INTRODUCTION:

52nd Amendment Act of 1985 provided for the disqualification of the MP and the
State legislatures on the ground of defection from one political party to another For
this purpose, it made changes in 4 Articles of the Constitution and added a new
Schedule(10th Schedule) to the Constitution
This act is often referred to as the 'anti-defection law .Later, the 91st Amendment Act
of 2003 made one change in the provisions of the 10th Schedule. It omitted an
exception provision i.e., disqualification on ground of defection not to apply in case of
split.Let us see the anti defection law in detailed.

Defection is defined as:

Departure of the loyalty of one individual from his party' or fundamentally it signifies
when a chosen delegate joins another party without leaving his current party for
benefits. The practice of switching the political sides to get a higher position or office
is known as Horse-Trading.
In the early, the 1950s-60s, there was no mention about the political parties and their
existence in the Indian Constitution. Later, after the 1967 election also known as
Watershed Moment in India's democracy, the Anti-Defection Law concept was
introduced1.

What is law of anti-defection?

Anti Defection Laws basically provide for the grounds under which a Member Legislative
Assembly or a Member Parliament can lose his privileges as an Elected Representative of a
party and hence can be disqualified from the party. These Grounds have been provided under
the Tenth Schedule of the Constitution. The Indian Judiciary has time and again intervened
through various judicial pronouncements and has tried to lay down several guidelines through
precedents in order to promote better politics and healthy competition among the parties.

The law of Anti Defection states that if a Member Parliament or Member Legislative
Assembly:

1
 1. Voluntarily gives up the membership of the party.
2. Votes or abstains for voting or defies any party whip.
3. Joins any other party.

The member will be disqualified from the party and he will not hold the position of a
nominated or an elected individual under the party. Thus, he will lose his position as an MP
or an MLA.

History and need for anti-defection laws :

There is a well-known phrase of “Aaya Ram Gaya Ram” which relates back to 1967, when
Gaya Lal, who was a congress leader fortnight went from congress to Janata Party and then
back to congress and then again to Janata Party.

In the journal titled “Aya Ram Gaya Ram- The politics of defection” by the Indian Law
Institute in 1979, it was stated that between the period of 1967 to 1969 more than 1500 party
defections and 313 independent candidate defections had taken place in the 12 states of the
country. It is estimated that till 1971, more than 50% of the legislature had switched from one
party to another.

A common term which is used when we read about defection is “Horse Trading” of the
legislators which in simple terms means shifting of legislators from one party to another by
monetary means. There can be several reasons for shifting of parties.

All of these circumstances were impelling the government to create a statutory provision in
the constitution which would create punitive sanctions for those who were found guilty of
such conduct.
Bar on jurisdiction of courts under the defection laws :

Para 7 of the Tenth Schedule puts a bar on the jurisdiction of the court in respect on
disqualification of a member of the house.

This was against the basic structure doctrine which was developed by the Supreme Court
in“Kesavananda Bharati case”. in which the basic features of the constitutional were
established. The parliament cannot make any alterations in the basic structure doctrine and
thus they have to be kept unimpaired. Out of these features, the feature of Judicial Review
was being altered under the 10th schedule and much needed clarity was needed upon it. A
liberal construction had to be adopted by the courts in a way so that, it would give review
jurisdiction to the Supreme Court and High Courts in cases of disputes pertaining to review
of decision of speaker. The power of review was imperative to lift the embargo imposed by
the Tenth schedule which removed the review jurisdiction of the Courts. The power of review
is expedient and without it the preciseness of the disqualification made by the decision of the
speaker would have never been called into question on the account of inability to do so by the
courts.

