KIIT SCHOOL OF LAW

CONSTITUTIONAL LAW- I

Submitted by:

NAME: ASTHA RANJAN

CLASS: BBA LLB (A)
ROLL NO.: 1982026
SESSION: 2019-2024

Submitted to:
Ms. SHREYASI BHATTACHARYA

MARKS OBTAINED:
SIGNATURE:

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 ACKNOWLEDGEMENT

I would like to take this opportunity to express my sincere thanks and gratitude to my college
SCHOOL OF LAW, KIIT (deemed to be university) for all their guidance, inspiration,
constructive suggestions which helped us in the project.

The successful start of this project was made by their guidance and co-operation.

I also owe my heartfelt gratitude and deep regards towards my guide Ms. SHREYASI
BHATTACHARYA for leading and directing us at every step of the project. I would like to
thank her for her invaluable help and for his crucial role throughout the course. Last but not
the least I would like to thank all the people who directly or indirectly have helped and
encouraged us in completing the project effectively and timely.

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TABLE OF CONTENT:
SR. NO. CONTENT PAGE NO.
1 Introduction (What is 4
Anti-defection Law in
India?)
2 The Purpose of anti- 5
defection law and the
grounds of disqualification
3 Is the Presiding Officer's 5
decision open to judicial
review?”
4 Exceptio 6
ns under the Rule on Anti-
Defection

5 Is the law open to 6

interpretation?
6 Steps that have to be taken 6-7
7 Case Analysis 8-10
 Facts
 Issue
 Judgement
 Case Comment
8 Conclusion 10
9 Bibliography 11

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 INTRODUCTION (What is Anti-Defection law in India?)

Initially, there was no mention of political parties in the constitution of India. But, as the
multi-party structure eventually progressed, there were defections in the Indian Parliamentary
System, where elected representatives switched over from one “political party” to the other,
causing in a collapse of popular faith in the elected form of government. “Defection is
desertion of his allegiance to his political party by one member of the party or it simply
means when an elected official joins another party without resigning for benefits from his
present party.” This tradition of shifting political sides to get office by elected officials is also
known as Horse-Trading. In the U.K., it is also known as Floor Crossing.

The person who commits such an act having been chosen by one party and gains from
another party is referred to as Defector or Fence Sitters. Uncontrolled horse-trading and
corruption in the political parties also prevailed. After the elections of 1967, one of the
biggest events in India's Political History took place; one of the extreme instance happened in
1967 after, in a single day, a legislator named Gaya Lal changed his loyalty thrice and gave
rise to an infamous expression Aaya Ram Gaya Ram ('Ram has come, Ram has gone').

“In a democratic world, elections empower citizens to affirm their desire, political
resignations between elections weaken the assertive act and therefore the people's articulated
will.” In India, defections were usual even prior to the independence of the region. “The rise
of alliance politics or the coalition, started around 1960, increased the frequency of defections
as chosen representatives sought to occupy a berth in the ministerial cabinet.”

The Rajiv Gandhi Government implemented Anti-Defection laws in the Indian Constitution
in 1985 in order to restrain such activity. It was incorporated in the Constitution by means of
the 52nd Amendment, which incorporated the 10th Schedule in the Constitution; it is known
as the anti-defection rule. This amendment helped to prohibit the elected representatives of a
political party from leaving the party to move to another legislative party.
It became operational on 1 March 1985. It was conceived in order to bring peace to the
political system in India.

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 “The Purpose of anti-defection law and the grounds of disqualification ”
The main objective, as it is apparent, is to curb political defection by the legislators. “There
are two reasons for the disqualification of a member of a legislature. One is to be expelled if
the
individual willingly gives up the party 's membership. If an individual will give up his
membership with his own will, it will not be treated as resigning from the party.
A legislator may be expelled even without he resigns, if the Speaker / Chairman of the
concerned House, draws a fair conclusion from his actions that the person has willingly given
up his party's membership. Second, he will be excluded if a legislator votes in the House not
in favour of the direction of his party and his conduct is not excused by his party.
In 2003, the legislation was revised. “When legislation was first introduced, there was a
clause in which they could not be excluded if a split happens in the original political party
and as a result of which a majority of the legislators in that party constitute a new faction.”
The above stated provision caused large-scale defections and the legislators were of the view
that it was misused to provide for a split in the party. They then opted to remove this clause.
So, now the only provision which can be relied on for disqualification protection is the
merger provision which has been provided in Paragraph 4 of the 10th Schedule.

