ASIAN COLLEGE OF JOURNALISM

Dissertation
On

Issues Plaguing Anti-Defection Law

KUNAL GAURAV
PGDJ18070
NEW MEDIA

Submitted in partial fulfilment for the requirement of ‘Post-Graduate Diploma Course 2018-19’ at
the Asian College of Journalism.

1
 Acknowledgement
I would like to thank my mentor Kalyan Arun, for his supervision and guidance,
without which my dissertation would have been impossible to complete.

2
 Index
Chapter 1: Genesis and Provision of Anti-Defection Law..............................pg 1
i. Introduction..............................................................................................pg 1
ii. The Constitution (Fifty-second Amendment) Act, 1985..........................pg 3
iii. Provisions of Disqualification....................................................................pg 4

Chapter 2: Case study of the application of the law.......................................pg 5

Chapter 3: Legislature v. Judiciary.................................................................pg 7
Chapter 4: Issues and Inconsistencies in the Application…………………….......pg 10
Conclusion.....................................................................................................pg 13
Bibliography..................................................................................................pg 14

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Chapter 1: Genesis and Provision of Anti-Defection Law
Introduction
India is notorious for defections and “Aaya Ram Gaya Ram” has become an idiom of Indian
politics, especially after Haryana MLA Gaya Lal changed his party thrice within the same day
in 1967. Political defections have resulted in unpredictable alliances reducing elections to a
mere farce. Politicians today—in whichever party they may be—are bound together not so
much by the affinity of ideals or ideology as by a common hope of sharing political power
and enjoying other personal benefits.[1]
Traditionally, ‘floor crossing’ was the term used in the Westminster system of parliament
when a legislator crossed the floor while switching her allegiance from government to
opposition or vice versa.[2]
The year 1967 was a watershed moment in Indian politics when the “Congress System”, a
term coined by eminent political scientist Rajni Kothari, started to crumble. Indian National
Congress (INC) retained its majority in Lok Sabha election but secured the lowest number of
seats (283) and vote share (40.78%) till date. Its condition was worse in state legislatures
where the party lost power in five states and defections from the Congress party took place
in three more states (Haryana, UP, and MP), mainly on the issue of ministry formation, and
united front governments came to power.[3]
While coalition governments at state level were a new phenomenon in the short post-
independence political history of the country, it was bound to happen with the advent of
multi-party system. But it was defection that was undermining the democracy and not the
coalition politics.
Rajni Kothari (1970, p. 191) argues that “Much depends on the nature of factional coalition
that any government represents, whether single-party or multi-party. In a way the Congress
system has always been a system of coalition, multi-group in character, and informed by a
continuous process of internal bargaining and mobility”.[3]
Defections encouraged corruption of the highest level with unabashed horse-trading with
money and political positions that also led to unstable governments. To consider this
problem, a high-level committee was set-up on December 8, 1967, consisting of
representatives of political parties and Constitutional experts under the chairmanship of the
then Union Home Minister Y.B. Chavan.
The committee submitted its report on January 7, 1969, pointing towards the background of
the political hazard and suggested several recommendations.
“Following the fourth general election, in the short period between March 1967 and
February, 1968, the Indian political scene was characterised by numerous instances
of change of party allegiance by legislatures in several states. Compared to 542 cases
in the entire period between the First and Fourth General Elections, 438 defections
occurred in these 12 months alone. Among independents, 157 out of a total of 376
elected joined various parties in this period. That the lure of office played a dominant

1
 part in decisions of legislators to defect was obvious from the fact that out of 210
defecting legislators of the States if Bihar, Haryana and Madhya Pradesh, Punjab,
Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the council of
ministers which they helped to bring into being by defections. The other disturbing
feature of this phenomenon were: multiple acts of defections by the same person or
set of persons (Haryana affording a conspicuous example); few resignations of the
membership of the legislature on the part of defectors to political proprieties,
constituency preference or public opinion; and the belief held by the people and
expressed in the Press that corruption and bribery were behind some of these
defections.”[4]
The committee suggested various legislative and constitutional measures to curb the
menace of defection. Some of the important recommendations were:
 To bar a defector for a period of one year from appointment to the office of a
Minister or Speaker or Deputy Speaker or any post carrying salaries or allowances to
be paid from the Consolidated Fund of a state or from the Government undertakings
in the public sector in addition to those to which defector might be entitled as a
legislator or till such time she resigned her seat and got herself re-elected.
 To limit the size of Council of Ministers should be limited and for this purpose, a
ceiling specifying the optimum percentage of the total members of legislature.
 To disqualify a defector from continuing as a member of Parliament/State
Legislature unless she got herself elected again.
Based on the recommendations of the committee, Government introduced the Constitution
Amendment Bill (Thirty-second amendment) in Lok Sabha on May 16, 1973. However, the
bill lapsed with the dissolution of the lower house on January 18, 1977.
The issue was again taken up by a committee headed by Choudhary Charan Singh, the then
Union Home Minister in Morarji Desai cabinet, and the Constitution Amendment (Forty-
eighth amendment) Bill, 1978 was introduced in Lok Sabha.
The Bill proposed to specify defection as a disqualification under Articles 102 and 191 of the
Constitution. A new Schedule was also proposed to be inserted in the Constitution to make
detailed provisions for disqualification on the grounds of defection. But the Bill was
withdrawn the same day after opposition from Janata Party members themselves.

