ELECTION LAW

1. ANTI DEFECTION LAW

The 10th Schedule of the Indian Constitution (which talks about the anti-defection law) is
designed to prevent political defections prompted by the lure of office or material benefits or
other like considerations. The Anti-defection law was passed by Parliament in 1985 and
reinforced in 2002.

 The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-
Defection Law’ was inserted by the 52nd Amendment (1985) to the Constitution.

 ‘Defection’ has been defined as, “To abandon a position or association, often to join
an opposing group”. 

 The anti-defection law was enacted to ensure that a party member does not violate the
mandate of the party and in case he does so, he will lose his membership of the
House.  The law applies to both Parliament and state assemblies.

 The aim of the Anti-Defection Law is to prevent MPs from switching political parties
for any personal motive.

10th Schedule – Provisions under Anti-Defection Law

The Tenth Schedule includes the following provisions with regard to the disqualification of
MPs and MLAs on the grounds of defection:

Grounds for disqualification:

 If an elected member gives up his membership of a political party voluntarily. 

 If he votes or abstains from voting in the House, contrary to any direction issued by
his political party. 

 If any member who is independently elected joins any party. 

 If any nominated member joins any political party after the end of 6 months.
  The decision on disqualification questions on the ground of defection is referred to
the Speaker or the Chairman of the House, and his/her decision is final. 

 All proceedings in relation to disqualification under this Schedule are considered to be

proceedings in Parliament or the Legislature of a state as is the case.

Exceptions under the Anti Defection Law

 In the situation where two-thirds of the legislators of a political party decide to merge
into another party, neither the members who decide to merge, nor the ones who stay
with the original party will face disqualification. 

 Any person elected as chairman or speaker can resign from his party, and rejoin the
party if he demits that post. 

 Earlier, the law allowed parties to be split, but at present, this has been outlawed.

Deciding Authority

 Any question regarding disqualification arising out of defection is to be decided by

the presiding officer of the House.

Is the decision of the Presiding Officer subject to judicial review?

 Originally, the Act provided that the presiding officer’s decision was final and could
not be questioned in any court of law. But, in Kihoto Hollohan case (1993), the
Supreme Court declared this provision as unconstitutional on the ground that it seeks
to take away the jurisdiction of the SC and the high courts. 

 The court held that while deciding a question under the 10th Schedule, the presiding
officer should function as a tribunal. Hence, his/her decision (like that of any other
tribunal) was subject to judicial review on the grounds of malafides, perversity, etc.
But, the court rejected the argument that the vesting of adjudicatory powers in the
presiding officer is by itself invalid on the ground of political bias. 

 However, it held that there may not be any judicial intervention until the Presiding
Officer gives his order. A good example to quote in this respect is from 2015, when
the Hyderabad High Court declined to intervene after hearing a petition which alleged
 that there had been a delay by the Telangana Assembly Speaker in taking action
against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer should decide?

 There is no time limit as per the law within which the Presiding Officers should
decide on a plea for disqualification. The courts also can intervene only after the
Officer has made a decision, and so the only option for the petitioner is to wait until
the decision is made.

 There have been several cases where the Courts have expressed concern about the
unnecessary delay in deciding such petitions.

 In a few cases, there have been situations where members who had defected from
their political parties continued to be House members, because of the delay in
decision-making by the Speaker or Chairman.

 There have also been instances where opposition members have been appointed
ministers in the government while still being members of their original political
parties in the state legislature. 

How have the Courts interpreted the law while deciding on related matters?

 The SC has interpreted different provisions of the law. 

 The phrase ‘Voluntarily gives up his membership’ has a wider suggestion than
resignation. 

 The law says that a member can be disqualified if he ‘voluntarily gives up his
membership’. However, the SC has interpreted that without a formal resignation by
the member, the giving up of membership can be inferred by his conduct. 

 In other judgments, members who have publicly expressed opposition to their party or
support for another party were considered as having resigned. Recently, the Chairman
of the Upper House of Parliament disqualified two Janata Dal leaders from the house
based on the allegation that indulging in anti-party politics, they had “voluntarily”
given up their membership of the party (which is not synonymous to resignation as
per the SC orders).
Does the anti-defection law affect legislators’ ability to make decisions?

 The anti-defection law aims to maintain a stable government by ensuring that the
legislators do not switch sides. However, this law also limits a legislator from voting
according to his conscience, judgement and electorate’s interests.

 This kind of a situation hinders the oversight functions of the legislature over the
government, by making sure that members vote based on the decisions taken by the
party leadership, and not based on what their constituents would like them to vote for.

