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Loopholes In Indian Constitution in terms of Anti Defection Law

Loopholes In Indian Constitution in terms of Anti Defection Law

By Rohit Garg and Bhumika Garg

The constitution of India was enacted by constituent assembly headed by Dr. B.R. Ambedkar. The Drafting committee had looked upon various aspects and problems of legal system so as to finally constitute India into a sovereign, socialistic, democratic and republic country. On 26th January, 1950 India was constituted into Republic of India. In Constitution originally there is no reference about political parties or about their existence since there was no multi-party democracy in early 1950s and 1960s. Things however changed and there comes the need of some changes which are termed as Anti Defection Law.

Definition of Defection

·      Defector: As recommended by Defection Committee :  A member of either house of parliament who has been allotted the reserved symbol of any political party can said to have defected if he voluntarily renounces his association with that party unless it is decision of the party to remove that member from party.[1]

·      Defection: In simple words defection is meant to be changing the affiliation from one political party to other by a member of legislature.


Introduction of Anti Defection Law

In 1985 the 10th Schedule was inserted in Constitution of India which lays down the procedure by which a legislator may be disqualified by Presiding Officer on the grounds of defection. A legislator might be defected if he/she wants to voluntarily change the party or disobeys any directions given by the party leadership on a vote. This practice to get office is called as Horse Trading. One of the major incidents in Indian Political History which influenced the government to make the Anti-Defection law was after 1967 elections when around 142 MPs and 1900 MLAs switched their political parties. So, in 1985 to restraint such practices Rajiv Gandhi's government introduced Anti Defection Law by the way of 52nd amendment in the constitution. The prime objective of this law is to ensure that there will be no evil of political defection as India has a democratic type of government but as we see all political parties just make promises at the time of elections but hardly fulfill any promise.


Defection in other countries

Some people think that defection is only prevalent at Indian Legal System but this only a myth defection also had place in other countries which are as follows:

·British Democracy: One of the famous names in British Parliament, William Gladstone. He was elected on the Conservative Party Ticket but he defected to Peel's Second Ministry. Firstly, he was made Vice President of Boards of Trade then as Secretary of State of Colonies. Other defectors in British democracy are Joseph Chamberlain, Winston Churchill and   Ramsay Mac Donald.[2]

·American Democracy:  In USA of the notable defectors are: Storm Thurmond who ran to a Third party for President Ship against Truman while he was Democrat for number of years. Another senator Wayne Marse defected to Democratic Republic.[3]

The 52nd Constitutional Amendment

This amendment in the year 1985 lead to amendments in Article 101, 102, 190 and 191 of the constitution to provide the process of disqualification of legislators; and 10th Schedule of the constitution was also inserted by this amendment. As per the amendment through following ways a member of Union or State Legislature can be disqualified:

I. Member of a political party can be disqualified on following grounds:

·      If a party member voluntarily resigns from the party from which he is associated.

·      Disobeys the rules and regulations of the party from which he is associated.

·      When the party member doesn't vote or abstains as per directions of the party from which he is associated.

However if such a member has taken prior permission from the party to do so, the member shall not be disqualified then.

II. An independent member of legislature can be disqualified on following grounds:

·      If a member of legislature is elected as an independent member and after taking the seat he joins any party that member will be disqualified.

III. A nominated member can be disqualified if:

A nominated member have an option to join any party within 6 months from the date when he becomes member of legislature if any members joins any party after the expiry of 6 months he will be disqualified.[4]

Loopholes/Exceptions of Anti Defection Law

1.     Power of the Speaker of Legislature: As per the Rule 6 of schedule, the Speaker of the House who is regarded as Chairman of the House has absolute power that he can decide who has to be disqualified. One of the major criticisms of this rule is that it is not necessary that the speaker has expertise to pass the judgment on the said scenario.

2.     Judicial Review: Rule 7 of the schedule states that no court has the jurisdiction to decide on the matter of disqualification of a member of house only Speaker can decide upon the case and as stated above this has so many consequences as judge of the court is eligible to do so but speaker of the house is not. This rule was challenged in the court various times. In Kihoto Hollohon v. Zachilhu and others[5] court held that this rule is on the overall basis is valid but on the matter of barring the jurisdictions, it is unconstitutional. Under Article 368 clause of the constitution the state should ratify any law affecting Articles 136, 226 and 227 of the Constitution and as the required number of state assemblies had not ratified it, The Hon'ble Supreme Court declared it unconstitutional. Supreme Court also held that the Speaker while deciding upon the case is acting as a tribunal and if there is any wrong decision is taken by the tribunal so Supreme Court and High Court must review it.

