1

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

CONCEPT OF ANTI-DEFECTION LAW

POLITICAL SCIENCE

Mrs.Nirmala

S V S S G Akhi
l2019063 I semester
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CONCEPT OF ANTI-DEFECTION LAW

ACKNOWLEDGEMENT

I feel highly elated to get to work on the topic “Concept of ANTI-DEFECTION LAW”. The
practical realization of this project has obligated the assistance of many persons. I express my
deepest regard and gratitude for Mrs.Nirmala Devi, faculty of Political Science. Her consistent
supervision, constant inspiration and invaluable guidance have been an immense help in
understanding and carrying out the nuances of this project report.

I would also like extend my hand of gratitude towards the friends and family, without whose
support and encouragement this project would not have been a reality.
I take this opportunity to thank the university, and the Honorable Vice Chancellor for providing
extensive database resources in the library and through Internet.
For any sort of errors that might have crept in, it is deeply regretted. I shall be grateful if further
comments and suggestions are put forth regarding improvisation of the provisions.

~S V S S G Akhil
~Semester-1st , Year- 1st
~Section- B, Roll No.- 63
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ABSTRACT

In our country, the government is formed by the elected representatives of a political party which
got the majority in the house but the mandate of people was defeated by the defections of the
elected representatives. This unethical defections not only defeat the mandate of people but
defeats the roots of democracy so to fight against this unprincipled practice Anti defection law
was introduced by the 52nd amendment act (1985)

This law deals with disqualification of MP’s and MLA’s if the member, gives his political party
membership voluntarily and if he abstains from voting or votes against any direction issued by
their party without the prior permission will be subjected to disqualification from that house by
enacting this law some of the disqualifications were controlled but now some of the politicians
are trying to take advantages of loopholes in this law so this law is becoming unsuitable to
contemporary situation

In this project I would like to explain the provisions of Anti defection law ,their exceptions ,
advantages, clauses added or deleted from 91st amendment(2003),about its present-day
functioning and analyze its important judgments , comparative study of different countries and
to get into power by using this law and wants to provide the required changes to this law so that
it would be accurate and perfect for contemporary situation
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S. no. CONTENTS Pg no.

1` INTRODUCTION 5-6

1.1 REVIEW OF LITERATURE 6-7

1.2 OBJECTIVES OF STUDY 7

1.3 HYPOTHESIS 7

1.4 RESEARCH METHODOLOGY 8

2 THE CONSTITUTIONAL DEVELOPMENTS OF ANTI- 9-14

DEFECTION LAW

3 JUDICIAL DEVELOPMENT ON THE TENTH 14-20

SCHEDULE

4 THE COMPARATIVE STUDY 20-21

OF
DIFFERENT COUNTRIES
5 CONCLUSION 21-22
OF
TOPIC
6 SUGGESTIONS 23

7 BIBILILOGRAPHY 24
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CHAPTER - I INTRODUCTION
India being the nation which had one of the largest number of political parties representing the
interests and ideologies of various groups of people had so far been successful in its endeavour to
run the successful Lok Sabha/Rajya Sabhaary and democratic form of government. But, the
recent developments had forced the assembly to rethink the functioning of modern democracy in
the light of defections by the legislators belonging to various political parties which had resulted
in government instability which was undemocratic as it negates the electoral verdict. Thus in
order to preserve the true spirit of democracy it was very much necessary for the Lok
Sabha/Rajya Sabha to bring in such legislations as for occasion the Anti-Defection Laws.

The occurrence of defection was not something that was peculiar to India. It was prevailing in
democracies all over the world, which had implemented the party system. In India, the need for
deal with defection was felt after 1967. In the past 1967, there were only about 500 cases of
defection, regularly at the level of state. These defections happened mainly due to political
differences and not because of want of power. These defections further bound the essence of
Indian democracy and control of such defection would had led to undermining and corroding the
freedom required setup. With the passage of time, this practice started to happen so rapidly that,
after the fourth general election the defections took an frightening turn, many legislators’
switched sides for the want of office and further rudely switched back when the promises were
not fulfilled. Between 1967 and 1972 more than 50% of the legislators changed sides at least
once. This practice of changing sides to gain office came to be known as 'Horse-Trading'.

Indian political system started to witness this problem at very rapid pace. Thus, it leads to the
enactment of Schedule X as the tool to protect and maintain the Indian political system. For this
purpose, the only nations to pass anti-defection laws had been 4 nations in south Asia viz
Pakistan (1997), India (1985), Srilanka (1978) and Nepal (1997) in all these four nations, the
anti-defection laws did not produce the results that were expected out of them

The first chapter gives an insight into the highlights of the study with regard to the research
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problem, the hypothesis, the method adopted for the conduct of the study. It further gives
the brief description about the various chapters and their concerns in this study.

