RELEVANCE OF

ANTI-DEFECTION LAW
SUBMITTED BY:
SUNIDHI SACHDEVA
OF
FACULTY OF LAW, JAMIA MILLIA ISLAMIA
UNDER THE GUIDANCE OF
Prof. MOHD. ASAD MALIK
 CERTIFICATE
The project entitled RELEVANCE OF ANTI-DEFECTION LAW
submitted to the Faculty of Law, Jamia Millia Islamia for
CONSTITUTIONAL LAW as part of my internal assessment is based on
my original work carried out under the guidance of Prof. Mohd. Asad
Malik .The research work has not been submitted elsewhere for
award of any degree.
The material borrowed from other sources and incorporated in the
research paper has been duly acknowledged.
I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.

Signature of the candidate:

Date:
 INDEX
1. INTRODUCTION.
2. OBJECTIVE OF THE LAW.
3. FUNCTIONING OF THE LAW.
4. EXCEPTIONS.
5. AUTHORITY.
6. MERITS OF THE LAW.
7. DEMERITS OF THE LAW.
8. ANALYSIS OF KIHOTO HOLLOHON v. ZACHILLHU AND
OTHERS.
9. CONCLUSION.
10. TABLE OF CASES.
11. BIBLIOGRAPHY
 INTRODUCTION
Schedule X of the Constitution of India, containing the anti-defection law, was
enacted after three and half decades of India's experience with parliamentary
democracy. During the initial 15 years of Indian parliamentary democracy, the
first Prime Minister Mr. JL Nehru led the government with Congress party
majority. The phenomenon of defection became more apparent from the 4th
Lok Sabha, that is, from 1967 onwards. The original Constitution of India did
not mention anything about the political parties. But, ever since the multi-party
system evolved, the Indian parliamentary system has witnessed defections in
large numbers from one political party to another, resulting almost in the
breakdown of public confidence in a democratic form of government. Defection
may be defined as disloyalty or abandonment of duty or principles. Defection is
disloyal not only to the party on whose ticket he/she has been elected but also
commits a breach of faith with the electorates whose votes were secured on the
basis of his/her electoral affiliation and promises. The practice of switching
political sides to grab office was popularly known as Horse-Trading1. one such
incident that left a mark on India’s political history occurred after the 1967
elections when about 142 MPs and 1900 MLAs switched their political parties.
Further, India experienced the most tumultuous period of Emergency which
tested the strength of Indian constitution and parliament. The 70s era marked
floor crossing as a common problem facing all parties, wherein any member
changes his/her stance abruptly just before the voting inside the parliament,
probably many times due to monetary allurement. After many cases of floor
crossing on crucial voting, the term "Aaya Ram Gaya Ram" was coined to
describe this phenomenon in the mass media.

Mrs. Indira Gandhi introduced the constitution amendment bill against defection
in May 1973; but the proposal could not be passed in the next two years.
Finally, the bill was overtaken by imposition of Emergency, the biggest threat to
the Indian democratic system, and it was given a decent burial2. The anti-
defection law, also known as 'dal badal kanoon', was passed by parliament in
1985, in the aftermath of Mrs. Indira Gandhi's assassination, by Mr. Rajiv
Gandhi's Congress government who enjoyed three-fourths majority in
parliament. The law incorporated the Tenth schedule to the Constitution of India
apart from amending Articles 101, 102, 190 and 191 of the Constitution.
1
J.K. Mittal, Parliamentary Dissent, Defection and Democracy, 35 J. Indian L. INSTI. vii(1991)
2
Sumit Mitra, Taming the Turncoats, India Today(26/11/2013)
https://www.indiatoday.in/magazine/indiascope/story/19850215-pm-rajiv-gandhi-enforces-anti-defection-
law-brightens-government-image-769788-2013-11-26.
 OBJECTIVE OF THE LAW
The reasons for the addition of this schedule3 were explained by the Statement
of Objects and Reasons of the 52nd amendment, 1985 to the constitution in the
following words, “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. With this object, an
assurance was given in the address by the President to the Parliament that the
government intended to introduce in the current session of parliament an anti-
defection bill. This bill is meant for outlawing defection and fulfilling the above
assurance.”

