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NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

SYNOPSIS
AN ANALYSIS OF ANTI DEFECTION LAW:
THE CONSTITUTIONAL PERSPECTIVE

SUBMITTED TO:
PROF. (DR.) RAJIV KHARE

SUBMITTED BY:
DEEPAK SHAHANI
2016 LL.M. 23
I TRIMESTER

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

ACKNOWLEDGMENT
At the outset, I would like to express my heartfelt gratitude and thank my faculty, Prof. (Dr.)
Rajiv Khare for putting his trust in me and giving me a project topic such as this and for
having the faith in me to deliver.
My gratitude also goes out to the staff and administration of NLIU for the infrastructure in
the form of our library and Computer Lab that was a source of great help for the completion
of this project.

INDEX
CONTENT
1.

PAGE No.
INTRODUCTION

06 - 07

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1.1

REVIEW

OF

LITERATURE

07
1.2

STATEMENT

OF

PROBLEM

08
1.3

OBJECTIVES

OF

THE

STUDY

08
1.4

HYPOTHESIS

RESEARCH

METHODOLOGY

09
1.5
09
2. THE CONSTITUTIONAL DEVELOPMENTS AND PROVISIONS
ON
ANTI-DEFECTION

LAW

10 - 15
2.1

ETYMOLOGY

OF

THE

TERM

DEFECTION

10
2.2 TENTH SCHEDULE AND THE 52ND AMENDMENT TO THE
CONSTITUTION

OF

INDIA

10
2.3

THE

WHIPS

UNDER

ANTI

DEFECTION

LAW

12
2.4 ANALYSIS OF THE POWERS OF SPEAKER UNDER THE
TENTH

SCHEDULE

TENTH

SCHEDULE

14
3.

JUDICIAL

DEVELOPMENT

ON

THE

16 24
3.1

THE

SUPREME

COURT

IN

KIHOTA

HOLLOHONS

CASE

19
3.2

DEVELOPMENTS SUBSEQUENT TO KIHOTA HOLLOHONS CASE

20
3.3

THE

EMERGING

PRACTICES

23

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4.

25 - 26
4.1
25
4.2

COMPARATIVE

LEGAL
LEGAL

POSITION

POSITION
IN

UK

26
5.

STUDY
IN

US

AND

PAKISTAN

CONCLUSION

27
5.1

SUGGESTIONS

28
BIBLIOGRAPHY
29

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LIST OF CASES

1. Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative Assembly

15

(1993) 2 SCC 703


2. G. Vishwanathan v. Speaker, Tamil Nadu AIR 1996 SC 1060

14

3. Jagjit Singh v. State of Haryana AIR 2007 SC 590

19

4. Kihota Hollohon v. Zachillhu AIR 1993 SC 412

5, 13, 14, 15, 16, 17

5. Manilal Singh v. Dr H. Borobabu Singh, AIR 1994 SC 505

17

6. Mayawati v. Markandeya Chand & ors., AIR 1998 SC 3340

17

7. Parkash Singh Badal and others v. Union of India and others


AIR 1987 P H 263

13

8. Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors.
(2007) 4 SCC 270

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16

9. Ravi S. Naik v. Union of India, AIR 1994 SC 1558

14, 15

10. Utkal Keshari Parida vs. Speaker, Orissa Legislative Assembly


WP (Civil) 14868-71/2012

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CHAPTER - I
INTRODUCTION
India being a country which has one of the largest number of political parties representing the
interests and ideologies of various groups of people has so far been successful in its
endeavour to run a successful parliamentary and democratic form of government. But, the
recent developments have forced the legislature to rethink the functioning of modern
democracy in the light of defections by the legislators belonging to various political parties
which has resulted in government instability which is undemocratic as it negates the electoral
verdict. Thus in order to maintain the true spirit of democracy it is very much necessary for
the legislature to bring in such legislations as for instance the Anti-Defection Laws.
The phenomenon of defection is not something that is peculiar to India. It is prevalent in
democracies all over the world, which have adopted the party system. In India, the need for
tackling defection was felt after 1967. Before 1967, there were only about 500 cases of
defection, mostly at the level of state. These defections occurred mainly due to ideological
differences and not because of want of office. These defections further bound the fabric of
Indian democracy and restriction such defection would have led to undermining and eroding
the freedom required setup. With the passage of time, this practice started to happen so
rapidly that, after the fourth general election the defections took an alarming turn, many
legislators switched sides for the want of office and further abruptly switched back when the
promises were not fulfilled. Between 1967 and 1972 more than 50% of the legislators
switched sides at least once. This practice of switching sides to gain office came to be known
as 'Horse-Trading'. 1
Indian political system started to witness this problem at very rapid pace. Thus, it leads to the
enactment of Schedule X as a tool to protect and maintain the Indian political system. For this
purpose, the only countries to pass anti defection laws have been 4 countries in south Asia viz
India (1985), Pakistan (1997), srilanka (1978) and Nepal (1997) in all these four countries,
the anti-defection laws did not yield the results that were expected out of them.2

Saurabh Sotwal & Tanmay Agrawal, ANTI DEFECTION LAWS IN INDIA, IRJA VOLUME 1 ISSUE 3,
(2014), (SEPT 04, 2016 AT 5:20AM), AVAILABLE AT HTTP:http://www.ijra.in/uploads/41649.9774727662.
2
Ibid

