RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

PROJECT REPORT- 10TH SEMESTER

ANTI- DEFECTION LAW: UNDERSTANDING THE ANOMALY

SURROUNDING IT

Submitted to: Submitted by:

Dr. Ishita Sharma Sakshi Srivastav

Asst. Prof. of Law Roll no. 18135
 Rajiv Gandhi National University of Law, Punjab

SUPERVISOR’S CERTIFICATE

Dr. Ishita Sharma Place:

Patiala

Rajiv Gandhi National University of Law, Punjab

Date- 06/04/23

This project, titled “Anti- Defection Law: Understanding the Anomaly surrounding it” is
a bonafide work of Sakshi Srivastav, Roll No. 18135, a tenth semester student at RGNUL,
Punjab, which has been made under my supervision and guidance.

No part of this project has been submitted to any other university for the award of any degree
or diploma whatsoever.

______________

Dr. Ishita Sharma

Page | 2
 Rajiv Gandhi National University of Law, Punjab

ACKNOWLEDGMENT

Firstly, I’d like to express my sincerest gratitude to Dr. Ishita Sharma for providing me with
the opportunity to make a project on the topic as it helped me gain invaluable insight into one
of the most important facets of the subject and the implications of the aforesaid on
contemporary times and further my knowledge of this topic. I’d also like to thank her for
helping me with the project and nudging me in the right direction whenever I needed
guidance.
Secondly, I’d like to thank the University for its setting up and managing the various
information portals which allowed students to access a vast assortment of source material
and resources, which made writing a paper much easier.
Last, but not the least, I’d like to thank my friends and family for all the support and
encouragement they provided me while I was compiling this paper.

Page | 3
 Rajiv Gandhi National University of Law, Punjab

TABLE OF CONTENTS

ACKNOWLEDGMENT.......................................................................................................................3
STATEMENT OF PROBLEM..............................................................................................................5
RESEARCH QUESTION.....................................................................................................................5
RESEARCH OBJECTIVES..................................................................................................................6
RESEARCH METHODOLOGY..........................................................................................................6
SCOPE AND LIMITATION OF STUDY.............................................................................................6
CHAPTER 1..........................................................................................................................................7
INTRODUCTION: THE SAGA OF DEFECTIONS............................................................................7
CHAPTER 2........................................................................................................................................10
THE CONSTITUTION (52ND AMENDMENT) ACT, 1985 AND ITS SUBSEQUENT
EVOLUTION......................................................................................................................................10
CHAPTER 3........................................................................................................................................17
THE CONTINUING SAGA OF DEFECTIONS- DISCUSSING THE INHERENT PROBLEMS IN
INDIA'S ANTI- DEFECTION LAW..................................................................................................17
CHAPTER 4........................................................................................................................................27
CONCLUSION...................................................................................................................................27

Page | 4
 Rajiv Gandhi National University of Law, Punjab

ANTI- DEFECTION LAW:

UNDERSTANDING THE ANOMALY SURROUNDING IT

STATEMENT OF PROBLEM

The 52nd Constitutional Amendment Act of 1985 added the Tenth Schedule to the
Indian Constitution, popularly known as the “Anti-Defection law”. The Law has
succeeded in some ways in fulfilling its aim to bring party stability and curb
defections but due to some of its erroneous provisions, it is unable to achieve the best
it can. The Tenth Schedule introduced the anti-defection law in India by laying down
that legislators who voluntarily give up membership of the party they belong to and
legislators who disobey the whip issued by the party with regard to voting, shall incur
disqualification. The present paper seeks to provide a brief analysis of the grounds
mentioned in the Tenth Schedule. It also highlights some of the merits and demerits
of the law. As the law gets older and older, we find that with the corruption prevalent
amongst politicians and given their dishonest tactics, they have been able to take
advantage of loopholes in the law to suit their personal needs. This is the reason why
the law has not been able to achieve the best it can. The present paper tries to delve
into the loopholes, which render the 52 nd Amendment Act somewhat unsuitable and
unsuccessful.

RESEARCH QUESTIONS

1. CAN THE SPEAKER RULE ON DEFECTION CASES WHEN THE LEGISLATURE IS

PLACED UNDER SUSPENDED ANIMATION?

2. CAN A PETITION FILED UNDER THE TENTH SCHEDULE BE WITHDRAWN?

3.DO THE SPEAKER HAVE SUO MOTU POWER TO DECIDE ON A

DISQUALIFICATION PETITION?

4. CAN A DISQUALIFICATION PETITION BE ADDRESSED TO THE SECRETARY

OF STATE LEGISLATURE?

Page | 5
 Rajiv Gandhi National University of Law, Punjab

5. SHOULD THE PRESIDING OFFICER / SPEAKER BE DEPRIVED OF THE POWER

TO RULE ON DEFECTION PETITIONS?

RESEARCH OBJECTIVES

The questions that the researcher will try to answer in the project are twofold in nature, and
as follows-

i) Relevancy of the existing anti-defection regime to curb the political process

fqailure in the nature of defection.
ii) Should the presiding officer / speaker be deprived of the power to rule on
defection petitions?

RESEARCH METHODOLOGY

This project has been written by adopting a doctrinal and analytical based approach. In order
to understand the concept, the author has referred to different publications, definitions of
works of different legal scholars and online articles and blogs.

SCOPE AND LIMITATION OF STUDY

The scope of this project is limited to understanding the inhibitions in the anti-defection
regime of India, and the scope of the Speaker’s powers.

Page | 6
 Rajiv Gandhi National University of Law, Punjab

CHAPTER 1
INTRODUCTION: THE SAGA OF DEFECTIONS

In the Indian Constitution various grounds have been provided on the basis of
which both Members of Parliament (MPs) and Members of Legislative
Assemblies (MLAs) may be disqualified from the Legislature and one such ground
is ‘defection’.