Assuming the right intent of lawmakers, the legislation was aimed:

1. To reduce the power of money used for alluring elected members to make
or break a government and strengthen parliamentary democracy by
prohibiting floor-crossing.
2. To bring stability to the government and political parties; and not let the
government held at ransom on few elected members.
3. To ensure that the elected member remains loyal to the political party on
whose ticket he/she has been elected; and adhere the party policies.
4. To make elected members loyal to the political party so that the breach of
faith is not committed.
5. To deal with the problem of increasing independent members and
promote the functioning of the party-based democratic system.
6. To prevent larger parties from gaining control of government through
seducing members of smaller parties with promises of governmental or
financial gifts.

In other words, by banning parliamentary party defections, there would be less

corruption, more political stability, and more meaningful party labels with less
personalism in politics. The sotto voce expectation is that banning party
defections would increase the power of party leaders. This might provide for
more centralized and more coherent party policies. Most party scholars would
regard these implications as important traits for any legislative body and
especially important in parliamentary systems.

3
Schedule 10, the Constitution of India.
FUNCTIONING OF THE LAW (PARA 2):
The provisions of the tenth schedule lay out the grounds and procedure for
disqualifying legislators on account of defection, in both the Houses of
Parliament (Lok Sabha and Rajya Sabha), State Legislative Assemblies and
State Legislative Councils. This means there is a preference for political
stability over freedom of speech, dissent and conscience.

There are three types of legislators in Parliament and State Legislative

Assemblies:
1. Elected members (members belonging to political parties.)
2. Nominated members (by the President.)
3. Independent members.
According to the provisions of the Schedule X, an elected member will
be considered as disqualified on the following two grounds:

(a) Voluntarily giving up membership of their political party.

(b) Voting or abstaining from voting contrary to any direction of their
political party.

An important question arise in this regard: what would constitute the

member ‘voluntarily' giving up of membership of a party? The Supreme
Court, in Ravi S. Naik v. Union of India4, has interpreted the phrase
‘voluntarily gives up his membership.' It says: “The words ‘voluntarily
gives 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 tendered 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.”

4
AIR 1994 SC 1558
Rajendra Singh Rana v. Swami Prasad Maurya and Others5 is yet another
case which expanded the meaning to the words ‘voluntarily giving up of the
membership.’ It was held in the case that a letter by an elected party
member to the Governor requesting him to call upon the leader of the
opposite party to form a Government would by itself amount to an act of
voluntarily giving up membership of the party of which he is an elected
member.
The law provides room for dissent only in two situations: if the member takes
prior permission from his party, or if the action is condoned by the party within
15 days from the voting.

Nominated members have the option of joining a political party within six
months of their nomination. If they do so, they will be treated as the ordinary
members of the party. However, if they choose to join a political party after six
months, they will be disqualified as members of the house. The disqualification
of Sharad Yadav and Ali Anwar from the Rajya Sabha by the decision of its
presiding officer (Venkiah Naidu) is a good example to demonstrate this
provision. In this case, they attended a rally of Opposition parties in Patna in
violation of their party’s directions.

Similarly, with regard to Independent members, joining a political party after

election will lead to disqualification on the ground of defection. In M.P. Singh
v. Chairman, Bihar Legislative Council6, the petitioner was disqualified on the
grounds of defection when he contested the Lok Sabha election from
Maharajganj Parliamentary Constituency as an independent candidate. He was
already the member of Bihar Legislative Council (MLC) from Tirhut Graduate
Constituency as a candidate of Indian National Congress. The court upheld the
order of the presiding officer and declared the defection valid.