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The first chapter gives an insight into the highlights of the study with regard to the research
problem, the hypothesis, the method adopted for the conduct of the study. It further gives a
brief description about the various chapters and their concerns in this study.
Under Chapter II which analyses the meaning and definition of the term Defection also an
attempt has been made to study the details of the various provisions under the Constitution of
India relating to Defections. Provisions relating to defection both at the Central and State
levels has been analysed.
After analysing the constitutional development, the judicial development with regard to the
same is understood in Chapter III. This chapter gives a detailed account of the judgment of
the Honble Supreme Court of India in the case of Kihota Hollohon v. Zachilhu3. It also gives
a detailed position of law as it existed before and subsequent to Kihota Hollohons case. An
attempt has been made in this chapter to analyse the stand point of the Judiciary on the Tenth
Schedule of the Constitution of India.
Certain guide lines and suggestions in order to make the Tenth Schedule more practical and
effective in trying to protect the democratic polity is the conclusion to this study.

1.1 REVIEW OF LITERATURE


1. Saurabh Sotwal & Tanmay Agraw, ANTI DEFECTION LAWS IN INDIA, IRJA
VOLUME 1 ISSUE 3, (2014)

Authors have comprehensively dealt with the concept of Anti defection laws and its
application in India. For this purpose, a detailed study has been made on the provisions of
Schedule X. Further, judiciary have contributed significantly on the development of anti
defection laws in India. In this regard, some landmark judgments i.e., kihoto- hollohan v.
Zachilhu, Ravi S. Naik v. Union of India, jagjit Singh v. state of Haryana etc have been dealt
upon. Moreover, a comparative study of Anti defection laws in US and UK had been covered.
Lastly, paragraph 2(1) (b) of Schedule X is criticised being undemocratic, which curtails the
freedom of speech of the members of the party.
However, much emphasis is not placed upon the different kinds of whips for the apparent
understanding of Anti defection laws.

AIR 1993 SC 412

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2. Anirudh Burman ,PRS Legislative Research The Anti-Defection Law Intent and
Impact
This report briefly summarises the application of Anti Defection laws in India as enumerated
in X Schedule of the Indian constitution. Further, it deals with the jurisprudence developed by
the Indian Judiciary, and advantages and disadvantages of the law. Further, Some recent
orders on disqualification by the Speaker for defection i.e., Shri Prabhunath Singh vs. Shri
Ram Swaroop Prasad, JD(U), (October 3, 2008), Shri Avtar Singh Bhadana vs. Shri Kuldeep
Singh, Indian National Congress, (September 10, 2008) have been covered by the report.

3. M P Jain, Indian Constitutional Law, Sixth Edition, (2012). 46 56


The Author has briefly narrated the concept of Anti defection and its application in India. For
this purpose, a detailed study has been made on the provisions of Schedule X. Further, legal
position prior to KIHOTO HOLLOHON and subsequent to it has been explained. After the
decision of Kihoto Hollohon the decision of a speaker became subject to the judicial review.
However, the author has not much elaborated upon the critical analysis of the concept of anti
defection. The anti defection law has caused some losses as well i.e., will of individual party
members has been shadowed by the predominant political party will.
1.2 STATEMENT OF PROBLEM
The anti defection law as enumerated in the Xth schedule has not curbed the ever increasing
dilemma of anti defection law and floor crossing exclusively, as it intoned to be; rather it puts
unwanted restrictions on the members of the concerned house. Further, the trend of unbridled
and unregulated powers to issue whip has proved to be insufficient to maintain the political
stability, and caged our democratic system.
1.3 OBJECTIVE OF THE STUDY
The main objectives of the conducting research on this topic are:1. To examine the provisions relating to defection under the Constitution.
2. To study and analyse the judicial stand point on the tenth schedule.
3. To study the consequence of defection.
4. Impact of inner-party democracy.
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5. Undertake comparative study of U.S. and U.K on the present issue


1.4 HYPOTHESIS
The anti-defection laws in India though made with the most laudable idea is undemocratic in
the light of Paragraph 2(1) (b) of the Tenth Schedule of the Constitution of India. The present
provisions in the Constitution now disqualify legislators who switch allegiances and require
them to vote as per the instructions of the party whip. It no longer matters what an individual
legislator or his/her constituency thinks. It only matters what the party leadership requires
him/her to think while voting.
1.5 RESEARCH METHODOLOGY
In this study the researcher has adopted doctrinal method for collecting information of
data through secondary sources like books, websites, articles, journals, judgments, and
internet sources.

