its report and formulating its recommendations, the
committee placed before itself the following considerations:
1.) There can be no perfect or infallible deterrent for the kind of
defections that are rooted in political irresponsibility and
opportunism and create instability, besides bringing the functioning
of the democratic institutions into disrepute;
2.) The task of devising remedial measures for a complex political
problem has to balance carefully the need for ensuring political
stability witha. The natural processes of organic growth of parties;
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4 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

b. The inevitability of the period of transition preliminary to the

foregoing of ideological polarization or clarity, with uncertainties
attendant on the transition; and
c. The avoidance of rigidity which would impinge adversely on
honest and genuine dissent or change of convictions or on
readjustment of party alignments, in the form of merger, splits, etc.
As a part of the process of reaching ideological polarization or
clarity;
3.) The best legislative or constitutional devices cannot succeed
without a corresponding recognition on the part of political parties of
the imperative necessity for a basic political morality and the
observance by them of certain properties and decencies of public
life, and their obligations mutually to one another and in the last
analysis to the citizens of the country; and
4.) The problem requires to be attacked simultaneously on the
political educational and ethical planes so that by an intensive
political education both of the elite and the masses, a full
consciousness of the values of democratic way of life is created.
The main recommendations of the committee were:
a) The political parties themselves should arrive at a Code of
Conduct inter alia providing against a defector being taken into the
fold of another party;
b) A representative should be deemed to bound to the party under
whose aegis he wins the election. This follows from a clear
understanding of the nature and character of representation and the
duties of an elected representative;
c) No one who was initially a member of the Lower house should be
appointed as Prime Minister or Chief Minister and necessary
constituted amendment in this regard should be given prospective
effect;
d) Every defector should be debarred from appointment as a
minister for a prescribed period or until he gets himself re-elected;
e) There should be a ceiling on the size of the ministries both at the
centre and the state levels;
f) Provisions for recall may not be practicable or advisable.

5 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

RECOMMENDATIONS OF VARIOUS BODIES ON ANTI DEFECTION

LAW3

Dinesh Goswami Committee on electoral reforms (1990)

Disqualification should be limited to cases where (a) a member
voluntarily gives up the membership of his political party, (b) a
member abstains from voting, or votes contrary to the party whip in
a motion of vote of confidence or motion of no-confidence. The issue
of disqualification should be decided by the President/ Governor on
the advice of the Election Commission.
Halim Committee on anti-defection law (1998)
The words voluntarily giving up membership of a political party be
comprehensively defined. Restrictions like prohibition on joining
another party or holding offices in the government be imposed on
expelled members. The term political party should be defined
clearly.

Law Commission (170th Report, 1999)

Provisions which exempt splits and mergers from disqualification to
be deleted. Pre-poll electoral fronts should be treated as political
parties under anti-defection law. Political parties should limit
issuance of whips to instances only when the government is in
danger.
Election Commission
Decisions under the Tenth Schedule should be made by the
President/ Governor on the binding advice of the Election
Commission.
Constitution Review Commission (2002)
Defectors should be barred from holding public office or any
remunerative political post for the duration of the remaining term.
The vote cast by a defector to topple a government should be
treated as invalid.

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6 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

Main Features of the Anti-Defection Law4

ANTI-DEFECTION PROVISIONS UNDER THE TENTH SCHEDULE:

I.

DISQUALIFICATION
a. If a member of a house belonging to a political party:
- Voluntarily gives up the membership of his political party,
or
- Votes, or does not vote in the legislature, contrary to the
directions of
his political party.
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.
b. If an independent candidate joins a political party after the
election.
c. If a nominated member joins a party six months after he
becomes a
member of the legislature.
II. Power to DISQUALIFY
a.) The Chairman or the Speaker of the House takes the decision
to disqualify
a member.
b.) If a complaint is received with respect to the defection of the
Chairman or
Speaker, a member of the House elected by that
House shall take the decision.
III. EXCEPTION
Merger
A person shall not be disqualified if his original political party
merges with
another, and
- He and other members of the old political party become
members of the new political party,
or
- He and other members do not accept the merger and opt to
function as a separate group.
This exception shall operate only if not less than two-thirds of the
members of party in the House
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7 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

have agreed to the merger.