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The Constitution (Fifty-second Amendment) Act, 1985
The Anti-Defection Bill saw light of the day after Rajiv Gandhi government came to power in
December, 1984, post Indira Gandhi’s assassination. The Government introduced the
Constitution (Fifty-Second Amendment) Bill, 1985 in Lok Sabha and held prolonged
discussions with the leaders of opposition leaders to bring national consensus. [2]
The Bill was passed by both the houses and received the President’s assent successfully. The
Act came into force with effect from March 1, 1985, after issuance of the necessary
notification in the Official Gazette.
In the Statement of Objects and Reasons to the constitutional amendment it was observed
that “The evil of political defections has been a matter of national concern. If it is not
combated, it is likely to undermine the very foundations of our democracy and the
principles which sustain it” [5].
The 52nd Amendment Act of 1985 provided for the disqualification of the members of
Parliament and the state legislatures on the ground of defections and inserted a new
Schedule (the Tenth Schedule) in the Indian constitution.
But the mere insertion of the tenth schedule did not mark an end to the problem of
defection and one of the primary reasons for the ineffectiveness of the Tenth Schedule was
the provision of ‘split’. If one-third of the members of a political party decided to defect, it
would have been treated as a split and the defecting members could not be disqualified.
The Supreme Court in Kihoto Hollohan vs Zachilhu and others, held that the intention behind
inserting this provision in the Tenth Schedule was the need to provide for such floor-
crossing on the basis of honest dissent.[6]
Single largest parties engineered defections from the opposition after ensuring that one-
third of the members defect together by offering them ministerial berths or other offices of
profit.
The 170th Report of the Law Commission made the following observation about the Tenth
Schedule:
“The experience of the country with the Tenth Schedule since its introduction has not
been happy. It has led to innumerable abuses and undesirable practices. While the
idea of disqualifications on the basis of defection was a right one, the provision
relating to ‘split’ has been abused beyond recall.”
The need to strengthen the law in this regard led to the Constitution (Ninety-first
Amendment) Act, 2003, which omitted Para 3 of Tenth Schedule that dealt with the
exception of ‘split’.

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Provisions of Disqualification [7]
Article 102(2) and 191(2) mentions disqualification of the members of Parliament and state
legislatures, respectively, on the ground of defections as mentioned in the Tenth schedule.
Members of Political Parties: A member of a House belonging to any political party
becomes disqualified for being a member of the House,
(a) if she voluntarily gives up her membership of such political party; or
(b) if she votes or abstains from voting in such House contrary to any direction issued by the
political party to which she belongs without obtaining prior permission of such party and
such act has not been condoned by the party within 15 days.
Independent Members: An independent member of a House becomes disqualified for being
the member of the House if she joins any political party after such election.
Nominated Members: A nominated member of a house shall be disqualified for being a
member of the house if she joins any political party after the expiry of six months from the
date on which she takes his seat.
Exemptions:

Disqualification on the ground of defection does not apply in two cases:

a. Merger: If a member goes out of her party as a result of a merger of the party with
another party. A merger takes place when two-thirds of the party has agreed to such
a merger.
b. Speaker: If a member, after being elected as the presiding officer of the House,
voluntarily gives up the membership of his party or re-joins it after she ceases to
hold that office.