CHAPTER II
THE CONSTITUTIONAL DEVELOPMENTS AND PROVISIONS
ON ANTI-DEFECTION LAW
2.1 Etymology of the term defection

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10

The term defection appears to have been derived, as the dictionary meaning suggests,
from the Latin word defectio, indicating an act of abandonment of a person or a cause to
which such person is bound by reason of allegiance or duty, or to which he has will fully
attached himself. It, similarly, indicates revolt, dissent, and rebellion by a person or a party.
Defection thus connotes the process of abandoning a cause or withdrawing from it or from a
party or programme. It has thus an element, on the one hand, of giving up one and, on the
other, an element of joining another. When the process is complete by reason of a person
defecting from a cause or a party or a programme, he is termed as a defector. Defection thus
is a process by which a person abandons or withdraws his allegiance or duty. Traditionally,
this phenomenon is known as floor crossing which had its origin in the British House of
Commons where a legislator changed his allegiance when he crossed the floor and moved
from the Government to the opposition side, or vice-versa.4

2.2 Tenth Schedule and the 52nd Amendment to the Constitution of India
The Tenth Schedule to the Constitution, popularly known as the Anti-Defection Law, introduced by
the Constitution (Fifty-second Amendment) Act, 1985 as amended by the Constitution (Ninety-First
Amendment) Act, 2003 lays down the conditions regarding disqualification, on ground of defection.
The main provisions of the Tenth Schedule are summarized below:
(i) An elected member of Parliament or a State Legislature, who has been elected as a candidate set up
by a political party and a nominated member of Parliament or a State Legislature who is a member of
political party at the time he takes his seat would be disqualified on the ground of defection if he
voluntarily gives up his membership of such political party or votes or abstains from voting in the
House contrary to any direction of such party.
(ii) An independent member of Parliament or a State Legislature will also be disqualified if he joins
any political party after his election.
(iii) A nominated member of Parliament or a State Legislature who is not a member of a political
party at the time of his nomination and who has not become a member of any political party before
the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any
political party after the expiry of the said period of six months.

Malhotra G.C, Anti-Defection Law in India and the Commonwealth, Lok Sabha Secretariat, Page No. 03, 11th

Edition, 2005, Metropolitan Book Co. Pvt. Ltd.

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11

(iv) Provisions have been made with respect to mergers of political parties. No disqualification would
be incurred when a legislature party decides to merge with another party and such decision is
supported by not less than two-thirds of its members. 5
(v) Special provision has been made to enable a person who has been elected to the office of the
Speaker or the Deputy Speaker of the House of People or of the Legislative Assembly of a State or to
the office of the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman
of Legislative Council of a State, to sever his connections with his political party without incurring
disqualifications.
(vi) The question as to whether a member of a House of Parliament or State Legislature has become
subject to the disqualification will be determined by the presiding officer of the House; where the
question is with reference to the presiding officer himself it will be decided by a member of the House
elected by the House on that behalf.
(vii) The Chairman or the Speaker of a House has been empowered to make rules for giving effect to
the provisions of the Tenth Schedule. The rules shall be laid before the House and shall be subject to
modifications/disapproval by the House.
(viii) Without prejudice to the provisions of Article 105 or as the case may be, Article 194 or any other
power they may have under the Constitution, the Chairmen or the Speaker of a House has been
empowered to direct that any wilful contravention by any person of the rules made under paragraph 8
of the Tenth Schedule may be dealt with in the same manner as a breach of privilege of the House.

The 91st Amendment to the Constitution was enacted in 2003 to strengthen the anti-defection
provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it
mandatory for all those switching political sides whether singly or in groups to resign
their legislative membership. They now have to seek re-election if they defect and cannot
continue in office by engineering a split of one-third of members, or in the guise of a
continuing split of a party. The amendment also bars legislators from holding, postdefection, any office of profit. This amendment has thus made defections virtually impossible
and is an important step forward in cleansing politics.

2.3 The Whips Under Anti Defection Law


In its literal dictionary connotation, the word the whip means a lash with a stick or
handle used for punishing a person for an offence or in driving a horse-driven carriage for
5

Instituted by: 91st Amendment Act, 2003.

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12

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.
In the context of political parties and parliamentary life, the office of the Whip is a
vital link in the relationship between the parties and their members. The whip acts as a twoway channel for information flow between party leaders and members. The Whip is the
officer of the parliamentary party or group responsible for enforcing attendance of the
members, keeping them informed of the party line on various issues and from time to time
issuing necessary directivesor Whipsfor adhering to party discipline in the matter of
voting on specific issues coming up on the floor of the House. On the other hand, the Whip
also collects information about the opinion among members on various issues and provides
valuable feedback to party leaders.
The Chief Whip of the Government party in Lok Sabha/ Rajya Sabha is the Minister
of Parliamentary Affairs and he is directly responsible to the Leader of the House. It is a part
of his duties to advise the Government on parliamentary business. The Chief Whip acts as the
eyes and ears of the Leader of the Party so far as the members are concerned. During
sessions, in his capacity as adviser to the Leader, he has to be in constant touch with the
Prime Minister. The Chief Whip is assisted by two Ministers of State. This responsibility of
keeping everybody at his post and keeping his party united, strong and well-knit falls on him.
The Whips of the ruling party and of parties in opposition come into contact with each
other to sort out matters of common interest and to understand and accommodate each other
on many crucial occasions. Whips of the ruling party as well as those in opposition thus play
a very significant role in the smooth and efficient functioning of parliamentary democracy.
Besides the office of the whip, the term whip has another connotation. During
sessions, whips of different parties send to their members periodic notices and directives
informing them of important debates and divisions, telling them of the probable hour of
voting and demanding their presence at that time. Such notices and/or, directives are also
called whips.
The office of the Whip is not mentioned in the Constitution of India or in the Rules of
Procedure of the House. In fact, till recently the political parties also found no such mention
or recognition. With the passing of the Constitution (Fifty-Amendment) Act, 1985, popularly
known as Anti-Defection Law, the Whip has assumed a very important role in our
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parliamentary system of democracy. The Amendment, inter alia, provides for disqualification
on ground of defection, as under:
It is thus obvious that after coming into force of the Constitution (Fifty-Second
Amendment) Act, 1985 and the Anti-Defection Rules framed there under, political parties
came to have constitutional recognition and legitimacy and the directives issued by party
leadership came to have relevance in law. Disobedience of party directives or Whips
thereafter could result in disqualifying a member and losing his membership. It is, however,
to be noted that in order to incur disqualification a member had to vote or abstain from
voting in such House contrary to any direction issued by the political party. It did not apply
to acts other than voting, i.e. it did not interfere with a members right of freedom of speech
in the House.6
The roles and the corresponding role perceptions are so different in the two contexts
that one may well wonder if it is proper to use the term party for both systems.7
They do not stand up in the House to call right as right or wrong as wrong. Having been
confined to their own interests they have no hesitation in pulling down Government without
rhyme or reason.8