Under Chapter II which analyses the meaning and definition of the term “Defection” also an
attempt had been made to study the details of the various provisions under the Constitution
of India relating to ‘Defections’. Provisions relating to ‘defection’ both at the Central and
State levels had been analyzed.

After analyzing the constitutional development, the judicial development with regard to the
same was understood in Chapter III. This chapter gives the detailed account of the judgment
of the Supreme Court of India in the case of Kihota Hollohon vs. Zachilhu It also gives the
detailed position of law as it existed before and subsequent to Kihota Hollohon’s case. An
attempt had been made in this chapter to analyze the stand point of the Courts on the Tenth
Schedule of the Constitution of India.

Certain guide lines and suggestions in order to make the Tenth Schedule more practical and
effective in trying to protect the democratic polity was the conclusion to this study.

1.1 REVIEW OF LITERATURE

1. Saurabh Sotwal & Tanmay Agraw, ANTI-DEFECTION LAWS IN INDIA

Authors had comprehensively deals with concept of Anti-defection laws and its application
in India. For this purpose, the detailed study had been made on the provisions of Schedule
X. Further, judiciary had contributed significantly on the development of anti-defection laws
in India. In this regard, some landmark judgments i.e., kihoto- hollohan v. Zachilhu,, Singh
v. state of Haryana etc had been dealt upon. Moreover, the comparative study of Anti-
defection laws in US and UK had been covered.

However, much emphasis was not placed upon the different kinds of whips for the apparent
understanding of Anti-defection laws.
2. Anirudh Burman , The Anti-Defection Law – Intent and Impact

This report briefly summarises the presentation of Anti-defection laws in India as

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enumerated in X Schedule of the Indian constitution. Further, it deals with the jurisprudence
developed by the Indian Judiciary, and advantages and disadvantages of the law. Further,
Some recent instructions on disqualification by the Presiding officer for defection i.e., Shri
Prabunath Singh vs. Shri Ram Swarop Prasad, JD(U), (October 3, 2008), Shri Avtar Sing
Bhadana vs. Shri Kuldeep Singh

3. M P Jain, Indian Constitutional Law

The Author had briefly narrated the concept of Anti-defection and its application in India.
For this purpose, the detailed study had been made on the provisions of Schedule X. Further,
legal position prior to KIHOTO HOLLOHON and subsequent to it had been explained.
After the decision of Kihoto Hollohon the verdict of the presiding officer became subject to
the judicial review.

However, the author had not much elaborated upon the critical analysis of the concept of
anti-defection. The anti-defection law had caused some losses as well i.e., will of individual
party members had been shadowed by the predominant political party will.

1.2 STATEMENT OF PROBLEM

The anti-defection law as embedded in the Xth schedule had not curbed the ever increasing
dilemma of anti-defection law and floor crossing exclusively, as it intoned to be; rather it
puts unwanted restrictions on the members of the concerned house. Further, the trend of
unbridled and unregulated powers to issue whip had proved to be insufficient to maintain
the political stability, and caged our democratic system.

1.3 OBJECTIVE OF THE STUDY

The main aims of the conducting research on this topic were:-

1. To examine the provisions relating to defection under Constitution.

2. To study and analyze the court point on the tenth schedule.
3. To study the consequence of defection.
4. Impact of inner-party democracy
5. Undertake comparative study of AMERICA. and ENGLAND on the present issue
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1.4 HYPOTHESIS

Whether the existing provisions can deal with contemporary situation on defection.

1.5 RESEARCH METHODOLOGY

In this study the researcher had adopted doctrinal method for collecting information of
data through secondary sources like books, websites, articles, journals, judgments, and
internet sources.
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CHAPTER -2
THE CONSTITUTIONAL DEVELOPMENTS AND
PROVISIONS ON ANT -DEFECTION LAW

The word defection appears to had been, taken from the Latin word ‘defectio’, signifying
‘Desertion of a person and supporting opposite person’. It, likewise, signifies mutiny,
disagreement, and revolt by the party or person. Defection means the process of deserting the
cause or withdrawing from it or from the party. It had an element, on the one hand, of giving
up one and, on the other, an element of joining another. When the process was complete by
reason of the person defecting from the cause or the party or the programme, he was termed as
the defector. Defection was the process by which the person abandons or withdraws his
allegiance or duty. This phenomenon was also called as ‘floor crossing’ which had originated
in the British House of Commons where the legislator changed his commitment when he
crossed the floor and changed from the Government to the opposition side, or vice-versa.

