Introduction

In recent times, Defection Laws have been a fundamental issue due to complete violation of
the defection rules in the country by the leaders. Since independence, the practice of
defection has been a debatable issue in India. We can take into account, the crisis of Madhya
Pradesh Government in March, 2020, wherein Jyotiraditya Scindia along with 22 Member
Legislative Assembly (“MLA’s”) gave resignation to the speaker of the assembly which in
turn, resulted in a huge blow to the congress as they failed the floor test and accordingly
BJP, which had the maximum number of seats came into the power and thereafter Shivraj
Singh Chauhan was elected as the Chief Minister of Madhya Pradesh.

Recently the Deputy Chief Minister of Rajasthan (Sachin Pilot) and 18 other dissident leaders
of the congress party were sent notices on the ground of defection. The notices were issued
seeking their disqualification from the state assembly stating that all of them had defied the
party whip by not attending 2 legislature meetings. The matter is pending adjudication in the
High Court of Rajasthan.

This article primarily focuses to draw out a better understanding into the prospects of
defection laws, its developments through precedents and punitive sanctions which are
attracted if in neglect of these laws.

What is defection?
The Oxford dictionary has described Defection as the act of leaving your own country or
political party and joining an opposite one.

According to the report of committee on defection in 1967, Defector was defined as a person
“who is an elected member of the legislature and had been allotted the reserve symbol of
any political party. He can be said to have defected it, if after being elected as a member of
either house of Parliament or at legislature council or legislative assembly of state or union
territory and he voluntarily renounces allegiance or association with such political party
provided that his action is not in consequence of the decision of the party concerned”

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. 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.

Introduction of anti-defection framework in Indian

Constitution
The bill for Anti- Defection was proposed by Rajiv Gandhi and it was approved unanimously
by both the houses and came into effect on 18 March 1985, after receiving the assent of the
president.

The Anti-Defection provision was added into the constitution by the way of Tenth schedule of
the constitution by the 52nd Amendment in the constitution in 1985. These provisions
provide for the disqualification of Member Parliaments under Article 102(2) and Member
Legislative Assembly under Article 191(2). Under these articles of the constitution the
legislators can be disqualified if they are disqualified under the Tenth schedule.

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.
Exceptions
Disqualification under the purview of Anti-Defection shall not apply in case of split/merger of
1/3rd or more of the members of a party to another party. It shall also not apply in the
event of a merger i.e. 1/3rd of the members or more merge with any other party. This
exception where 1/3rd members was however revised by the way of 91st amendment in the
constitution and after which it the provision of split was removed and now it requires
2/3rd members of a party can merge with another party. This amendment revised these
rules as there were mass defections by legislators and this amendment brought change in
the requirements from 1/3rd members of party to 2/3rd members and by removing the
provision of split from the party.

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.”
10th Schedule of the Constitution
Why in News?
The Supreme Court has asked the Goa Assembly Speaker to respond to a plea filed by
the opposition Congress party to decide on the disqualification proceedings against 10
legislators who joined the ruling BJP in July last year.
What’s the issue?
 In July last year 10 MLAs, purportedly claiming to form a two-third of Indian
National Congress (INC), decided to merge the said legislature party with the BJP
and accordingly addressed a communication to that effect to the Speaker.
 Based on the communication, the Speaker took note of the “alleged merger of
INC’s legislative party in the Goa Legislative Assembly, and allotted the 10 seats
in the Assembly along with the members of the BJP”.
However, petitioners contended that the legislators in question have incurred
disqualification under Article 191(2) of the Constitution, read with para 2 of the
Tenth Schedule (defection), and are liable to be disqualified as members of the
Legislative Assembly.

What is the anti-defection law?

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd
Amendment Act.

1. 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.
2. The decision on question as to disqualification on ground of defection
is referred to the Chairman or the Speaker of such House, and his
decision is final.

The law applies to both Parliament and state assemblies.

Disqualification:
If a member of a house belonging to a political party:
1. Voluntarily gives up the membership of his political party, or
2. 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.
3. If an independent candidate joins a political party after the
election.
4. If a nominated member joins a party six months after he
becomes a member of the legislature.

Exceptions under the law:

Legislators may change their party without the risk of
disqualification in certain circumstances.
 The law allows a party to merge with or into another party provided
that at least two-thirds of its legislators are in favour of the merger.
 In such a scenario, neither the members who decide to merge, nor the
ones who stay with the original party will face disqualification.