2.4 Analysis of the Powers of Speaker under the Tenth Schedule


A complete harmony between judicial review and parliamentary supremacy is an
outstanding achievement by the architects of the Indian Constitution. The doctrine of an
absolute balance of powers between the different wings of the Government is not feasible.
Practically, someone must be empowered with having the final say in the matter of disputes.
This is the reason that the system of separation of powers in the Constitution of America has
failed in real practice. The judiciary in America has its dominance over other organs of the
Government under the power of interpretation of the Constitution. Due to this domineering
tendency, it is known as safety valve or the balance wheel of the Constitution. Chief
Justice Hughes has aptly remarked, The Constitution of the USA is what the Supreme Court
6

Kashyap C. Subhash, Anti-Defection Law and Parliamentary Privileges, Pg: 100, Ed: 2, Universal Law

Publishing Co. Pvt. Ltd. 2003


7

Ibid

Supra Note 6.

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says it is. It has power to declare a law null and void passed by the legislature even on the
ground that it is not consistent with the general principles of the Constitution. Thus, the
American judiciary can poke its nose into the legislative policy like a third chamber or superchamber of the legislature.9
In England, Parliament is supreme. It is free to do what it pleases. Every wing of the
Government has to heed what parliament says or does. Blackstone has rightly described the
might and majesty of the British Parliament, it can do everything that is not naturally
impossible. That is why the British judges refuse having any power to sit as a court of
appeal against Parliament.10
With a view to avoiding either extreme, the Indian Constitution has adopted a golden
mean between supremacy of American judiciary and the supremacy of British parliament. If
the judiciary rides the high horse and behaves arrogantly, the Parliament can bring an
amendment in the Constitution. Pandit Nehru has rightly described this unique feature of the
Indian Constitution, No Supreme Court, no judiciary, can stand in judgment over the sole
will of Parliament, representing the will of the entire community. It can pull up that sovereign
will if it goes wrong, but, in the ultimate analysis, when the future of the community is
concerned, no judiciary can come in the way. Ultimately, the fact remains that the legislature
must be supreme and must not be interfered with by the Court of Law in such measures as
social reforms.11
Moreover, the Indian judiciary has stood by the people through thick and thin. It has
ever paid due regard to the Sovereign will of the people but during emergency its wings
were clipped and left it in trauma through 42 nd Amendment but afterwards in the regime of
the Janta Government it was restored to the pre-1976 position to a great extent. Now, it has
gained ground by declaring itself that judicial review is a basic feature of the Constitution. It
has helped the court to cover a wide range of judicial activities to do complete justice. As
S.B. Jai Singhani says, under Art 142 of the Constitution, the Apex Court was given an
extraordinary power of the widest amplitude to pass any decree or make any order as was
considered necessary for doing complete justice in any cause or matter pending before itno
matter whether the ordinary law of the land provided for such a measure.12
9

Supra note 5.

10

Ibid

11

DD Basu, Introduction to the Constitution of India; Prentice Hall of India P. (Ltd.) also Delhi, 1994, Pg: 39

12

Article in the India Express: Dec 23, 1996

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If most of the countries in the world have adopted democracy, it is not because it is a
perfect system or the best way to lead a contended life but because it is a better system. The
term democracy has been discussed from Plato to the present day by thinkers who tend to
think of a better and just society. Hence, we have a wide variety of its connotations; yet it is
to be interpreted with the tint of contemporary experience. As democracy aims at establishing
a just society, the judiciary is logically and inevitably associated with it. Both are
complementary to each other. If democracy prepares the ground to realize lofty ideals of life,
the court acts as a sentinel on the qui vive. How judicial review is a watch word when
democracy especially in Indiaa land of religion and philosophy, aims at providing people
all good conditions which make life worth-living.13

