1

NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL (M.P.)



Constitutional Law-I
PROJECT
on
What is Anti-Defection law?

Submitted to:
Professor Kuldeep Kaur

Submitted by:
Gaurav Sharma
2012 BALLB (Hons.) 39
2

CONTENTS

DEFINITION AND BACKGROUND............................................................. 3
THE ANTI-DEFECTION LAW...................................................................... 4
ANALYSIS OF PROVISIONS OF SCHEDULE X....................................... 5
PARA 2 AND ITS CONSTITUTIONAL VALIDITY................................... 6
PRECEDENTS ESTABLISHED BY THE JUDICIAL
PRONOUNCEMENTS..................................................................................... 8
RECOMMENDATIONS.................................................................................. 9
CONCLUSION................................................................................................ 11



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DEFINITION AND BACKGROUND
Defection may be defined as abandonment of loyalty, duty or principle or of ones
leader or cause. In parliamentary political life the term has come to connote change of
political affiliation or allegiance by the member of the legislature. The traditional term for
the latter has, however, been floor-crossing which had its origins in the British House of
Commons where a legislator was supposed to have changed his party allegiance when he
crossed the floor and moved from the Government to the Opposition side or vice versa. The
phenomenon of defection was not something altogether unknown to the older democracies
like Great Britain. Political stalwarts like William Gladstone, Joseph Chamberlain, Winston
Churchill and Ramsay McDonald were known to have changed their party allegiance at one
time or another-some of them even more than once. Likewise in Canada, Australia and the
USA, there had been instances of politicians defecting from one party to another. It is
however interesting that the need or the desirability of banning defections by law or through a
constitutional provision was not considered in any of the western democracies. The only
countries to pass an anti-defection laws have been four countries in South Asia which is India
(1985), Pakistan (1997), Sri Lanka (1978) and Nepal (1997). In all the four countries the anti
defection laws proved ineffective. In India, the result was a larger number of defections, with
groups instead of individuals defecting. In Nepal also, group defections and toppling of
governments could not be prevented. In Pakistan, the operation of the law was stayed by the
court and subsequently democracy itself was toppled by military dictatorship. Today Anti-
Defection law is also practiced in Kenya, South Africa, Singapore etc.
Section 40 of the Kenyan Constitution states that a member who resigns from his party
has to vacate his seat. The decision is by the Speaker, and the member may appeal to
the High Court.
Article 46 of the Singapore Constitution says a member must vacate his seat if he resigns, or
is expelled from his party. Article 48 states that Parliament decides on any question relating
to the disqualification of a member.
Section 47 of the South African Constitution provides that a member loses membership of the
Parliament if he ceases to be a member of the party that nominated him.
Indian politics had seen defections right from the pre-independence Central Legislative
Assembly and Provincial autonomy days. The year 1967 however ushered in an
unprecedented era of political instability and horse-trading preceding and following the
formation of coalition governments in several States. The formation of such coalition
governments was most often a marriage of convenience.




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THE ANTI-DEFECTION LAW
The Anti- Defection Law was passed in 1985 through the 52
nd
Amendment to the
Constitution, which added the Tenth Schedule to the Indian Constitution. The main
intent of the law was to combat the evil of political defections. There are several issues
in relation to the working of this law which needs to be discussed. Does the law, while
deterring defections, also lead to healthy intra-party debate and dissent? Does it restrict
representatives from voicing the concerns of their voters in opposition to the official party
position? Should the decision on defections be judged by the Speaker who is usually a
member of the ruling party or coalition, or should it be decided by an external neutral body
such as the Election Commission?
The major provisions of Schedule X of Indian Constitution are
Disqualification
a) If a member of a house belonging to a political party:
i) Voluntarily gives up the membership of his political party, or
ii) Votes or does not vote in the legislature contrary to the directions 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.
b) If an independent candidate joins a political party after the election.
c) If a nominated member joins a party six months after he becomes a member of the
legislature.