The political parties in democracy are often well-established, well-organized and based
on ideologies and values. However, sometimes they may be the result of mere rising
up much like the mushrooms around a leader or group of leaders without any agenda
or theory, motivated by the sheer desire to gain or share political influence. 1 The latter
form of party politics is truer in developing countries and so was the case as evidenced
in the late 1960s wherein a rampant rise in the defections took place, causing a serious
threat to the Indian democracy.

Defection may be defined as desertion of loyalty, Principle or duty, or of his leader

or clause2. The traditional term that has been used for it is floor crossing when he
crosses the floor and shifts from government to opposition or the other way
around. Chavan Committee on Defection defines an elected member of a
legislature to have defected, if after being elected as a member of either house of
Parliament or legislative council or the legislative assembly, he has voluntarily
renounced allegiance to or association with such a political party provided that his
action is not in consequence of a decision of the party concerned. In short, the term
defection signifies an act of a legislator wherein he transfers from the party on
whose platform he was elected of another political party.3

In India, the issue of defection and the immense need to take a step to eradicate
this problem was addressed in 1967 elections which truly was a seminal moment
in India’s electoral history. It was in 1962 when a large number of defections was
witnessed where approximately 142 MPs and 1900 MLAs committed defection
and this was the event which also lead to the formation of the very popular phrase
1
Paras Diwan, “Aya Ram Gaya Ram: The Politics of Defection” 21(3) Journal of the Indian Law Institute 292
(1979).
2
Subhash, Kashyap C. Anti-Defection Law and Parliamentary Privileges, 3rd Edition.
3
Anti-Defection Law, Common Cause, (July 2016), debated by Anviti Chaturvedi.

Page | 7
 Rajiv Gandhi National University of Law, Punjab

‘Aaya Ram Gaya Ram’ in reference to a Haryana MLA Gaya Lal who changed his
party thrice within the same day in 1967. 4 The lure of office played a dominant
part in this “Political Horse-Trading” as was obvious from the fact that out of 210
defecting legislators of various states during the first year of “defection politics”,
116 were incorporated in the list of council of ministers in the government which
they helped to form5.

Therefore it was in 1967 when the Government took the decision to take a step
towards this menace and went on to pass a resolution. A committee was formed by
the Union Government under the chairmanship of the then Union Home Minister
Shri Y.B. Chavan and consisted of eminent people such as M.C. Setalvad,
Jayaprakash Narayan, H.N. Kunzru, M. Kumaramangalam and MadhuLimaye
among others.6 Their suggestions was inclusive of ones like political parties must
have a code of conduct among themselves, if the defection was for ideological
reasons then the defector shall be disqualified to continue as a legislator but could
stand again and in cases where the defection took place for pecuniary reasons then
the defector shall not only be disqualified from office but also be prevented from
standing for a specified period.7

These recommendations by the Chavan Committee were sought to be

implemented by means of The Constitution (Thirty Second Amendment) Bill but
due to the dissolution of the House before the bill could be passed, it remained an
unsuccessful attempt. Further, after another failed attempt to check defection by
way of the Constitution (Forty Eighth Amendment) Bill. It was finally in 1985 that
the eradication of this travesty of the democratic process was put to action. The
much awaited anti-defection law was passed by the Parliament in 1985. The 52nd
amendment to the Constitution added the Tenth Schedule and amended various
Articles like 101, 102, 190 and 191 and its purpose was the incorporation of the
process by which legislators could be disqualified in case of defection committed
by them.8 Prevention of the frequent change of parties by members was essential
since it was hampering the stability of the political system. This was a very
4
The Anti-Defection Law explained by VibhorRelhan. (THE PRS BLOG dt. 06.12.2017).
5
Agarwal S, Anti-Defections Law inIndia, The Parliamentarian, 1986.
6
K.N. Singh, Anti-Defection Law and Judicial Review,38 JPI 31 (1992) 32.
7
Gulab Gupta, Anti-Defection Law – An Introspection,1966 (IX) CILQ 127 at 130.
8
M R Madhavan, In Parliament, PRS LEGISLATIVE RESEARCH, (Dec., 2009),

Page | 8
 Rajiv Gandhi National University of Law, Punjab

important step taken by the Rajiv Gandhi Government and as stated in the reasons
for the amendment “The evil of political defections has been a matter of national
concern. If it is not combated, it is likely to undermine the very foundation of our
democracy and the principles which sustain it.”9

9
Jenna Narayan, Defect-Shun, Understanding Schedule X to the Constitution of India, INDIA LAW
JOURNAL, (2007),

Page | 9
 Rajiv Gandhi National University of Law, Punjab

CHAPTER 2
THE CONSTITUTION (52ND AMENDMENT) ACT, 1985 AND ITS SUBSEQUENT
EVOLUTION

India is closing in on nearly three decades of having an anti-defection law in force.

Inserted in the Constitution of India by way of the 52nd Amendment in 1985, 10 the
concerned law is enshrined in the Tenth Schedule (‘Schedule X’). India was spurred to
introduce this law after witnessing as many defections in one year as it had in the four
Lok Sabhas preceding it. The amendment was intended to bring stability to the structure
of political parties and strengthen parliamentary practice by banning floor-crossing.
Schedule X was thus seen as a tool to cure this malaise. 11 The import of this
constitutional measure meant that once a member was elected under the symbol of a
political party to Parliament, the member could not later opt to leave that party or switch
to another party. Independent members of Parliament on the other hand would be liable
upon moving to the folds of a political party subsequent to the election.