A new kind of legislator has appeared from the judgement of the Supreme Court
in G. Vishwanathan v. The Hon’ble Speaker Tamil Nadu Legislative
Assembly.7In this case, the appellant was a member of the Tamil Nadu
Legislative Assembly, being set up as a candidate by the AIADMK in the
election held in 1991. He was subsequently expelled from the party and
declared “Unattached”. Thereafter, he chose to join the MDMK. This was

5
AIR (2007) 4 SCC 270
6
AIR 2004
7
AIR 1996 SC 1060
brought to the notice of the speaker and proceedings for disqualification were
subsequently initiated. The member contended that being declared unattached,
the provisions of the tenth schedule could no longer apply to him. The
Speaker’s interpretation of para 2(1), 2(2) and explanation (a) of 2(1) held the
member liable for disqualification. Discussing the matter, he stated that a person
elected as a result of being set up as a candidate for a political party must be
deemed always to belong to the same party; joining any other political party
would amount to “voluntarily giving up membership”8 of such political party
and the member could be made subject to disqualification proceedings. It was
held that the member had incurred disqualification under Article 191(2) read
with para 2(1)(a) of the tenth schedule with immediate effect. The Speaker’s
decision was upheld by the Supreme Court.

EXCEPTIONS (PARA 3, 4 &5):

The law also makes suitable provisions with respect to splits and mergers of
political parties.

Para 3 of the tenth schedule provided that a person shall not be disqualified if
his original party splits with a faction claiming one third members as a separate
group.

Para 4 of the tenth schedule provided that a person shall not be disqualified if
his original party merged with the other party and he and any member of his
party:

1. Have become member of such political party or of a new political party

formed by such mergers.
2. Have not accepted the merger and decided to function separately.
Para 5 relates to exemption of officers of the house. It provides that the member
of the house who has been elected as an officer shall not be disqualified if:

1. By reason of election to such office, he voluntarily fives up the

membership and does not join the party until he holds the office.
2. He rejoins the party after he ceases to hold such office.

8
Para 2(1)a, X Schedule, The Constitution of India
However, this provision of the tenth schedule was criticised on the ground that
it allows bulk defections while declaring individual defections as illegal. The
Dinesh Goswami Committee on Electoral Reforms (1990) recommended that
disqualification should be limited to cases where a member voluntarily gives up
the membership of his political party or abstains from voting or votes contrary
to the party. The Committee recommended deletion of the provision regarding
exemption from disqualification in case of a split.9 Also, the Law Commission
in its 170th report of 1999 on "Reform of Electoral Laws" and the National
Commission to Review the Working of the Constitution (NCRWC)
recommended that provisions which exempt splits and mergers from
disqualification must be deleted. Following the recommendations, this provision
relating to split in parties was omitted by the Constitution (Ninety-First
Amendment) Act enacted in 2003. The requirement of at least one third
defectors of the political party was changed to at least two-third members. The
Schedule mentioned that ‘the merger of the original political party or a member
of a House shall be deemed to have taken place if, and only if, not less than
two-thirds of the members of the legislature party concerned have agreed to
such merger.’

AUTHORITY (PARA 6 & 7):

Para 6 of the Schedule provided that only the presiding officer, i.e. , Chairman
or the Speaker of a house, can make decisions on disqualifications of a member
and his/her decision is final. The power given to the speaker is absolute and
enormous in the sense that Para 7 to the Schedule excludes any jurisdiction of
the courts in respect of any matter connected with disqualification of members
of a house .It means that is outside the outside the jurisdiction of all courts
including the Supreme Court under Article 136 and High Courts under Article
226 and 227 of the Constitution. The legislature in a way tried to restrict the
power of judiciary provided under the Constitution, which is not tenable. In
Keshavananda Bharati and Others v. State of Kerala10, judicial review was
held to be a basic feature of the Constitution and the Constitution cannot be
amended so as to violate its basic structure. However, this rule has been