VIOLATING PARTY DIRECTIONS/ WHIP

The Whips Under Anti Defection Law
The whip upholds the party directives in the House as the authorized
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 this does not necessarily mean
that the members so expelled lose their seats in the House. They
continue to hang on to their seats as long as the Chairman or the
Speaker of a House gives a final decision on their disqualification
from the House after a proper enquiry on the basis of the petition
filed by the party whip.
In its literal dictionary connotation, the word the whip means a
clash with a stick or handle used for punishing a person for an
offence or in driving a horse-driven carriage for thrashing or beating
the horse to urge it to move forward faster. As a verb to whip
similarly means to lash a person or animal or to strike by a whip.
The word is believed to have had its origin in the terminology
developed in hunting where the hunters employee responsible for
managing the hounds and keeping them in their places is called the
Whippers-in. In the context of relationship between the parties and
their members. The whip acts as a twoA Member of Parliament or a State Legislature in India also comes
under the rigour of anti-defection law if he votes or abstains from
voting in the House contrary to any direction issued by the political
party to which he belongs or by any person or authority authorized
by it in this behalf, without obtaining, in either case, the prior
permission of such political party, person or authority and such
voting or abstention has not been condoned by such political party,
person, person or authority within fifteen days from the date of such
voting or abstention. Similarly, in Bangladesh the Constitution
provides that a Member of Parliament shall vacate his seat if he
votes in Parliament against the party.
It inter alia provides that a Member of Parliamentary party in the
House will be disqualified if he votes or abstains from voting in the
House contrary to any direction issued by the parliamentary party to
8 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

which he belongs in relation to election of the Prime Minister or the

Chief Minister, a Vote of Confidence or a Vote of No-Confidence or a
Money Bill. In Papua New Guinea, the anti-defection law envisages
that Members of Parliament elected with party endorsement must
vote in accordance with their partys position on key issues including
the election of a Prime Minister, the Budget, votes of no-confidence
and Constitutional Amendments. In Sierra Leone, a member is
required to vacate his seat for sitting and voting with members of a
different party. Interesting, in Malawi, Section65(2) of the
Constitution provides that all members of parties shall have absolute
right to exercise a free vote in any and all proceedings of National
Assembly and a member shall not have his seat declared vacant
solely on account of his voting in contradiction to the
recommendations of his political party in the National Assembly.

9 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

TENTH SCHEDULE
[Articles 102(2) and 191(2)]
Provisions as to disqualification on ground of defection
1. Interpretation.- In this Schedule, unless the context otherwise
requires,- (a) "House" means either House of Parliament or the
Legislative Assembly or, as the case may be, either House of the
Legislature of a State;
(b) legislature party", in relation to a member of a House
belonging to any political party in accordance with the provisions of
paragraph 2 or paragraph 3 or, as the case may be, paragraph 4,
means the group consisting of all the members of that House for the
time being belonging that political party in accordance with the said
provisions;
(c) "original political party", in relation to a member of a House,
means the political party to which he belongs for the purposes of
sub-paragraph (1) of paragraph 2;
(d) "paragraph" means a paragraph of this Schedule.
2. Disqualification on ground of defection. - (1) Subject to the
provisions of paragraphs 3, 4 and 5, a member of a House belonging
to any political party shall be disqualified for being a member of the
House(a) if he has voluntarily given up his membership of such political
party; or
(b) if he votes or abstains from voting in such House contrary to any
direction issued by the political party to which he belongs or by any
person or authority authorised by it in this behalf, without obtaining,
in either case, the prior permission of such political party, person or
authority and such voting or abstention has not been condoned by
such political party, person or authority within fifteen days from the
10 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

date of such voting or abstention. Explanation.- For the purposes of

this sub-paragraph,(a) an elected member of a House shall be deemed to belong to the
political party, if any, by which he was set up as a candidate for
election as such member;
(b) a nominated member of a House shall,(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.
(3) A nominated member of a House shall be disqualified for being a
member of the House if he joins any political party after 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.
(4) Notwithstanding anything contained in the foregoing provisions
of this paragraph, a person who, on the commencement of the
Constitution (Fifty-second Amendment) Act, 1985, is a member of a
House (whether elected or nominated as such) shall,(i) where he was a member of political party immediately before
such commencement, be deemed, for the purposes of subparagraph (1) of this paragraph, to have been elected as a member
of such House as a candidate set up by such political party;
11 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

(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.
3. Disqualification on ground of defection not to apply in
case of split.- Where a member of a House makes a claim that he
and any other members of his legislature party constitute the group
representing a faction which has arisen as a result of a split in his
original political party and such group consists of not less than onethird of the members of such legislature party,(a) he shall not be disqualified under sub-paragraph (1) of paragraph
2 on the ground(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 subparagraph (1) of paragraph 2 and to be his original political party for
the purposes of this paragraph.
4. Disqualification on ground of defection not to apply in
case of merger.- (1) A member of a House shall not be disqualified
under sub-paragraph (1) of paragraph 2 where his original political
party merges with another political party and he claims that he and
any other members of his original political party12 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

(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 subparagraph (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.
5. Exemption.- Notwithstanding anything contained in this
Schedule, a person who has been elected to the office of the
Speaker or the Deputy Speaker of the House of the People or the
Deputy Chairman of the Council of States or the Chairman or the
Deputy Chairman of the Legislative Council of a State or the Speaker
or the Deputy Speaker of the Legislative Assembly of a State, shall
not be disqualified under this Schedule,(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.
6. Decision on questions as to disqualification on ground of
defection.- (1) If any question arises as to whether a member of a
13 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