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Chapter 2: Case study of the application of the law
Defections started on a large scale after 1967 state assembly elections, as mentioned in the
earlier chapter. We will now discuss one of the latest cases of defection and study the
application of Anti-Defection Law.
Disqualification of Congress MLAs in Arunachal Pradesh
Congress Government was ruling Arunachal Pradesh since May 2014, with the support of 47
MLAs in a 60-member assembly. Nabam Tuki, the then Chief Minister, dropped the state
Health and Family Welfare Minister Kalikho Pul from the cabinet in a reshuffle. Mr. Pul was
finally expelled from the party for alleged involvement in anti-party activities after he
accused the government of large-scale financial mismanagement and corruption.
Later, 21 Congress legislators, including Kalikho Pul, joined hands with the 11-member BJP in
a bid to unseat Nabam Tuki. Congress MLAs demanded a resolution to remove the Deputy
speaker, who was among the rebels, while the BJP MLAs demanded a resolution to remove
the Speaker, Nabam Rebia.
Jyoti Prasad Rajkhowa, the then Governor of Arunachal Pradesh, advanced the Assembly
session, without the advice of Council of Ministers, from Jan 14, 2016 to Dec 16, 2015 and
further directed that the issue of disqualification of Speaker of the Assembly should be
taken up first.
In a pre-emptive move to counter the BJP MLAs and the rebels, the Government locked
down the legislature building and the Speaker, Nabam Rebia, disqualified 14 out of the 20
dissidents under Anti-Defection Law to bring down the number required for a majority.
The ongoing event took another turn when the Deputy Speaker ‘revoked’ their
disqualification. The rebels, along with the BJP MLAs, convened the assembly in a Hotel,
‘removed’ the Speaker and the Chief Minister through a ‘no-confidence’ motion.
The disqualification of Rebel Congress MLAs under the Anti-Defection Law could have been
challenged in the court of law since in Kihoto Hollohan vs Zachilhu and others, 1992,
Supreme Court held Para 7 – no court shall have any jurisdiction in respect with the matter
connected with disqualification of a Member of a House – as ultra vires.[6] But the rebels
showed an unseemly hurry which deepened the crisis.
Legal Basis of Governor’s Discretion in this case
Discretionary powers of the Governor imply ‘power to make a decision without the aid and
advice of council of Ministers.
Article 163(1) - There shall be a Council of Ministers with the Chief Minister at the head to
aid and advise the Governor in the exercise of his functions, except in so far as he is by or
under this constitution required to exercise his functions or any of them in his discretion. [8]
A question arises whether the discretionary power is against the principle of rule of law.
According to the Punchhi Commission, it goes against the rule of law only when it is used in

5
an arbitrary manner. It should not be seen as power in general to bypass the advice of the
Council of Ministers.[9]
But for a long time, there has been an arbitrary exercise of discretionary power.

 In 1984, Governor of Andhra Pradesh Thakur Ram Lal dismissed the Telugu Desam
Party (TDP) government on the ground that Chief Minister N.T. Rama Rao has gone
abroad for medical treatment.
 In 1988, Governor Romesh Bhandari sacked the Government of Kalyan Singh without
giving the opportunity of floor test and appointed Jagdambika Pal as the Chief
Minister. (Article 212 prohibits the interference of courts in legislative proceedings
of a State. However, the action forced judiciary to intervene and directed composite
floor test for the 1st time in the history of Independent India.)
 In 2006, Governor Buta Singh dissolved Bihar assembly, even before its first session,
on the apprehension of horse trading.
 In 2016, Governor of Uttarakhand fixed the date and time to prove the majority but
just a day before recommended the Union Government to impose President’s rule
on the ground of possible bribery/corruption. Governor came to this conclusion on
the basis of a sting operation. It is to be noted that according to the Supreme Court,
corruption cannot be the basis for imposition of Article 356.
 In 2017, Governor of Goa and Manipur did not observe the convention of inviting the
single largest party to form the government.
Nabam Rebia and Bamang Felix v. Deputy Speaker and Others -
The matter finally went to the Supreme Court which set aside the impugned judgment and
order passed by Guwahati High Court and restored the assembly as is, before the Governor
had summoned it.
Supreme Court defined scope of the discretionary power of the Governor in its judgment[10]:
 It held that Governor has no discretionary power to summon the session of the
house and can only be done on the aid and advise of Council of Ministers.
 In case six months have lapsed and the Government is not asking the Governor to
summon the house, only then Governor can use his discretionary powers.
 Supreme Court referred to the Punchhi Commission which held that the
discretionary powers should be narrowly construed and to be used only under
compelling circumstances.
 Penning unprecedented criticism of Governor JP Rajkhowa, Supreme Court told
Governors to keep their eyes shut to political machinations and resist the temptation
to jump into “political thicket”.