2.1 Tenth Schedule and the 52nd Amendment to the Constitution of India
The Tenth Schedule to the Constitution known as the Ant -Defection Law, introduced by the
Constitution (Fifty-second Amendment) Act, 1985 and amended by the Constitution (Ninety-First
Amendment) Act, 2003 sets down the circumstances regarding disqualification, on ground of floor
crossing. The main provisions of the Tenth Schedule were summarized below:—

(i) An elected member of Lok Sabha/Rajya Sabha or the State Assembly, who had been elected as
the contestant set up by the party and the nominated member of Lok Sabha/Rajya Sabha or the
State Assembly who was the member of party at the phase he takes his seat would be disqualified
on the ground of defection if he willingly gives up his membership of such party or votes or
refrains from voting in the House contrary to any direction of such party.

(ii) An independent person of Lok Sabha/Rajya Sabha or the State Assembly will also be
disqualified if he joins any party after his election.

(iii) THE nominated member of Lok Sabha/Rajya Sabha or the State Assembly who was not the
member of the party at the time of his nomination and who had not become the member of any
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party before the finishing of six months from the date on which he takes his seat shall be
disqualified if he joins any party after the expiry of the said period of six months.

(iv) Provisions had been made with respect to merging of political parties. There would be no
disqualification when the party decides to merge with another party and such decision was
supported by not less than two-thirds of its members.

(v) Special provision had been made to enable the person who had been elected to the office of the
Presiding officer or the Deputy Presiding officer of the House of People or of the Legislative
Assembly of the State or to the office of the Deputy Presiding officer of the Council of States or the
Presiding officer or the Deputy Presiding officer of Legislative Council of the State, to sever his
connections with his party without experiencing disqualifications.

(vi) The question as to whether the member of the House of Lok Sabha/Rajya Sabha or State
Assembly had become issue to the disqualification will be determined by the presiding officer of
the House; where the problem was with reference to the presiding officer himself it will be decided
by the member of the House elected by the House on that behalf.

(vii) The Presiding officer or the Presiding officer of the House had been permitted to make rules
for giving effect to the provisions of the Tenth Schedule. The rules shall be placed before the House
and shall be subject to amendments/disapproval by the House.

The 91st Amendment to the Constitution was enacted in 2003 to strengthen the ant -
defection provisions of the Tenth Schedule which was enacted in 1985. This amendment
makes it obligatory for all those changing political sides — whether singly or in groups —
to leave their legislative membership. They had to strive for re-election if they defect and
cannot continue in office. The amendment also blocks legislators from holding,any office of
profit post- defection. This amendment had thus made defections impossible and was an
important stage forward in cleansing politics.

2.2 The Whips Under Ant -defection Law

In the dictionary meaning, the word “the whip” means the lash with the stick or
handle used for punishing the person for an offence or in driving the horse-driven carriage
for lashing or beating the horse to move forward quicker. As the verb ‘to whip’ similarly
means to lash the individual or animal
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In the context of political parties and Lok Sabha/Rajya Sabhaary life, the office of
the “Whip” was the important link in the relationship among the parties and their members.
The “whip” acts as the two- way channel for passing of information between party leaders
and members. The “Whip” was the officer of the Lok Sabha/Rajya Sabhaary party or group
responsible for implementing attendance of the members, keeping them informed of the
party line on different issues and from time to time issuing necessary instructions—or
Whips—regarding to party discipline in the matter of polling on issues goes to the floor of
the House. On the other hand, the Whip also collects information about the opinion among
members on different issues and provides valuable feedback to party leaders.

The Chief Whip of the Government party in Lok Sabha/ Rajya Sabha was the
Minister of Lok Sabha/Rajya Sabha Affairs and he was directly answerable to the Leader of
the House. It was his duty to advise the Government on Lok Sabha/Rajya Sabha business.
The Chief Whip was assisted by two Ministers of State. This duty of keeping everybody at
his post and keeping his party unified is on him.

The Whips of the ruling party and of parties in opposition come into contact with
each other to deal out matters of common interest and to recognize and accommodate each
other on many important matters. Whips of the ruling party as well as those in opposition
play the very important role in the smooth functioning of Lok Sabha/Rajya Sabhaary
democracy.

Besides the office of the whip, the term ‘whip’ had another connotation. During
sessions, whips of different parties send to their member’s notices and instructions
informing them of vital debates and divisions, telling them of the hour of voting and
demanding their presence at that time. Such notices and/or, instructions were also called
‘whips’.