The enacted Constitution of India had not mention of political parties. In any case, as far
back as the multiparty framework advanced, the Indian parliamentary framework has
seen rebellions in huge numbers starting with one political party then onto the next,
coming about nearly in the breakdown of open trust in a just type of government.
Defection is characterized as defection by one individual from the party of his reliability
towards his political party, his obligation towards his party or to his pioneer. The act of
changing political sides to get office was prominently known as Horse-trading. There
was widespread steed exchanging and debasement pervasive among the political
pioneers and political parties. MLAs exchanged their political parties. With a specific
end goal to check such a training and the subsequent results, the Rajiv Gandhi
Government in 1985 presented Anti-Defection law in the Indian Constitution. These
were presented by method for the 52nd Constitutional Amendment, which embedded
Tenth Schedule in the Constitution, prevalently known as Anti-Defection law. 12 The
correction put a bar on the elected members from apolitical part to leave that party or to

10
The Constitution (Fifty Second-Amendment) Act, 1985, available at
http://india.gov.in/govt/documents/amendment/amend52.htm (Last visited on September 17, 2011).
11
M.P. Jain, Indian Constitutional Law 62 (2010).
12
J. K. Mittal, Parlimentary Dissent, Defection and Democracy, 35 j. Indian L. Insti. Vii (1991)

Page | 10
 Rajiv Gandhi National University of Law, Punjab

change to another party in the Parliament. The thought process behind the usage of this
Anti-Defection Law was to shorten the nonstop battle with this Political disquietude. The
Statement of Objects and Reasons of the Bill, which added the Anti-Defection Law to the
Constitution, mentioned that the evil of political defections was a matter of national concern
and needs to be curbed.13 The National Commission to Review the Working of the
Constitution (2002) had also noted that since candidates get elected on the basis of the party
that gave them the ticket, defecting flouts the very mandate on the basis of which a member
was elected.14

Schedule X wholly contains of 8 paragraphs out of which the first paragraph deals with
various definitions important to understand the law. The second paragraph incorporates the
disqualifications on ground of defection. The third paragraph which was deleted vide the
2003 amendment dealt with splits within the party and the fourth paragraph is about
disqualifications not applying in case of mergers. The fifth paragraph throws light on the
various exemptions, the sixth and seventh paragraphs deal with who decides with questions
related to defection and jurisdiction of courts. Lastly, the eighth paragraph gives power to the
Speaker or a Chairman to make rules for a House in order to enable smooth working of the
provisions of Schedule X.15

Disqualification on the ground of Defection

The second paragraph specifically mentions that for disqualification on the ground of
defection the member must have voluntarily given up his membership to the party or he must
have voted or abstained from voting, disregarding a directive of the party. The above
conditions were pertaining to members of a political party.

Further it specifies that if an independent candidate joins a political party after the election
then also he can be disqualified on the ground of defection and lastly if a nominated member
of a house joins any political party after the expiry of six months from the date when he
becomes a member of the legislature. Thereafter there are certain exceptions to the
conditions mentioned above for disqualification of a member on the ground of defection.
Firstly, there would be no disqualification if a person is elected as speaker or chairman and

13
The Constitution (Fifty-Second) Amendment Bill, 1985, Lok Sabha, January 24, 1985,
http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/22_1985_LS_En.pdf.
14
Chapter 4, Electoral Processes and Political Parties, Volume 1, Report of the National Commission to Review
the Working of the Constitution, https://legalaffairs.gov.in/sites/default/files/chapter%204.pdf.
15
INDIAN CONSTITUTIONAL LAW, (MP Jain) (LexisNexis, 8th ed. 2018)

Page | 11
 Rajiv Gandhi National University of Law, Punjab

then he has chosen to resign from his party, in that scenario he can re-join the party if he
resigned from that post. The Tenth Schedule lays down that the power is with the Chairman
or the Speaker of the House to disqualify a member and even if the complaint is about the
Chairman/Speaker then a member who shall be elected by the House shall take the decision.
Lastly, dealing with the jurisdiction, it was earlier when the rule persisted that no court
would have any jurisdiction and that all proceedings related to disqualification would be of
the Parliament or in the Legislature of a state but this was struck down by the Supreme
Court and currently the anti-defection laws comes under the judicial review of courts.

In a nutshell, the Act allows for two main grounds for defection – first when a member
voluntarily gave up the membership of the political party that had set him up as an electoral
candidate, and second when a member abstained from voting or voted against the direction
of the party head.16 In other words, if a member votes against the party’s whip, he will be
disqualified for defection.

Relevant part of the Paragraph 2 reads as:17

“2. Disqualification on ground of defection. – (1) Subject to the provisions of

paragraphs 4 and 5, a member of a House belonging to any political party shall be
disqualified for being a member of the House-

(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued
by the political party to which he belongs or by any person or authority authorised by
it in this behalf, without obtaining, in either case, the prior permission of such
political party, person or authority and such voting or abstention has not been
condoned by such political party, person or authority within fifteen days from the
date of such voting or abstention.”

Exemptions in cases of merger

Paragraph 3 of the Xth Schedule stated that there will be no disqualification of members if
they represent a faction of the original political party, which has arisen as a result of a split in
the party. A defection by at least one-third members of such a political part was considered

16
The Constitution of India, sch. 10, paras 2(1)(a) and 2(1)(b).
17
The Constitution of India, sch. 10, para 2(1)(b).

Page | 12
 Rajiv Gandhi National University of Law, Punjab

as a spilt which was not actionable. This provision was deleted by the 91st Amendment in
2003.

Paragraphs 4 and 5 state the exemption from disqualifications i.e, a member of the House
shall not be disqualified where his original political party merges with another political party,
and he and any other member of his political party:

a. Have become members of the other political party, or of a new political party formed by
such merger

b. Have not accepted the merger and opted to function as a separate group.

For the purposes sub-paragraph (a) of this paragraph, the merger of the original political
party of 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.

Decision making authority

The decision to disqualify a member from the House rests with the Chairman/Speaker of the
House.