The questions relating to bar on the jurisdiction of the courts was called into question in
under “Kihoto Hollohon v Zachillu” (“Kihoto Hollohon”) case of 1992. It was opined by the
Supreme Court that Para 7th of the Tenth schedule made a total exclusion of remedies
available under Article 136, 226, and 227 of the Constitution and thus this was rectified by
attracting sub clause 2 of Article 368. It was held that, the decision of the Chairman and the
Speaker regarding disqualification of the members was to be considered as valid but subject
to judicial reviews of the court. Thus, this case implicitly provided that decisions of the
Speaker of the house were legal and binding but were questionable before the courts.

WHETHER THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSIONS OF

THE PARLIAMENTARIANS AND LEGISLATORS IS VIOLATED BY THE TENTH
SCHEDULE
The Constitution has avowedly guaranteed the right to freedom of speech and expression
under Article 19 of the Constitution of India, however it is subject to the reasonable
restrictions mentioned therein.

This right is guaranteed to every citizen including the legislators and the parliamentarians,
thus, this was made a ground to question the legitimacy of the Para 2 of the schedule
(Grounds for disqualification). It was held by the Supreme Court in Kihoto Hollohon case,
that the Tenth Schedule does not subvert the rights of elected members of parliament and the
legislature and thus, it did not violate Article 105 and 195 of the constitution while holding
this it was expressed by the Supreme Court that the provisions of the Tenth schedule are
salutary and were intended to strengthen the fabric of Indian parliament democracy while
curbing unprincipled and unethical political defections.

Disqualification on the ground of voluntary giving up of membership :

Para 2(1)(a) of the Anti-Defection law explains about the voluntary giving up of the
membership by the members.

This was cleared in the Ravi S Naik v Union of India (1994). In this case the Supreme Court
gave a wider prospect to “resignation by voluntarily giving the membership”. The court
observed that a person may voluntarily give up his membership of a political party even if he
has not tendered resignation from the membership of that party. Even in the absence of a
formal resignation from membership an inference can be drawn from the conduct of a
member that he has voluntarily given up his membership of the political party to which he
belongs”.

The act of giving up membership can be expressed or implied this was observed in G.
Viswanathan & Ors. v. Hon’ble Speaker Tamil Nadu Legislative Assembly & Ors in 1996.
It was opined that the act of voluntarily giving up the membership of the political party may
be either express or implied. When a person who has been thrown out or expelled from the
party which set him up as a candidate and got elected, joins another (new) party, it will
certainly amount to his voluntarily giving up the membership of the political party which had
set him up as a candidate for election as such a member.”

Powers of court to review the decision of speaker

The Speaker is not absolutely immune from judicial review, the immunity is provided to the
speaker by Para 6 of the Tenth schedule. This was affirmed in Rajendra Singh Rana and Ors.
vs. Swami Prasad Maurya and Ors. (2007).

In this case, the speaker had not made a finding into the split and had accepted the split
through a claim made by the members. The court further contended that ignoring a petition
for disqualification is not merely an irregularity but a violation of constitutional duties.

Defiance of party whip:

A whip is the instruction issued by political parties to vote according to the party line in a
legislature.

In Shri Rajeev Ranjan Singh (Lalan) v Dr PP Koya JD(U)(2009)- In this case Dr Koya defied
a party whip which required him to vote against the motion of confidence. He abstained from
voting by remaining absent and the evidence of his illness was not considered sufficient for
his absence at the house. Thus, there has to be a sufficient reason to satisfy the speaker about
his absence from the house by a member when he is bound by the whip.
Burden of proof

When specific questions against a member for his willingness to leave the party, the burden
of proof that there was no willingness to leave the party will always be against the legislator
against whom charges are made. This point was observed in the Ravi S Naik judgement by
the Supreme Court.

Limitation on scope of inquiry of the speaker

Shrimanth Balasahib Patil v Hon’ble Speaker of Karnataka legislative assembly (Karnataka

legislative assembly case)

In this case, 15 MLAs had resigned from the congress and Janata Dal Secular resigned from
their respective seats. The government collapsed after this and the speaker disqualified the
MLAs for a period till the expiry of the assembly which was in 2023.