The office of the Whip was not mentioned in the Constitution of India. In fact, till
recently the political parties also found no such mention. With the passing of Ant -Defection
Law, the ‘Whip’ had assumed the very important role in our country. The Amendment
provides for disqualification on ground of defection under
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It was thus obvious that after coming into force of the Constitution (Fifty-Second
Amendment) Act, 1985 and the Ant -Defection Rules framed there under, political parties
came to had constitutional recognition and legitimacy and the directives issued by party
leadership came to had relevance in law. Disobedience of party instructions or Whips
thereafter results in disqualifying the member and losing his membership. It was, however,
to be noted that in order to suffer disqualification the member had to vote or abstain from
“voting in such House contrary to any direction issued by the party”. It did not apply to acts
other than voting, .e. it did not interfere with the member’s right of freedom of speech in
the House.

The roles and the corresponding role perceptions were so different in the two
contexts that one may well wonder if it was proper to use the term party for both systems.

They do not stand up in the House to call right as right or wrong as wrong. Having been
confined to their own interests they had no hesitation in pulling down Government without
rhyme or reason.

2.3 Analysis of the Powers of Presiding officer under the Tenth Schedule

The complete harmony between judicial review and Lok Sabha/Rajya Sabha
supremacy was an outstanding achievement by the architects of the Indian Constitution. The
doctrine of an absolute balance of powers between the different wings of the Government
was not feasible. Practically, someone must be empowered with having the final say in the
matter of disputes. This was the reason that the system of separation of powers in the
Constitution of America had failed in real practice. The judiciary in America had its
dominance over other organs of the Government under the power of interpretation of the
Constitution. Due to this domineering tendency, it was known as ‘safety valve’ or the
‘balance wheel’ of the Constitution. Chief Justice Hughes had aptly remarked, “The
Constitution of the USA was what the Supreme Court says it was”. It had power to declare
the law null and void passed by the assembly even on the ground that it was not consistent
with the general principles of the Constitution. Thus, the American judiciary can poke its
nose into the legislative policy like the third chamber or super- chamber of the assembly
 13

In England, Lok Sabha/Rajya Sabha was supreme. It was free to do what it pleases.
Every wing of the Government had to heed what Lok Sabha/Rajya Sabha says or does.
Blackstone had rightly described the might and majesty of the British Lok Sabha/Rajya
Sabha, “it can do everything that was not naturally impossible”. That was why the British
judges refuse having any power “to sit as the court of appeal against Lok Sabha/Rajya
Sabha.”
With the view to avoiding either extreme, the Indian Constitution had adopted the
golden mean between supremacy of American courts and the supremacy of British houses.
If the judiciary rides the high horse and behaves arrogantly, the Lok Sabha/Rajya Sabha can
bring an amendment in the Constitution. Pandit Nehru had rightly described this unique
feature of the Indian Constitution, “No Supreme Court, no judiciary, can stand in judgment
over the sole will of Lok Sabha/Rajya Sabha, signifying the will of the entire country. It can
pull up that sovereign will if it goes wrong, but, in the ultimate analysis, when the future of
the community was concerned, no courts can come in the way. Finally, the fact remains that
the assembly must be ultimate and must not be interfered with by the Court of Law in such
events as social reforms

Moreover, the Indian judiciary had stood by the people through thick and thin. It had
ever paid due regard to the “Sovereign will” of the people but during emergency its wings
were clipped and left it in trauma through 42nd Amendment but afterwards in the regime of
the Janta Government it was restored to the pre-1976 position to the great extent. Now, it
had gained ground by declaring itself that judicial review was the basic feature of the
Constitution. It had helped the court to cover the wide range of judicial activities to do
“complete justice”.

As S.B. Jai Singhani says, “under Art 142 of the Constitution, the Apex Court was
given an extraordinary power of the widest amplitude to pass any decree or make any order
as was considered necessary for doing justice in any matter pending before it—no matter
whether the ordinary law of the land provided for such the measure
If most of the nations in the world had adopted democracy, it was not because it was
the perfect system or the best way to lead the contended life but because it was the better
system. The term ‘democracy’ had been discussed from Plato to the present day by thinkers
 14

who tend to think of the better and just society. Hence, we had the wide variety of its
connotations; yet it was to be interpreted with the tint of contemporary experience.