The Constitution (Ninety-first Amendment) Act, 2003

The Government introduced the Constitution (Ninety-seventh) Amendment Bill, 2003 in the
Lok Sabha on 5 May 2003. After the Standing Committee on Home Affairs to which the Bill
was referred presented its report, the Bill with some amendments as suggested by the
committee was passed by the Lok Sabha and the Rajya Sabha on 16 December 2003 and 18
December 2003 respectively. It was assented to by the President on 1 January 2004 as the
Constitution (Ninety-first Amendment) Act, 2003 and was notified in the Gazette of India on
2 January 2004. The Act made the following changes to the Xth Schedule-

 It omitted the provision regarding splits from the Tenth Schedule to the Constitution.
 It provided that a member who is disqualified under paragraph 2 of the Tenth
Schedule shall also be disqualified to be appointed a Minister or hold a remunerative
political post for the duration of the period commencing from the date of
disqualification till the date on which the term of his office as such member would
expire or where he contests an election to either House of Parliament or Legislature

Page | 13
 Rajiv Gandhi National University of Law, Punjab

of a State, before the expiry of such period, till the date on which he is declared
elected, whichever is earlier.

While, the existing provisions on defection have many inhibitions, as we will eventually find
out, the prima facie problem with the same is that it thwarts the democratic set up of the
Indian political process by reducing accountability of the legislators-

The anti-defection law reduces the accountability of the government and legislators

The key problem with a law that penalises legislators for acting independently is that it goes
against the idea of a parliamentary democracy. In a parliamentary democracy, the
government is accountable to citizens through a two-step process. Elected representatives
(MPs and MLAs) hold the government accountable for its actions. In turn, they are
accountable to citizens, as they need to renew their mandate every election. The anti-
defection law breaks both links in this chain.

Elected representatives are expected to take decisions on proposed legislation and policies by
exercising their independent judgement, and factoring in the interests of citizens. They are
also expected to hold the government accountable by asking questions and raising matters of
importance. In addition, they are to represent their constituents. However, the
disqualification provisions of the Anti-Defection Law bind legislators to the official position
taken by their party on any issue. Any diversion from that position can make them liable to
be disqualified from their membership of the House. This adversely impacts their ability to
exercise their independent judgement when evaluating proposals that are brought before the
House.

This point was elucidated by Dr. B.R. Ambedkar in the Constituent Assembly. 18 He
explained that the key difference between the presidential and parliamentary systems was the
balance sought between the stability of government and its accountability to the people. A
presidential system provides greater stability as the president can be removed only through
impeachment for a serious crime. This feature automatically reduces the accountability until
the next election.

In contrast, in the parliamentary system, the government is accountable to parliament on a

daily basis through questions, debates and motions. Parliament can even remove the

18
“Brexit: PM under fire over new Brexit plan”, BBC, as accessed on December 9, 2022,
https://www.bbc.com/news/uk-politics-48360456.

Page | 14
 Rajiv Gandhi National University of Law, Punjab

government through a no-confidence motion. The framers of the Indian Constitution chose
the parliamentary system as they gave greater importance to an accountable government than
its stability. The anti-defection law negates this purpose as the freedom of legislators to
question the government and vote on various motions is constrained by the party whip.
Indeed, if a party has a majority, it is almost certain to win every motion.

There could be instances when a legislator may have an opinion different from the one taken
by his or her party. For instance, in the United Kingdom, MPs in the House of Commons
thrice rejected the withdrawal plan which was negotiated by the government for leaving the
European Union.19 Similarly, in India, when political parties took official position on Bills
such as the farm laws, there could be MPs who may disagree with the party line. There could
even be instances when a Bill may go against the interests of an MP’s constituency but his
party has decided to support it. Given the provisions of the Anti-Defection Law in India,
legislators cannot vote their conscience or for their constituency interests if such vote is
contrary to the stand taken by their party. In other words, MPs can neither exercise their
judgement nor go according to the wishes of their electorate. The wishes of the party trump
all other considerations.

There have been proposals to limit the Anti-Defection Law to votes which test the stability of
the government such as no-confidence motions and money bills. Note that the Anti-
Defection Law currently applies to every vote, and even in Rajya Sabha and Legislative
Councils of states, where the government’s stability is not at stake. The Dinesh Goswami
Committee on Electoral Reforms (1990) had recommended that disqualification on grounds
of defection should be limited to:

(i) an elected member voluntarily giving up membership of his political party, and

(ii) voting contrary to the party whip only in respect of vote of confidence/no-confidence,
money bill, or motion of vote of thanks to the President’s address.20

However, this formulation too misses the core point of the parliamentary system – the onus
is on the government to retain the support of a majority of MPs, including those from the
same party. Only then can the government be held accountable for its actions.

19
“Brexit: PM under fire over new Brexit plan”, BBC, as accessed on December 9, 2022,
https://www.bbc.com/news/uk-politics-48360456.
20
Report of the Committee on Electoral Reforms, May 1990, https://adrindia.org/sites/default/files/Dinesh
%20Goswami%20Report%20on%20Electoral%20Reforms.pdf.

Page | 15
 Rajiv Gandhi National University of Law, Punjab

The requirement of abiding by the party direction also reduces the accountability of
legislators to their constituency. This accountability is enforced through the election system,
as the MPs will have to justify their actions when they seek re-election. But the Anti-
Defection Law gives them an easy explanation for their voting behaviour: they had no choice
but to vote according to the party’s direction.