House has become subject to disqualification under this Schedule,

the question shall be referred for the decision of the Chairman or, as
the case may be, the Speaker of such House and his decision shall
be final:
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.
(2) All proceedings under sub-paragraph (1) of this paragraph in
relation to any question as to disqualification of a member of a
House under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of article 122 or, as the case may be,
proceedings in the Legislature of a State within the meaning of
article 212.
7. Bar of jurisdiction of courts.- Notwithstanding anything in this
Constitution, no court shall have any jurisdiction in respect of any
matter connected with the disqualification of a member of a House
under this Schedule.
8. Rules.-(1) Subject to the provisions of sub-paragraph (2) of this
paragraph, the Chairman or the Speaker of a House may make rules
for giving effect to the provisions of this Schedule, and in particular,
and without prejudice to the generality of the foregoing, such rules
may provide for(a) the maintenance of registers or other records as to the political
parties, if any, to which different members of the House belong;
(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
(b) of sub-paragraph (1) of paragraph 2 in respect of such member,
the time within which and the authority to whom such report shall
be furnished;
14 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

(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 subparagraph (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 CONSTITUTION (NINETY-FIRST AMENDMENT) ACT, 2003 5

The Constitution of India- Articles 75(1A), 75(1B), 164(1A),
164(1B), 361B
As per the 1985 Act, a 'defection' by one-third of the elected
members of a political party was considered a 'merger'. Such
defections were not actionable against. The Dinesh Goswami
Committee on Electoral Reforms, the Law Commission in its report
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15 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

on "Reform of Electoral Laws" and the National Commission to

Review the Working of the Constitution (NCRWC) all recommended
the deletion of the Tenth Schedule provision regarding exemption
from disqualification in case of a split.
Finally the 91st Constitutional Amendment Act, 2003, changed this.
So now at least two-thirds of the members of a party have to be in
favour of a "merger" for it to have validity in the eyes of the law.
"The merger of the original political party or a member of a House
shall be deemed 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," states the Tenth Schedule.
This Amendment added clause (1A) in this Article which made a
specific provision that, the total number of Union Ministers including
Prime Minister in no case can exceed 15% of the total number of
Members of Lok Sabha. Clause (1B) of this Article which was also
added by Constitution 91st Amendment of 2003 made a new
provision that a member of either Lok Sabha or Rajya Sabha who is
disqualified under the 10th Schedule of the Constitution shall also be
disqualified for being appointed as a Minister from the date of expiry
of his tenure or if he contests any further election before the expiry
of such period, till the date on which he is declared elected,
whichever is earlier.
361B. Disqualification for appointment on remunerative
political post. - A member of a House belonging to any political
party who is disqualified for being a member of the House under
paragraph 2 of the Tenth Schedule shall also be disqualified to hold
any remunerative political post. the expression remunerative
political post means any office
(i) under the Government of India or the Government of a State
where the salary or remuneration for such office is paid out of the
public revenue of the Government of India or the Government of the
State, as the case may be; or
(ii) under a body, whether incorporated or not, which is wholly or
partially owned by the Government of India or the Government of a
State and the salary or remuneration for such office is paid by such
body, except where such salary or remuneration paid is
compensatory in nature.
The provision of Tenth schedule pertaining to exemption from
disqualification in case of split by one-third members of legislature
has been deleted. It means that the defector have no more
protection on grounds of split.
16 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

JUDICIAL DEVELOPMENT ON THE TENTH SCHEDULE

Kihoto Hollohan v Zachillhu7

The scope of this anti-defection law was examined in this case.
Court that also analyzed various other aspects of this legislation
also. Here, the court, speaking about the necessity of an antidefection legislation, said, The object is to curb the evil of political
defections motivated by lure of office or other similar considerations
which endanger the foundations of our democracy. The remedy
proposed to disqualify the members of either House of Parliament or
of the State Legislature who is found to have defected from
continuing as a Member of the House. The grounds of
disqualification are specified in Paragraph 2 of the Tenth Schedule.
Brief Facts-In this case matters relating to disqualification of some
members of the Nagaland Assembly on the ground of defection
under the Tenth Schedule of the Constitution came up for
consideration. Matters relating to several legislative assemblies
including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat
and Goa were also heard along with since all of them involved
decisions of certain constitutional questions relating to the
constitutional validity of Para 7 of the Tenth Schedule and of the
52nd Amendment.
Decision-The Supreme Court found that there were legal infirmities
in the passage. Of the Anti-Defection Law in as much as the
Constitution Amendment Bill had not been ratified by the requisite
number of State assemblies before being presented for the
Presidents assent. Also, the Speakers functions under the Tenth
Schedule called for a judicial determination of issues under the Law.
The process of determining the question of disqualification could not
be considered part of the proceedings of the house and as such not
amendable to Judicial Review. The Supreme Court struck down Para
7 of the Schedule barring the jurisdiction of Courts and declared that
while operating under the Anti-Defection Law, the Speaker was in
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17 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