JUDICIAL DEVELOPMENT ON THE TENTH SCHEDULE

The ant -defection law was challenged for first time in the Punjab and Haryana high court
in Parkash Singh Badal and others vs Union of India and others1. 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 the member under Article 105 was concerned, it was not an absolute one and had
been made subject to the provisions of the Constitution and the rules and standing orders
regulating the procedure of Lok Sabha/Rajya Sabha. The Constitution framers never wished
to confer any complete right of freedom of speech on the member of the Lok Sabha/Rajya
Sabha and the same can be regulated or curtailed by making any constitutional provision,
such as the 52nd Amendment..
The following table gives some understanding of the view of the judiciary regarding
different issues on the Ant -Defection Law
Main Issue(s) in the case Judgement of the Court and the name of
the case
Whether the right to freedom of speech and The laws in Lok Sabha / Rajya Sabha and state
expression was shortened by the Tenth legislatures do not conflict with the
Schedule. democratic rights of elected members. It is not
a breach of their conscience. The provisions of
Articles 105 and 194 of the Constitution do
not infringe any right or liberty. [Kihota
Hollohon vs. Zachilhu and Others]2
Whether resignation establishes voluntarily The broader connotation was given to the
giving up membership of the party. words "voluntarily giving up membership." It
can also be inferred from the member's actions
that he voluntarily gave up his membership.
[Ravi S Naik
v. Union of India]3

1
AIR 1987 P H 263
2
AIR 1993 SC 412
3
AIR 1994 SC 1558
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Whether the member can be said to Once the representative was excluded, he was
voluntarily give up his membership of the regarded in the legislature as an "unattached"
party if he joins another party after being member. Nonetheless, as per the Tenth
barred by his old party. Calendar, he appears to be a member of the
old party. So if he joins the new party after
being expelled, he may have voluntarily given
up his old party membership. [G.
Vishwanathan v. Presiding officer, Tamil
Nadu Legislative Assembly]4
Whether paragraph 7 of the Schedule The article seeks to change the process and
excluding the jurisdiction of courts in cases of effect of Articles 136, 226 and 227 of the
disqualification was constitutional. Constitution granting jurisdiction in such cases
to the High Courts and the Supreme Court.
Any such clause had to be accepted in
compliance with Article 368(2) by state
legislatures. Therefore, the sentence was null
as I was not authorised. [Kihota Hollohon
vs. Zachilhu and Others]
Whether paragraph 6 of the Tenth Schedule The provision states that the presiding officer's
can make the decision of presiding officer award of final orders is absolute. Nevertheless,
final. under the Constitution, the HC and the SC
may use judicial review, but this judicial
review should not cover any stage before the
President / Chairman makes the decision.
[Kihota Hollohon vs. Zachilhu and Others]
Whether the Presiding officer has the chance The presiding officer of the house do not have
to review his previous decision under 10th the power to review his previous decision
schedule under 10th schedule. [Dr. Kashinath G Jhalmi
v. Presiding officer, Goa Legislative
Assembly]5
Whether the Presiding officer of the assembly The Court cited Kihota Hollohon's case where,
was bound by the directions of the Court. when passing an order under the Tenth Schedule, it
claimed that the presiding officer acts as the
Tribunal. Therefore, the order issued by the
chairman would be subject to judicial review.
[Ravi S Naik v. Union of India]6
Whether judicial review by courts extends to Rules under the Tenth Schedule were
rules framed under the Tenth Schedule. procedural in nature. Any infringing of those
would be the procedural irregularity.
Whether judicial review by courts extends to If the presiding officer fails to accepts claims
rules framed under the Tenth Schedule. or complaints of splits or mergers without
making the finding, he fails to act as per the

4
(1996) 2 SCC 353
5
(1993) 2 SCC 703
6
AIR 1558 1994 SCR (1) 754
 16

Tenth Schedule. The Court said that ignoring

the petition for disqualification was the
violation of constitutional duties. [Rajendra
Singh Rana and Ors. vs. Swami Prasad
Maurya and Ors.]7

3.1 The Supreme Court in Kihota Hollohon’s Case:

The case of Kihota Hollohon v. Zachillhu24, was the landmark decision in this
regard. The Constitutional Bench headed by Justice VENKATACHALLIAH, M.N. gave an
elaborate, lucid and dynamic judgment. The constitutional questions considered, the principles
propounded and the interpretation of the different provision of the Constitution of India, the extracts
of the same from the judgment were produced below.

Held that

 • Paragraph 7 of the 10th Annex to the Constitution excludes, in theory, the

jurisdiction of all courts, including the Supreme Court and the High Courts,
and recommends a revision of the structure and effect of Articles 136, 226 and
227 of the Constitution of India, which would require ratification in
accordance with Articles 368(2) of the Constitution of India.

