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What is the Anti-Defection Law?

Why India needed an Anti Defection Law?


What are the grounds for disqualification under the Anti-Defection
Law's Articles 102 (2) and 191 (2)?
Merits and Demerits of this law.
What were the major loopholes?
Experience so far.
International scenario on Anti Defection Law.
Under which circumstances is a split in a party not considered a
'defection'?
What are the powers of a party whip under the Constitution in case of a
defection?
What are the options before a disqualified elected member?
Petitions Disqualification.
Procedure.
Who is the deciding authority?
Judicial interpretation by Courts.
Views of some Committees on Anti-Defection Law.
What is the Anti-Defection Law?
The Tenth Schedule which is popularly known as the Anti-Defection Act was
included in the Constitution in 1985 by the Rajiv Gandhi ministry and sets the
provisions for disqualification of elected members on the grounds of defection to
another political party.

The Anti-Defection law was introduced via the 52nd Amendment Act, 1985, soon
after the Rajiv Gandhi government came into power with a thumping majority post
assassination of Prime Minister Indira Gandhi.
Why India needed an Anti Defection Law?
The Rajiv Gandhi government was prompted to introduce Anti-Defection Law
because several defections were witnessed in the 1980's. The Amendment was
supposed to bring stability to the structure of political parties and strengthen
parliamentary democracy by prohibiting defections.
The earlier failures to deal with this issue had caused rampant horse-trading and
corruption. The Schedule X was thus, seen as a tool to cure this malaise. This
constitutional measure meant each member who was elected to a political party, so
he could not later opt to leave that party or switch to a different party.
What are the grounds for disqualification under the Anti-Defection Law's
Articles 102 (2) and 191 (2)?
a) If an elected member voluntarily gives up his membership of the political party;
b) If he votes or abstains from voting in such House contrary to any of the direction
issued by his political party or anyone authorised to do so on behalf of the political
party, without obtaining prior permission.
The pre-condition for his disqualification, is when his abstention from voting has not
been condoned by his party or the authorised person within 15 days of such incident.
The Chairman or the Speaker of a House has been empowered to frame rules for
giving effect to the provisions of the Tenth Schedule. The rules are set before the
House and shall be subject to modifications/disapproval by the House.
Independent Members: An independent member of a House (elected without
being set up as a candidate by any political party) becomes disqualified to remain as
a member of the House if he joins any political party after such election.
Nominated Members: A nominated member of a House becomes disqualified for
being a member of the House if he joins any other political party after the expiry of
six months from the date on which he takes his seat in the House. This means that he

may join any political party within six months of taking his seat in the House without
inviting any disqualification.
The above disqualification on the ground of defection does not apply in the following
two cases:
1. If a member goes out of his political party as a result of a merger of the party
with another party. Such merger of political parties takes place when twothirds of the members of the party have agreed to such merger.
2. If a member, after he has been elected as the presiding officer of the House,
voluntarily gives up the membership of his political party or rejoins it after he
ceases to hold that office. This exemption has been provided in view of the
dignity and impartiality of this office.
Merits and Demerits of this law:
The Defection Law has its own Merits and Demerits and it is upon the politicians and
our citizens to see how they interpret the Anti-Defection Law and help in the proper
functioning of the democracy.
Merits:
Provides more stability to the government by preventing shifts of party allegiance.
Ensures that candidates are elected with party support and on the basis of party
manifesto's so as to remain loyal to the party policies. This promotes party
discipline.
Demerits:
By preventing parliamentarians from changing parties, it thus reduces the
accountability of the government to the Parliament and the people.
The Anti- Defection Law interferes with the members freedom of speech and
expression by curbing dissent against party policies.
What were the major loopholes?
As per the 1985 Act, the word '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 and the Law
Commission in its report on "Reform of Electoral Laws" and also National
Commission to Review the Working of the Constitution (NCRWC) all of them
recommended deletion of the Tenth Schedule provision regarding exemption from
disqualifications in case of a split.