Page | 16
 Rajiv Gandhi National University of Law, Punjab

CHAPTER 3
THE CONTINUING SAGA OF DEFECTIONS- DISCUSSING THE INHERENT
PROBLEMS IN INDIA'S ANTI- DEFECTION LAW

Defections are not something which is novel to the Indian democracy, 21 or for that matter to
any democracy.22 They somehow are a fundamental part of parliamentary democracy. But, a
mere appraisal of the defections which have taken place in India, raises several concerns and
also pose a risk to the democratic principles on which our nation is founded. Thus, the need
of the hour as served by the integration of Tenth Schedule into the constitutional mandate is
much appreciable. However, the current provisions of the anti-defection law have failed to
serve the purpose to a great extent, and defection till date, remains a sad reality of the Indian
political process.
Defections have continued even after the law was passed in 1985. The biggest motivator for
Parliament to enact a law to curb defections was to address the ‘evil of political defections’.
However, since the law was first enacted in 1985, it has not put an end to defections or
helped bring the stability in governments it sought to. In its 170th report, the Law
Commission of India (1999) had observed that the country’s experience with the Tenth
Schedule had not been a happy one.23 The provision exempting splits in political parties from
disqualification has been abused the most. Since then, the provision that permitted splits by
one-third of the membership has been repealed. However, a merger with another party is
permitted if two-thirds of the membership opts for it.

In recent years, there have been several cases where legislators have made use of the merger
provision in the Anti-Defection Law to switch between political parties. The Law
Commission (1999) had recommended repealing the provision exempting certain mergers
from the Tenth Schedule.24 It argued that a person elected on the ticket of a political party
should remain with it during the term of the House. If the person wanted to leave the political
party, he must also leave the House. Not only have defections continued by way of mergers,
but legislators have also defied party whips and either cross-voted or abstained from voting

21
Paras Diwan, “Aya Ram Gaya Ram: The Politics of Defection” 21(3) Journal of the Indian Law Institute 291
(1979).
22
Austin Mitchell, The Whigs in Opposition 1815-1830 (Oxford at the Clarendon Press, London, 1967).
23
Report No. 170, Reform of the Electoral Laws, Law Commission of India, 1999,
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082424.pdf.
24
Ibid.

Page | 17
 Rajiv Gandhi National University of Law, Punjab

on important motions/resolutions. For instance, when the United Progressive Alliance

government brought a confidence motion in 2008, more than 20 MPs, belonging to different
political parties, defied party whips and cross-voted.25

Some of the most recent and frequent cases of defection are as follows-

Goa (2022): Eight out of 11 MLAs of the Indian National Congress joined the Bharatiya
Janata Party in the newly elected Goa Assembly.26 This is more than the two-thirds of the
members required for being exempted under the merger provision.

Madhya Pradesh (2020): In March 2020, 22 MLAs of the Indian National Congress
resigned from their membership of the legislative assembly which led to the fall of the
government in the state.27 Later several of these MLAs contested and won by-elections on
tickets of the Bharatiya Janata Party.

Karnataka (2019): 17 MLAs from the ruling coalition of Indian National Congress and
Janata Dal (Secular) resigned from their membership of the Karnataka Legislative
Assembly.28 However, their resignations were not accepted by the Speaker. In the meantime,
the government had to prove its majority in the assembly through a confidence motion. The
MLAs did not vote in the motion and the government fell. Subsequently, the Speaker
rejected the resignation of the MLAs and disqualified them till the end of the assembly’s
term in 2023. The Supreme Court upheld the Speaker’s decision to disqualify the MLAs but
set aside the order on the term of their disqualification. Several of the disqualified MLAs
joined the Bharatiya Janata Party and contested the bye elections.

The most controversial defection case of the 21st century, however, was witnessed in the
legislative assembly of Maharashtra in 2022.

The Maharashtra Defection case

25
“21 MPs cross-voted during Parliament trust motion”, The Economic Times, as accessed on December 9,
2022, https://economictimes.indiatimes.com/21-mps-cross-voted-during-parliament-trust-motion/articleshow/
3268181.cms.
26
“Congress chodo, BJP ko jodo: Eight of 11 Congress MLAs join BJP in Goa, Financial Express, as accessed
on December 10, 2022, https://www.financialexpress.com/india-news/eight-goa-congress-mlas-set-to-join-bjp-
today-may-evade-anti-defection-law/2666181/.
27
MLAs resigning their membership in the 15 th legislative assembly, Madhya Pradesh Vidhan Sabha,
https://mpvidhansabha.nic.in/15thvs_bielection.pdf.
28
Shrimanth Balasaheb Patil Versus Hon’ble Speaker, Karnataka Legislative Assembly and Others, Writ
Petition (Civil) No. 992 of 2019, Supreme Court of India, November 13, 2019,
https://main.sci.gov.in/supremecourt/2019/27353/27353_2019_3_1501_18245_Judgement_13-Nov-2019.pdf.

Page | 18
 Rajiv Gandhi National University of Law, Punjab

40 out of 55 MLAs of the Shiv Sena walked out of the coalition government formed by the
Shiv Sena, Nationalist Congress Party, and Indian National Congress in Maharashtra. The
MLAs that walked out of the coalition then formed the government in the state by entering
into a coalition with the primary opposition party, Bharatiya Janata Party. While more than
two-thirds of the Shiv Sena MLAs walked out of the earlier coalition, they did not merge
with any political party subsequently. Both factions of the party now claim to be the original
Shiv Sena. In a recent order, the Election Commission allowed the Shinde factions of the
party to use the name Shiv Sena and the election symbol of the original party under The
Election Symbols (Reservation and Allotment) Order, 1968.29

The Maharashtra defection case is controversial because, unlike whats stipulated in the anti-
defection provisions, there has been no merger of the Shinde faction with any other political
party, they are and have been recognised as the “real shiv sena”. This remains a question of
ponderance as to whether this case would fall under the exemptions stipulated under Xth
Schedule or not. The question regarding legality of Shinde’s action remains sub judice in the
Supreme Court.