3.2 Developments subsequent to Kihota Hollohon’s Case:

The rule of precedence was well incorporated in the Indian legal system, according to Art 144
of the Indian Constitution, the judgment of the Supreme Court were binding on the lower
Courts. The researcher tries to analyze this application of Art 144 of the Indian Constitution in
the case of judgment delivered in the Kihota Hollhon’s case. In this exercise, the researcher
examines the different judicial interpretations, in the wake of Kihota Hollohon’s decision

In Manilal Singh v. Dr H. Borobabu Singh8, the respondent, Presiding officer of the

7
(2007) 4 SCC 270
8
AIR 1994 SC 505
 17

House was charged with contempt proceedings. It was observed that, regarding this Court's
strong judgment that the presiding officer's instruction under the Tenth Schedule concerning
the disqualification of the Member of the Legislative Assembly was subject to judicial
review and that the presiding officer, though making an order under the Tenth Schedule,
acts merely as the statutory authority open to the jurisdiction of the court in that regard.

The Supreme Court further held that it was the constitutional duty to explain
the people's confidence that no one in this nation above the law and democracy
was of the' rule of law' and not of men.In reiterating the rule set out in the case
of Kihota Hollohon, the Supreme Court observed:

The presiding officer shall act as the statutory authority in deciding on the
disqualification of the Member of the Legislative Assembly under the Tenth
Schedule to the Constitution, in the capacity of which the President's decision
was subject to judicial review by the High Court and the Court.

Again, in the year 1998, the Supreme Court while deciding the matter between Mayawati v.
Markandeya chand,9 it was observed by this Court that Paragraph 6 of the X Schedule extracts
the decision of the Presiding officer final. The Constitution Bench considered its validity in
Kihoto Hollohan case. In the majority judgment: it was held that the finality clause in
Paragraph 6 does not totally remove the jurisdiction of the court under Articles 136,226 and
227 of the Constitution. However, the Bench held that the scope of judicial scrutiny was
limited to establish whether the decision of the Presiding officer was vitiated by jurisdictional
errors viz. "disabilities based on violation of constitutional instruction malafides, non-
obedience with rules of natural justice and perversity."

The suggestion that if the conclusion reached by the Presiding officer was the
possible conclusion it stands separated from any outside interference including by judicial
exercise may lead to the situation that, no matter, however illegal the order may be, it cannot
be touched if its author was the Presiding officer. Such immunity cannot be conceded to any
constitutional functionary to be above law or to had unfettered jurisdiction to pass

9
AIR 1998 SC 3340
 18

unreasonable orders with immunity. The test cannot be whether it was possible for the
Presiding officer to record such the conclusion, because the very fact that the Presiding
officer passed an order itself was the instance to show that it was possible. The test was
whether the conclusion by the Presiding officer was so unreasonable or so unconscionable
that no tribunal could had arrived at it on the given materials. Parameters for scrutinising
what was unreasonable were, of course, nebulous. What appears to be reasonable to one
man may be unreasonable to another and vice versa. However, the test of perversity had
now bogged down to this : No conclusion can be dubbed as perverse unless the
unreasonable was of such the dimension that no authority vested with the jurisdiction would
had come to such the conclusion.

It was not necessary to study the question whether this Court ought decide the entire
matter here in the event of setting apart the order of the Presiding officer or remand the
problem for fresh disposal by the Presiding officer in according with the judgment of this
Court. However, for the sake of end, it was necessary to express opinion on that question
too. It was not the function of this Court to standby itself in place of the Presiding officer
and decide the questions which had arisen in the case. When the Xth Schedule had expressly
constituted the Presiding officer as the case may be to resolve the question of
disqualification and attach finality thereto. It was not for judiciary to consider the facts and
decide the said question by substituting itself in the place of the Presiding officer. If the
order of the Presiding officer was set aside on any of the grounds stated in `Hollohan' case
by exercising the power of limited judicial review, the consequential course to be adopted
was to leave the matter to the Presiding officer to decide afresh in accordance with law.

In Jagjit Singh v. State of Haryana10, the Supreme Court relying on the decision and
principles laid down in Kihota Hollohon’s case as observed as follows:

While the presiding officer exercises the power to disqualify members acts as
the Tribunal, and while the validity of the orders can be examined in the written
jurisdiction of this Court or High Courts, the scope of judicial review has been
limited. On the ground of malafide, the orders can be challenged or made in colorful

10
AIR 2007 SC 590
 19

exercise of power based on unconnected and irrelevant concerns. If the laws of

natural justice are broken, the order would be nullity.