9
Krishnadas Rajgopal, Anti-defection Law, The Indian Express ( Jul. 24, 2008)
10
AIR (1973) 4 SCC 225
challenged multiple times and the court, in Kihoto Hollohon v. Zachilhu11, held
that the law is valid in all respects expect on the matter pertaining to judicial
review, which was held to be unconstitutional. The Court also held that the
Speaker, while deciding cases pertaining to defection of party members, acts as
a tribunal and nothing more than that, and that his/ her decisions are subject to
the review power of the High Courts and the Supreme Court. Mentioning a rule
of caution, the Supreme Court warned against the exercise of power of judicial
review prior to making of any decision by the Speaker12. On the matter of
review of the decision of the Speaker by the Speaker himself, it was held in Dr.
Kashinath G. Jhalmi v. Speaker, Goa Legislative Assembly13 that the provision
does not provide for any such power on the part of the Speaker and thus, the
Speaker cannot review his own decision.

However, it should be noted that even though there are several landmark cases
that favour the judicial review by the Courts in such matters of defection, no
amendment has been made in the tenth schedule so far.

MERITS OF THE LAW

The law relating to defection ensures stability in the government since there
aren’t shifts of party allegiance. The purpose of the Anti-defection law is to
prevent unsteadiness within the government governing its citizens. The law
provides for punitive measures against a member who defects from one party to
another. Therefore, it seeks to provide safety measures to protect both the
government and the opposition against a member who defects from one party to
another. When a citizen votes for a particular candidate, it is because of the
personal agenda of the candidate as well as the political party’s agenda or
beliefs. A candidate is bound by the promises made by his party during the
elections and, therefore, he is expected to remain loyal to the party as well as
the citizens voting for him. It also helps democratic parties to merge with each
other for the greater good of the people whom they represent at the end of the
day. It also promotes political ethics by disqualifying corrupt candidates who
shift parties just for their own personal gain.

11
AIR 1993 SC 412
12
M.P. Jain, Indian Constitutional Law, 48 (7th ed., 2016)
13
AIR (1993) 2 SCC 703
DEMERITS OF THE LAW
Turning to the downside, anti-defection laws restrict the freedom of speech and
expression of the members by preventing them from expressing any dissenting
opinion in relation to party policies. Another demerit of the law is that it reduces
the accountability of the government to the parliament and to the people by
preventing the members of the political parties to change their parties.14 While it
is agreed that the stability of the government is important, equally desirable is
the accountability of the house which consist of its members. Moreover, it fails
to distinguish between the concept of dissent and defection by limiting the
scope of the Parliamentarian’s privilege to dissent, which creates a strict order
in the party equivalent to the dictatorship in the party to keep the flock together
instead of maintaining party ethics.

ANALYSIS OF KIHOTO HOLLOHAN v.

ZACHILLHU AND OTHERS
In the sphere of the Indian legal system, Precedents always act as a source of
law. Therefore, to concentrate on the essence of the precedents on defection, let
us consider the case of Kihoto Hollohon v. Zachillhu and Others (1992) that
has shaken the chair of the judges as well as the parliamentarians. The main
issues that arose in this judgement were:

1. Whether the implementation of Schedule X limits the right to freedom of

speech and expression or not?
2. Whether on the grounds of disqualification, the provision of Paragraph 7
of the Schedule X providing the exclusion of the bar of the jurisdiction of
the courts is constitutionally valid or not?
3. Whether the grant to finalize the decision of the speaker or chairman of
any house mentioned in the Paragraph 6(1) of the Schedule X is
constitutionally binding or not?
14
G.C. Malhotra, Anti-Defection Law in India and the Commonwealth (Lok Sabha Secretariat, 2005)
 With regard to these issues, the court clearly gave the verdict that the law
does not infringe the right to freedom of speech or expression or any kind of
Parliamentary Privilege as it strives for identifying the practical importance
to apply the decorum of the political code of the ethics. Also, the court held
that the decision making power vests in the presiding officer only but the
final authority is given to the Indian Judiciary and the process of judicial
review once the decision has been passed. The Obiter Dicta of the court
were that the said law strengthen the political parties with control power over
the members and, as a result, sometimes a party can prevent its members to
exercise his vote for the minister ship.