Over the years, several contentious issues in relation to the working of the law have arisen.
Does the law, while deterring defections, restrict a legislator from voting as per his
conscience and erode his independence? Does the law lead to suppression of healthy intra-
party debate and dissent? Does it restrict representatives from voicing the concerns of their
voters in opposition to the official party position? Should the decision on defections be
judged by the Speaker who is usually a member of the ruling party or coalition, or should it
be decided by an external neutral body such as the Election Commission?

India’s experience of nearly 35 years with the anti-defection law has been instructive on its
limitations and failures. The anti-defection law was brought in as defections affected political
stability and were fuelled by the lure of political office and other pecuniary gains. However,
the law goes against fundamental democratic principles, which include the representative
role of a legislator, his ability to hold the government to account, and the consultative
process of decision-making in the House. There have also been several instances where this
law has not been able to check defections, and in some cases, defecting members have been
granted ministerial positions in the government.

29
Commission's Interim Order dated 08.10.2022 in case of Dispute No. 1 of 2022 in regard with Shivsena,
Election Commission of India, October 8, 2022, https://eci.gov.in/files/file/14449-commissions-interim-order-
dated-08102022-in-case-of-dispute-no-1-of-2022-in-regard-with-shivsena/.

Page | 19
 Rajiv Gandhi National University of Law, Punjab

The saga of defection has continued even after the enactment of the 1985 law and its
subsequent amendment in 2003 is primarily because there exist several loopholes in the
existing provisions that are misused by legislators to resort to defection without being
penalised for the same. These loopholes are as follows-

1. Presiding officers have not been impartial when deciding cases of defection

According to the Tenth Schedule, the decision on whether to disqualify a member from the
House is taken by the Speaker or the Chairman. In such cases, the presiding officer’s
decision is final. The Supreme Court has held that the provision granting finality to the order
of the speaker/chairman is valid.30 While functioning under the Tenth Schedule, the presiding
officer acts as a tribunal and exercises judicial power. Decisions taken in such capacity are
subject to judicial review. However, while judicial review is permissible, it should not cover
any stage prior to the presiding officer taking a decision on the question of disqualification. 31
It is important that the decisions taken by the presiding officer under the Tenth Schedule are
impartial and independent of political considerations.32

The role of the presiding officers is such that they are assumed to be impartial. However, in
several instances it has been seen that the presiding officers do not disqualify legislators or
delay the decisions regarding disqualifications, therefore putting their allegiance into
question. The minority view in Kihoto Hollohan had held that the Speaker is dependent on
continuous support of the majority in the House. Thus, he does not meet the requirement of
an independent adjudicating authority under the Tenth Schedule. The Law Commission
(2015) noted that legal challenges against decisions taken by Speakers on disqualification
erode the confidence placed in the office of the Speaker. 33 The Commission recommended
that the power to decide on questions of disqualification on the ground of defection should be
vested with the President or the Governor, who should act on the advice of the Election
Commission of India (ECI).34 However, this solution also is based on the assumption that the
ECI acts in an impartial manner.

Another lacuna associated with the decision-making power of the presiding officer under the
Tenth Schedule is the absence of a timeline to take decisions. The Anti-Defection Law is
30
Kihoto Hollohan Vs. Zachillu and Others, 1992 SCR (1) 686.
31
Ibid.
32
Report No. 255, Electoral Reforms, Law Commission of India, March 2015,
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081635.pdf.
33
Ibid.
34
Ibid.

Page | 20
 Rajiv Gandhi National University of Law, Punjab

silent on the maximum time within which a decision must be taken on questions of
disqualification. The Supreme Court (2020) has observed that while acting as a tribunal
under the Tenth Schedule, the speaker is bound to decide disqualification petitions within a
reasonable period.35 While what time period is reasonable will depend on the facts of each
case, the Court held that disqualification petitions must be decided within three months from
when they are filed.36

Some grey areas in the anti-defection law that relate to the authority of the speaker. These are
as follows-

1. Can the Speaker rule on defection cases when the legislature is placed under
suspended animation?

This question came up in the Selkai Hrangchal and Krishna Singh Case (1992) in Manipur
when Amutombi Singh, MLA, and leader of the Janata Dal filed a petition for a decision of
the Speaker seeking disqualification of the aforementioned members while the state
legislature was under suspended animation. 37 In this regard, the Speaker made the following
observation on the Tenth Schedule: “... As pointed out by the Supreme Court in the operative
part of its order dated November 12, 1991, in a bunch of cases relating to the Tenth
Schedule, the Speaker acts as a tribunal in quasi-judicial cases and not as part of the State
Legislature while exercising his power under the Tenth Schedule. I hold accordingly that the
said proclamation under article 356 of the Constitution does not have the effect of ousting
the Speaker from exercising his power under the Tenth Schedule”.38

2. Can a petition filed under the Tenth Schedule be withdrawn?

Another interesting issue came up before the Speaker of the Meghalaya Legislative
Assembly in the Lehinson Sangma Case (1988). One of the two questions before the Speaker
was whether a petition seeking disqualification already filed can be withdrawn. The Speaker
observed that “It is necessary to see the legal position regarding the withdrawal of a
complaint under the Tenth Schedule to the Constitution of India before pronouncing a

35
Keisham Meghachandra Singh versus The Hon’ble Speaker Manipur Legislative Assembly & Ors., Civil Appeal
No. 547 of 2020, Supreme Court of India, January 21, 2020,
https://main.sci.gov.in/supremecourt/2019/27562/27562_2019_4_1501_19772_Judgement_21-Jan-
2020.pdf.
36
Ibid.
37
Malhotra, GC (2005): Anti-Defection Law in India and the Commonwealth, New Delhi: Lok Sabha
Secretariat.
38
Ibid.