Observations made by the hon’ble Supreme Court

The decision of disqualification by the speaker was upheld by the Supreme Court. However,
it was not fully upheld by the Court and the parts of the judgment which required the time
period for disqualification were set aside. The following observations were made by the
court:

“The Speaker’s scope of inquiry with respect to acceptance or rejection of a resignation

tendered by a member of the legislature is limited to examine whether such a resignation was
tendered voluntarily or genuinely. It is constitutionally impermissible for the Speaker to
consider any extraneous factors while considering the resignation. The satisfaction of the
Speaker is subject to judicial review”.
It was further held that the speaker does not have the power to describe the period for which
the member is disqualified. The resignation does not take away the right of the speaker to
disqualify.
Horse trading and corrupt practices associated with defection and change of loyalty for lure
of office or wrong reasons have not abated. Thereby, the citizens are denied stable
governments. In these circumstances, there is a need to strengthen certain aspects, so that
such undemocratic practices are discouraged and checked.

Grounds for review of the decision of speaker

In this case the Supreme Court laid down grounds for review of the decision of the speaker.

If it is in violation of constitutional mandate.

If it is made in a mala fide way.
If the decision of speaker is perverse.
If it is in noncompliance with rules of natural justice and perversity.
Lacunas in defection machinery

The rivalry among the members in a party can arise due to many reasons; it can be due to the
inner dissent against the opinions of senior leaders or the struggle for power and because of
these reasons the elected members along with other elected members leave these parties to
join the opposition. This can devastate the democratic spirit of our nation because a stable
government is inherent for a democracy. The frequent government crisis can lead to distrust
among the people and can cause a menace.

The Anti Defection laws were added into the Constitution of India as a set of rules for the fair
play among the elected members for a better Parliamentary Democracy. When a person gets
nominated as a member by the party and contests election under the symbol of a party, he
should owe his allegiance to that party but in the current scenario, many leaders leave their
parties and join the opposition which in turn can lead to collapse of the government in that
particular state which causes political instability. Thus, it is necessary for the legislators to act
in adherence to the whip and the beliefs of the party.
IMPORTANT PROVISIONS OF 52 nd Amendment Act 1985:

Disqualification: [1]
o Members of Political Parties:
Member of a House belonging to any political party becomes disqualified for being a
member of the house
o If he voluntarily gives up his membership of such political party; or
If he votes or abstains from voting in such House contrary to any direction issued by
his political party without obtaining prior permission of such party and such act has
not been condoned by the party within 15 days
o It is clear that a member elected on a party ticket should continue in the party & obey
the party directions.

1)Independent Members:
An independent member of a House (elected without being set up as a candidate by
any political party) becomes disqualified to remain a member of the House, if he
joins any political party after such election

2)Nominated Members:
A nominated member of a House becomes disqualified for being a member of the
House, if he joins any political party after the expiry of 6 months from the date on
which he takes his seat
This means that he may join any political party within 6 months of taking his seat in
the House without inviting this disqualification

Exceptions:
o Disqualification on the ground of defection does not apply in the following 2 cases:
 1)If a member goes out of his party as a result of a merger of the party with another
party. A merger takes place when 1/3rd of the members of the party have agreed to
such merger If a member, after being elected as the presiding officer of the House,
voluntarily gives up the membership of his party or rejoins it after he ceases to hold
that office. This exemption has been provided in view of the dignity and impartiality
of his office

2)It must be noted here that the provision of the Tenth Schedule pertaining to
exemption from disqualification in case of split by 1/3rd members of legislature party
has been deleted by the 91" Amendment Act of 2003

Deciding Authority:

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

the presiding officer of the House

o Originally, the act provided that the decision of the presiding officer is final and
cannot be questioned in any court

o However, 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
Supreme Court and the High Courts

o It held that the presiding officer, while deciding a question under the Tenth Schedule,
function as a tribunal. Hence, his decision like that of any other tribunal, is subject to
judicial review on the grounds of mala fides, perversity, etc.
But, the court rejected the contention that the vesting of adjudicatory powers in the
presiding officer is by itself invalid on the ground of political bias[2]