the position of the Tribunal and therefore, his decisions like those of
all tribunes were subject to judicial review.
In regard to the various contentions raised and urged at the hearing,
the Supreme Court held as follows:
1. That at the paragraph 2 of the Tenth Schedule to the
Constitution is valid, its provisions do not suffer from the vice of
subverting democratic rights of elected members of Parliament and
the Legislatures of the States. It does not violate their
freedom of speech, freedom of vote and conscience as contended.
The provision of Paragraph 2 does not violate any right or freedom
under Articles 105 and 194 of the Constitution.
2. That having regard to the background and evolution of the
principles underlying the constitution(52nd Amendment) Act, 1985,
in so far as it seeks to introduce the Tenth Schedule in the
Constitution of India, the provision of Paragraph 7 of the Tenth
Schedule in the Constitution in terms and in effect bring about the
change in the operation and effect of Article 136, 226, 227 of the
Constitution of India, and, therefore, the amendment would require
to be ratified in accordance with the proviso to clause 2 of article
368 of the Constitution of India.
3. The paragraph 7 of the Tenth Schedule contains a provision which
is independent of, and stands apart from, the main provisions of the
Tenth Schedule which are intended to provide a remedy for the evil
of unprincipled and unethical political defections and therefore is a
severable part.
4. The paragraph 6(1) of the Tenth Schedule, to the extent it seeks
to impart finality to the decision of the Speakers/Chairmen is valid.
But the concept of Statutory finality embodied in Paragraph 6(1)
does not detract from or abrogate judicial review under article
136,226 and 227 in so far as infirmities based on violations of
constitutional mandates, mala fides, non compliance with the Rules
of Natural Justice an perversity, are concerned.
5. It would be unfair to the high traditions of that great office to say
that the investiture in it of this jurisdiction would be vitiated for
violation of a basic feature of democracy. It is inappropriate to
express distrust in the High Office of the Speaker, merely because
some of the speakers are alleged, or even found to have discharged
their functions not in keeping with that great tradition of that High
Office.

18 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

6. The expression any direction occurring in Para 2(1) (6) of the

Tenth Schedule requires to be construed harmoniously with the
other provisions and appropriately confined to the objects and
purpose of the Tenth Schedule.
7. The meaning to be given to split must necessarily be examined
in a case in which the question arises in the context of its particular
facts. No hypothetical predications can or need be made.
Keeping in view the consequences of the disqualification of the
membership of a House, it would be appropriate that the direction or
whip which results in such disqualification under Paragraph 2(1)(b) is
so worded as to clearly indicate that voting or abstaining from
voting contrary to the said direction would result in incurring the
disqualification under Paragraph 2(1)(b) of the Tenth Schedule so
that the member concerned has fore knowledge of the
consequences flowing from his conduct to voting or abstaining from
voting or abstaining from voting contrary to such a direction.
SOME IMPORTANT JUDGMENTS AND RULINGS ON THE TENTH
SCHEDULE IN INDIA
Kihota Hollohon vs. Zachilhu and Others8
Issue 1- Whether the right to freedom of speech and expression is
curtailed by the Tenth Schedule.
Issue 2- Whether paragraph 7 of the Schedule barring the
jurisdiction of courts in cases of disqualification is constitutional.
Issue 3- Whether paragraph 6 of the Tenth Schedule granting
finality to the decision of the Speaker/ Chairman is valid.
The Court held that the provisions do not subvert the democratic
rights of elected members in Parliament and state legislatures. It
does not violate their conscience. The provisions do not violate any
right or freedom under Articles 105 and 194 of the Constitution.
The court on the second issue held that the paragraph seeks to
change the operation and effect of Articles 136, 226 and 227 of the
Constitution which give the High Courts and Supreme Court
jurisdiction in such cases. Any such provision is required to be
ratified by state legislatures as per Article 368(2). The paragraph
was therefore held invalid as it had not been ratified.
8 AIR 19993 SC 412