3.3 THE EMERGING PRACTICES

In Ranjan Singh vs. Dr. P.P. Koya, JD(U) in Shri Rajeev. Dr. Koya questioned the
party whip which required him to be in the House and vote against the government's
Motion of Confidence. He protested that he was too sick to be in the Senate. The
presiding officer determined that by being absent, Koya abstained from voting, and the
facts of the' illness' was not sufficient to determine that he was so ill that he could not
be present in the House
In the case of Harish Chandra Singh Rawat V Union of India11and another, amidst
growing opposition against the headship of Harish Rawat and the section of the
Congress MLAs questioning his style of working, nine Congress MLAs, plus the
minister, join hands with the opposition BJP which meets the Governor to claim to
form the government.
Further, The Presiding officer had served notices on the nine Congress rebels to show-
cause why they should not be disqualified, as per the provisions of the Ant -defection
Law contained in the 10th Schedule of the Constitution. The Hon’be High Court on
this point stated that the floor test the appearance of neutrality, and without bias to the
rival parties, all the MLAs shall be allowed to take part in the floor test, with, without
or notwithstanding their disqualification, which will be question to adjudication by the
Court of competent jurisdiction, on an suitable occasion.
In case of Nabam Rebia, & Bamang Felix versus Deputy Presiding officer and others. On
December 9, when the set of rebel Congress MLAs advanced to the Governor JP seeking to
remove Presiding officer Nabam Rebia. Their contention was that he was trying to get them
debarred from the Assembly. The Governor accepted and called for an emergency meeting
on December 16 to look into the impeachment motion.
It was held by the Gauhati High Court:
“All the above-mentioned forteen MLAs shall appear all the sessions of the sixth Arunachal
Pradesh Legislative Assembly without let or interruption. Any power, civil or police,

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AIR 2016 HC 795
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blocking their attendance of the following session shall be committing grave breach of
privilege of the state legislature as also shall come right under the disciplinary jurisdiction
of all law implementing authorities include the Governor.”12

CHAPTER 4
THE COMPARATIVE STUDTY

ANT -DEFECTION IN USA

The legislative structure of America in high opinion of discipline in party follows more
liberal way. The member of the house here can vote anyway without any fear of
disqualification from the house. Followers of the ant -defection classical should note that not
only had the US experienced defections, but also, functioned without an ant -defection law.
And even though the nonexistence of the law gives discipline in the party, it was highlighted
upon. Party discipline in the strict sense, means unity in party or the ability of the party
members in the assembly to get the harmony on policy matters. The amount of control was
to be done by the party leaders to make the legislators who belong to that specific party vote
as the alliance on the law which is very vital to the achievement of party objectives and this
was not the control of Constitution. It was the internal party structure of USA which says
that sanctions should be enforced on the members who vote against the party lines. This
issue of the members who vote against the party orders was established in many cases which
also include the removal of the representative from the position on the legislative group. In
US the urgings against this sanction branches from the 1st Amendment of the USA
Constitution which prohibits the infringement of the freedom of speech. This discussion of
the practice of parties putting sanctions in case of voting, involves the two-tier argument-
The first was that it was on the grounds of freedom of speech of the legislator and second on
grounds of differing freedom of alliance of the political parties.
Bond v. Floyd was among the one to clarify on the rights of the member in the house. In
this case, the house disqualified Julian Bond by stating that he could no longer take his oath
as the legislator. The Supreme Court reversed the decision of the House on the grounds of it

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AIR 2016 SC 6203
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violating the rights guaranteed by First Amendment. The Supreme Court opined that
legislators had the duty to stand on controversial issues. This right makes the legislator to
freely participate in discussing policies of governance. The Court went on to hold that
legislative dialogue on debatable issues was a duty and stretched the First Amendment
freedoms to legislators who would otherwise go in to the problem of disciplinary actions by
the parties. As the courts do not differentiate between the 1st Amendment rights and
therefore the legislator also enjoys the First Amendment rights that cover free speech along
with the right to not speak in favor of something .Importantly free speech which is protected
by First Amendment, had been stretched by courts to contain the right of the legislators to
vote liberally. Thus the legal position in AMERICA. was more liberal than India.
UNITED KINGDOM: DISSENT MAKES NO DIFFERENCE
The England Lok Sabha/Rajya Sabha was an creation from which great learning can be
done. For this propose, different Articles .e., Art. 9, Art 105 of the constitution of the
English Bill of Rights, 1869 gives freedom of speech in the British houses. Parallel to
America, British laws do not provide the separate ant -defection law. All matters of
defection were rules by internal party procedures. According to the Nolan Committee
Recommendations given in the House of Commons disagreement was more or less,
frequently limited to long-serving members viewing to retire at the end of the session and
those who had struggles with the interests of their areas.
ANT -DEFECTION IN PAKISTAN
Pakistan also had separate law for the ant -defection, and it had witnessed several instances
of political defections. The Constitution of Pakistan lays down the provisions for the
defection. As per their law, if any member resigns membership of his party or joins other
political party, shall be considered as disqualified. Hence, India should not adopt the rigid
approach reaction against the dissent in Lok Sabha/Rajya Sabha. For this purpose, the
principal to be followed so that proper balance can be maintained between the meeting the
problems of the party and the public.

