(1987) 3 SCC J-25

Anti-Defection Act: A Comment on its Constitutionality

by
J.K Mittal

Introductory note on the philosophy of the Constitution of India

Constitution of India Fifty-second Amendment Act, 1985 Tenth Schedule
A note on defection Date given on defection Purpose of the paper To
enquire
briefly
into
the
constitutionality
of
various
provisions
Prohibitingdefection on the touchstone of basic structure Constitution of India
Arts. 102 and 192 and the Tenth Schedule Provision of antidefection examined in the light of Arts. 14, 19(1)(a) and 19(1)(c) Provisions
relating to split, merger and decision on disqualification analysed Submission
made Provision of merger violates Art. 14 Vesting the power to resolve the
issue of disqualification in the presiding officers of the Legislature also violates
Art. 14 Provision taking away judicial review, violates Art. 14 and is
unconstitutional and void Conclusion Substantial part of the Act runs a foul
of the Constitution Purpose could have been achieved by simply incorporating
defection as a ground of disqualification in Arts. 102 and 191 Submission
made with a suggestion.
I
The Constitution of India is primarily a social document with a political
philosophy intended to bring about great changes in socio-economic structure
and to achieve the goals of national unity and stability.1 It derives its force from
the people and has at its base a value system. Its Preamble speaks of the
sovereignty of the people, democratic polity, justice, liberty, equality and fraternity
assuring the dignity of the individual and the unity and integrity of the nation. 2 The
Preamble is a modified version of the objectives resolution of Jawaharlal Nehru
which served as the foundation in the making of the Constitution. The resolution
was deeply rooted in the history of our movement for independence led by
leaders who were committed to certain ideals and to their fulfilment through fair

and proper means. They were the main architect of the basic law and they
cautioned that it would not work unless its execution was entrusted to persons of
calibre, character and integrity, and unless healthy conventions were developed
to cover situations which cannot be provided for by precise formulae. They thus
valued human element in the working of the Constitution, and hoped that the
country would produce such persons in abundance, and that good sense and
wisdom would pervade the functioning of political institutions.3
II
After the commencement of the Constitution, however, it did not take long for
political functionaries to belie largely the hopes of the framers.
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J-26

Especially after the departure of Nehru, the country witnessed a sharp decline in
political morality and propriety and a phenomenal growth of political corruption of
varied type. The worst form of corruption that emerged on a massive scale on the
Indian political scene was defection of legislators either individually or in
groups.4 This unprincipled floor-crossing was nothing else but betrayal of the
electorate and undermining of the political organs of the State. The lust for
power, position and money was obviously behind this phenomenon. The present
day political process is closely linked with socio-economic and cultural
processes. Perversion of the former has a devastating impact on the latter. This
is what the politics of defection did. It was, therefore, widely condemned, and
suggestions5and two attempts on the part of the government 6 were made, though
in vain, to eradicate the evil through law.7 In early 1985, however, the government
initiative having the support of the Opposition worked and Parliament enacted in
a record time the Constitution (Fifty-second Amendment) Act 8 outlawing
defections to save the foundations of our nascent democracy and the principles
which sustain it.9

Page:

J-27

The object of the Act is obviously laudable, but the question whether the Act is
in consonance with the constitutional law of the country, can be usefully
examined. The purpose of this paper is, therefore, to enquire briefly into the
constitutionality of various provisions of the Act in view of the doctrine of basic
structure of the Constitution.
III
Articles 102 and 191 (dealing with disqualifications of members at Central and
State level respectively), as amended by the Act, also lay down that a person
shall be disqualified for being a member of the either House of Parliament or of
either or the sole House of a State Lagislature if he is so disqualified under the
Tenth Schedule added by the Act. The Schedule provides for, inter alia, (1)
disqualification on ground of defection, (2) exemption of split and mergers of
groups (3) decisions by presiding officers on questions relating to disqualification,
and (4) bar of judicial review.
It has been judicially established that right to equality before the law
guaranteed by Article 14, right to freedom of speech and expression secured by
Article 19(1)(a) but subject to reasonable restrictions that may be imposed under
Article 19(2) in the interest of, inter alia, morality, right to form associations
guaranteed by Article 19(1)(c) but subject to reasonable restrictions that may be
imposed under Article 19(4) in the interest of, inter alia morality; and power of
judicial review constitute a part of the basic structure of the Constitution. A
constitutional amendment violating any of these essential elements has to be
struck down as unconstitutional and void.10 In this context our submissions
regarding the constitutionality of various provisions of the Act are as under:
First, the Act disqualifies (i) a member of the House who voluntarily gives up
his membership of a political party on whose ticket he contested the election; (ii)

