ANTI-DEFECTION ‘What is Anti-defection Law? © Added: Tenth schedule (sam Amendment Act) in 1985. © Itpunishes individual MPs/ MLAs on the ground of defection for leaving one party for another * Purpose: to bring stability to the government by discouraging legislators from changing parties. © [twas result of party-hopping MLA after the general election of 1967 * The members disqualified under the law can stand for election from any political party for a seat in the same house. © Deciding Authority: Chairman or Speaker of the House (Presiding Officer) ‘© The law does not provide a time frame: In the Constitution, no time frame is given for the decision of anti-defection matter by the Presiding Officer. The ground of Disqualification (Tenth Schedule) © Ifan elected member voluntarily gives up his membership in a political party * Ifan independently elected member joins any political party © Ifthe nominated member joins any political party after expiry of six months, © Asperthe 1985 Act, a defection by one-third of the elected member of a political party was considered a ‘merger’: disqualification does not take place © But the 91% Constitutional Amendment Act, 2003, changed this, and now at least two- thirds of the member of a party has to be in favor of a "merger" for it to have validity in the eyes of the law. ‘Name of the ease- Kihoto Holohan v. Zachillhu Citation- AIR 1993 SC-412 | Bench- MN Venkatachaliah, LM Sharma, JS Verma, KJ Reddy, and SC Agrawal, 11 Brief Fact- The constitutional validity of the Tenth Schedule introduced by the Constitution (Fifty- Second Amendment) Act, 1985, was questioned. The Constitution (Fifty-second Amendment) Act altered four articles of the Constitution, viz, 101(3)(a), 102(2), 190(3)(a),and 191(2), and added a tenth schedule in place of them.Held- the Court held that para 7 of the Tenth Schedule is unconstitutional and against the basic structure of the Constitution Under the tenth schedule, the Speaker or the chairman function as a tribunal and in that capacity, he is amenable to the jurisdiction of the High Court and Supreme Court. ‘The apex court, by rejecting the plea of bias, held that investing adjudicatory power in the Speaker is constitutionally valid ‘Name of the case- Ravi S. Naik and Sanjay Bandekar v. Union of India Citation- AIR 1994 SC 1558 Bench- M.N. Venkatachaliah, C.J.1. and 8.C. Agrawal, J. Brief Fact- The petitioners challenged disqualification from a member of the State legislature. The “order passed by Speaker violated the constitutional mandate contained in paragraph 3 of the Tenth Schedule to the Constitution. In this case, the main issue before the Court is Whether only resignation constitutes voluntarily giving up membership of a political party. ‘Held- The words "voluntarily giving up membership” have a wider meaning. Inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party ‘Name of the ease- G. Viswanathan v. Hon'ble Speaker, Tamil Nadu Legislative Assembly Citation- (1996) 2 SCC 353 Bench: A.M. Ahmadi, CJT and K.S. Paripooman, J. Brief Fact- The appellants are two members of the Tamil Nadu Legislative Assembly elected in the general elections held in 1991. Both of them were candidates set up by All India Anna Dravida Munnetra Khazhagam (for short ‘AIADMK'). Mr. Viswanathan was elected from the Arcot Legislative Assembly constituency, whereas Mr. Azhagu Thirunavukkarasu was elected from the Orathanadu constituency. Both of them were expelled from the ALADMK party on January 8, 1994. On March 16, 1994, the Speaker of Tamil Nadu Legislative Assembly (for short 'Assembly') declared the two appellants as ‘unattached’ members of the assembly. Enclosing certain papers and other documents, ‘one Subburethinam, Member of the Assembly, informed the Speaker that both the appellants have joined another (new) party called Maru Malarchi Dravida Munnetra Khazhagam (‘MDMK' for short) and hence they should, as per the provisions of law, be disqualified from the membership of the assembly. On March 6, 1995, the Secretary Legislative Assembly issued a notice Under Section 7 of the Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986, and called for the ‘comments of the appellants on the representation made by Subburethinam to disqualify them. The appellants filed Writ Petitions before the High Court and appealed to the Supreme Court. Held- Once a member is expelled, he is treated as an ‘unattached’ member of the House. However, he continues to be a member of the old party as per the Tenth Schedule. So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party‘Name of the ease- Rajendra Singh Rana v. Swami Prasad Maurya Citation- AIR 2007 SC 1305] Beneh- KG Balakrishnan CJ, HK Sema, AR Lakshmanan, PK Balasubramanyan and DK Jain, JJ. Brief Fact In the [4th Legislative Assembly of Uttar Pardesh, none of the political parties secured a full majority. The coalition government was formed and led by the Mayawati (BSP) in 2002. In August 2003 cabinet had taken a decision unanimously for the dissolution of the assembly. Ms. Mayawati submitted the resignation of her Cabinet. 