“Is the Presiding Officer's decision open to judicial review?”

 Earlier the act provided that the judgement of the presiding officer was binding and
could not be challenged in any court of law. But, it was the case of Kihoto Hollohan
(1993), in which, this amendment was ruled unconstitutional by the Supreme Court on
the basis that it tried to remove the authority of the SC and the high courts.
 The court held that the presiding officer could act as a jury when determining an issue
under the 10th Schedule. Therefore, on the basis of malafides, perversity, etc., his /
her ruling (as that of every other court) was open to judicial review. But the court
dismissed the contention that, on the basis of political prejudice, the vesting of
adjudicatory powers in the presiding officer is by itself invalid.
 It concluded, however, that once the President gives his order, there might be no
judicial interference. A good example to cite in this regard was from 2015, when after
hearing a petition claiming that the Telangana Assembly Speaker had postponed
taking action against a member under the anti-defection rule, the Hyderabad High
Court refused to interfere.

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 Exceptions under the Rule on Anti-Defection
 In the event that two-thirds of a single party 's representatives wish to merge with
another party, disqualification will not be met by either the members who wish to
participate or others who remain with the original party.
 A person who is elected as chairman or speaker can withdraw from his party and re-
join the party if that particular role is withdrawn.
 The law previously allowed parties to be divided, but this has been outlawed at
present.

“Is the law open to interpretation?”

For disqualifying a parliamentarian for defecting from a group the first justification is his
unconditional surrender of his party's membership. This expression "voluntarily give up his
party's membership" is open to meaning. As was expounded earlier, giving up membership
voluntarily is not equal to resignation from the party. So, what exactly does this mean, then?
How does one determine that a member of a legislature has given up his party's membership
on a voluntary basis? The Supreme Court clarified this point by stating that the presiding
officer, who acts as a tribunal, has to draw a practical and reasonable inference from the
conduct of the legislator.

Steps that have to be taken

 Fair application of the anti-defection rule: Some analysts indicated that the rule could
only be applicable for certain votes that decide the government's unity. For eg,
passing of the annual budget or motions of no confidence.
 Advice of the Election Commission: Numerous committees, including the National
Commission for the Review of the Workings of the Constitution (NCRWC), have
proposed that a decision to eliminate a member should be taken by the President (in
the case of Member of Parliaments) or the Governor (in the case of Member of
Legislative Assemblies) on the advice of the Election Commission instead of the
President.
 Independent disqualification authority: In the Hollohan judgement, Justice Verma
claimed that the tenure of the Speaker depends on the continued support of the

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 majority in the House and hence it does not meet the criteria of an adjudicatory
authority which is independent.
His preference as the supreme arbiter in the matter often contradicts an integral
characteristic of the elementary function.
The need for an impartial body to deal with cases of defection is also important.
 Promoting the concept of intra-party democracy: the 170th report of the Law
Commission underlined the value of intra-party democracy by stating that in its
activity beyond, a political party should not be a monarchy internally and
constitutionally.

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 CASE ANALYSIS:

Case Name: Kihoto Hollohan Vs. Zachilhu & Ors

Equivalent Citations: 1992 SCR (1) 686, 1992 SCC Supl. (2) 651, AIR 1993
SC 412

BRIEF FACTS:

Many petitions were heard together in this situation. So, the Constitution (fifty-second
amendment) Act, 1985, adopted the tenth schedule. The object of the joint petition was to
dispute the procedural legitimacy of the Tenth Schedule adopted through the Act of the
Constitution (Fifty Second Amendment), 1985. “These cases were contained in a series of
Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other relevant
and related issues addressing common issues that were collectively heard.” The Constitution
(Fifty-second Amendment) Act changed four articles of the Constitution. 101(3)(a), 102(2),
190(3)(a) and 191(2). are certain papers. This amendment is also known as the Anti-
Defection Act.

ISSUE:

Whether or not the amendments made by the 52nd amendment was legally valid?

Whether the Tenth-Schedule curbs the Freedom of Speech and expression of the
parliamentarian?

Whether it was fair to give the speaker/ chairman such a broad power to have a sweeping
discretionary power as per para 6(1) of the Tenth schedule as there was a likelihood of
biasness?