Rule-Making Power:
 o Presiding officer of a House is empowered to make rules to give effect to the
provisions of

o the Tenth Schedule All such rules must be placed before the House for 30 days.
House may approve or modity or disapprove them
Further, he may direct that any willful contravention by any member of such rules
may be dealt with in the same manner as a breach of privilege of the Houses

o According to the rules made so, the presiding officer can take up a defection case only
when he receives a complaint from a member of the House
Before taking the final decision, he must give the member a chance to submit his
Explanation

o He may also refer the matter to the committee of privileges for inquiry
o Hence, defection has no immediate and automatic effect.

Evaluation of the Act:

• 10th Schedule is designed to prevent the evil or mischiet of political detections motivated
by the lure of office or material benefits or other similar considerations
It is intended to strengthen the fabric of Indian parlamentary democracy by curbing
unprincipled and unethical political defections
Rajiv Gandhi, the then Prime Minister, described it as the 'first step towards cleaning-up
public life'
Central Law minister stated that the passing of the 52nd Amendment Bill by a unanimous
vote by both the Houses of Parliament was 'a proof, if any, of the maturity and stability of
Indian democracy

Advantages :

It provides for greater stability in the body politic by checking the propensity of legislators to
change parties
It facilitates democratic realignment of parties in the legislature by way of merger of parties
It reduces corruption at the political level as well as non-developmental expenditure incurred
on irregular elections
It gives, for the first time, a clear-cut constitutional recognition to the existence of political
parties

Criticism:

o It does not make a differentiation between dissent and defection. It curbs the
legislator's right to dissent and freedom of conscience. Thus, it clearly puts party
bossism on a pedestal and sanctions tyranny of the party in the name of the party
discipline'
o Its distinction between individual defection and group defection is irrational. In other
words, 'It banned only retail defections and legalized wholesale defections'
o It does not provide for the expulsion of a legislator from his party for his activities
outside the legislature

o Its discrimination between an independent member and a nominated member is

illogical. If the former joins a party, he is disqualified while the latter is allowed to do
the same

o Its vesting of decision-making authority in the presiding officer is criticized on 2

grounds

o Firstly, he may not exercise this authority in an impartial and objective manner due to
political exigencies
o Secondly, he lacks the legal knowledge and experience to adjudicate upon the cases
o In fact, 2 speakers of the Lok Sabha have themselves expressed doubts on their
suitability to adjudicate upon the cases related to defections

91 st Amendment act(2003)
o Reasons for enacting the 91st Amendment Act (2003) are as follows:
o Demands have been made from time to time in certain quarters for strengthening and
amending the Anti-defection Law as contained in the Tenth Schedule
o Tenth Schedule has also been criticized on the ground that it allows bulk defections
while declaring individual defections as illegal
o The provision for exemption from disqualification in case of splits as provided in the
Tenth Schedule has, in particular, come under severe criticism on account of its
destabilizing effect on the Government

o Committee on Electoral Reforms Dinesh Goswami Committee) in its report of 1990,

o Law Commission of India in its 170th Report on "Reform of Electoral Laws"
(1999),
o National Commission to Review the Working of the Constitution(NCRWC) in its
report of 2002 have,
o Inter alia, recommended omission of the provision of the Tenth Schedule pertaining to
exemption from disqualification in case of splits

o NCRWC was also of the view that a defector should be penalized for his action by
debarring him from holding,
o any public office as a minister or
o any other remunerative political post for at least the duration of the remaining term of
the existing Legislature or until, the next fresh elections whichever is earlier
o NCRWC has also observed that abnormally large Councils of Ministers were being
constituted by various Govts. at Centre and States
o This practice had to be prohibited by law & that ceiling on no. of ministers in a State
or the Union Govt. be fixed at the max. of 10% of the total strength of the popular
House of the Legislature