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Chapter 3: Legislature vs. Judiciary
There has always been a tussle between legislature and judiciary over separation of powers.
The fathers of the Indian constitution preferred the American doctrine of ‘limited
government’ to the English doctrine of ‘Parliamentary Sovereignty’ that has led to this
tussle.[8]

Judicial Review:
Even if the American Constitution does explicitly mention the concept of ‘judicial review’,
the scope of judicial review is broader than what we have here in India. This is because the
American Constitution ensures ‘due process of law’ while the Indian Constitution provides
for ‘procedure established by law’.
Subhash C. Kashyap explains that the due process of law gives wide scope to the Supreme
Court to grant protection to the rights of its citizens. It can declare laws violative of these
rights void not only on substantive grounds of being unlawful, but also on procedural
grounds of being unreasonable. Our Supreme Court, while determining the constitutionality
of a law, however examines only the substantive question i.e. whether the law is within the
powers of the authority concerned or not. It is not expected to go into the question of its
reasonableness, suitability or policy implications.[11]
Though the phrase ‘judicial review’ has nowhere been used in the Constitution, the
provisions of several Articles explicitly confer the power of judicial review on the Supreme
Court and the High Courts.
The Judiciary has gained ground by itself declaring that ‘judicial review’ is a basic feature of
our Constitution[12][13][14], so as long as the Supreme Court itself does not revise its opinion in
this behalf, any amendment of the Constitution to take away judicial review of legislation on
the ground of contravention of any provision of the Constitution shall itself be liable to be
invalidated by the court.[15]
In several cases, Supreme Court itself pointed out the significance of judicial review in India.
Some of the observations made by it, in this regard, are given below:
 In India, it is Constitution that is supreme and that a statute law to be valid, must be
in conformity with the Constitutional requirements and it is for the judiciary to
decide whether any enactment is unconstitutional or not.[16]
 If a Constitutional amendment cannot be pronounced to be invalid even if it destroys
the basic structure of the Constitution, a law passed in pursuance of such an
amendment will be beyond the pale of judicial review because it will receive the
protection of the constitutional amendment which the courts will be powerless to
strike down.[17]
 The judges of the Supreme Court have been entrusted with the task of upholding the
Constitution and to this end, have been conferred the power to interpret it. It is they
who have to ensure that the balance of power envisaged by the Constitution is

7
 maintained and that the legislature and the executive do not, in the discharge of
their functions, transgress constitutional limitations.[13]

Judicial Activism:
When any institution goes beyond its constitutional mandate and intervenes in the sphere
of other institutions, it is called activism of that institution. Hence, when judiciary claims the
role of legislature and executive, we call it as an activist judiciary. But in Indian context, the
Constitution itself envisaged an activist judiciary under Article 136 and 141.
Evolution of Judicial Activism:
In I. C. Golaknath & Others v. State of Punjab 1967, the first significant case of judicial
activism, Supreme Court held that even by an Amendment, the Government cannot abridge
any of the Fundamental Rights.[18]

 In 1973, Kesavananda Bharati v. State of Kerala[15] case to a new phase of judicial

activism where the largest ever thirteen-judge bench overruled the judgment of
Golaknath case with a 7-6 majority, stating that although no part of the Constitution,
including Fundamental Rights, was beyond the amending power of Parliament (thus
overruling the 1967 case), though the "basic structure of the Constitution could not
be abrogated even by a constitutional amendment".[19]
 It was the infamous ADM Jabalpur v. S.S. Shukla 1976, also known as Habeas Corpus
case, when the judiciary remained subdued even after asserting itself in
Kesavananda Bharti case. It failed to issue the writ of habeas corpus against arbitrary
detentions during emergency.[20]
 From 1980 onwards, we see the judiciary playing a highly active role towards the
strengthening of Human Rights in India. Justice V.K. Krishna Iyer and Justice P.N.
Bhagwati, pioneers of the concept of PIL (Public Interest Litigation), facilitated the
relaxation of traditional rule of ‘locus standi’. The judiciary gave some landmark
judgments in Bandhua Mukti Morcha case, Vishaka and others v. State of Rajasthan,
People’s Union for Democratic Rights and Others v. Union of India (Asiad Workers
case).
 Towards the 90s, the political condition created a vast scope of judicial intervention
in the governance, primarily because of coalition politics, corruption and policy
paralysis.
 In 21st century, the judiciary started venturing into the domain of public policy. e.g.
2G spectrum case where the judiciary opined that the only method for the allocation
of natural resources has to be by auction.
Thus, nature and scope judicial activism have seen enormous expansion over a period of
time. It is to be noted that judicial activism and judicial overreach remains a highly
subjective phenomenon.
The American Judiciary sits over the wisdom of any legislative policy as if it were a third
chamber or super-Chamber of Legislature. Under the English Constitution, on the other