Page | 21
 Rajiv Gandhi National University of Law, Punjab

decision which was reserved due to withdrawal of the complaint by the original political
party...There is no provision for withdrawal of a complaint under the Tenth Schedule to the
Constitution of India. Therefore, the natural inference would be that withdrawal of a
complaint cannot be entertained under the Tenth Schedule to the Constitution.”39

3. Do the Speaker have Suo motu power to decide on a disqualification petition?

According to para 6 of the Tenth Schedule, the question of disqualification “shall be

referred” to the Speaker or Chairman. The phrase has been misconstrued as an inhibition of
the jurisdiction of the Speaker to act suo motu. Nonetheless, the Andhra Pradesh High Court
has observed the following in the case of C Ramachandra Reddy Vs the Speaker, Andhra
Pradesh Vidhan Sabha,40 “[The rules] do not inhibit in any manner the jurisdiction of the
Speaker to entertain a reference based on information that he may have from any source
other than by way of a petition by a member of the House”. However, a Division Bench of
Jharkhand High Court took a diametrically opposite view in the case of Babulal Marandi Vs
the Speaker, Jharkhand Vidhan Sabha.41 The Court ruled that the Speaker is required to
exercise the power for deciding if the question about disqualification is referred for such
decision before him/ her. In other words, the Constitution has not conferred any powers on
the Speaker to take suo motu decisions on the matter of disqualification under the Tenth
Schedule.

4. Can a disqualification petition be addressed to the Secretary of State Legislature?

One interesting question that came up before Yudhisthir Das, the Speaker of Odisha
Legislative Assembly in December 1994 was whether the Speaker should take cognizance of
a petition addressed to the Secretariat of the Legislative Assembly. In this case, the Speaker
observed that “though the petition was addressed to the Secretary of the Legislative
Assembly, the same was duly placed before him and he had taken cognizance of the
matter”.42 Apart from the aforementioned inconsistencies, the Tenth Schedule also fails to
provide directions on miscellaneous issues such as the applicability of anti-defection law in
the absence of rules.

39
Ibid.
40
AIR 1993 SCC 40.
41
W.P.(C) No.3687 of 2020.
42
Ibid.

Page | 22
 Rajiv Gandhi National University of Law, Punjab

In the case, Madan Mohan Mittal Vs The Speaker, Punjab Vidhan Sabha (1993), the Punjab-
Haryana High Court has placed on record that “in the absence of rules framed under para 8
of the 10th Schedule, it is open to the Speaker, to adopt such procedure as s/he deems fit,
proper, expedient and just in the circumstances of any particular case. The law remains silent
also on the issue of the rendition of a petition by another representative. The law has also
been interpreted in variance on the question of subsequent disqualification of the same
members. In the case of Ravi Naik (1991), Simon D’Souza, the acting Speaker of the Goa
Legislative Assembly held that the respondent was not allowed sufficient opportunity for his
defense and set aside the decision of his predecessor, Surendra Sirsat. On the contrary, in the
case of Luis Alex Cardozo & Others (1992), the Speaker held that reconsideration of a
disqualification petition is prejudicial to the principle of Res-judicata, that is, a matter which
has been decided and settled.43 As may be seen, the provisions of anti-defection law have
been interpreted differently. In some cases, the concerned members filed writ petitions in the
Courts of Law and sought relief, while in some other cases, the Courts upheld the decisions
of Presiding Officers. Significantly the decisions in cases of defection have brought to light,
myriad perspectives vis-à-vis interpretations. And this brings us to the most enthralling
question that needs to be answered.

5. Should the Presiding Officer / Speaker be deprived of the power to rule on defection
petitions?

To address this question, numerous efforts have been made in the past few years starting
with the Committee on Electoral Reforms chaired by Dinesh Goswami. In the report
submitted by the committee on May 4, 1990, the members recommended that the question of
disqualification should not be decided by the Presiding Officer.44 The Supreme Court
judgment in Kihota Hollohon Vs Zachilhu, 45 gave a critical judgment in this regard. The
Court inter-alia held that the decision of the Speaker of Nagaland Legislative Assembly on a
matter of disqualification of a legislator is subject to judicial review. 46 A Committee of
Presiding Officers chaired by Hashim Abdul Halim in January 1994 gave the following
recommendations47:

43
Ibid.
44
Report of the Committee on Electoral Reforms, May 1990, https://adrindia.org/sites/default/files/Dinesh
%20Goswami%20Report%20on%20Electoral%20Reforms.pdf.
45
1992 SCR (1) 686.
46
Kaushik, Rahul (2020): An Overview on Tenth Schedule of the Constitution. The Economic Times Daily,
October 27.

Page | 23
 Rajiv Gandhi National University of Law, Punjab

1. An appeal against the decision of the Presiding Officer may lie in the Supreme Court or
the High Court, as the case may be.

2. An appeal against the decision of the Presiding Officer may lie with the President in the
case of Lok Sabha, and jointly with the President and the Vice-President in the case of Rajya
Sabha.

3. The case may be decided by a committee of senior members of the House and an appeal
may lie with the Presiding Officer.