Provisions:
o Total number of ministers, including the PM, in the Central Council of Ministers shall
not exceed 15% of the total strength of the Lok Sabha
 Total no. of ministers, including the CM, in the Council of Ministers in a State shall
not exceed 15% of the total strength of the Legislative Assembly of that State. But,
the no. of ministers, including the CM, in a State shall not be less than 12
o A member of either House of Parliament and State Legislature, belonging to any
political party who is disqualified on the ground of defection shall also be disqualified
to be appointed as a minister
o Member of either House of Parliament or either House of a State Legislature
belonging to any political party who is disqualified on the ground of defection shall
also be disqualified to hold any remunerative political post
o Remunerative political post means:
o Any office under the Central Govt. or a State Govt. where salary or remuneration for
such office is paid out of the public revenue of the concerned govt.
o Any office under a body whether incorporated or not, which is wholly or partially
owned by the Central or a State Govt. and the salary where such salary or
remuneration paid is compensatory in nature
o Provision of the Tenth Schedule (anti-defection law) pertaining to exemption from
disqualification in case of split by 1/3rd members of legislature party has been deleted
o It means that the defectors have no more protection on grounds of splits

Views Of Some Committees On Anti-Defection Law:

1. Dinesh Goswami Committee on Electoral Reforms (1990):

This committee said:

i. Disqualification shall have limitation like:

 For the members who voluntarily give up the membership.

 For the members who acts/votes contrary to the confidence of his
party.
ii. The power of the decision of disqualification shall be to the
President/Governor on the advice of the Election Commission.

2. Law Commission (170th Report, 1999):

The provision of split and mergers shall be deleted as an exception from the provision
 of disqualification. Pre-poll electoral fronts should be treated as political parties under
the anti-defection law.

3. Election Commission:
The power of the decision of disqualification shall be to the President/Governor on
the advice of the Election Commission.

4. Constitution Review Commission (2002):

The defaulters who are not loyal towards their party shall be barred from holding the
public office and also they shall be eligible for getting any political post or any
remuneration of the party.

The voting cast by the defaulters shall be treated as invalid.

Challenges And Interpretations:

The Anti-Defections Law raises several questions, mostly have been decided by the Courts
and the Presiding officers:

 Does the Anti-Defection Law infringe Right to Speech and Expression of the
legislators?
In 1992, the Supreme Court decided this issue in Kihoto Hollohan vs Zachilhu and
others case[1]. The court said that the anti-defection law seeks to recognize the
practical need to place the properties of political and personal conduct above certain
theoretical assumptions. It was held that the law does not violate any rights of the
legislators and also, it does not hamper the basic structure of parliamentary
democracy.

 What certain things constitute voluntarily resignation from the party?

According to various judgments and orders of the officers indicates that if the member
of the party publicly opposes his original party and supports the other party then this
act deems to be a resignation from the party. The shreds of evidence for this can be
 the News Paper, speech given in any form of the electric forms etc. which is
recognizable by the government.

 The decision of the Presiding Officers can be challenged?

The law clearly states the decision made by the Presiding Officers shall be final and
not subject to the judicial review. Later, the Supreme Court struck down this
condition and said that initially judicial intervention will not be there but by the orders
of Presiding Officers it may subject to judicial intervention. Thus, the order of the
presiding officers shall be appealable in the HC and SC.

 Important Case Laws:

1)In Kihoto Hollohon v. Zachilhu and Others[2], held that the law is valid in all respects.
expect on the matter about judicial review, which was held to be unconstitutional.