8
hand, Parliament is supreme and “can do everything that is not naturally impossible” and
the Courts cannot nullify any Act of Parliament on any ground whatsoever.[8]
Therefore, the framers of the Indian Constitution have preferred a proper synthesis
between the British principle of parliamentary sovereignty and the American principle of
judicial supremacy. The Supreme Court, on one hand, can declare the parliamentary laws as
unconstitutional through its power of judicial review. The Parliament, on the other hand,
can amend the major portion of the Constitution through its constituent power.
The validity of Anti-Defection Law itself found to be controversial. A five-judge bench of
Supreme Court of India examined the validity in Kihoto Hollohan v. Zachilhu case and
unanimously declared Para. 7 of the Act ultra vires the Constitution as the Bill seeking to
make a change in Art.136 which is a part of Chapter IV of Part V and Art. 226 and 227, which
form of Chapter V of Part VI of the Constitution by way of Amendment to the Constitution,
had not been made in the manner prescribed by clause (2) read with the proviso of Article
368.[21]
However, the minority opinion (of Justice Lalit Mohan Sharma and Justice J.S. Verma)
declared that the entire part of the tenth schedule was unconstitutional as it violated a basic
feature of the Constitution for various reason mentioned therein.
Constitution prohibits Courts from interfering in the proceeding of Parliament and
Legislature (Article 122, 212), but the Supreme Court held that in above situation speaker
acts as a tribunal and performs quasi-judicial functions, and thus their decisions in that
capacity are amenable to judicial review.

9
Chapter 4: Issues and Inconsistencies in the Application
1. It does not differentiate between dissent and defection.
The words defection and dissent are not synonymous. They carry separate and
distinct meanings. Defiance of party direction or whip maybe an expression of
‘dissent’ but not ‘defection’. It is well known that in the U.K., Canada, Australia and
New Zealand where Parliamentary democracies similar to India exist, members
sometimes vote in defiance of the party whip or direction and they are not
penalized.
In fact, in all these countries dissent has played an important part. There is no
question in Britain or in any other three countries mentioned above of unseating the
dissenting member. Mere non-compliance with a party directive can never be
considered to be political defection because such a member has neither changed
sides nor crossed the floor; she continues to remain a member of her party.
The law restricts a legislator from voting in line with his conscience, judgment and
interests of his electorate. It cannot be denied that a representative’s primary loyalty
is to the electorate and the nation and, since she has been elected on the basis of
her party manifesto, she owes allegiance to the fundamental policies and programs
set out in her party’s manifesto.
In the case of a conflict between the action of the leadership or the bosses of her
party in the legislature and the interests of the people and nation, or in the event of
the leadership violating the pledges given to the people, what is the duty of the
member concerned? Is it not her right to serve the interests of the people? Is it not
her duty to abide by the party manifesto?
The essence of parliamentary democracy is the continuous and day-to-day
answerability of the Government to the Parliament, enforced through the doctrine
of collective responsibility enshrined in Articles 75 and 113 as well as freedom of
speech and vote under Articles 105 and 194 given to the members. This
accountability has been done away with the Anti-Defection Law. All that the
Executive has to do now is to issue a whip to the members.
Thus, ‘Voting under whip of a party can often turn into oppression and even tyranny.
It is also a sign that party has turned into deity, and one of the evils of party system
is that party bosses come to behave like gods and demand allegiance to them and
their views instead of to the truth.’[22]
While one must accept that loyalty to the party cannot be allowed to be totally
disregarded, at the same time the right of the members to vote or abstain from
voting subject to the above exception should not be curbed so as to maintain his
freedom of speech and expression given under the constitution.[23]