13 MLAs elected to the assembly on tickets of BSP met the Governor and requested him to invite the leader of the Samajwadi Party to form the govt. Originally, 8 MLAs had met the Governor, and five others joined them later in the day, making up the 13. The Governor did not accept the recommendation of the Mayawati cabinet for the dissolution of the assembly. On 29.8.2003, the Governor invited the leader of the Samajwadi Party, Mr. Mulayam Singh Yadav to form the govt. and gave him a time of two weeks to prove his majority in the assembly. On 4.9.2003, Mr. Swami Prasad Maurya, leader of the BSP filed a petition before the Speaker in terms of Article 191 read with the Tenth Schedule to the Constitution of India, praying that the 13 BSP MLAs. Held- The act of giving a letter requesting the Governor to call upon the leader of the other party to form a Government itself would amount to an act of voluntarily giving up the membership of the party ‘on whose ticket the said members had got elected." ‘Name of the ease- Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly Citation- (2016) 8 SCC 1 | Beneh- JS Khehar, PC Ghose, NV Ramana, Dipak Misra & MB Lokur, JJ Brief Fact- The Sth session of the State Legislative Assembly was concluded on 21.10.2015. On 3.112015, the Governor issued an order summoning the 6" session of the assembly to meet on 14.1.2016 in the Legislative Assembly Chamber. The instant order was passed by the Governor, on the aid and advice of the Chief Minister and in consultation with the Speaker of the House. The 6th session of the House was preponed by the Governor from 14.1.2016 to 16.12.2015, by an order dated 9.12.2015 indicating inter alia how the proceedings of the House should be conducted. In its support, the Governor issued a message on 9.12.2015. These actions of the Govemor, according to the Appellants, demonstrate an extraneous and inappropriate exercise of constitutional authority. That order and message of the Governor, without the aid and advice of the Council of Ministers and the Chief Minister, constitute the foundation of the challenge raised by the Appellants. The issue before the Supreme Court was whether the Deputy Speaker of the Legislative Assembly of Arunachal Pradesh was entitled at law to set aside the order of the Speaker of the Legislative Assembly of Arunachal Pradesh by which the Speaker had disqualified fourteen Members of the Legislative Assembly of ‘Arunachal Pradesh (including the Deputy Speaker) under the Tenth Schedule of the Constitution?Held- the Deputy Speaker was himself disqualified from the membership of the Legislative Assembly by the Speaker, and he could certainly not have set aside the order passed against him and in respect of which he would be the beneficiary. There is no doubt that the Deputy Speaker had no authority at all o set aside the decision of the Speaker passed under the Tenth Schedule of the Constitution ‘Name of the case- Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly Citation- (2020) 2 SCC 595 ‘Bench- NV Ramana, Sanjiv Khanna, and Krishna Murari, JI. Brief Fact- In this case, 15 MLAs had resigned from 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. Held- The Speaker is not empowered to disqualify any member till the end of the term. The Court also held that the Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority, ‘and the validity of the orders thus passed can be questioned before this Court under Article 32. The Speaker's scope of inquiry conceming acceptance or rejection of a resignation tendered by a member of the legislature is limited to examining whether such resignation was tendered voluntarily or genuinely. ‘Name of the case- Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly Gitation- (2021) 16 SCC 503 Bench- RF Nariman, A Bose & V Ramasubramanian, JJ, Brief Fact- Respondent No. 3, contested as a candidate and was duly elected in the election of the Legislative Assembly. Applications were filed for the disqualification of Respondent No. 3 was filed before the Speaker of the Legislative Assembly, stating that Respondent No. 3 was disqualified under paragraph 2(1}(a) of the Tenth Schedule. Since no action was taken on any of these petitions by the Speaker, a writ petition was filed before the High Court in which the petitioner prayed that the High Court direct the Speaker to decide his disqualification petition within a reasonable time. The High ‘Court stated that as the issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before the Supreme Court, the High Court could not pass any oder in the matter, and the matter was ordered to be listed to await the outcome of the cases pending before the Supreme Court. After waiting for a certain time, the Appellant filed Writ Petition before the same High Court to declare that Respondent No. 3 has incurred disqualification for being a member of the Legislative Assembly. The High Court came to a finding that since the very same issue was pending before a Constitution Bench of the Supreme Court, it would not be appropriate for the High Court to pass any order for the time being, which would include orders relating to the inaction or indecision on the part of the Speaker, as well as the issuing of a writ of quo warranto. The petitionerappealed before the Supreme Court and made an issue WHETHER disqualification petition of Respondent No.3 pending