CHAPTER III
JUDICIAL DEVELOPMENT ON THE TENTH SCHEDULE
The first challenge to the anti-defection law was made in the Punjab and Haryana high court
in Parkash Singh Badal and others v. Union of India and others 14. One of the grounds on
which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the
Constitution violated Article 105 of the Constitution, wherein the court held: So far as the
right of a member under Article 105 is concerned, it is not an absolute one and has been made
subject to the provisions of the Constitution and the rules and standing orders regulating the
procedure of Parliament. The framers of the Constitution, therefore, never intended to confer
any absolute right of freedom of speech on a member of the Parliament and the same can be
regulated or curtailed by making any constitutional provision, such as the 52nd Amendment.
The provisions of Para 2(b) cannot, therefore, be termed as violative of the provisions of
Article 105 of the Constitution.
The following table gives some understanding of the view of the judiciary regarding various
issues on the Anti-Defection Law.
Main Issue(s) in the case
13

14

Judgement of the Court and the name of

Tyagi B.S., Judicial Activism in India, Pg No: 16, 1st Edition, 2000, Sristi Publishers
AIR 1987 P H 263

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the case
Whether the right to freedom of speech and The provisions do not subvert the democratic
expression is curtailed by the Tenth Schedule. 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. [Kihota Hollohon vs.
Zachilhu and Others]15
Whether

only

resignation

constitutes The

words

voluntarily

giving

up

voluntarily giving up membership of a membership have a wider meaning. An


political party.

inference can also be drawn from the conduct


of the member that he has voluntarily given
up the membership of his party. [Ravi S Naik
v. Union of India]16

Whether a member can be said to voluntarily Once a member is expelled, he is treated as


give up his membership of a party if he joins an unattached member in the house.
another party after being expelled by his old However, he continues to be a member of the
political party.

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.

[G.

Vishwanathan v. Speaker, Tamil Nadu


Legislative Assembly]17
Whether paragraph 7 of the Schedule barring The paragraph seeks to change the operation
the jurisdiction of courts in cases of and effect of Articles 136, 226 and 227 of the
disqualification is constitutional.

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. [Kihota Hollohon vs.

15

AIR 1993 SC 412


AIR 1994 SC 1558
17
(1996) 2 SCC 353
16

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17

Zachilhu and Others]18


Whether paragraph 6 of the Tenth Schedule To the extent that the provisions grant finality
granting finality to the decision of the to the orders of the Speaker, the provision is
Speaker/ Chairman is valid.

valid. However, the High Courts and the


Supreme Court can exercise judicial review
under the Constitution. Judicial review
should not cover any stage prior to the
making of a decision by the Speakers/
Chairmen. [Kihota Hollohon vs. Zachilhu
and Others]19

Whether a Speaker can review his own The Speaker of a House does not have the
decision to disqualify a member under the power to review his own decisions to
Tenth Schedule.

disqualify a candidate. Such power is not


provided for under the Schedule, and is not
implicit

in the provisions either.

[Dr.

Kashinath G Jhalmi v. Speaker, Goa


Legislative Assembly]20
Whether the Speaker of a legislature is bound The Court cited the case of Kihota Hollohon
by the directions of a Court.

where it had been said that the Speaker while


passing an order under the Tenth Schedule
functions as a Tribunal. The order passed by
him would therefore be subject to judicial
review. [Ravi S Naik v. Union of India]21

Whether judicial review by courts extends to Rules


rules framed under the Tenth Schedule.

under

the

Tenth

Schedule

are

procedural in nature. Any violation of those


would

be

procedural

irregularity.

Procedural irregularity is immune from


judicial scrutiny. [Ravi S Naik v. Union of
India]22
When can a court review the Speakers If the Speaker fails to act on a complaint, or
18

Supra Note 5.
Supra Note 5.
20
(1993) 2 SCC 703
21
AIR 1558 1994 SCR (1) 754
22
Id.
19

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18

decision making process under the Tenth accepts claims of splits or mergers without
Schedule.

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. [Rajendra Singh Rana and Ors. vs.
Swami Prasad Maurya and Ors.]23

3.1 The Supreme Court in Kihota Hollohons Case:


The case of Kihota Hollohon v. Zachillhu 24, is the landmark decision in this regard.
The Constitutional Bench headed by Justice VENKATACHALLIAH, M.N. gave an elaborate,
lucid and dynamic judgment. The constitutional questions considered, the principles propounded and
the interpretation of the various provision of the Constitution of India, the extracts of the same from
the judgment are produced below.

HELD:
(i)

Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes
the jurisdiction of all Courts including the Supreme Court and High courts, and brings
about a change in the operation and effect of Articles 136, 226 and 227 of the
Constitution of India, and therefore, the amendment would require ratification in
accordance with the proviso to Articles 368(2) of the Constitution of India.

(ii)

The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not
decisive. Such finality, being for the statute alone, does not exclude extraordinary
jurisdiction of the Supreme Court under Article 136 and of the High Courts under
Articles 226 and 227 of the Constitution.

(iii)

The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para
6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and,
therefore, makes it justiciable on the ground of illegality or perversity in spite of the
immunity it enjoys to a challenge on the ground of "irregularity of procedure.