Decision of the Presiding Officer is subject to judicial

review:
The law initially stated that the decision of the Presiding Officer
is not subject to judicial review. This condition was struck down
by the Supreme Court in 1992, thereby allowing appeals
against the Presiding Officer’s decision in the High Court and
Supreme Court. However, it held that there may not be any
judicial intervention until the Presiding Officer gives his order.
Advantages of anti-defection law:
1. Provides stability to the government by preventing shifts of party
allegiance.
 2. Ensures that candidates remain loyal to the party as well the citizens
voting for him.
3. Promotes party discipline.
4. Facilitates merger of political parties without attracting the provisions
of Anti-defection
5. Expected to reduce corruption at the political level.
6. Provides for punitive measures against a member who defects from
one party to another.

Various Recommendations to overcome the challenges

posed by the law:
1. Dinesh Goswami Committee on electoral reforms: Disqualification
should be limited to following cases:

A member voluntarily gives up the membership of his political

party A member abstains from voting, or votes contrary to the
party whip in a motion of vote of confidence or motion of no-
confidence. Political parties could issue whips only when the
government was in danger.
3. Law Commission (170th Report):

Provisions which exempt splits and mergers from

disqualification to be deleted. Pre-poll electoral fronts should be
treated as political parties under anti-defection. Political parties
should limit issuance of whips to instances only when the
government is in danger.
3. Election Commission:

Decisions under the Tenth Schedule should be made by the

President/ Governor on the binding advice of the Election
Commission.
Challenges of Anti-Defection Law
 The anti-defection bill aims to keep the government stable by preventing
legislators from switching sides
 This statute, however, prohibits legislators from voting by their conscience,
judgment, and the interests of their constituents
 The anti-defection statute obstructs the Legislature’s oversight duty over the
government by assuring that members vote based on party leadership
decisions
 In other words, if parliamentarians are unable to vote on legislation
independently, they will be unable to serve as an effective check on the
administration
 In effect, the Anti-Defection Law implemented the separation of powers
between the Executive and the Legislature, concentrating power in the hands of
the executives
 According to the legislation, legislators can be disqualified for defection by the
Presiding Officer of a legislature based on a petition from any other member of
the House
 However, there are other cases in which presiding officials serve the
entrenched interests of a ruling political party or government
 Furthermore, the statute makes no provision for the Presiding Officer to decide
on a disqualification plea within a specific time frame
 As a result, the ruling sometimes relies on the presiding officer’s whims and
fancies
 The Anti-Defection Law implemented a democracy based on parties and
numbers rather than debate and discussion in India
 It makes no distinction between dissent and defection in this way, weakening
Parliamentary debates on any measure

Exceptions
On the other hand, the legislation does not bind politicians to their political
parties indefinitely. In various conditions, legislators can switch parties without
fear of being disqualified. This law allows a party to merge with another if two-
thirds of its members approve. In such an instance, none of the members face
defection accusations. In other situations, if a person was elected as chairman
or Speaker and was forced to resign from their party. As a result, they can rejoin
the party after leaving that position.

The law originally stated that the Presiding Officer is immune from judicial
review. The Supreme Court, however, overturned this in 1992. It was further
specified that no interference would be made until the Presiding Officer issued
his order.

In India, there have been numerous incidents of desertion. Several MLAs and
MPs have switched parties. After combining his party, Jharkhand Vikas Morcha
(Prajatantrik), with the BJP in Jharkhand, ex-CM Babulal Marandi is also facing
proceedings under the Tenth Schedule. We trust that the preceding explanation
clarifies the law for the readers.

91st Constitutional amendment act -2003

Its goals were to reduce the size of the Council of Ministers, prevent defectors
from entering public office, and improve the 10th Schedule of the Indian
ConstitutionPreviously, a merger was defined as a defection of one-third of a
political party’s elected members. It was amended to at least two-thirds after the
amendment.The court also affirmed the Speaker’s broad power in considering
cases of MLA disqualification.

Conclusion
Though political instability caused by frequent and unholy changes of allegiance
on the part of our country’s legislators has been greatly reduced due to the 10th
Schedule of the Indian Constitution, there is still a need for a more
rationalized version of the 10th Schedule of the Indian Constitution to help
establish a truly representative democracy