19 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

On the third issue court was of the view that the provisions grant
finality to the orders of the Speaker, the provision is valid. However,
the High Courts and the Supreme Court can exercise judicial rev iew
under the Constitution. Judicial review should not cover any stage
prior to the making of a decision by the Speakers/ Chairmen.
Ravi S Naik v. Union of India 9
Issue- Whether only resignation constitutes voluntarily giving up
membership of a political party.
Judgment- The words voluntarily giving up membership have a
wider meaning. An inference can also be drawn from the conduct of
the member that he has voluntarily given up the membership of his
party.
G. Vishwanathan v. Speaker, Tamil Nadu Legislative
Assembly 10
Issue- Whether a member can be said to voluntarily give up his
membership of a party if he joins another party after being expelled
by his old political party.
Judgment -Once a member is expelled, he is treated as an
unattached member in the house. However, he continues to be a
member of the old party as per the Tenth Schedule. So if he joins a
new party after being expelled, he can be said to have voluntarily
given up membership of his old party.
Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative
Assembly 11
Issue- Whether a Speaker can review his own decision to disqualify
a member under the Tenth Schedule.
Judgment-The Speaker of a House does not have the power to
review his own decisions to disqualify a candidate. Such power is not
provided for under the Schedule, and is not implicit in the provisions
either.
9 AIR 1994 SC 1558

10 1996 2 SCC 353

11 1993 2 SCC 703

20 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

Rajendra Singh Rana and Ors. vs. Swami Prasad Maurya

and Ors.12
Issue- When can a court review the Speakers decision making
process under the Tenth Schedule.
Judgment- If the Speaker fails to act on a complaint, or accepts
claims of splits or mergers without making a finding, he fails to act
as per the Tenth Schedule. The Court said that ignoring a petition for
disqualification is not merely an irregularity but a violation of
constitutional duties.
Mannadi Satyanarayan Reddy v Andhra Pradesh
Legislative Assembly and Ors.13
The Andhra Pradesh High Court had to decide, inter alia, the
question of whether the Speaker, while exercising jurisdiction, can
decide whether or not a Legislator belongs to a particular Legislature
party. Holding that a Speaker could indeed decide thus, the Court
said that if, in deciding the question of a members disqualification
depended upon an answer to which political party had set such
member up and whether or not he belonged to such party, he
should be allowed to decide such question. In the words of the
Court, there is nothing in paragraphs 1, 2, and 6 of the Tenth
Schedule which fetters exercise of jurisdiction by the Speaker to
decide this question.
D. Sudhakar v. D.N. Jeevaraju14
In an order dated February 14, 2011, the Karnataka High Court in
this case had held that when an independent member of a
legislative assembly becomes a minister in a government formed by
the single largest political party, he loses his independent character
and becomes liable to disqualification on the ground of defection.
Balchandra L. Jarkiholi v. B.S. Yeddyurappa15

12 (2007) 4 SCC 270

13 (2009) 3 ACT 324

14 (2011) 6 SCC 381

21 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

Brief Facts of The Case- On 6th October, 2010, 13 members of

the Karnataka Legislative Assembly belonging to the Bharatiya
Janata Party, were convinced that a situation had arisen in which the
Government of the State could not be carried on in accordance with
the provisions of the Constitution and that Shri Yeddyurappa had
forfeited the confidence of the people as the Chief Minister of the
State. Accordingly, in the interest of the State and theheaded by Shri
B.S. Yeddyurappa and withdrew their support to the said
Government.
On the basis of the aforesaid letters addressed to him, the Governor
addressed a letter to the Chief Minister, Shri B.S. Yeddyurappa; on
the same day (6.10.2010) informing him that letters had been
received from 13 BJP MLAs and 5 independent MLAs, withdrawing
their support to the Government. A doubt having arisen about the
majority support enjoyed by the Government in the Legislative
Assembly, the Governor requested Shri Yeddyurappa to prove that
he still continued to command the support of the majority of the
Members of the House. On the very same day, Shri B.S.
Yeddyurappa, as the leader of the BJP Legislature Party in the
Karnataka Legislative Assembly, filed an application before the
Speaker under Rule 6 of the Karnataka Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules, 1986,
being Disqualification Application No. 1 of 2010, praying to declare
that all the said thirteen MLAs elected on BJP tickets had incurred
disqualification in view of the Tenth Schedule to the Constitution.
Show-Cause notices were thereafter issued to all the 13 MLAs on 7th
October, 2010, informing them of the Disqualification Application
filed by Shri Yeddyurappa stating that having been elected to the
Assembly as Members of the BJP, they had unilaterally submitted a
letter on 6th October, 2010 to the Governor against his Government
withdrawing the support given to the Government under his
leadership. The Appellants were informed that their act was in
violation of paragraph 2(1) (a) of the Tenth Schedule of the
Constitution of India and it disqualified them from continuing as
Members of the Legislature. Time was given to the Appellants till 5
p.m. on 10th October, 2010, to submit their objections.
When the hearing to this particular issue was held the speaker held
that the MLAs have voluntarily given up their membership and thus
liable to be disqualified from the Membership of State Assembly via
provisions mentioned in Paragraph 2(1) (a) of the X Schedule of the
15 (2011) 7 SCC 1