JUDGEMENT:

The majority judges held that the Tenth Schedule was constitutionally valid and it neither
impinged the freedom of speech and expression nor subverted the democratic rights of the
parliamentarians elected by the people. They also upheld the sweeping discretion of the

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speaker. However, they held that the decision of the presiding officer was open to the judicial
review.

The minority judges were of the view that the basic aspect of the Constitution was infringed
as the Legislative outline for decisions on disqualification of representatives after being duly
elected envisages the adjudication of such conflicts by an autonomous body outside the
House, whether the President or the Governor in compliance with the judgement of the
Election Commission, both of whom are deemed to have been adjudicated. The Election
Commission also had a similar opinion as that of the minority judges in the present case. It
made suggestions in 1977 and proposed that disqualification on grounds of defection may
also be appealed to the Election Commission for the purpose of presenting an opinion to the
President or the Governor, as the case may be. And that the President or Governor should, as
in the case of other disqualifications appealed to in the papers, rely on such opinions
submitted by the Election Commission.

Accordingly, it was held that a non-justiciable region was not introduced in paragraph 6 of
the Tenth Schedule. A judicial jurisdiction is the authority to settle the Speaker / Chairman's
conflicts. The significant construction is that of the 'finality clause' that presented the majority
with a means to meet the verdict.

CASE COMMENT:

As per my view, there must be a law which prevents a democratically elected government
from the evils of political defections. Leaving a party from which a member has been elected
because of personal benefits is not ethical and hence people loses their faith in the entire
system. I agree with the decision given by the majority judges to some extent and with the
decision of the minority judges to some another in this case. As there must be a law which
governs the entire system from breaking down and collapsing, and after the incident which
took place in 1967 relating to Gaya Lal, and the increasing cases of defection; it was the need
of the hour. So, the decision of the majority judges that this law was constitutional and that it
did not impinges upon the freedom of speech and expression is appreciable and important is
bringing stability.

Mass defections therefore must be avoided by the legislation that has resulted in avoiding
individual defections. It was therefore important to bring into question the position of the

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speaker. For his tenure, the speaker relies upon the majority of the legislature. Therefore, the
provision of a 'individual adjudicatory body' is not fulfilled by it. After this lawsuit, numerous
occurrences in the legislature showed that the minority judges were justified in asserting this.
Though the majority judges by delivering that the decision of the presiding officer was open
to judicial review, enhanced the constitutional essence of this law. But, a high ethical
standard was set by the majority judges, which is hardly met by the speakers in India. “This
condition can be rectified and the anti-defection legislation made more successful if the
Election Commission depends on an adjudicatory role.”

In the grounds of Articles 102 and 192, in the case of the parliament of India, the president
and, in the case of the province, the governor. The Election Commission may refer the matter
to the legislature. This appears to be the best way to stop the speaker’ to make decisions
which are politically biased. If the government wishes to maintain the new framework, then
in terms of judicial scrutiny of the Speaker 's decision under the Anti-Defection Rule, the
Supreme Court would assume much wider jurisdiction than what the Supreme Court is
willing to do at present under the Kihota Hollohon formulation. A 'private party' was never
recognized under the Constitution before the start of the Tenth Schedule, but now their
presence is recognised under the Anti-Defection Act.

CONCLUSION:
When it was passed, the anti-defection law sought to bring down political defection, but this
legislation never matured properly due to ever growing political dishonesty and corruption,
and now a question emerged that is a fact or an illusion to achieve the aims of this
legislation? Politicians noticed gaps in this statute and used them to their own advantage.
Though, by the 91st Constitutional Amendment of 2003, efforts were made to strengthen this
law by considering two-third members for merger instead of one-third as prescribed earlier
and also, the size of the council of ministers was changed to 15%. Also, efforts were made by
the Supreme Court in the Kihoto Hollohan case to bring the sweeping discretion of the
presiding officer under judicial review. It is high time that our Parliament should be
equipped with a watchdog and our political pundits ought to rethink the problem to tackle the
challenge of corruption and defection that has weakened democracy's principles. “While
political uncertainty created by the regular and unholy changing of allegiance on the part of
our country's politicians has been controlled to a large degree due to the anti-defection

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legislation, there is a need for a more rationalised version of anti-defection laws that would
help create a fully representative democracy.”

BIBILOGRAPHY

 Mahendar Pal Singh, V.N. Shukla’s Constitution of India 586 (13 ed. 2017)
 Kihoto Hollohan Vs. Zachilhu & Ors,1992 SCC Supl. (2) 651

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