 Political parties issue directions to MPs on how to vote on most issues, irrespective of
the nature of the issue. 

 Anti-defection does not provide sufficient incentive to an MP or MLA to examine an

issue in depth and ponder over it to participate in the debate. 

 The Law breaks the link between the elected legislator and his elector. 

 Importantly,  several experts have suggested that the law should be valid only for
those votes that determine the stability of the government (passage of the annual
budget or no-confidence motions).

Several recommendations have come up regarding Anti-Defection:

 Dinesh Goswami Committee: Recommendations include that disqualification should

be only for cases such as:

o Member giving up his membership of his political party voluntarily. 

o Member voting or abstaining from voting opposed to party directions. 

 Law Commission 170th Report: 

o Delete the exemption in case of splits and mergers. 

o Consider the pre-poll electoral fronts as one party under the 10th Schedule. 

o Parties should issue whips only on critical situations or votes.

 Election Commission: 
 o Make the President/Governor the decision-maker with respect to
disqualification subject to binding advice from the Election Commission on
the lines of disqualifications based on the Representation of Peoples Act’s
provisions regarding the Office of Profit.

To conclude, regulation of the 10th Schedule along with the correct working directives that
adhere to transparency and accountability in a democracy is the need of the hour. However,
this provision should also aid stability in the government which would in turn, decrease
corruption and steer the focus of the parliamentarians/legislators towards governance.

91st Constitution Amendment Act-2003

 It aimed at limiting the size of the Council of Ministers to debar defectors from
holding public offices, and to strengthen the anti-defection law.

 Earlier, a defection by one-third of the elected members of a political party was

considered a ‘merger’. The amendment changed it to at least two-thirds.

Kihota Hollohon vs. Zachilhu (1992)

 In the judgment, the Supreme Court clarified that the 10 th schedule is constitutionally
valid. It neither impinges upon the freedom of speech and expression nor subverts the
democratic rights of elected members.

 It also upheld the sweeping discretion available to the Speaker in deciding cases of
disqualification of MLAs.

o However, it also held that Presiding Officer’s decisions of disqualification

shall be open to judicial review
 2. Composition and Powers of Election Commission

The Election Commission of India, abbreviated as ECI is a constitutional

body responsible for administering elections in India according to the rules and regulations
mentioned in the Constitution of India.

It was established on January 25, 1950. The major aim of election commission of India is to
define and control the process for elections conducted at various levels, Parliament, State
Legislatures, and the offices of the President and Vice President of India. It can be said that
the Election Commission of India ensures smooth and successful operation of the democracy.

According to Article 324 of Indian Constitution, the Election Commission of India has
superintendence, direction, and control of the entire process for conduct of elections to
Parliament and Legislature (state legislative assembly & state legislative council) of every
State and to the offices of President and Vice-President of India.

Initially, the commission had only a Chief Election Commissioner. Presently, it consists of a

Chief Election Commissioner and two Election Commissioners. For the first time, two
additional Commissioners were appointed on 16th October 1989 but they had a very short
term till 1st January 1990. Afterwards, on 1st October 1993 two additional Election
Commissioners were appointed. The concept of multi-member Commission has been in
operation since then, with decision-making power by majority vote.

Appointment & Tenure of Commissioners

1. The President has the power to select Chief Election Commissioner and Election
Commissioners.

2. They have tenure of six years, or up to the age of 65 years, whichever is earlier.

3. They have the same status and receive pay and perks as available to Judges of the
Supreme Court of India.
 4. The Chief Election Commissioner can be removed from office only through
accusation by Parliament.

5. Election commissioner or a regional commissioner shall not be removed from office

except on the recommendation of the Chief Election Commissioner.

Advisory Jurisdiction & Quasi-Judicial Functions

1. Under the Constitution, the Commission also has advisory jurisdiction in the matter of
post-election ineligibility of sitting members of Parliament and State Legislatures.

2. Additionally, the cases of persons found guilty of dishonest practices at elections

which come before the Supreme Court and High Courts are also referred to the
Commission for its opinion on the question as to whether such person shall be
disqualified and, if so, for what period. The judgment of the Commission in all such
matters is binding on the President or, as the case may be, the Governor to whom such
opinion is tendered.

3. The Commission has the power to prohibit a candidate who has failed to lodge an
account of his election expenses within the time and in the manner set by law.

4. The Commission has also the power to remove or reduce the period of such
disqualification as also other disqualification under the law.

Administrative Powers

1. To decide the territorial areas of the electoral constituencies throughout the country on
the basis of the Delimitation Commission Act of Parliament.