10
 In 2017, Mr. Venkaiah Naidu, the Vice President of India and Chairman of the Rajya
Sabha, disqualified two members of his House — Sharad Yadav and Ali Anwar Ansari
— and the reasoning provided by him has added a new dimension to the anti-
defection law.
The critical question that arose, in this case, was whether the conduct of the two
MPs amounted to them “voluntarily given up” the membership of their party — the
JD(U). The two MPs argued that they had not voluntarily given up membership of the
party.
The Supreme Court in Ravi S. Naik v. Union of India case has interpreted ‘voluntarily’
in a broader sense. In a case a person has not given formal resignation yet her
actions can be ascertained that she has left the party.
The Court held that the words “voluntarily given up his membership" are not
synonymous with “resignation” and have a wider connotation. A person may
voluntarily give up her membership of a political party even though she has not
tendered her 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 she has voluntarily given up her membership of the political party
to which she belongs.[24]
Anti-Defection Law already limits the freedom of speech and expression and the
Court’s interpretation of the word ‘voluntarily’ makes it further limited. It
compromises the speech and expression of a legislator which is actually her
privilege.
2. It has politicized the institution of the Presiding Officer.
Its vesting of decision-making authority in the presiding officer is often criticized as
he or she may not exercise this authority in an impartial and objective manner due
to political exigencies.
In Kihoto Hollohan v. Zachilhu, the Supreme Court held that the Chairman/Speakers
hold a pivotal position in the scheme of parliamentary democracy and it would be
inappropriate to express distrust in the high office of the Speaker, merely because
some of the Speakers are alleged to have discharged their functions in a manner not
befitting the great traditions of their high office.
However, the minority view in Kihoto Hollohan case held that the Speaker being
dependent on continuous support of the majority in the House, she does not satisfy
the requirement of an independent adjudicating authority and her choice as a sole
arbitrator in the matter violates an essential attribute of the basic feature.
In 2015, Nabam Rebia, the then speaker of Arunachal Pradesh disqualified 14
members of the ruling party even when they had not left the party or defied its
directives.

11
 In 2016, Govind Singh Kunjwal, the then Speaker of Uttarakhand Legislative
Assembly, disqualified nine MLAs on the ground that they demanded to vote on the
budget, even when the Assembly rules of Uttarakhand permit voting on the
Appropriation Bill.
Speaker is a position of dignity and a pivot in parliamentary democracy. In the words
of Pandit Nehru, “The Speaker represents the House. He represents the dignity of
the House, the freedom of the House and because the House represents the nation,
in a particular way, the Speaker becomes the symbol of the nation's freedom and
liberty. Therefore, it is right that there should be an honored position, a free position
and should be occupied always by men of outstanding ability and impartiality.” [25]
Her position is so important that she does not vacate the office on the dissolution of
Lok Sabha, continues in the office until immediately before the first meeting of the
newly constituted Lok Sabha.
In India, the Speaker is not modeled entirely on the British institution. In the United
Kingdom, the Speaker has to resign from the party and the convention is “Once a
speaker, always a speaker”. If we look at the US Model, Speaker is not neutral and
she openly supports her party. However, she does not have any ultimate disciplinary
power.
India should have either adopted the British model or the US Model completely
rather than a hybrid model and, as suggested by the Supreme Court, based on the
theoretical assumption of impartiality.
3. Discrimination between an independent member and nominated member is
illogical.
If the former joins a party, he is disqualified while the latter is allowed to do the
same.
The provision for disqualifying an independent member on ground of joining any
political party seems to be inconsistent with provisions of Article 84 and 173. It also
seems to be discriminatory in as much as the nominated members are permitted to
be member of a political party within a period of six months from the date of taking
the oath.

12
 CONCLUSION
Dinesh Goswami Committee on Electoral Reforms (1990) has recommended that there
should be no disqualification attached to only disobedience of the party whip, except in
cases involving a vote of confidence or a vote of no-confidence or motion of vote of
thanks to the President’s address or a vote on a money bill. In all other cases, the
member’s right of free speech and voting should be protected.[26]
While the nominated member of the house is allowed to join a political party within six
months from the date of taking the oath, the committee recommended that the
nominated members of the house concerned should incur disqualification if she joins
any political party at any period of time.
Since the institution of Speaker is not neutral, the Goswami committee as well as the
National Commission to Review the Working of the Constitution (NCRWC) suggested
disqualification in case of Anti-Defection Law need not to be different from other cases.
In all the other cases, President decides according to the advice given by Election
Commission. So, the power of deciding the legal issue of disqualification should not be
left to the Speaker or Chairman of the House but to the President or Governor, as the
case maybe, who shall act on the advice of Election Commission. Even in Bangladesh,
the power of disqualification lies with Election Commission.[7][27]

13
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2. JUSTICE V.S. DESHPANDE, Dr. KIRAN JAIN (1991) Elections: Law and Practice 4th
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3. RAJNI KOTHARI (1970) Politics In India New Delhi: Orient Longman
4. MINISTRY OF HOME AFFAIRS (1969) Report of the Committee on Defections
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