22 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

Indian Constitution. A Writ Petition was filed by the Appellants in

Karnataka High Court at Bangalore which was dismissed by
Divisional Bench vide Judgment dated 15.11.2010 against which the
present Civil Appeal lies.
Issue InvolvedSix issues had arisen in the appeals and they are reproduced herein
below:
(i) The extent and scope of Judicial Review available against the
order of the Speaker passed in exercise of powers under the Tenth
Schedule to the Constitution.
(ii) Whether the Karnataka Disqualification Rules framed in exercise
of powers under paragraph 8 of the Tenth Schedule are directory
and procedural in nature and whether judicial review is available
against an alleged breach of the said Rules?
(iii) Whether the Speaker's order impugned herein is mala fide?
(iv) Whether Speaker's order can be said to be vitiated on account
of noncompliance with the principles of natural justice?
(v) The scope of paragraph 2(1) (a) of the Tenth schedule; and
(vi) Whether the Speaker's inference from the conduct of the MLA's
in the present case that they have given up the membership of the
political party to which they belong, can be said to be 'perverse'?
JudgmentIt was held, Speaker did not take into consideration rule of evidence
that person making an allegation has to prove same with supporting
evidence. Mere fact that allegation was not denied, did not amount
to same having been proved on account of silence of person against
whom such allegations were made. There was nothing on record in
support of said allegations Speakers action amounted to denial of
principles of natural justice to Appellants. It also revealed partisan
trait in Speakers approach in disposing of Disqualification
Application. There was no compulsion on Speaker to decide
Disqualification Application in a great hurry within time specified by
Governor to Speaker to conduct Vote of Confidence in Government.
Such course of action was adopted by Speaker; since the Vote of
Confidence on floor of the House was slated Element of hot haste
was also evident in the action of the speaker.
It was further held, under Paragraph 2(1) (a) of the 10th Schedule,
Speaker functions in quasi-judicial capacity, which makes order
passed by him in such capacity, subject to judicial review. Paragraph
2(1)(a) of the 10th Schedule enables Speaker in quasi-judicial
23 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

capacity to declare that Member of House stands disqualified for

reasons mentioned in Paragraph2(1)(a) of the 10th Schedule to the
Constitution Proceedings conducted by Speaker on Disqualification.
Application did not meet twin tests of natural justice and fair play.
Speaker proceeded in matter as if he was required to meet deadline
set by Governor, irrespective of whether, in process, he was ignoring
constitutional norms set out in 10th Schedule to Constitution and
Disqualification Rules, 1986, and in contravention of concept of fair
hearing Show Cause Notices were issued within time fixed by
Governor for holding the Trust Vote. Court set aside impugned order
of Speaker disqualifying Appellant and the Appeal filed by the
appellant was allowed.
Under paragraph 2(1) (a) of the X Schedule, Speaker functions in
quasi-judicial capacity, which makes order passed by him in such
capacity, subject to judicial review.
Jagjit Singh vs. State of Haryana 16
Judgment- the Supreme Court held that the speaker while
exercising power to disqualify member acts as a criminal and though
the validity of the orders, thus passed can be questioned in the writ
jurisdiction. The orders can be challenged on the ground of ultra
vires or mala fide or having been made in colourable exercise of
power based on extraneous and irrelevant considerations. The
orders however would be in nullity if rules of Natural Justice are
avoided.
Speaker Haryana Vidhan Sabha vs. Kuldeep Bishnoi &
Ors. 17
Held: - The High Court assumed the jurisdiction which it never had
in making the interim order which had the effect of preventing the
five MLAs in question from effectively functioning as Members of the
Haryana Vidhan Sabha. The direction given by the learned Single
Judge to the Speaker, as endorsed by the Division Bench, is,
therefore, upheld to the extent that it directs the Speaker to decide
the petitions for disqualification of the five MLAs within a period of
four months. The said direction shall, therefore, be given effect to by
16 AIR 2007 SC 970

17 DATED:28.9.2012 CIVIL APPEAL NO. 7125 OF 2012 (Arising out of SLP(C) NO. 54 OF
2012)

24 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

Speaker. The remaining portion of the order disqualifying the five

MLAs from effectively functioning as Members of the Haryana
Vidhan Sabha is set aside. The said five MLAs would, therefore, be
entitled to fully function as Members of the Haryana Vidhan Sabha
without any restrictions, subject to the final decision that may be
rendered by the Speaker in the disqualification petitions filed under
paragraph 6 of the Tenth Schedule to the Constitution. The Speaker
shall dispose of the pending applications for disqualification of the
five MLAs in question within a period of three months from the date
of communication of this order.