2. To organize and periodically amend electoral rolls and to register all qualified voters.

3. To inform the dates & schedules of election and to scrutinize the nomination papers.

4. To grant recognition to political parties & allot election symbols to them.

5. To act as a court for settling disputes related to granting of recognition to political

parties and allotment of election symbol to them.

6. ECI appoints the following-

 a. Chief Electoral Officer– ECI in consultation with State Government/Union
Territory Administration nominates or designates an Officer of the said
State/UT as the Chief Electoral Officer to supervise the election work in the
State/UT

b. District Election Officer– ECI in consultation with the State Government/

Union Territory Administration designates an officer of the said State/UT as
the District Election Officer to supervise the election work of a district

c. Returning Officer– ECI in consultation with State Government/Union

Territory Administration nominates or designates an officer of the
Government or a local authority as the Returning Officer for each assembly
and parliamentary constituency. Returning Officer is responsible for the
conduct of elections in the parliamentary or assembly constituency and may be
assisted by one or more Assistant Returning Officers (again appointed by ECI)
in the performance of his functions

d. Electoral Registration Officer– ECI appoints the officer of State or local

government as Electoral Registration Officer for the preparation of Electoral
rolls for a parliamentary/ assembly constituency

Role of Election Commission of India

Election commission plays a vital role in organizing elections. The most critical challenge
before the Election Commission of India is to implement norms and the Model Code of
Conduct to ensure free and fair elections in the country. Its existence and independence are
necessitated by history, which has revealed that self-governing elections are not free from
disruption. Towards this end, it has been empowered to supervise political parties and
candidates and take appropriate action in case of violations.

Functions and Powers

Key functions of the Election Commission of India are as under:

a. The Election Commission of India is considered the guardian of free and

reasonable elections.
 b. It issues the Model Code of Conduct in every election for political parties and
candidates so that the decorum of democracy is maintained.

c. It regulates political parties and registers them for being eligible to contest
elections.

d. It publishes the allowed limits of campaign expenditure per candidate to all the
political parties, and also monitors the same.

e. The political parties must submit their annual reports to the ECI for getting tax
benefit on contributions.

f. It guarantees that all the political parties regularly submit their audited
financial reports.

Other powers handled by the Election Commission of India are as follows:

a. The Commission can repress the results of opinion polls if it deems such an

action fit for the cause of democracy.

b. The Commission can recommend for disqualification of members after the

elections if it thinks they have violated certain guidelines.

c. In case, a candidate is found guilty of dishonest practices during the elections,

the Supreme Court and High Courts consult the Commission.

d. The Commission can postpone candidates who fail to submit their election

expense accounts timely.

The main duties of the Election Commission are:

1. To supervise, direct, control and conduct all elections to Parliament and State
Legislatures as also to the office of the President and Vice- President of India.

2. To set down general rules for election.

3. To determine constituencies and to prepare electoral rolls.

4. To give credit to political parties.

5. To allot election symbols to different political parties and individual contestants.

 6. To appoint tribunals for the decision of doubts and disputes arising out of or in
connection with election to parliament and State Legislatures.

Constitutional Provisions

1. Art. 324: broadly speaks of the functions of EC and its composition.

2. Art. 325: there shall be one general electoral roll for every territorial constituency for
election to either Houses of Parliament and State legislature. It establishes equality
among citizens by affirming that no person shall be ineligible for inclusion in the
electoral roll on the grounds of religion, race, caste or sex.

3. Art. 326: lays down adult suffrage as the basis of elections to the Lok Sabha and to
the Legislative Assemblies of States.

4. Art. 327: confers on Parliament the power to make provisions with respect to

elections to federal and State Legislatures

5. Art. 328: confers on State Legislature the power to make laws with respect to
elections to such legislature

6. Art. 329: bars interference by courts in electoral matters. Notwithstanding anything

said in the constitution i.e. validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies shall not be called in
question in any court

No election to either House of Parliament or either House of the Legislature of a State shall
be called in question except by an election petition. Any elector or candidate can file an
election petition on grounds of malpractice during the election. In respect of elections to the
Parliament and State Legislatures, they can only be filed before the High Court and in respect
of elections for the offices of President and Vice President, such petitions can only be filed
before the Supreme Court.

case laws-

1. In S.S. Dhanoa vs Union of India (1991), the SC held: “The chief election
commissioner does not appear to be primus inter pares, i.e. first among equals, but he
is intended to be placed in a distinctly higher position”
2. In T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are equal.
CEC is given the power of recommending the removal of ECs with the intention of
shielding them and not to use it against them. CEC cannot use its suo moto as he is an
equal to them.