23

(2007) 4 SCC 270

24

Ibid

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3.2 Developments subsequent to Kihota Hollohons Case:


The rule of precedence is well incorporated in the Indian legal system, according to Art 144
of the Indian Constitution, the judgment of the Supreme Court are binding on the lower
Courts. The researcher tries to analyze this application of Art 144 of the Indian Constitution
in the case of judgment delivered in the Kihota Hollhons case. In this exercise, the researcher
examines the various judicial interpretations, in the wake of Kihota Hollohons decision.
In Manilal Singh v. Dr H. Borobabu Singh25, the respondent, Speaker of a House was
charged with contempt proceedings. It was observed that in spite of the clear decision of this
Court that an order made under

the

Tenth Schedule by the Speaker relating to the

disqualification of a Member of the Legislative Assembly is subject to judicial review and


the Speaker while making an order under the Tenth Schedule acts merely as a statutory
authority amenable to the court's jurisdiction in that capacity, the contemnor continued to
resist the implementation of such orders made by this Court.
Further the Supreme Court held that it is the constitutional duty which requires us to make
this order, to uphold the majesty of law and justify the confidence of the people, that no one
in this country above the law and governance is not of men but of the 'rule of law'. The
Supreme Court while reiterating the principle as laid down in Kihota Hollohons case
observed:
the Speaker while deciding the question of disqualification of a Member of
the Legislative Assembly under the Tenth Schedule to the Constitution acts as a
statutory authority, in which capacity the Speaker's decision is subject to judicial
review by the High Court and this Court.
Again, in the year 1998, the Supreme Court while deciding the matter between
Mayawati v. Markandeya chand,26 it was observed by this Court that Paragraph 6 of the X
Schedule renders the decision of the Speaker final. The Constitution Bench considered its
validity in Kihoto Hollohan case. In the majority judgment: it was held that the finality clause
in Paragraph 6 does not completely exclude the jurisdiction of the court under Articles
136,226 and 227 of the Constitution. However, the Bench held that the scope of judicial
scrutiny is limited to ascertain whether the decision of the Speaker is vitiated by jurisdictional
25

AIR 1994 SC 505

26

AIR 1998 SC 3340

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errors viz. "infirmities based on violation of constitutional mandate malafides, noncompliance with rules of natural justice and perversity."
The suggestion that if the conclusion reached by the Speaker is a possible conclusion
it stands insulated from any outside interference including by judicial exercise may lead to
the situation that, no matter, however illegal the order may be, it cannot be touched if its
author is the Speaker. Such immunity cannot be conceded to any constitutional functionary to
be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity.
The test cannot be whether it is possible for the Speaker to record such a conclusion, because
the very fact that the Speaker passed an order itself is the instance to show that it is possible.
The test is whether the conclusion or the finding made by the Speaker is so unreasonable or
so unconscionable that no tribunal could have arrived at it on the given materials. Parameters
for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable
to one man may be unreasonable to another and vice versa. However, the test of perversity
has now bogged down to this : No conclusion can be dubbed as perverse unless the
unreasonable is of such a dimension that no authority vested with the jurisdiction would have
come to such a conclusion.
The power the judicial review viz a viz the order of the Speaker under Paragraph 6(1)
of the Xth Schedule is confined to jurisdictional errors only based on violation of
constitutional mandate, mala fides, non compliance of rules of natural justice and perversity.
It is not necessary to consider the question whether this Court should decide the entire
matter here in the event of setting aside the order of the Speaker or remand the matter for
fresh disposal by the Speaker in accordance with the judgment of this Court. However, for the
sake of completion, it is necessary to express opinion on that question too. It is not the
function of this Court to substitute itself in place of the Speaker and decide the questions
which have arisen in the case. When the Xth Schedule has expressly constituted the Speaker
or the Chairman as the case may be to decide the question of disqualification and attach
finality thereto. It is not for this Court to consider the facts and decide the said question by
substituting itself in the place of the Speaker. If the order of the Speaker is set aside on any of
the grounds mentioned in `Hollohan' case by exercising the power of limited judicial review,
the consequential course to be adopted is to leave the matter to the Speaker to decide afresh
in accordance with law.

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In Jagjit Singh v. State of Haryana 27, the Supreme Court relying on the decision and
principles laid down in Kihota Hollohons case as observed as follows:
The Speaker, while exercising power to disqualify members acts as a Tribunal
and though validity of the orders, thus, passed can be questioned in the writ
jurisdiction of this Court or High Courts, the scope of judicial review is limited. The
orders can be challenged on the ground of ultra vires or malafides or having been
made in colourable exercise of power based on extraneous and irrelevant
considerations. The order would be a nullity if rules of natural justice are violated.
The question whether reasonable opportunity has been provided or not cannot be put
in a strait-jacket and would depend on the fact situation of each case. While considering the
plea of violation of principles of natural justice, it is necessary to bear in mind that the
proceedings, under the Tenth Schedule, are not comparable to either a trial in a court of law
or departmental proceedings for disciplinary action against an employee.
In Utkal Keshari Parida vs. Speaker, Orissa Legislative Assembly28 wherein four MLAs of
Nationalist Congress Party (NCP) of Odissa assembly joined the ruling Biju Janata Dal. But,
the Speaker rejected a petition by state NCP president Utkal Keshari Parida, who had sought
disqualification of the four defected MLAs, on the ground that the petitioner was not a
member of the assembly. Justice Kabir, who authored the judgment for the bench, said,
"If the provisions of the Tenth Schedule (anti-defection law) are interpreted to
exclude the right of any person interested to bring to the notice of the Speaker of
the House the fact that any or some of its members have incurred disqualification
from the membership of the House on any of the eventualities, it would render the
inclusion of Tenth Schedule to the Constitution otiose and defeat the objects and
intents of the 52nd amendment to the Constitution."