Recent Orders on Disqualification by the Speaker for

Defection :

Shri Rajeev Ranjan Singh Lalan vs. Dr. P.P. Koya, JD(U),
(January 9, 2009). Dr. Koya defied a party whip requiring him to be
present in the House and vote against the Motion of Confidence for
the government. He claimed he was too ill to be present in the
House. The Speaker concluded that Dr. Koya abstained from voting
by remaining absent, and the evidence of the illness is not
sufficient to conclude that he was so ill that he could not be present
in the House.
Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad,
JD(U), (October 3, 2008). Shri Prasad defied a party whip requiring
him to be present in the House. In his defence, he denied that any
whip was issued or served. The Speaker held that in view of the fact
that there is evidence to show that the whip had been delivered to
Shri Prasads house, and had been duly received, it cannot be said
that Shri Prasad had no knowledge of the whip.
Shri Avtar Singh Bhadana vs. Shri Kuldeep Singh, Indian
National Congress, (September 10, 2008). The INC alleged that
Shri Bishnoi often dissented from, and criticized the Congress
government publicly, and had demanded the dismissal of the
government in Haryana. The Speaker held that a person getting
elected as a candidate of a political party also gets elected because
25 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

of the programs of the party. If the person leaves the party, he

should go back before the electorate.
Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque,
BSP, (January 27, 2008). It was alleged that Shri Akhlaque joined
the Samajwadi Party in a public meeting. It was alleged that at this
meeting, Shri Akhlaque had said that at heart, he had always been a
member of the SP. The Speaker reasoned that there is no reason
why news clippings and stories in the media would be untruthful.
The Speaker therefore held Shri Akhlaque disqualified for having
voluntarily given up membership of the BSP.
The most recent case relating to anti-defection is from the
Karnataka State Legislature where B.J.P. is the ruling party and
14 members of B.J.P. and 5 independent members sent a letter of
discontent against the Chief Minister. A complaint was made against
them and speaker disqualified them from their membership. The
case is pending in the S.C.
ROLE IN MODERN DEMOCRACY
Anti-defection case: SC relief for Amar Singh, Jaya Prada 18
NEW DELHI: Giving relief to expelled Samajwadi Party MPs Amar
Singh and Jaya Prada, the Supreme Court directed that no action
shall be taken against under the Anti-Defection Law in the event of
their defying a party whip.
A bench headed by Altamas Kabir passed the order while referring to
a larger Constitution bench the question as to whether an expelled
member could be disqualified under the law, if he chooses to defy a
party whip.
Both Singh and Jaya Prada had sought interim stay on any possible
action against them in case they decided to vote in favour of
Women's Reservation Bill to which the SP is fiercely opposed to.

18
PTI NOVE,BER 15,2010
26 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

The apex court had on November 10 decided to make the reference

after Attorney General G E Vahanvati agreed that the issue needs to
be settled by a larger bench as the apex court's earlier judgement in
the Vishwanathan case was not clear on certain aspects of the antidefection law.
It took the decision after hearing in detail Vahanvati and senior
counsel Harish Salve and K K Venugopal, appearing for Singh and
Jaya Prada.
The two leaders had contended that they have landed in a piquant
situation as expelled members, they apprehend disqualification
under the anti-defection law if they choose to defy party's whip on
any issue in Parliament.
The counsel for two parliamentarians argued that the anti-defection
law could be evoked only against those who either defect from the
party or defy its whip while being in the party.
But, in their case, they contended, the MPs did not defected from
the party but were expelled, and as unattached members, they were
not amenable to the party's whip.
Earlier, the apex court had sought the Attorney General's opinion on
the plea of Singh and Jaya Prada that they should not be disqualified
as Members of Parliament after their expulsion from the Samajwadi
Party.
The two sacked MPs had moved the apex court fearing they may be
disqualified for not abiding by the party whip in Parliament in view of
the apex court verdict in a case in 1996.
As per the interpretation of the anti-defection law by the Supreme
Court in 1996, a member elected or nominated by a political party
continues to be under its control even after his or her expulsion.
They felt the apex court's interpretation of the Tenth Schedule of the
Constitution impinged upon fundamental rights of the expelled
members, including their rights to equality, free speech and
expression and life under articles 14, 19 and 21 respectively.
Both the leaders were suspended from the SP on February 2 for
alleged anti-party activities.

27 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

They had pleaded before the Supreme Court that the provisions of
the Tenth Schedule, which deals with disqualification of MPs, are not
applicable to the expelled members of a political party.
Challenging the apex court's 1996 verdict, the leaders had
contended that the court had erroneously interpreted the Tenth
Schedule, while holding that its provisions apply even to the
expelled members if they join a new political party.
They had submitted that the Viswanathan case ruling had also led to
an anomalous situation where a party makes its expelled member
abide by its whip even after expelling him from the party and the
failure to adhere to such whip results in disqualification of the
expelled member from the House.
In their petition, they had submitted the ruling in the Viswanathan
case render them ineligible from both joining or forming a new
political party due to the fear of disqualification under Clause 2(1)(a)
of the anti-defection law.
BELOW IS A LIST OF LEADERS WHO QUIT PARTIES AS THE LOK
SABHA ELECTIONS GET CLOSER19:-

Jasa Barad He was the sitting MLA from Somnath constituency of

Junagadh district. He left the Congress to join BJP.
D. Purandeswari A former Union minister and daughter of
famous actor-politician NTR quits Congress to join BJP.
Jagdambika Pal He was the chief minister of Uttar Pradesh for
one day and now a part of BJP cadre.
Bavku Undhad - Congress MLA from Lathi assembly constituency
of Amreli district who left Congress to join BJP.
Satpal Maharaj The senior Congress leader who has huge
following in hilly area (Uttarakhand) has recently resigned from the
Congress and joined the Bharatiya Janata Party (BJP).
Rajendrasinh Chavda Congress MLA from Himmatnagar in
Sabarkantha district. He resignation from Congress to see Narendra
Modi as a PM of the country.