Finally the 91st Constitutional Amendment Act, 2003, changed this. So now atleast
two-thirds of the members of a party have to be in favour of a "merger" for such
"merger" to have validity in the eyes of the law. "The merger of the original political
party or a member of a House will be deemed to have taken place if, and only if, not
less than two-thirds of the members of the party concerned have agreed to such
merger," states the Tenth Schedule.
Experience so far:
In the 30 years of this law, complaints have been made against 62 Lok Sabha
MP's. Of these, 26 were disqualified. It is important to note that ten of these
disqualifications were after the trust vote of July 2008 (over India-US civil nuclear
co-operation). Four cases that were made out against Rajya Sabha MPs (two in 1989
and two in 2008) and all were upheld. In the State Legislatures, up to 2004, out of
268 complaints, 113 were upheld. Recently ( Congress MLAs were issued Notices
under Anti- Defection Law for supporting BJP in Uttrakhand to topple Congress CM
Harish Rawat's Government.
International scenario on Anti Defection Law:
Anti- defection law is practiced not only in India but it is also prevalent in various
other countries like Bangladesh, Kenya, South Africa, etc. Article 70, Bangladesh
Constitution lays down that a member shall vacate his seat if he resigns or votes
against the directions given by his party. The dispute is referred by the Speaker to the
Election Commission.
Section 40, Kenyan Constitution also states that a member who resigns from his
party has to vacate his seat. The decision is given by the Speaker, and the member
may appeal to the High Court.
Article 46 , Singapore Constitution lays down that a member must vacate his seat if
he resigns, or is expelled from his party. Article 48 enumerates that Parliament
decides on any question relating to the disqualification of a member.
Section 47 of the South African Constitution provides that a member loses
membership of the Parliament if he ceases to be a member of the party that
nominated him.
Under which circumstances is a split in a party not considered a
'defection'?
A split in a political party will not be considered a defection if the entire political
party merges with another; if a new political party is formed by some of the elected

members of one party; if he or she or other members of the party have not accepted
the merger between two parties and has opted to function as a separate group from
the time of such a merger.
What are the powers of a party whip under the Constitution in case of a
defection?
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 party 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
also continue to hang on to their seats as long as the Chairman or the Speaker of a
House gives final decision on their disqualification from the House after a proper
inquiry on the basis of the petition filed by party whip.
What are the options before a disqualified elected member?
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.
Information to be furnished by members
Every member is invariably required to individually furnish to the Speaker a
statement giving details of his party affiliation etc. as on the date of
election/nomination in Form-III as prescribed in the Disqualification Rules. In the
event of any change in the information given by the members in their respective
Forms-III, in terms of declaration in their forms, they are required to immediately
intimate the same to the Speaker.
Petitions Disqualification
No reference of any question as to whether a member has become subject to
disqualification shall be made except by a petition in relation to such member made
in writing to the Speaker by any other member.
Every petition is required to contain a concise statement of the material facts and to
be accompanied by copies of documentary evidence, if any, on which the petitioner
relies. Every petition is required to be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908, for the verification of
pleadings. Every annexure to the petition is required to be signed by the petitioner
and verified in the same manner.