Power to Disqualify
a) The Chairman or the Speaker of the House takes the decision to disqualify a member.
b) If a complaint is received with respect to the defection of the Chairman or Speaker, a
member of the House elected by that House shall take the decision.
Exception
Merger
A person shall not be disqualified if his original political party merges with another and:
He and other members of the old political party become members of the new political
party, or
He and other members do not accept the merger and opt to function as a separate
group.
This exception shall operate only if not less than two-thirds of the members of party in the
House have agreed to the merger.
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Analysis of Provisions of Schedule X
Para 2-Disqualifications
The section that would verily form the crux of this legislation is paragraph 2 that
gives the circumstances when a member would incur disqualification from the House.
This para would be dealt with in detail under this article, primarily for two reasons-
one, that it forms the quintessence of this law and hence, a comprehensive
understanding of this provision is crucial and two, because the judiciary has been
called upon a number of times to interpret its provisions and it has therefore shed
some light on the manner in which these provisions should be construed.

Therefore, we see that the above para sets out when a member would incur a
disqualification (under para 2 (1) (a) and (b)). The provision seems to be fairly clear
when it provides two cases wherein the disqualification would apply- first, when
there is a voluntarily giving up of seat by the member and second, when he votes (or
abstains from voting) contrary to the directive issued by the party. Now, two
important questions arise in this regard-
What would constitute voluntarily giving up of seat?
What is the full import of 2 (1) (b) wherein voting/abstention from voting against
the party?
At the first instance, the phrase voluntarily giving up of seat sounds pretty
straightforward. It is giving up of the seat in the House by ones own will. However, the
Courts have given certain pointers on its interpretation. In Ravi Naik v Union of India ,
the Supreme Court says, The words voluntarily given up his membership are not
synonymous with resignation and have a wider connotation. A person may
voluntarily give up his membership of a political party even though he has not rendered
his 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.

Referring to these words, in the case of Rajendra Singh Rana v. Swami Prasad Maurya
and Others
1
the Supreme Court held that the act of giving a letter requesting the
Governor to call upon the leader of the other side 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. In this case, in the 2002 Assembly
elections in the State of Uttar Pradesh, a coalition government was formed since none of
the parties secured a majority. In the middle of 2003, a unanimous decision was taken by

1
Rajendra Singh Rana v. Swami Prasad Maurya and Others (2007) 4 SCC 270
6

the Cabinet to dissolve the Assembly. After the Cabinets decision and before the
resignation of the leader of the coalition Government (then, Mrs. Mayawati, belonging to
the Bahujan Samaj Party [BSP]), thirteen members from the BSP met the Governor and
requested him to invite the leader of the opposite party (then, the Samajwadi Party [SP])
to form the Government. It was in this context that the Court held the above.

Para 2 and its Constitutional validity
The constitutional validity of paragraph 2, especially the clause providing that the
member would incur a disqualification if he votes/abstains from voting against the party
directions, has been challenged. The Supreme Court has analyzed this point in detail in
Kihota Hollohan v Zachillhu
2
. Explaining its position, the court said, there are certain
side effects and fall out which might affect and hurt even honest dissenters and
conscientious objectors, but these are the usual plus and minus of all areas of
experimental legislation. In these areas, the distinction between what is
constitutionally permissible and what is outside it is marked by a hazy gray line
and it is the Courts duty to identify, darken and deepen the demarcating line of
constitutionality
Holding that the provisions of the Tenth Schedule are perfectly valid, the Court went on
to say, That the Paragraph 2 of the Tenth Schedule of the Constitution is valid. Its
provisions do not suffer from the vice of subverting democratic rights of elected members
of the Parliament and the Legislatures of the States. It does not violate their freedom of
speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do
not violate any rights or freedom under Articles 105 and 195 of the Constitution.
Other provisions regarding disqualifications under this head are contained in
paragraph 3 (that was deleted by the 2004 Amendment to the Constitution), which
provided for a case wherein a split takes place in the party. A number of cases have
been decided on this subject. Paragraph 4 dealt with a disqualification in cases of merger
whereas paragraph 5 sets out certain exemptions in favour of the Speaker or the Chairman
of the Houses of Legislature.