CONCLUSION
Our Constitution has entrusted the ministers of Parliament and State Legislative
Assemblies with certain functions. As a legislator, it is their duty to discuss and
deliberate on issues of national and regional importance; and participate in
lawmaking by debating bills. The Anti-Defection Law undermines their
capacity to be an effective legislator. The law amended the Constitution to lay
out the process of disqualifying a legislator on grounds of defection. The Anti-
Defection Law was introduced with the intention to curb 'evils of political
defections' and promote party discipline.

In a deliberative democracy, debates and discussions are a key to framing strong

laws. Debates on the floor of the House are an opportunity for legislators to
raise their concerns and voice their opinions on an issue. It is expected that in
this capacity he must be able to determine public interest and contribute to the
lawmaking process. By weighing upon various factors he should determine his
position on an issue and form an informed opinion. These factors could be a
combination of his ideologies, voters' preferences and his political affiliation.
But, as per the law, a legislator could be disqualified if he votes against or
abstains from voting, contrary to his party's direction. This means that if a
legislator defies the party whip on any issue he is deemed to have defected and
will lose his membership to the House. A whip can be issued to all votes on
bills, motions and resolutions. The Law does not provide sufficient incentive for
an MP or MLA to examine an issue in depth and think through it to participate
in the debate. With the issuance of a whip, a member of the legislature is in
effect reduced to a mere voting number in House. He will finally have to obey
the position determined by his party leadership. A free exchange of ideas,
debate and dissent within political parties is curtailed. We have often seen
Members of Parliament opposing a bill on the floor of the House during their
speech, but falling in line to vote according to the party whip.

The Anti-Defection Law in India weakens the systems of checks and balances
inherent in a parliamentary democracy where the executive is accountable to the
legislature and the legislature keeps oversight on the executive's actions. After
being voted to office, the elected representative is accountable to his voters. The
Anti-Defection Law weakens this accountability as all his actions and decisions
can simply be justified on the grounds of following party diktat. It breaks the
link between the elected legislator and his electors.

Going forward, one of the immediate reforms needed to strengthen our

legislature is to limit the Anti-Defection Law to votes which affect the stability
of a government. These should include votes on No-Confidence Motions or
Money Bills. A balance between ensuring party discipline and maintaining
government stability on one hand; and empowering our legislators to exercise
their judgement and vote as per their conscience, on the other, must be
determined. This would be a starting point to a larger public debate about the
need at all for such a law15.

15
Trina Roy, Anti-defection Law, The First- post.
 TABLE OF CASES
1. Dr. Kashinath G. Jhalmi v. Speaker, Goa Legislative Assembly.
2. G. Vishwanathan v. The Hon’ble Speaker Tamil Nadu Legislative
Assembly.
3. Keshavananda Bharati v. State of Kerala.
4. Kihoto Hollohon v. Zachillhu and Others.
5. M.P. Singh v. Chairman, Bihar Legislative Council.
6. Rajendra Singh Rana v. Swami Prasad Maurya and Others.
7. Ravi S. Naik v. Union of India.
 BIBLIOGRAPHY
BOOKS AND STATUTES
1. M.P. Jain, Indian Constitutional Law, 7th ed., 2016
2. G.C. Malhotra, Anti-defection law in India and the Commonwealth, Lok
Sabha Secretariat, 11th ed., 2005
3. The Constitution of India.

JOURNALS
J.K. Mittal, Parliamentary Dissent, Defection and Democracy, JILI (1991)

OTHERS
1. Dinesh Goswami Committee on Electoral Reforms (1990)Submitted to
the Government of India on 4th May, 1990
2. The Constitution (Fifty-Second Amendment) Act, 1985
3. The Constitution (Ninety-first Amendment) Act, 2003
4. The First-post, An Article by Trina Roy, dated 2018-11-11
5. The Indian Express, An Article by Krishnadas Gopal, dated 2008-07-24.
6. India Today, An Article by Sumit Mitra, dated 2013-11-26.