Procedure
On receipt of the petition, the Speaker will consider whether the petition complies
with the requirements of the Rules. If the petition does not simply comply with the
requirements, the Speaker shall dismiss petition and intimate the petitioner. If the
petition complies with the requirements, copies of the petition are forwarded to the
member in relation to whom the petition has been made and if the member belongs
to any legislature party, and such petition has not been made by the leader , also to
such leader, for furnishing their comments in writing to the Speaker on the petition.
After considering the comments, Speaker will either proceed to determine the
question or, if he is satisfied, having regard to the nature and circumstances of the
case that it is necessary or expedient so to do refer the petition to the Committee of
Privileges for making a preliminary inquiry and submitting a report to him.
The procedure which shall be followed by the Speaker for determining question of
disqualification and the procedure which shall be followed by Committee of
Privileges for making preliminary inquiry shall, so far as may be, the same as the
procedure for making inquiry & determination by the Committee of any question of
breach of privilege of the House.
The Committee of Privileges while considering some petitions filed under the Tenth
Schedule to the Constitution and the rules referred to the Committee by the Speaker
gave a very careful thought to the true import of the term preliminary inquiry. The
Committee came to a conclusion that in such matters, the Committee are required
only to give their findings on the facts of the case and it isnt the Committees remit to
decide questions of law and arrive at conclusions on the merits of the case and make
recommendations.
If the Speaker makes a reference to Committee of Privileges, he will proceed to
determine the question as soon as may be after receipt of the report from the
Committee.
Neither Speaker nor Committee come to any finding that a member has become
subject to disqualification, without affording any reasonable opportunity to the
member to represent his case and to be heard in person.
After the conclusion of the consideration of the petition, Speaker may order in
writing dismiss the petition or declare that the member or members in relation to
whom the petition has been made has become subject to disqualification under the
Tenth Schedule and cause copies of the order to be delivered or forwarded to the
petitioner, the member in who's relation the petition has been made and to the leader

of the legislature party, if any, concerned. The order of the Speaker disqualifying the
member is reproduced in Bulletin Part-II and is also notified in Gazette of India,
Extraordinary, Part-II, Section 3 (ii).
Where the Speaker declares that the member has become subject to disqualification
under the Tenth Schedule, he shall cease to be a member of the House with effect
from the date of the order by the Speaker.
The Speaker has the power to issue such directions as he may consider necessary in
regard to the detailed working of the Members of Lok Sabha (Disqualification on
Ground of Defection) Rules, 1985.
Who is the deciding authority?
The decision on questions as to disqualification on ground of defection are referred
to the Chairman or the Speaker of such House, and the decisions given by him are
final. All proceedings in relation to any question on disqualification of a member of a
House under this Schedule are deemed to be proceedings in Parliament or in the
Legislature of a state. No court has any jurisdiction.
Judicial interpretation by Courts:
A question was raised that whether the right to freedom of speech and expression is
curtailed by the Tenth Schedule, the Apex Court has laid down that The provisions
do not subvert the democratic rights of the elected members in Parliament and state
legislatures. It does not even violate their conscience. The provisions do not violate
any right or any freedom under Articles 105 and 194 of the Constitution. In the
present case few more issues were raised that whether Para 6 & 7 of the X schedule
are constitutional or not?
The Supreme Court has also expounded that that to the extent that the provisions
grant finality to the orders of the Speaker, the provision is valid. However, High
Courts & Supreme Court can exercise power of judicial review under the
Constitution. Judicial Review should not cover any stage prior to the making of a
decision by the Speakers/ Chairmen. Para 7 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.

In another case the issue was raised whether a member can be said to voluntarily
give up his membership of a party, if he joined another party after being expelled by
his old political party, it was held by S.C. that 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, it can be thus said that he voluntarily gave up membership of old
party.
In a case it was asked whether a Speaker can review his own decision to disqualify a
member under the Tenth Schedule, it was held that 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.
Two issues were raised that whether the Speaker of a legislature is bound by the
directions of a Court and Whether judicial review by courts extends to rules framed
under the Tenth Schedule, it was held by the Honble Apex Court that the orders
passed by a speaker are subject to judicial review and rules under the Tenth Schedule
are procedural in nature. Any violation of those would be a procedural irregularity.
Procedural irregularity is immune from judicial scrutiny.
Supreme Court in the case of Rajendra Singh Rana and Ors. vs. Swami
Prasad Maurya and Ors. raised a very important issue regarding that when can a
court review the Speakers decision making process under the Tenth Schedule was
answered by the, it was held that if the Speaker fails to act on a complaint, or accepts
the claims of splits or mergers without making a finding, he fails to act as per the
Tenth Schedule. The Court enunciated that ignoring a petition for disqualification is
not merely an irregularity but it is also a violation of constitutional duties.