Other provisions of Schedule X
Having set out what would entail a disqualification from the House, the Schedule
now goes on to clarify, in paragraph 6, who the deciding authority would be in case
a question regarding the incurrence of a disqualification. It says that any such
question would be decided by the Speaker or the Chairman of the House and his decision
in this regard would be final. An interesting question that the Court was called upon to
decide with regard to this provision was whether the proceeding before the Speaker in the

2
Kihota Hollohan v Zachillhu AIR 1993 SC 412
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nature of a judicial one, and whether the office of a Speaker in this regard could be
termed as a Tribunal? Answering both the questions in the affirmative the court said, It
is therefore inappropriate to claim that the determinative jurisdiction of the Speaker of the
Chairman in the tenth Schedule is not a judicial power and is within the non-justiciable
legislative area.
Speaking about how the Speakers authority could be a Tribunal, the Court elaborated
thus, Where there is a lis -an affirmation by one party and denial by another-and the
dispute necessarily involves a decision on the rights and obligations of the parties to it
and the authority is called upon to decide it, there is an exercise of judicial power. That
authority is called a Tribunal, if it does not have all the trappings of a Court. In this
instant case, the Court has taken recourse to many previous judgments and commentaries
to explain this point.
In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors. , the
Andhra Pradesh High Court had to decide, inter alia, the question of whether the
Speaker, while exercising jurisdiction, can decide whether or not a Legislator
belongs to a particular Legislature party. Holding that a Speaker could indeed decide
thus, the Court said that if, in deciding the question of a members disqualification
depended upon an answer to which political party had set such member up and whether or
not he belonged to such party, he should be allowed to decide such question. In the words
of the Court, 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.
Paragraph 7 of the Schedule bars the jurisdiction of courts in any matter connection
with the disqualification of a member of House under this Schedule. Of course, this
does not exclude Courts intervention under articles 32, 226, 227, 136 under the
Constitution. This position was made very clear by the Supreme Court in Kihoto
Hollohans case. Citing various authorities, the court analyzed the meaning of the word
final in the context of such clauses and said, There is authority against the acceptability
of the arguments that the word final occurring in paragraph 6 (1) has the effect of
excluding the jurisdiction of the courts in articles 136, 226, 227.
The final provision in this legislation gives the Speakers of the House to make rules for
giving effect to any provision contained in the Schedule. In pursuance of this power, the
states of Goa, Maharashtra, Gujarat, Haryana, Bihar, Kerala, Karnataka and others and
also the Houses of the Parliament, both the Rajya Sabha and Lok Sabha have made rules
in this regard. These Houses would be bound by the rules contained in the Schedules as
also the ones that have been enacted specially for them.



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Precedents established by the judicial pronouncements
Kihota Hollohon v. Zachilhu and Ors.
3
The main issues of this case were whether
the right to freedom of speech and expression is curtailed by the Tenth Schedule,
whether paragraph 7 of the Schedule barring the jurisdiction of courts in cases of
disqualification is constitutional and whether paragraph 6 of the Tenth Schedule granting
finality to the decision of the Speakers /Chairmen. The Supreme Court held that the
provisions do not subvert the democratic rights of the elected members in Parliament and
state legislatures. It does not violate any right or freedom under Articles 105 and 194
of the Constitution. On the constitutionality of the paragraph 7 the court held that the
paragraph seeks to change the operation and effect of articles 136, 226 and 227 of the
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. On the
issue regarding paragraph 6 the Court held that to the extent that the provisions grant
finality to the orders of the Speaker, the provision is valid. However, the High Courts and
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.
Ravi S Naik v. Union of I ndia
4
The issues raised were whether only resignation
constitutes voluntary giving up membership of a political party, whether the
Speaker of a legislature is bound by the directions of the Court and whether judicial
review by courts extends to rules framed under the Tenth Schedule. The Apex Court held
that the words voluntary giving up of membership have a wider meaning. An inference
can also be drawn from the conduct of the member that he has voluntarily given up the
membership of his party. On the second issue the court cited the case of Kihota Hollohon
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. On the third issue in the case the Court held that the rules under the Tenth
Schedule are procedural in nature any violation of those would be a procedural
irregularity and procedural irregularity is immune from judicial scrutiny.
Whether a member can be said to voluntarily give up his membership of a party if he
joins another party after being expelled by his old party? This question arose in the case
of Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly
5
where the Supreme
Court held that once a member is expelled he is treated as an unattached member in the
house. However, he continues to be 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.

