Anti-defection Laws

Saturday, September 23, 2023 6:43 PM

The Tenth Schedule was inserted in the Constitution in 1985 by way of 52nd Amendment. The Anti-
Defection Law amended articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats
and disqualification from membership of Parliament and the State Legislatures and setting out certain
provisions as to disqualification on ground of defection. It lays down the process by which legislators
may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition
by any other member of the House

Meaning and history

Defection is defined as “to abandon a position or association, often to join an opposing group” which
essentially describes a situation when a member of a particular party abandons his loyalty towards that
party and provide his support (in the form of his vote or otherwise) to another party

Historical Background
Originally, the Constitution of India carried no reference to political parties and their existence. Since
multi-party democracy had not evolved in 1950s and early 1960s, the heat of defections and their
implications were not felt. Things however, changed after the 1967 elections

Rule 2- tenth schedule lays the grounds for disqualification of the member’s i.e.:
If a member of a house belonging to a political party:
1. Has voluntarily given up his membership of such political party, or
2. Votes, or abstain from voting in such House, contrary to the direction of his political party.

However, if the member has taken prior permission, or is condoned by the party within 15 days from
such voting or abstention, the member shall not be disqualified.
2. If an independent candidate joins a political party after the election.
3. If a nominated member of a house joins any political party after the expiry of six months from the
date when he becomes a member of the legislature.

Rule 4 and 5- states the exemption from disqualifications i.e.:-

A member of the house shall not be disqualified where his original political party merges with another
political party, and he and any other member of his political party:-
1. Have become members of the other political party, or of a new political party formed by such merge
2. Have not accepted the merger and opted to function as a separate group.

Rule 3- state that there will be no disqualification of members if they represent a faction of the original
political party, which has arisen as a result of a split in the party. A defection by at least one-third
members of such a political party was considered as a spilt which was not actionable

Loopholes in the Anti Defection law:-

1. Power to the speaker

Under Rule 6, the Speaker or Chairman has absolute authority to decide cases of member
disqualification due to defection. However, the Speaker may still be a member of the party that
nominated them for the role. A criticism of this system is that the Speaker may lack the legal expertise
needed for such decisions.

2. Power of judicial review

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 2. Power of judicial review
Rule 7 bars court jurisdiction in matters related to member disqualification, including the Supreme Court
(u/A 32) and High Courts (u/A 226 and 227) This limitation on judicial review can have adverse
consequences and appears to restrict the judiciary's constitutional authority, which is problematic.
Kihota Hollohon vs. Zachilhu and Others (1993)
Issue: If the 10th schedule curtails the freedom of speech and expression and subvert the democratic
rights of the elected members in parliament and state legislatures.
SC Judgement: The 10th schedule neither impinges upon the freedom of speech and expression nor
subverts the democratic rights of elected members. The 10th schedule is constitutionally valid.
Issue: Is granting finality to the decision of the Speaker/ Chairman is valid.
SC Judgement: This provision is valid however, High Courts and the Supreme Court can exercise judicial
review under the Constitution. But the Judicial review should not cover any stage prior to the making of
a decision by the Speakers/ Chairmen.

3. No individual stand on part of members-

Rule 2 of the anti-defection law restricts party members' independence and forces them to adhere to
party rules and policies, undermining the principles of representative democracy. Members are unable
to dissent or vote independently, whether or not the issue is part of the party manifesto. This lack of
individuality blurs the line between defiance and defection, rendering the anti-defection laws less
effective.

4. What amounts to ‘voluntarily giving up’-

Rule 2(1)(a) of the Tenth Schedule mentions that the member of the House would be disqualified from
the party if he voluntarily gives up his membership of the political party. But the Schedule does not
clarify what “voluntarily giving up” means. This question had arisen before the Supreme Court in
Ravi S Naik v. Union of India (1994)
• Issue: If only resignation constitutes “voluntarily giving up” membership of a political party.
• SC Judgement: There is a wider meaning of the words “voluntarily giving up membership”. The
inference can be drawn from the conduct of the members also. The words ‘voluntarily gives up his
membership' were not held synonymous with ‘resignation'. It was held that a person may voluntarily
give up his membership of a political party even without tendering his resignation from the membership
of that party.

G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996)

Issue: If a member is expelled from old party and he joins another party after being expelled, will it be
considered as having "voluntarily given up his" membership?
SC Judgement: Once a member is expelled, he is treated as unattached member in the house but he
continues to be a member of the old party as per the Tenth Schedule. If he joins a new party after being
expelled, he can be said to have voluntarily given up membership of his old party.

5. Problem with merger provision-

Rule 4 of the Tenth Schedule creates an exception to disqualification for members in cases of mergers,
but it has a loophole. This exception is based on the number of members involved in the merger rather
than the reasons behind the defection. Often, defections occur due to the allure of lucrative office or
ministerial posts in another party, and it's likely that the same reasons apply to the two-thirds of
members agreeing to the merger. This inconsistency raises questions about the validity of mergers
based solely on the quantity of members involved.

Role of Presiding Officers in Context of Anti-Defection Law

The 10th Schedule allows legislative presiding officers to decide defection cases, but concerns have
arisen about their impartiality since they rely on majority support. Previous decisions by Speakers have
faced challenges for bias. Various expert committees and commissions, including the Dinesh Goswami
Committee (1998), have recommended that defection cases be decided by the President or Governor,

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Committee (1998), have recommended that defection cases be decided by the President or Governor,
following the advice of the Election Commission, similar to other disqualification matters. However, the
Supreme Court has upheld the presiding officers' power, considering them crucial to parliamentary
democracy as guardians of the House's rights and privileges. Their role in adjudicating questions under
the 10th Schedule should not be seen as problematic.
under the 10th Schedule , once the Speaker or presiding officer has made a decision regarding the
disqualification of a member of the legislature, that decision is final and cannot be reviewed by the
same Speaker or presiding officer. However, The decision of the Speaker or presiding officer is
subject to judicial review by the courts.

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