3.      No individual stand on part of members: It can be seen that leader of the party act as a dictators in the party. Rule 2 of the Schedule bounds the member of the party to work as per the directions of the party he is not independent to work. Whether the step is good or bad he has to work upon it otherwise that member will be disqualified.

4.     What amounts to voluntarily giving up as mentioned in Rule of 10th Schedule of the Constitution: Rule 2 of the 10th Schedule doesn't give clear definition of what voluntarily giving up by the member of the party really means? Does this rule have any wider meaning?

 In Ravi Naik v. Union of India[6] this question had arise before the Hon'ble Supreme Court and court held that this phrase has wider meaning it is not a synonym of resignation a person can voluntarily give up hi membership even without tendering his resignation.

In G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly[7] a question was aroused that whether voluntarily giving up the membership from the party means joining another political party after being expelled from the original party or not. The court held that Yes, if after expulsion from the original party if the member joins other party so this means as the voluntarily giving up the membership.

In Rajendra Singh Rana v. Swami Prasad Maurya and Others[8] it is held that a letter to the governor by an elected member requesting him to call upon leader of opposition party to form government is itself called voluntarily giving up membership of the party of which the elected member is associated.

 Role of Presiding Officers in Context of Anti-Defection Law

As per the constitution's 10th schedule the Speaker of the House has sole power to decide upon the case but it has been noticed that decision taken by Speaker is not free from ambiguity and biasness so it can be said that speaker is not independent to take required action and when decision of Speaker of the house are challenged in the court several committees suggested that this decision should be taken by President or Governor with advice of Election Commission.

Views of some Committees on Anti-Defection Law

·       Dinesh Goswami Committee on Electoral Reforms (1990)

Issue of disqualification should be handled by President or Governor on the advice of election commission.

·        Law Commission (170th Report, 1999)

 Issuance of whips should be done in limit by political parties to instances only when the government is in danger. In disqualification provisions of mergers and splits should be deleted.

·        Election Commission

Issue of disqualification should be handled by President or Governor on the advice of election commission.

Challenges to Anti-Defection Law

The first challenge to the anti-defection law was made in the Punjab and Haryana high court. One of the grounds on which the law was challenged was that paragraph 2(b) of the Tenth Schedule to the Constitution violated Article 105 of the Constitution, wherein the court held:

“So far as the right of a member under Article 105 is concerned, it is not an absolute one and has been made subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. The framers of the Constitution, therefore, never intended to confer any absolute right of freedom of speech on a member of the Parliament and the same can be regulated or curtailed by making any constitutional provision, such as the 52nd Amendment. The provisions of Para 2(b) cannot, therefore, be termed as violation of the provisions of Article 105 of the Constitution (Para 28).”

The Constitution (32nd Amendment) Bill 1973 and the Constitution (48th Amendment) Bill 1978 had provisions for decision-making by the president and governors of states in relation to questions on disqualification on ground of defection.

The Constitution (52nd Amendment) Bill 1985 suddenly introduced the provision that questions of disqualification on ground of defection shall be decided by chairmen and speakers of the legislative bodies. The intention was to have speedier adjudicative processes under the Tenth Schedule. This provision was a subject matter of serious debate in both Houses of Parliament when the bill was being passed.

The 91st Amendment to the Constitution was enacted in 2003 to tighten the anti-defection provisions of the Tenth Schedule, enacted earlier in 1985. This amendment makes it mandatory for all those switching political sides — whether singly or in groups — to resign their legislative membership.

They now have to seek re-election if they defect and cannot continue in office by engineering a “split” of one-third of members, or in the guise of a “continuing split of a party”. The amendment also bars legislators from holding, post-defection, any office of profit. This amendment has thus made defections virtually impossible and is an important step forward in cleansing politics. Irony of the situation today is that the events have nullified the real intent of the dream of Rajiv Gandhi.

There have been instances wherein after the declaration of election results, winning candidates have resigned from their membership of the House as well as the party from which they got elected. Immediately, they have joined the political party which has formed the government and have again contested from that political party, which appears to be a fraud and goes against the spirit of the democracy and 52nd constitutional amendment. The ingenious human brain invented innovative ideas to obtain resignations and, in effect, made the anti-defection law a cover to hide their heinous crime.

This law excluded the jurisdiction of judiciary from reviewing the decisions of Speakers. This part was held to be unconstitutional by Supreme Court, while it upheld the rest of the law. The Supreme Court was unanimous in holding that paragraph 7 of tenth schedule completely excluded jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of any matter connected with the disqualification of the member of a House.

The Constitution does not allow the legislature to limit the powers of judiciary. ‘The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review’, Supreme Court said. Accordingly the Supreme Court reviewed and struck down the order passed by Speaker of Goa Assembly for disqualifying two members in violation of constitutional mandate contained in paragraph 3 of Tenth Schedule to the Constitution.