a member of the House if he votes or abstains from voting in the House contrary
to the direction of his political party without its prior permission and if his action
has not been condoned within 15 days by his party; (iii) to an independently
elected member who joins a party after election (iv) a nominated member
belonging to a political party provided he voluntarily resigns from his party; and
(v) a non-party nominated member who joins a political party after six months but
not if he so joins within six months. Is this five-fold classification permissible
under Article 14? This article permits Classification provided it is based on an
intelligible differentia which has a rational relation with the object of the law. In
our
opinion,
the
classification
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J-28

is permissible as based on obvious intelligible differentia. The position regarding

categories (ii) and (v), however, needs explanation. In (ii) the restriction on the
conscience franchise or abstention seems to be harsh but it can be accepted as
reasonable in the context of the history of defections. When the conscience has
become negotiable, its franchise has to be curbed. As regards (v), it is generally
the prerogative of the ruling party to make nominations and the members so
nominated may like to join such party if they do not already belong to a party.
Moreover, their number is very small.11 Again, as a result of disqualification
members are unseated and they lose certain privileges such as those contained
in Articles 105 and 194. This is a natural consequence of their action. Such
members constitute a class by themselves, and this classification is
understandable.
Is the right of disqualified members to freedom of speech and expression
adversely affected? The answer is in the negative because, firstly, the right
guaranteed by Article 19(1)(a) may not be available in the House (it is the
freedom of speech guaranteed by the first clause of Article 105 or 194, as the
case may be, which is available in the House) 12, and, secondly, even if it is
available within the House, the taking away of the exercise of their right in the

House as a result of disqualification is a reasonable restriction in the interest of

public morality. Again, a restriction on their conscience franchise or abstention is
reasonable in the interest of public morality.13 Morality is conformity to ideals of
right human conduct.14 Such a conduct is in the public interest and public interest
requires that delegates, returned by the people because they avowed certain
political philosophy, should vacate the office if they renounce the philosophy. This
is implied in the democratic process.
What about the right to form associations? The right covers the right to join a
party or to dissociate from a party. In our opinion, the plea of the violation of right
would not help disqualified persons because they are not prevented from leaving
or joining a party; they just cease to be the members of the House. Even if there
is a restriction on their right under Article 19(1)(c), the same is reasonable in the
interest of public morality.15
Second, the Act exempts the cases of splits and mergers from disqualification.
Members of a House do not incur disqualification if they belong to a legislature
party and constitute a group representing a faction arisen as a result of a split of
their political party provided the group consists of at least one-third of the
members of such legislature party. Again, members of a House do not incur
disqualification where their political party merges with another and they claim that
they have become members of such other party or of a
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new party formed as a result of such merger, or they have not accepted the
merger and opted to function as a separate group. From the time of merger, such
other party, new party or group is deemed to be the political party to which the
members belong. Further, the merger is deemed to have taken place if not less
than two-thirds of the members of the legislature party concerned have agreed to
merger.

