SUN LEGAL CONFIDENTIAL
Anti-Defection Law in India

Anti-Defection Law in India

Defection is known as an act by a legislator (MP or an MLA) which defies the political party’s (The party to which the legislator is a member) ideology or whip issued from time to time. Some recent examples include the notices which were sent to Rajasthan Deputy CM Sachin Pilot along with 18 other dissident MLAs. These notices were seeking their disqualification on the ground of defying the party’s whip as they had not attended two legislature meetings. 


What does the Law in India say about Defection?

Due to these acts of defying political parties' whips, there was a need of bringing in legislation to curtail the same. Thereafter, the provision pertaining to Anti-Defection was inserted into the Constitution through 52nd Amendment Act in 1985. The tenth schedule (hereinafter referred as “schedule”) of the Constitution of India is also known as the “Anti-Defection Act”. 


Disqualification of a Member

Paragraph 2 Sub Para 1 of the schedule talks about what shall constitute Defection. It also specifies the grounds of Disqualification on grounds of Defection. It states that a member of the House shall be disqualified:

If he has voluntarily given up his membership of such political party.

If he votes or abstains from voting contrary to any decision/direction of the political party to which he belongs or without obtaining any prior permission from the party or from any person authorized to do so on the party’s behalf.


The word “Disqualification” is defined in Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595, which states that, “The dictionary meaning of the word “disqualification” is “to officially stop someone from being in a competition or doing something because they are not suitable, or they have done something wrong”. However, under the Tenth Schedule this term occupies a specific meaning wherein, a Member is stopped from continuing to be a Member of a legislative body, if his actions fall in one of the conditions provided under Para 2.”


The burden of proof under Para 2, as held in Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641, is always on the person who is claiming that a member has incurred the disqualification. In this regard, it has been held that “The burden to prove the requirements of paragraph 2 is on the person who claims that a member has incurred the disqualification and the burden to prove the requirements of paragraph 3 is on the member who claims that there has been a split in his original political party and by virtue of said split the disqualification under paragraph 2 is not attracted”.


Paragraph 2 Sub Para 2, talks about an independent member belonging to a political party elected to the house who has been elected other than a candidate set up by a political party. In the case of D. Sudhakar (2) v. D.N. Jeevaraju, (2012) 2 SCC 708,  it was held that, “It is no doubt true that an Independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Shri Yeddyurappa and the decision to join his Cabinet, in our view, were not sufficient to conclude that the appellants had decided to join and/or had actually joined the Bharatiya Janata Party, particularly on account of the subsequent conduct in which they were treated differently from the members of the Bharatiya Janata Party. In view of our finding that the appellants had not joined any political party as alleged, the order of disqualification passed by the Speaker was against the constitutional mandate in Para 2(2) of the Tenth Schedule of the Constitution.


Exceptions to Disqualifications

However, it is pertinent to mention that there are exceptions to the grounds that are mentioned in Para 2 of the Schedule. The exceptions are enshrined under Paragraph 4 of the schedule which states that, the grounds mentioned in Para 2 shall not apply where the person’s political party merges with another political party with certain conditions:

With the merger, he and other members of the party claim to have become the members of the new party so formed.

The merger has not been accepted by the individual or any other member who further chose to operate as a separate group.

The merger mentioned under this Para shall only be acceptable so as to not come under the purview of disqualification when not less than 2/3rd’s of the members have agreed to the same. 


Exemptions from Disqualification

Also under Paragraph 5, the Speaker/Deputy Speaker of the House of People, or the Deputy Chairman of the Council of States or the Chairman/Deputy Chairman of the Legislative Council or the Speaker/Deputy Speaker of the Legislative Assembly, is exempted from Disqualification under this section if they:

a. Voluntarily give up membership of a political party before the election to their office and continue to remain so till the end of their tenure

b. Giving up the member of the political party immediately before the election to office and re-joins that party after he ceases to hold such office. 


Decision making powers pertaining to disqualification

In case a question arises pertaining to disqualification on the grounds of defection of a member of any political party, such decision is referred to the Chairman or the Speaker of such, as the case may be. Paragraph 6 of this schedule says that the decision in this regard shall be final. However, there might arise a situation wherein the question may arise against the Chairman or the Speaker, in that situation the decision making power shall vest with an elected member that the house shall elect specifically on this behalf. The proceedings under this Paragraph shall be considered as Proceedings in Parliament (Article 122) or Proceedings in Legislature of the State (Article 212). Scope of Powers of the Chairman or the Speaker in deciding matters under Para 6 is limited, it is only to be seen as to whether the member in question has to be disqualified or not, nothing more or nothing less. Also, the Disqualification cannot be subject to any conditions. The same has been held in Shrimant Balasaheb Patil v. Karnataka Legislative Assembly (Supra) that “We are unable to agree with the contention of the learned Senior Counsel, Mr Kapil Sibal, that the power of the Speaker to bar a disqualified Member from contesting re-election is inherent to his role and is required to be read into the Constitution to prevent the Speaker from becoming toothless. When the express provisions of the Constitution provide for a specific eventuality, it is not appropriate to read an “inherent” power to confer additional penal consequences. To do so, and accept the contention of the respondents, would be against the express provisions of the Constitution.”


Bar on Jurisdiction of Courts

Paragraph 7 of this specifically but bar on the jurisdiction of the courts of law in respect of any matter concerned with Disqualification under this Schedule. In Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the Hon’ble Supreme Court has held  “The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.”. Therefore, lifting the bar which was put by Para 7 in terms of courts not allowed to entertain any dispute pertaining to disqualification under this Schedule. This decision was taken in the background of Keshavananda Bharati and Others v. The State of Kerala and Another AIR 2007 SC 1305 which has held that judicial review is considered to be a part of the basic structure of the Constitution and it cannot be interfered with. The aspect of Kihoto Hollohan has been re-iterated several times in various legislations such as Jagjit Singh v. State of Haryana, (2006) 11 SCC 1


Conclusion

Due to internal disagreements with senior leaders' stances or the quest for power, rivalry among party members can develop for a variety of causes. As a result, defections happen. Because a democracy requires a stable government by its very nature, this might destroy the democratic ethos of any country. Regular government crises can breed mistrust among the people and pose a threat to stability and harmony. However, there has to be a fine balance between imposition of penalties on the elected representatives of the house and freedom of speech and expression. 


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