CHAPTER
V
CONCLUSION
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The 52nd Amendment to the Indian Constitution with regard to ant -defection law
had been hailed as the bold step to clean public life in India, but, in course of time, certain
defects therein had become apparent which had very much compromised the effectiveness
of the law to achieve its objectives. Defections and splits in parties had always been the
feature of Indian Politics.
It was possible, however, to suggest from what was enacted in the Tenth Schedule
that the party structure was now being pre-empted and treated as basic and fundamental, for
upon breach of the party mandate in the matters of vote or abstaining from voting or
resignation, the representative loses his seat itself. Party supremacy, thus, was accepted as
the principle throughout, in the Tenth Schedule, which had wide ranging ramifications
which do not appear to had been kept in view while enacting amendment to the
Constitution. With all these laudable objects, which were not very much explicitly in the
text of the Schedule, inherently the scheme was in conflict with the initial scheme of our
Constitution pattern that relies upon individual representative and confers unimpeded
freedom upon him.

Curtailment of liberty and shift in the point of reference was likely to raise not only
intricate debates but direct and indirect questions of our basic philosophy. Similarly,
institutions may undergo long range changes and even the democratic set-up may suffer
erosion by emergence of autocratic apparatus of party machine. This was more so for
penalty follows by reason of incurring disqualification on the ground of what was called
“defection” that cuts at the root of free dissent and independent judgment of an elected
representative. That also puts Lok Sabha/Rajya Sabha under the shadow of party and its
members echoing party views like puppets.

However the ant -defection law had played the pivotal role in curtailing the
defections in the democratic polity consisting of the huge number of political parties. The
law being passed in as back as in the year 1985 had shown the new dimension and had
created the new path in securing the dream of having the stable government keeping in mind
the aspirations of the crores of people who had been striving hard to make our democratic
polity work by exercising their right to vote and to reassure the faith in the single largest
 23

democracy of the world.

It was well agreed that this portion of the Constitution of India was enacted in order
to protect the privileges of the House, however as every other law was not static and require
changes, the Tenth Schedule in the wake of securing the privileges of House and to ensure
smooth conduct of Lok Sabha/Rajya Sabhaary affairs had slightly touched upon the corners
of democracy and if it was properly amended to suit the changing circumstances it may
assist in living the dreams of our Constitution drafters and the deciders of the faith of this
great nation.

4.1 SUGGESTIONS:

By following these suggestion the Anti-Defection can be made suitable to

contemporary situation
1) Instead of the words “any order” it may be replaced with “subject based whips”, so
that the objective of the Tenth .e., to maintain healthy Lok Sabha/Rajya Sabhaary
debate and concern of the Governing party can be better highlighted without
prejudicing the freedom of speech and expression of the Participants. In doing so the
provision was rendered constitutional validity.

2) Even though the Presiding officer’s decision was brought under the watch glass of
Judiciary after pronouncement of the Kihota Hollohon’s case, it was suggested that
the time limit must be prescribed for the Presiding officer to give his decision. If no
time period was prescribed for the Presiding officer to give his decision, then the
decision in the Kihota Hollohon’s case was rendered futile. This was so because the
Presiding officer will be under no obligation to give his decision and the scope of
judicial review was again narrowed down.

3) After having an insight into the position of law with respect to anti -defection law in
other Common Wealth nations, it was suggested that the Tenth Schedule should be
amended in such the way to make it less complicated and keeping at bay all the
ambiguities that exists in the current law on defection.
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BIBLIOGRAPHY

ARTICLES
1. Saurabh Sotwal & Tanmay Agraw, ANTI-DEFECTION LAWS IN INDIA, IRJA
VOLUME 1 ISSUE 3, (2014)

2. Anirudh Burman ,PRS Legislative Research The Anti-Defection Law – Intent and
Impact

3. Kartik Khanna & Dhvani Shah, ANTI-DEFECTION LAW: THE DEATH KNELL
FOR LOK SABHA/RAJYA SABHAARY DISSENT, NUJS L.Rev 2012

BOOKS REFERRED:
1. Kashyap C. Subhash, Anti-defection Law and Lok Sabha/Rajya Sabhaary
Privileges., 3rd Edition, 2011, Universal Law publishing Co., New Delhi
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