These provisions give blanket exemption to splits and mergers and would
frustrate the very purpose of the anti-defection law. They are dangerous in that
they can lead to their abuse. They are totally ill-conceived in view of what
happened in the recent past, and illogical because under the Act the greater the
sin, the greater the immunity. In many a case, defections were effected by groups
big and small. It would not be difficult to stage splits and mergers for ulterior
motives.16 It is amazing that the law punishes small fry but not hawks. The
classification into individuals and groups has no intelligible differentia having a
rational relation with the object of the law, and is, therefore, unconstitutional in
view of Article 14 and void. The Act outlaws defection by an individual member
but shuts its eyes to defections in the garb of splits and mergers of groups of
members. The classification is prima facie irrational; it is undemocratic and illconceived.
Third, the power to resolve the issue of disqualification is vested in presiding
officers of the Houses and their decisions are final. Such proceedings are
deemed to be proceedings in Parliament under Article 122 or in a State
legislature under Article 212. These articles debar courts from inquiring into such
proceedings. Despite the procedure laid down by the anti-defection rules framed
under the Act,17 the decision of presiding officers (who are usually the nominees
of majority legislature parties) may not always inspire confidence; psychologically
and unconsciously they are likely to lean in favour of their political supporters. A
vital matter such as the matter of disqualification based on the allegation
ofdefection should not, therefore, be entrusted to them. Again, it is not clear why
a separate forum has been created for settling questions of disqualification on
account of defection when the Constitution has already provided a machinery for
dealing with issues of disqualifications specified in Articles 102 and 191. Under
Articles 103 and 192 these issues have respectively to be referred to the
President and Governors whose decisions are final. But before doing so, they
have
to
seek
the
opinion
of
the
Election
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Commission and have to act according to such opinion. 18 The provision

empowering presiding officers to decide questions of disqualification as a result
of alleged defection is inconsistent with the existing constitutional scheme to
have decisions in such matters by the Election Commission which is an impartial
forum created by the Constitution. There is no rational basis of such
discrimination. The provision, therefore, infringes Article 14 and is void.
Fourth, the Act has also taken away judicial review in cases of disqualification
on the basis of defection. There is no such bar in regard to issues of
disqualifications mentioned in Articles 102 and 191. This again is an
impermissible discrimination and violates Article 14. Though under the existing
provisions the decision of the President or the Governor, as the case may be, is
final, the courts can still intervene on the ground that he has not acted according
to the opinion of the Election Commission because finality can attach only to
intra vires exercise of the power, when a power is limited by
conditions.19Accordingly judicial review cannot be barred as it is a part of the
basic structure of the Constitution. Thus the provision taking away judicial review
is unconstitutional and void.20
IV
It is obvious that (in our opinion) a substantial part of the Act runs afoul of the
Constitution, and may not stand scrutiny in the Supreme Court. Its purpose could
have been achieved by simply incorporating defection (with a definition) as a
ground of disqualification in Articles 102 and 191.
The provision in the Act relating to the conscience franchise or abstention
(which is constitutional in our opinion) is, of course, harsh. It is, however, hoped
that political parties would promote internal democracy and permit their members
to exercise their right to freedom of expression except in some vital matters such
as no-confidence motions and money bills.
The Act is now being given a trial. One may hope that it curbs defections
rather than promotes them through splits and mergers provisions. Laws by
themselves cannot, however, do much, though their role is important. In order to

tone up the working and to ensure a proper growth of political institutions, we

have to count on human element. We have to generate mass awareness and
create selfless and committed leadership.

Based partly on author's paper Anti-Defection Constitution Amendment: A Critique,

presented at a seminar on electoral reforms organised by the Postgraduate Department

of Law, Patna University, at Patna on July 13-14, 1985, and published in II Corporate
Law Review 61 (1985). This is a bare comment; the author has undertaken an in-depth
study of the subject

Research Professor, Indian Law Institute, New Delhi

See also, generally, Granville Austin : The Indian Constitution : Cornerstone of a

Nation (1966)
2

The Constitution is an elaboration of these ideals

See B. Shiva Rao (Chairman, Project Committee) : The Framing of India's Constitution

: A Study, Chapter 4 on Preamble (1968). See also the speech of Dr Rajendra Prasad in
the Constituent Assembly, Constituent Assembly Debates, Vols. X-XII at 933-94
4

During 1950-67 there were only 400 defections but the pace of floor-crossing got

accelerated since 1967 when the Indian National Congress lost power in a number of
States. According to the Chief Election Commissioner, during 1967-83, there were 2700
recorded defections; 212 defectors became Ministers and 15 Chief Ministers. Instances
can be cited of a whole lot of members of a party shifting their affiliation to some other
party. Take the case of Bhajan Lal who with his whole group joined the Congress (I) to
become Chief Minister of Haryana. G.M Shah and his followers broke away from
Farooq Abdullah and Shah formed the government with the help of Congress (I) in
Jammu and Kashmir. In Andhra Pradesh around 55 members of the Telugu Desam
defected from the party under the leadership of N. Bhaskara Rao who was installed as
Chief Minister by an unscrupulous Governor though the mischief was undone later. No
one would ever forget the classic example of Charan Singh who along with his
supporters left Janata Party to become the Prime Minister without ever facing the
Houses of Parliament.
A study shows that since 1971, when the fourth general election took place, 1969
defections took place in the House of the People and Legislative Assemblies of the