The Law Commission of India (1999) chaired by Justice BP Jeevan Reddy on ‘Reform of
Electoral Laws’ recommended scrapping the provisions regarding splits and mergers.48 The
National Commission to Review the Working of the Constitution (2002) under the
Chairmanship of Justice MN Venkatachaliah also made a similar recommendation. The 4th
report of the Second Administrative Reforms Commission (2007) chaired by Veerappa
Moily suggested that the matters of disqualification for political defection should rest with
the President or the Governor on the advice of the Election Commission of India, as the case
may be.49

And, in the case of Keisham Meghachandra Singh Vs the Speaker, Manipur Legislative
Assembly,50 the Supreme Court recommended that an independent tribunal can be appointed
which will substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with
matters of disqualifications under the Tenth Schedule to the Constitution. As can be seen, the
recommendations of various Committees, Commissions, Conferences, and Courts have
explored the possibility of adjudicating disqualification matters without involving the
Presiding Officers. Almost all the Presiding Officers are de-facto members of political
parties. This makes them susceptible to political pulls and pressures as well as vulnerable
given their career prospects. As the powers of the Presiding Officer concerning political
defection were widely contested during the Conference of Presiding Officers of legislatures
in India held in 1951 and 1953, a resolution was passed for the adoption of the British
Convention in which political parties do not field a candidate against the Speaker at the time

47
Malhotra, GC (2005): Anti-Defection Law in India and the Commonwealth, New Delhi: Lok Sabha
Secretariat.
48
Law Commission of India 170th report (1999): “Analysis of views and conclusions regarding amendments to
the Tenth Schedule to the Constitution,” Ministry of Law and Justice, New Delhi: Government Press.
49
Moily, Veerappa M (2010): Correcting the Schedule. The Indian Express Daily, October 23.
50
SLP (CIVIL) NO.18659 OF 2019.

Page | 24
 Rajiv Gandhi National University of Law, Punjab

of general elections. And the Speaker can continue in office until decided otherwise. By
convention, the Speaker also gives up the membership of his/her political party.51

In India, such conventions may be hard to implement. Nonetheless, it can act as a guiding
light for our policymakers. It is therefore prudent to argue that the presiding officer/ speaker
should be deprived of his power to rule on defection petitions.

2. Voluntarily giving up party membership- What does the term exactly entail?

Under the Tenth Schedule, voluntarily giving up membership of a political party is also one
of the grounds to be disqualified as a defector. However, what constitutes the voluntary
giving up of party membership is not defined under the Schedule. The Supreme Court has
held that voluntarily giving up membership is not synonymous with only formally resigning
from the party, and has a much wider connotation.52

A person may voluntarily give up his membership even without resigning from the party.
The conduct of a member could be seen to draw an inference of whether he has voluntarily
given up the membership of the party, even without tendering a resignation. This possibly
implies that an action of legislator both inside and outside the House can be looked into to
check if it qualifies as voluntarily giving up party membership. Hence, a legislator could
never speak against the party’s mandate, or agree with an opposing party’s view. In another
case, the Supreme Court held that if a member belonging to a political party is expelled from
the party after being elected, he shall continue to belong to that party as an unattached
member.53 If such a member joins another political party after being expelled from his
original party, he will be deemed to have voluntarily given up his membership of the original
party.54 The Halim Committee Report on the Review of Anti-Defection Law (2003) had
recommended that the term ‘voluntarily giving up of membership’ should be
comprehensively defined in the Tenth Schedule.55

3. Problem with the merger provision

51
Roy, Chakshu (2019): Speakers must rise above party loyalties, with Constitution as their guiding light. The
Indian Express Daily, June 19.
52
Ravi S. Naik and Sanjay Banekar and Anr. v. Union of India and Ors, 1994 AIR 1558, February 9, 1994,
https://main.sci.gov.in/judgment/judis/11632.pdf.
53
G. Viswanathan Vs The Hon’ble Speaker Tamil Nadu Legislative Assembly, 1996 AIR 1060, Supreme Court
of India, January 24, 1996, https://main.sci.gov.in/jonew/judis/16129.pdf.
54
Ibid.
55
Anti-Defection Law in India and the Commonwealth, G.C. Malhotra, Lok Sabha Secretariat, 2005,
https://eparlib.nic.in/bitstream/123456789/58674/1/Anti_Defection_Law.pdf.

Page | 25
 Rajiv Gandhi National University of Law, Punjab

While Rule 4 of the Tenth Schedule seems to provide some exception from disqualification
of members in the cases relating to mergers, there seems to be some loophole in the law. The
provision tends to safeguard the members of a political party where the original political
party merges with another party subject to the condition that atleast two-third of the members
of the legislature party concerned have agreed to such merger. The flaw seems to be that the
exception is based on the number of members rather than the reason behind the defection.

Page | 26
 Rajiv Gandhi National University of Law, Punjab

CHAPTER 4
CONCLUSION

The anti-defection law has failed to meet its objective of curbing political defections and
ensuring political stability. Further, the law has unintended consequences which refrain
legislators from effectively carrying out their duties. The legislator is not able to exercise his
own conscience and judgement, and is unable to discharge his constitutional duty to hold the
government accountable. The law has also impacted the ability of voters to hold their elected
representative accountable. For these reasons, it may be pertinent to consider whether the
anti-defection law should be repealed. Over the years, several amendments have also been
suggested to reform various aspects of the law. For instance, one of the main objectives
behind the introduction of the law was to ensure stability of the government.

Therefore, several bodies have recommended that the application of the law should be
restricted to votes which affect the stability of government, i.e., votes on no-confidence
motions and money bills.56 This would also imply that the law would not apply to the upper
houses of the legislature, i.e., Rajya Sabha and the Legislative Councils of states. This
amendment was endorsed in a private member bill proposed by a Member of Parliament in
2010.57 Another area of reform has focused on the need for an independent adjudicating
authority to decide disqualifications under the law. Several experts have noted that the office
of the Speaker may not meet this requirement. 58 Therefore, it has been suggested that
decisions for defection cases should be taken by the President (for the centre), or Governor
(for states), on the binding advice of the Election Commission. This is similar to the practice
that is followed for deciding questions related to disqualification of legislators on other
grounds such as holding an office of profit under the Constitution.59

56
National Commission to Review the Working of the Constitution.
57
The Constitution (Amendment) Bill 2010 (Bill No. 16 of 2010) introduced by Manish Tewari, MP.
58
“255th Report: Electoral Reforms”, Law Commission of India, March 2015
59
Articles 103 and 192 of the Constitution of India, 1950.

Page | 27