19
www.prs india .org
28 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

CRITICISM OF ANTI-DEFECTION LAW

i. On Splits and Mergers: this exemption has been given solely
based on the number of people defecting. Thus if the requisite
number defect, they are not hit by the disqualification. There
appears to be no rationale behind this exemption as 2/3rd of the
party may merge due to the lure of Office; should this defection be
allowed simply because of the greater number involved? doesnt
such a defection also threaten to undermine the core of Indias
Democracy which this law is supposed to protect? Thus this
provision does seem irrational as the motivation behind an
individual and a mass split could well be the same. The purpose of
this law would have better been served if the law were to distinguish
based on the reasons behind the Split; so the reason genuinely
based on the needs of the members constituency. Then an
exemption ought to be given irrespective of the number of members
involved in the split. This would ensure that a member does not
breach the trust reposed in him by the electorate.
ii. Defection v. Dissent: In this context, a distinction needs to be
made between Defection and Dissent. All forms of dissent do not
amount to defection. In this light, a member would be free to vote as
he wishes on certain important public matters and not as the party
directs him to. This would ensure that the true democratic spirit
within the country is achieved. For e.g., if on a particular topic, the
party wishes the member to vote in a particular manner, but if
voting is contrary to the needs of that members constituency he
should be given freedom to vote against the discretion of the party.
That is the true meaning of the representative democracy whereby
the needs of the electorate are taken into account. It would be more
rational to take into account the motive behind contrary voting and
if the motive is genuinely to serve the interests of the constituency
the member should not be disqualified. By failing to bear this in
mind, the Anti-Defection Law indeed appears not to have achieved
its purpose of strengthening Indias democracy.
iii. Speakers Power: The Speaker in India is a Political person who
does not sever his political connections after being elected.
Considering this probability there is no

29 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

justification whatsoever for this provision in the Xth Schedule. It in

effect empowers the Speaker to manipulate the situation to suit the
party he favors.
iv. Decision of Speakers: One problem which is a direct off-shoot
of the Tenth Schedule is the lack of uniformity in the decisions of the
speakers in the different States. This has led to great confusion in
the political setup as similar situations have been treated differently
by different Speakers. This has led to a great deal of uncertainty
prevailing about what the law actually provides. This problem has
been compounded by the practice of certain Speakers declaring
persons expelled from the party membership as unattached
members and allowing them to freely cast their votes. This is not
provided for the Tenth Schedule and subverts its very objective.
Ramesh Babu, the then Speaker of Karnataka went one step further
when he ruled that defecting members who joined the ruling
Congress party were associated members and therefore not liable to
be disqualified under the Schedule. It is patently clear how the
power vested in the Speaker by this law has resulted in him being
susceptible to more political manipulations.
Thus there are some glaring anomalies present in the existing law
on anti-defection which acts as obstacles and prevent the
achievement of its stated objectives.

30 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

CONCLUSION
Anti-defection law when it was passed, it aimed at bringing down the
political defect but due to ever increasing political dishonesty and
corruption this law never evolved properly and now a question have
arose that whether achieving the goals of this law a reality or a
myth? Politicians found loopholes in this law and used it for their
own benefit.
It is high time that a watchdog should be provided to our Parliament
and there is a need for our constitutional pundits to revisit the issue
to combat the menace of corruption and defection which has eroded
the values of democracy.
Social activists like Anna Hazare and now public figures like Baba
Ramdev are doing their best with the help of citizens and using the
method of non-violence and satyagrah which were adopted by the
father of the nation Mahatma Gandhi to eradicate Britishers from
the country and doing their best to make sure that our sleeping
government should wake up and start taking steps towards
eradicating political corruption and only this will help in achieving
31 ANTI-DEFECTION LAW IN MODERN DEMOCRACY

the goal which was set while passing this law. This law can also work
if certain recommendations mentioned above are taken into
consideration and an amendment be made in this law.
In the end I would like to quote that a government, for protecting
business only, is about a carcass, and soon falls by its own
corruption and decay, so the government has a duty to stand and
deliver now and not let this law turn into a myth .

32 ANTI-DEFECTION LAW IN MODERN DEMOCRACY