3.3 THE EMERGING PRACTICES

27

28

AIR 2007 SC 590


WP(CIVIL)14868-71/2012

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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

The recent example of anti defection is the Uttarakhand emergency crisis. The brief
extract of the case herein under for the reference:
In the case of Harish Chandra Singh Rawat V Union of India citation and
another,

amid growing dissent against the leadership of Harish Rawat and a section of

the Congress MLAs questioning his style of functioning, nine Congress MLAs,
including a minister, join hands with the opposition BJP which meets the Governor to
stake claim to form the government.
Further, The Speaker had served notices on the nine Congress rebels to show-cause why
they should not be disqualified, as per the provisions of the Anti Defection Law
contained in the 10th Schedule of the Constitution. The Honbe High Court on this point
stated that the floor test a semblance of neutrality, and without prejudice to the rival
contentions, all the MLAs shall be entitled to take part in the floor test, with, without or
despite their disqualification, which will be subject to adjudication by the Court of
competent jurisdiction, on an appropriate occasion.29

In the case of Nabam Rebia, and Bamang Felix versus Deputy Speaker and others. On
December 9, when a group of rebel Congress MLAs approached Governor JP Rajkhowa
29

Harish Chandra Singh Rawat V Union of India and another, AIR 2016 HC 795

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seeking to impeach Speaker Nabam Rebia. Their complaint was that he was trying to get
them disqualified from the Assembly. The Governor agreed and called for an emergency
session on December 16 to take up the impeachment motion.
It was held by the Gauhati High Court:
All the aforesaid 14 MLAs shall attend all the sessions of the sixth Arunachal Pradesh
Legislative Assembly without let or hindrance. Any authority, civil or police, obstructing their
attendance of the ensuing session shall be committing grave breach of privilege of the
legislative assembly as also shall come directly under the disciplinary jurisdiction of all law
enforcing authorities including the Governor.30

CHAPTER 4
A COMPARATIVE STUDTY
ANTI DEFECTION IN USA
The American legislative structure in respect of discipline in party follows a more liberal
approach. Here, a member of the house can vote in any way without the fear of
disqualification from the house. Proponents of the anti-defection model should note that not
only has the US experienced defections, but also, operated without an anti-defection
30

AIR 2016 SC 6203

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legislation. And despite the absence of a law to enforce discipline in the party, it is
emphasized upon. Party discipline in a strict sense, means party cohesion or the ability of the
party members in the legislature to come to a consensus on policy matters. A degree of
control is to be exercised by the party leaders to ensure that the legislators who belong to that
particular party vote as a bloc on a legislation, important to the achievement of party
objectives. And this control is not even an aspect of the constitution. In fact, it is an internal
USA party structure and it says that sanctions to be imposed on the members who do not vote
as the manner of party lines. The issue of constitutionality of the legal sanctions imposed on
members who vote against the party lines has come up in several landmark cases. These
sanctions also include the removal of a legislator from a position on a legislative committee,
loss of prospective appointment to the same, or expulsion of the legislator from the party
caucus. In the US also, the arguments against this sanction stems from the 1st Amendment to
the USA Constitution, that prohibits the encroachment of the freedom of speech. 31 This
argument of the practice of parties imposing sanctions in case of voting, involves a two-tier
discussion- The first is that it is on the grounds of freedom of speech of the legislator and
second, on the differing freedom of alliance of a political parties.32
The case of Bond v. Floyd was among the 1st to elucidate on the rights of a member in the
house. In this case, Julian Bond was disqualified from the house by stating that he could no
longer perform his oath as a legislator. The Supreme Court overturned this decision of the
House on the grounds of it infringing the rights guaranteed by First Amendment. It opined
that legislators had an obligation to take a stand on controversial issues. This right was held
to be necessary in order for the legislator to freely participate in discussing policies of
governance. The Court went on to hold that legislative speech on controversial issues was an
obligation and extended the First Amendment freedoms to legislators who would otherwise
have been subjected to disciplinary actions taken by the political parties. 33 Since the courts do
not distinguish between the 1st Amendment rights and therefore a legislator also enjoys the
First Amendment rights that cover free speech as well as the right to not speak in favour of
something. Crucially, free speech, as protected by First Amendment, has been extended by
courts to include the right of the legislators to vote freely.34 Thus the legal position in U.S. is
more liberal than India.
UNITED KINGDOM: DISSENT MAKES NO DIFFERENCE
31