Important Case Laws:

1. In Kihoto Hollohon v. Zachilhu and Others,18 held that the law is valid in all respects . expect on the matter pertaining to judicial review, which was held to be unconstitutional

The main issue in this case was whether the tenth schedule curtails the freedom of speech and expression and subvert the democratic rights of the elected members in parliament and state legislature?  And also that whether granting finality to the decision of the Speaker/Chairman is valid?

So it was finally held in this case that the tenth schedule neither impinges upon the freedom of speech and expression nor subverts the democratic right of elected members. The tenth Schedule is constitutionally valid.

And this provision is valid, However the High Courts and the Supreme Courts can exercise Judicial Review under the constitution. But the Judicial Review should not cover any stage prior to the making of a decision by the speakers/Chairmen.

2. In Keshavananda Bharati and Others v. State of Kerala and Another, 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.[9]

 3. An issue had came up whether public criticism of one’s own political party amounts to defection on part of members.?

This came up for consideration in Shri Avtar Singh Bhadana v. Shri Kuldeep Singh, Indian National Congress.[10]]In this case it was alleged by INC that Shri Bishnoi often criticized the Congress government on a public platform and had demanded the dismissal of the Government in Haryana. The Speaker in this case held that a member gets elected as a candidate of a political party because of the programs and manifestoes of the party, apart from other things.

If the member criticizes his party publicly, he will be deemed to have given up his membership to the political party voluntarily. Also, in Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque, BSP (January 27, 2008), the court held that a speech by a member in a public meeting that he belongs to another political party by heart, would amount to voluntarily giving up the membership of the former party.

4. In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors[11], the Andhra Pradesh High Court had to decide, inter alia, the question of whether the Speaker, while exercising jurisdiction, can decide whether or not a Legislator belongs to a particular Legislature party. Holding that a Speaker could indeed decide thus, the Court said that if, in deciding the question of a member’s disqualification depended upon an answer to which political party had set such member up and whether or not he belonged to such party, he should be allowed to decide such question. In the words of the Court, “there is nothing in paragraphs 1, 2, and 6 of the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.”


The introduction of the Tenth Schedule in the Indian Constitution was aimed at curbing political defections. Though the law has succeeded in a reasonable way but due to some of its loopholes, it has not been able to achieve the best it can. Corrupt politicians have, through their dishonesty, been able to find the defects in the law to suit their needs in the best possible way. The following changes in the law might help it to develop to the best possible extent:

The power to the party whip should be reduced so that the only those members who vote against the party manifesto are subject to disqualification and not those who vote against the party in a not- so-important matter or a matter which is not core to the party manifesto. This will in a way help the members to have some individual viewpoint on various issues.

The law must explicitly set out what it means by the words ‘voluntarily giving up Membership’ in order to avoid any confusion.

The provision relating to mergers whereby it exempts members from disqualification if they defect in large numbers i.e. two- third, must be amended to make the reason for defection as the basis for exemption from disqualification rather than mere numbers.

The law must be reviewed so as to end any conflicts between the legislature and the judiciary on the basis of Rules 6 and 7 of the Schedule.



[1] Report of the Committee on defections; Report of the Lawyers' sub Committee, and Explanatory, Dissenting Notes by Members, Ministry of Home Affairs, Government of India, New Delhi 1969; Kashyap,Subhash C. The Politics of Power," 1974 P.45

[2] Austin Mitchell, 'The Whig in opposition 1815-1830 *(1967); also see Diwan Paras, ' Aya Ram Gaya Ram: The Politics of Defection* (1979) 21 JILI 291, Sharma, Mool Chand, 'Politics of Defections and Democracy* (1979) 13 J.C.P.S.328.

[3] Sharma, Mool Chand, 'Politics of Defections and Democracy (1979) 13 JCPS 328; Millar JBD, Australian Government and Politics. (1955); 'Political Parties’ in Elections, American Jurisprudence 2nd, Volume 25 P.800.

[4] Id., Schedule X, ¶ 2.

[5] Kihoto Hollohon v. Zachilhu and Others, AIR 1993 SC 412.

[6] Ravi S Naik v. Union of India, AIR 1994 SC 1558.

[7] G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly, (1996) SCC 353

[8] Rajendra Singh Rana v. Swami Prasad Maurya and Others, 2007 (4) SCC 270.

[9] Keshavananda Bharati and Others v. State of Kerala and Another, AIR (1973) 4 SCC 225

[10] Shri Avtar Singh Bhadana v. Shri Kuldeep Singh, Indian National Congress, Lok Sabha Bulletin, Sept. 10, 2008.

[11] Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly and Ors decided on Apr-08-2009

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