3
Supra 2
4
Ravi S Naik v. Union of I ndia AIR 1994 SC 1558
5
Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) 2 SCC 353
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When can a court review the Speakers decision making process under the Tenth
Schedule? The Supreme Court addressed this question in Rajendra Singh Rana and Ors.
v. Swami Prasad Maurya and Ors.
6
the court held that if the Speaker fails to act on a
complaint or accepts claims of splits or mergers without 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.
In the case of Dr. Kashinath G J halmi v. Speaker, Goa Legislative
7
Assembly the
Supreme Court decided on the question whether a Speaker can review his own decision to
disqualify a member under the Tenth Schedule. The Court held that the Speaker of a
House does not have the power to review his own decisions to disqualify a candidate.
Such power is not provided under the Schedule and is not implicit in the provisions either.

Recommendations by various bodies on reforming the Anti-defection
law
Dinesh Goswami Committee on electoral reforms(1990)
Disqualification should be limited to cases where (a) a member voluntarily gives
up the membership of his political party, (b) a member abstains from voting or
votes contrary to the party whip in a motion of vote of confidence or motion of
no-confidence.
The issue of disqualification should be decided by the President/ Governor on
the aadvice of the Election Commission.
Halim Committee on Anti-Defection law (1998)
The words voluntarily giving up membership of a political party be
comprehensively defined.
Restrictions like prohibition on joining another party or holding offices in the
government be imposed on expelled members.
The term political party should be defined clearly.
Law Commission (170
th
Report, 1999)
Provisions which exempt splits and mergers from disqualification to be deleted.
Pre-poll electoral fronts should be treated as political parties under the anti-defection
law.
Political parties should limit issuance of whips to instances only when the
government is in danger.


6
Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors. (2007) 4 SCC 270
7
Dr. Kashinath G Jhalmi v. Speaker, Goa Legislative (1993) 2 SCC 703
10


Election Commission
Decisions under the Tenth Schedule should be made by the President/ Governor on the
binding advice of the Election Commission.

Constitution Review Commission (2002)
Defectors should be barred from holding public policy or any remunerative political
post for the duration of the remaining term.
The vote cast by a defector to topple a government should be treated as invalid

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CONCLUSION

The introduction of Schedule X in the Constitution attempted to bring in a comprehensive
legislation that would assail the menace of defection. While the law has succeeded in this
aspect to a reasonable degree, there were certain ambiguities. The Courts of the land
have done a fair job in expounding the stance by applying the law to particular facts and
circumstances. Nevertheless, very few general propositions have been laid down which
have a universal application. Thus, there seems to be considerable scope for judicial
interpretation, one that may give further clarity on the law and may bring in a wider range
of cases within the umbrella of this legislation. The harms caused by paragraph 2(1)(b)
are an inherent by-product of its wide phraseology and application. Fortunately, this
provision has not enjoyed an unblemkished constitutional existence. The validity of the
said provision was specifically challenged in the Kihota Hollohon judgement. Here too
the arguments of dissent and debate being stifled were raised and discussed before the
Court. The judgement looked at the subversion of the constitutional rights of the
parliamentarians and aimed at providing a limited contour to the application of the
impugned provision.

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BIBLIOGRAPHY
www.prsindia.org
www.manupatra.co.in
www.indialawjournal.com
www.indiankanoon.org