1st Amendment, Constitution of the United States of America


Supra Note 1
33
Bond v. Floyd, 385 U.S. 116 (1966)
34
Supra Note 1.
32

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The Britain Parliament is an establishment from which great learning can be garnered. For
this propose, various Articles i.e., Art. 9, Art 105 of the Indian Constitution of the English Bill
of Rights, 1869 provides for freedom of speech in the British Parliament. 35 Similar to
America, however, British law does not provide a separate anti defection law. Also, all
matters of defection are governed by internal party rules. According to the Nolan Committee
Recommendations given in the House of Commons dissent is more or less, often restricted to
long-serving backbenchers, members looking to retire at the end of the session and those who
have conflicts with the interests of the constituencies.36
ANTI DEFECTION IN PAKISTAN
Pakistan also has separate law for the anti defection, and it has witnessed several instances of
political defections. The Constitution of Pakistan lays down the provisions for the defection.
As per their law, if any member resigns membership of his political party or joins other
political parliamentary party, shall be considered as disqualified.37
Hence, India should not adopt a rigid approach reaction against the dissent in parliament. For
this purpose, a principal should be followed so that proper balance can be maintained
between the meeting the concerns of the party and the public.

CHAPTER V
CONCLUSION
The 52nd Amendment to the Indian Constitution with regard to 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. Defections and splits in parties have always been a feature of
Indian Politics.
In the 25 years of this law, complaints have been made against 62 Lok Sabha MPs. Of
these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after
the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made
against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In state
legislatures, up to 2004, out of 268 complaints, 113 were upheld.
35

English Bill of Rights, 1869, Art. 9


Supra Note 1.
37
Article 63A of Constitution of Pakistan
36

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It is possible, however, to suggest from what is enacted in the Tenth Schedule that the
party structure is now being pre-empted and treated as basic and fundamental, for upon
breach of the party mandate in the matters of vote or abstaining from voting or resignation,
the representative loses his seat itself. Party supremacy, thus, is accepted as a principle
throughout, in the Tenth Schedule, which has wide ranging ramifications which do not appear
to have been kept in view while enacting amendment to the Constitution. With all these
laudable objects, which are not very much explicitly in the text of the Schedule, inherently
the scheme is in conflict with the initial scheme of our Constitution pattern that relies upon
individual representative and confers unimpeded freedom upon him.
Curtailment of liberty and shift in the point of reference is likely to raise not only
intricate debates but direct and indirect questions of our basic philosophy. Similarly,
institutions may undergo long range changes and even the democratic set-up may suffer
erosion by emergence of autocratic apparatus of party machine. This is more so for penalty
follows by reason of incurring disqualification on the ground of what is called defection
that cuts at the root of free dissent and independent judgment of an elected representative.
That also puts Parliament under the shadow of party and its members echoing party views
like puppets.
However the anti-defection law has played a pivotal role in curtailing the defections
in the democratic polity consisting of a huge number of political parties. The law being
passed in as back as in the year 1985 has shown a new dimension and has created a new path
in securing the dream of having a stable government keeping in mind the aspirations of the
crores of people who have been striving hard to make our democratic polity work by
exercising their right to vote and to reassure the faith in the single largest democracy of the
world.
It is well agreed that this portion of the Constitution of India is enacted in order to
protect the privileges of the House, however as every other law is not static and require
changes, the Tenth Schedule in the wake of securing the privileges of House and to ensure
smooth conduct of Parliamentary affairs has slightly touched upon the corners of democracy
and if it is properly amended to suit the changing circumstances it may assist in living the
dreams of our Constitution drafters and the deciders of the faith of this great nation.

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4.1 SUGGESTIONS:
1) Instead of the words any order it may be replaced with subject based whips, so
that the objective of the Tenth i.e., to maintain healthy Parliamentary debate and
concern of the Governing party can be better highlighted without prejudicing the
freedom of speech and expression of the Members. In doing so the provision is
rendered constitutional validity.
2) Even though the Speakers decision is brought under the watch glass of Judiciary after
pronouncement of the Kihota Hollohons case, it is suggested that a time limit must be
prescribed for the Speaker to give his decision. If no time period is prescribed for the
Speaker to give his decision, then the decision in the Kihota Hollohons case is
rendered futile. This is so because the Speaker will be under no obligation to give his
decision and the scope of judicial review is again narrowed down.
3) After having an insight into the position of law with respect to anti-defection law in
other Common Wealth countries, it is suggested that the Tenth Schedule should be
amended in such a way to make it less complicated and keeping at bay all the
ambiguities that exists in the current law on defection.

BIBLIOGRAPHY

ARTICLES
1. Saurabh Sotwal & Tanmay Agraw, ANTI DEFECTION LAWS IN INDIA, IRJA
VOLUME 1 ISSUE 3, (2014)
2. Anirudh Burman ,PRS Legislative Research The Anti-Defection Law Intent and
Impact
3. Kartik Khanna & Dhvani Shah, ANTI-DEFECTION LAW: A DEATH KNELL FOR
PARLIAMENTARY DISSENT, NUJS L.Rev 2012

BOOKS REFERRED:
1. Kashyap C. Subhash, Anti-defection Law and Parliamentary Privileges., 3 rd Edition,
2011, Universal Law publishing Co., New Delhi
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2. Jain M.P., Indian Constitutional Law, 6th Edition, 2011, Wadhwa Publications, Nagpur

INTERNET SOURCE:
1. http://www.legalindia.com/anti-defection-law/
2. http://164.100.47.132/LssNew/abstract/disqualification_on_ground_of_de.htm
3. http://www.jstor.com

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