Views of some Committees on Anti-Defection Law


Dinesh Goswami Committee on electoral reforms (1990)
Disqualification should also be limited to cases where (a) a member voluntarily gives
up the membership of his political party, (b) a member abstains from voting, or he
votes contrary to the party whip in a motion of vote of confidence or motion of noconfidence.
The issue of disqualification should be decided by President/ Governor on the advice
of the Election Commission.

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.Parties should thus 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 must 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 in Bar on
Jurisdiction of Courts
Notwithstanding anything contained in the Constitution, no court has any
jurisdiction* in respect of any matter connected with the disqualification of a
member of a House on ground of defection.
Read the Anti Defection Law

Article 102 of Constitution of India. Disqualifications for


membership.
(1) A person shall be disqualified for being chosen as, and for being, a member of
either House of Parliament(a) If he holds any office of profit under the Government of India or the Government
of any State, other than an office declared by Parliament by law not to disqualify its
holder;
(b) If he is of unsound mind and stands so declared by a competent court;
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgment of allegiance or adherence to a foreign
State;

(e) If he is so disqualified by or under any law made by Parliament.


1

[Explanation. For the purposes of this clause] a person shall not be deemed to hold
an office of profit under the Government of India or the Government of any State by
reason only that he is a Minister either for the Union or for such State.
2

[(2) A person shall be disqualified for being a member of either House of Parliament
if he is so disqualified under the Tenth Schedule.]
1. Subs. by the Constitution (Fifty-second Amendment) Act, 1985, s. 3 for
(2) For the purposes of this article (w.e.f. 1-3-1985).
2. Ins. by s. 3, ibid. (w.e.f. 1-3-1985).

Article 191 of Constitution of India. Disqualifications for


membership.
(1) A person shall be disqualifed for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State(a) If he holds any office of profit under the Government of India or the Government
of any State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder;
(b) If he is of unsound mind and stands so declared by a competent court;
(c) If he is an undischarged insolvent;
(d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgment of allegiance or adherence to a foreign
State;
(e) If he is so disqualified by or under any law made by Parliament.
1

[Explanation.- For the purposes of this clause], a person shall not be deemed to hold
an office of profit under the Government of India or the Government of any State
specified in the First Schedule by reason only that he is a Minister either for the
Union or for such State.
2

[(2) 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.]

1. Subs. by the Constitution (Fifty-second Amendment) Act, 1985, s. 5, for


(2) For the purposes of this article (w.e.f. 1-3-1985).
2. Ins. by s. 5, the Constitution (Fifty-second Amendment) Act, 1985
(w.e.f. 1-3-1985).

TENTH SCHEDULE
1

[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 2[***] paragraph 4, means
the group consisting of all the members of that House for the time being belonging to
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 3[paragraphs 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 gives 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
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 sub-paragraph (1) of this paragraph,
to have been elected as a member of such House as a candidate set up by such
political party;
(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, deemed to be

a nominated member of the House for the purposes of sub-paragraph (3) of this
paragraph.
4

[***]

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 party
(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 merger of the
original political party of 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.
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 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 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;
(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.]
1. Added by the Constitution (Fifty-second Amendment) Act, 1985, sec. 6
(w.e.f. 1-3-1985).
2. The words paragraph 3, or as the case may be omitted by the
Constitution (Ninety-first Amendment) Act, 2003, sec. 5(a) (w.e.f. 1-12004).
3. Subs. by the Constitution (Ninety-first Amendment) Act, 2003, sec.
5(b), for paragraphs 3, 4 and 5 (w.e.f. 1-1-2004).
4. Paragraph 3 omitted by the Constitution (Ninety-first Amendment)
Act, 2003, sec. 5(c) (w.e.f. 1-1-2004). Prior to omission paragraph 3 stood
as under:
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 one third
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 sub-paragraph (1) of paragraph 2 and to be
his original political party for the purposes of this paragraph.
* Paragraph 7 declared invalid for want of ratification in accordance with
the proviso to clause (2) of article 368 as per majority opinion in Kihota
Hollohan v. Zachilhu, (1992) 1 SCC 309.