States and Union Territories having around 4000 members. Several legislators crossed
the floor more than once; more than half of the members of Assemblies broke away at
least once; for sometime about one government collapsed each month and at times an
average of one legislator changed his affiliation each day. During 1967-72, 60 per cent
of the elected members of Legislatures defected at least once. During March 1967December 1970, most of the 51 ministries sworn in lost power because of the malady of
floor-crossing. After the 1971 mid-term elections, the ministries in Mysore, Uttar
Pradesh and Gujarat fell on account of defections. In Bihar not less than 85 members of
the Legislative Assembly changed affiliation twice and some four times. In Haryana one
legislator of the Congress (I) crossed the floor four times during a period of a few
weeks, another thrice and seven twice
The data are taken from Putting an End to Defections (editorial), The Hindu (January
21, 1985); S. Sahay: Law Against Defections, The Statesman (January 24 1985; A
Major Step (editorial), The Economic Times (February 1, 1985); Soli J. Sorabjee : The
Remedy Should not Be Worse than the Disease, The Times of India (February 3, 1985)
(Delhi edn.). See also Subhash C. Kashyap: The Politics of Power (1974)
5

See, e.g, H.M Seervai : Constitutional Law of India, Vol. 3 at 1831-37 (2nd edn., 1979)

The Constitution Amendment Bills of 1973 and 1978

See for details, J.K Mittal : Anti-Defection Constitution Amendment: A Critique, II

Corporate Law Review 61 (1985)

8

There was unanimity on the provisions of the Act. See Lok Sabha Debates, 8th series

Vol. I, No. 11, column 264 (January 30, 1985).

9

10

See Statement of Objects and Reasons appended to the Bill

Kesavananda

Bharati v. State

of

Kerala, (1973)

SCC

225; Indira

Nehru

Gandhi v. Raj Narain, 1975 Supp. SCC 1; Minerva Mills v. Union of India, (1980) 3 SCC
625. See alsoRomesh Thappar v. State of Madras, AIR 1950 SC 124; A. Lakshminath:
Justiciability of Constitutional Amendments In Rajeev Dhavan and Alice Jacob (eds.),
Indian Constitution: Trends and Issues 144-59, esp. p. 158 (1978); K. Madhavan Pillai,
Amendability of Fundamental Rights under the Constitution of India in id. at 192-99,
esp., p.197
11

See Article 80(1)(a) read with Article 80(3), Article 171(3)(e) read with Article 171(5),

and Articles 331 and 333.

12

See In re under Article 143, Constitution of India. AIR 1965 SC 745, 760-61.

13

See also arguments and majority judgments in Mian Bashir Ahmad v. State of J. and

K., AIR 1982 J&K 26

14

Webster, New Collegiate Dictionary 742 (Indian edn. 1983)

15

See supra note 13

16

See also Seervai, supra note 5 at 1832: if a small number of MPs desert their

party they become defectors; but if a large number of MPs desert their party this
grand scale desertion ceases to be desertion. But ordinarily, Governments are not
toppled by a small number of defections but by a large number of the members of a
party leaving it and/or going over to the party to which they had been opposed. This is
the evil which must be eradicated in our country. For in India it is very rare for the
members of a party to leave it because of conscientious change of opinion. Defections
in India generally take place because political support is sold for money or for promise
of ministership or public office, and the defector may defect again for more money and
promise of more important ministerships or public office. In short, it is an odious form of
political corruption.
17

The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985

18

Election Commission v. N.G Ranga, (1978) 4 SCC 181

19

D.D Basu, Commentary on the Constitution of India, Vol. F at 170 (1982)

20

This provision has, however, recently been struck down as unconstitutional and void

by the Punjab and Haryana High Court. The Supreme Court is now seized of the matter