before speaker warrant any directions by this Court. Held- The Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within four weeks from the date on which this judgment is intimated to him. In case no decision is forthcoming even after four weeks, it will be open to any party to the proceedings to apply to this Court for further directions/relief’ in the matter. ‘Name of the ease- Shivraj Singh Chouhan. v. Speaker Madhya Pradesh Legislative Assembly Citation- (2020) 17 SCC 1 Bench- Dr. D.Y. Chandrachud and Hemant Gupta, JJ. Brief Fact- The twenty-two Members belonging to the Indian National Congress tendered their resignations. Alleging the complicity of the other party in engineering these resignations, the Chief Minister, in his letter to the Governor, stated that as a responsible leader, he would invite and would welcome a floor test of his government in the forthcoming Budget Session of the Legislative Assembly notified to commence. This, according to the Chief Minister, was the minimum a constitutional authority could offer to address the ongoing turmoil. The Speaker of the Legislative Assembly furnished an opportuni to all the twenty-two Members (including six Cabinet Ministers among them) to appear before him but they did not do so. Notices of disqualification were issued to the six Members who were members of the Cabinet. The Governor acted on the aid and advice of the Chief Minister dismissed these six individuals from the State Cabinet. The Speaker of the Legislative Assembly, acting under Rule 276 of the Madhya Pradesh Assembly Rules, accepted their resignations. In a communication, the Govemor called upon the Chief Minister to undertake a floor test to determine whether the latter's to determine whether the government commanded the confidence of the legislature. ‘The communication stated that the floor test was to take place at the inception of the forthcoming Budget Session immediately after the address of the Governor. Held- The Supreme Court clarified that the Govemor is empowered to issue a direction to an incumbent chief minister to hold a floor test and to demonstrate the Legislature's trust in their government. In this regard, it is pertinent to mention that the Governor is also entrusted with the constitutional authority to require the Council of Ministers to prove their majority on the floor of the House right after the general election is held. Name of the ease- Girish Chodankar v. Speaker, Goa Legislative Assembly Citation- 2022 SCC Online Bom 377 _ | Bench- Manish Pitale and R.N. Laddha, JJ.Brief Fact- The Petitioner, who is an elected MLA belonging to the MGP, that the Respondent nos. 2 and 3 deserved to be disqualified under the Tenth Schedule to the Constitution for having voluntarily given up membership of their original political party, i.e. MGP, to join the BIP. The documents filed with the petition show that, on 20.03.2019, a meeting of the MLAs belonging to the MGP was held, wherein it was resolved that the MGP would merge with the BJP. On this basis, on 26.03.2019, Respondent nos. 2 and 3 sent a letter to Respondent no, 1-Speaker, claiming that the legislature party of the MGP had merged with the BJP, as two-thirds MLAs of the MGP had agreed to merge with the BIP. Relying on paragraph 4(2) of the Tenth Schedule to the Constitution. The petitions challenge orders passed by the Speaker of Goa Legislative Assembly dismissing petitions filed for disqualification of respondent Members of Legislative Assembly Held- The scope of judicial review is limited to jurisdictional errors only, i.e. infirmities based on violation of constitutional mandate, malafides, non-compliance of Rules of natural justice, and perversity. The Petitioners have not been able to make out a case for interference in the impugned orders passed by the Speaker and we hold that the disqualification petitions filed by the Petitioners were correctly dismissed by Speaker. Appeal before Supreme Court The appeal before the Supreme Court further contended that the High Court gave an erroneous interpretation by construing the merger of the original political party merely at the hands of a two- thirds majority of any legislature party, "completely disrobing the original political party of any role with respect to its merger and resultantly leaving the original political party at the mercy of the legislature party. ‘Name of the ease- Kshetrimayum Biren Singh v. Speaker, Manipur Legislative Assembly Citation- (2022) 2 SCC 759 Bench- UU Lalit, SR Bhat & BM Trivedi, JJ. Brief Fact- Appeals against the decision of the Manipur High Court were filed. The High Court dismissed the petition of the Appellant challenging the order of the Speaker of the Manipur Legislative Assembly. The Speaker has disqualified the petitioner based on the newspaper reports. The question before the Court was whether mere reporting in the newspaper could be taken as sufficient proof of “voluntary giving up of the membership of a political party”. Held- The Court allowed the appeal filed and set aside the order of disqualification passed by the Speaker and upheld by the High Court, The Court restored the disqualification proceedings before the ‘Speaker to decide the matter on merit afresh.