2.Rajendra Singh Rana v. Swami Prasad Maurya and Others[1] is yet another case
which expanded the meaning to the words voluntarily giving up the membership.' It was held
for the situation that a letter by a chosen party part to the Governor mentioning him to call
upon the pioneer of the contrary party to frame a Legislature would without anyone else sums
to a demonstration of deliberately surrendering enrollment of the party of which he is a
chosen part.

3.In Keshavananda Bharati and Others v. the State of Kerala and Another[2],
judicial review was held to be a basic feature of the Constitution and the Constitution cannot
be amended to violate its basic structure.

4.Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (January 27, 2008),
the court held that if the member of the party publicly opposes his original party and supports
the other the party then this act deems to be a resignation from the party.

5.In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and

Ors[3]:
The question was raised regarding the jurisdiction of Speaker or Presiding Officers. The court
held that there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters
exercise of jurisdiction by the Speaker to decide this question.

Anti-Defection Law Landmark Cases :

6.2019 v. Hon. Speaker, Karnataka Legislative Assembly, Shrimanth Balasaheb Patil

In this relatively recent decision, the petitioners contested the Speaker’s order dismissing all
of the petitioners for defection and seeking to prevent them from running in elections until
the end of that Assembly term. The Hon’ble Supreme Court affirmed the Speaker’s decision
to the extent that it resulted in a member’s disqualification, but it threw out the portion that
stated that the member could not run for office again, concluding that the Speaker has the
authority to do so until the term is through. The Court further ruled that even though both
resignation and defection result in the member’s seat becoming vacant, the subsequent effects
are different enough that the mere submission of a resignation by a Member while
disqualification proceedings against him are still pending will not have an impact on or alter
the course of those proceedings. The Honorable Court further sought to make clear that there
is a rising pattern of the Speaker acting in a way that is contrary to the constitutional role
entrusted to him. It also stated that the corrupt activities connected to defection prevent
citizens from having a stable government, thus it is necessary to think about strengthening
some parts of the relevant legislation to ensure that such undemocratic behaviors are
maintained.

7.Keisham Meghachandra Singh v. The Hon. Speaker Manipur Legislative Assembly

and Others, 2020. (Manipur Legislative Assembly case)
Finally, we reach the most recent decision rendered on January 21, 2020, by a three-judge
Supreme Court bench presided over by Justice F. Nariman. The case’s circumstances were as
follows: The Speaker of the Manipur Legislative Assembly was the subject of petitions for
disqualification based on the defection of approximately 13 MLAs, but he took no action and
the matter was left open. Due to this, the petitioner filed a writ case with the High Court of
Manipur, asking the High Court to issue an order telling the Speaker to determine the
disqualification petitions in a reasonable amount of time. The Honorable Court ruled that
actions that were supposed to fall outside the scope of judicial review under the Kihoto ruling
are only quia timet actions in the sense of injunctions to stop the Speaker from making a
decision on the grounds of irreparable consequences. This means that if the Speaker were to
decide to disqualify the Member and as a result, if he would face the penalty of losing his
membership in the House for an extended period of time, the Court could intervene as such.
However, this in no way precludes judicial review, which effectively helps the Speaker make
an informed decision about disqualification quickly.

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1. 1992 SCR (1) 686

2. 1992 SCR (1) 686

3. AIR2007SC1305

4. (1973) 4 SCC 225

5. Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors

decided on Apr-08-2009
Conclusion: The Anti-Defections laws should incorporate laws under which separate
committees should be constituted for investigating into the cases of horse trading between the
parties and where members of these parties are found guilty, punitive sanctions should be
imposed on them. Further, an embargo should be imposed on them from contesting elections,
so that these elements do not disrupt the active democracy of the country.
In this way, the evil of political surrender over our body country and their
resulting injurious impact on our technique for administration can be unequivocally handled
if essential established changes are done as recommended above and alleged changes in our
perspectives towards this issue by powerful preparation of help both at the national,
provincial and nearby level for the reception of such systems for the advancement of the
drawn-out goal of a solid what's more, stable political administration for promotion of such
closures.