ANTI-DEFECTION LAWS and RESIGNATION: A CRITICAL RELOOK

ABSTRACT

In the parliamentary democracy of India, the elected members shifted allegiance

which caused de-stability to the elected governments much too often. The defections were
lured by offer of positions and other such quid pro quo. To curb this destabilizing
phenomenon which was growing, the Union Government under Late. Shri, Rajiv Gandhi
enacted what is commonly known anti-defection law by inserting the Tenth schedule in the
Constitution. But as years passed by, the political manoeuvrings orchestrated splits and
mergers in the required manner to circumvent the provisions of anti-defection law. In the
recent times, defections are staged by “resigning” to hoodwink the provisions of anti-
defection law and receive the promised benefactions for defecting. This paper looks at such
instances of resignations and how the orders by supreme courts in the related cases have
failed to curb the practice of “resigning”; what happened after resigning; and what is needed
in and by law to stop the newly mastered technique.

Key Words: Elections, Defection, Tenth Schedule, Circumventing Anti defection law, and
91stConstitution(amendment) Act.

1. Introduction

In a parliamentary democracy, stability of governance through elected members is of

paramount importance. Unfortunately, the elected members have proved as being prone to
succumb to the lure of offers in kind or cash or both which has led to the phenomenon of
defections in Indian Polity.

2. History of Defections in the Post-Independent India

In the aftermath of the demise of the first Prime Minister Jawaharlal Nehru, the
Congress party, amidst dissent and split within went to polls in 16 states for the legislative
assembly in 1967 and shockingly failed to form the government in 7 out of the 16 states and
the party lost majority in 8 states out of the 16. In the short period between 1967 and 1971,
there were 142 defections among Parliament members and 1969 defections in State
Assemblies across the country. Thirty-two governments collapsed and 212 defectors were
given ministerial positions in return for the defections they made for whatever
considerations1. Prof. Madhu Dandavate, a parliamentarian of repute defines” defection” in
the following words:- “An elected member of a legislature who had been allotted the
reserved symbol of any political party can be said to have defected, if after being elected as a
member of either house or of legislative assembly or Legislative Council of a state he
voluntarily renounces allegiance to or association with such political party, provided his
action is not in consequence of a decision of the party concerned2”.

The state of Haryana which came into being in 1966 started the anomaly of defection
in Indian democratic experiment as a familiar and common method to advance one’s
ambition unmindful of loss of ethic and values in politics. Etymologically, it comes from
Latin defectionem meaning action of deserting or abandoning a party, leader, cause, etc. 3.
The case of Haryana is a pertinent case to understand defection even as in its early stages: -
Haryana was the 17th state of India which was constituted on November 1, 1966, as a result of
the linguistic reorganisation of the then state of Punjab. When the election to the legislative
assembly was held in 1967, there were factional feuds in the congress and the party won 48
out of 81 seats. Bhagawat Dayal formed the ministry, but factional leaders like Devi Lal,
Birender Singh and Siri Chand defected along with 10 MLAs and the Bhagwat Dayal
ministry’s nominee for speakership was defeated in the Assembly, and the Ministry had to
resign after 13 days in power. Rao Birender Singh’s government which was formed in
alliance with the opposition, which was formed after the 13-day government of Bhagawat
Dayal, was, incidentally, dismissed by the imposition of president’s rule in the state on Nov
21, 1967. An elected representative Gaya Lal switched loyalties, i.e., defected thrice within a
fortnight. The political horse trading of Haryana referred to as ‘Aaya Ram, Gaya Ram’ in
1967 was a cultural shock to the Indian polity4.

3. Constitutional Framework
The Indian Constitution permit a member of either House of Parliament or a member
of a House of the Legislature of a State to resign his seat by writing under his hand addressed
to the Speaker or the Chairman, as the case may be. There were instances when Governors of
1
https://www.prsindia.org/theprsblog/politics-defection last accessed 06.09.2020
2
Lok Sabha Debate (January 30. 1985)
3
https://www.etymonline.com/word/defection
4
https://www.thehindu.com/opinion/op-ed/from-aaya-ram-gaya-ram-to-operationlotus/article30192683.ece.
last accessed on 03.08.2020
states were found indulging in unconstitutional moves to advance or prorogue assembly
sessions as in the case of Nebam Rebia and Bamang Felix vs Deputy Speaker, Arunachal
Pradesh Legislative Assembly5. Later in Madhya Pradesh, elected members of congress
including cabinet ministers of the congress government defected to the BJP and after the
Supreme court ordered for a floor test while the byelections to the vacated seats were
pending, a change of government was effected.

There were reports of coercion of elected members to resign and this had to be
stopped lest functioning of legislatures in accordance with the provisions of constitution
would be difficult. Therefore, the articles 101(3)(b)6 and 190(3)(b)7 were amended to provide
that the resignation of the members shall not be accepted by the Speaker or the Chairman if
he, after making enquiry, thinks that the resignation is not voluntary or genuine8.
However, it took Rajiv Gandhi, who got a massive mandate from the people, to enact
a legislation soon after he assumed the Prime Ministership and append the Tenth schedule in
the constitution (popularly known as the Anti-defection law) 9. There have been the case
relating to the constitutional validity of the law in Kihoto Hollohan vs Zaichillu and Ors 10 in
which limited judicial review was upheld by the supreme court against the intent of the tenth
schedule.

4. Tenth Schedule

4.1. Paragraph 2 of the Schedule

The paragraph 2 of the Tenth Schedule is about the “disqualification on ground of defection”
which says that a member of a parliament or the legislatures of the states shall be disqualified

5
Civil Appeal Nos. 6203-6204 Of 2016
6
resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the as may be, and his
resignation is accepted by the chairman or the Speaker, as the case may be, his seat shall thereupon become
vacant: Provided that in the case of any resignation referred to in sub clause (b), if from information received or
otherwise and after making such inquiry as he thinks fit, the chairman or the Speaker, as the case may be, is
satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation
7
resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and
his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon becomes
vacant: Provided that in the case of any resignation referred to in sub clause (b), if from information received or
otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is
satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation
8
Statement of Objects and Reasons, The Constitution (Thirty-Third Amendment) Act, 1974
9
Constitution (Fifty-second Amendment) Act, 1985, s. 6 (w.e.f. 1-3-1985)
10
1992 Supp (2) SCC 651
 a) If he voluntarily gives up his membership of the political party on whose behalf he
was elected
b) If he votes against the party whip without prior permission
c) In respect of nominated members, if he joins any political party after the expiry of 6
months, from the date on which he takes his seat after complying with the
requirements of Art 9911 or Art 18812 as the case may be,
In the case of Ravi S. Naik vs. Union of India & Ors13, the Supreme Court held that the
phrase “voluntarily given up his membership” found in Para 2(1)(a) of the Tenth Schedule
have a wider connotation than just “resignation”. It further held that a person may
voluntarily give up his membership of a political party even without tendering his
resignation from the membership of the party. Moreover, even without such formal
resignation, an inference can be drawn from the conduct of a member that he has voluntarily
given up his membership of the political party to which he belongs. Also in the case of G
Viswanathan vs Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras and Another,
the apex court held that , in view of explanation to para 2(1) of the Tenth Schedule, an
elected member of the House shall be deemed to belong to the political party by which he
was set up as a candidate for election, and that even if such member is thrown out or
expelled from the party, he will not cease to be a member of the political party that had set
him up a candidate and that the act of voluntarily giving up membership of the party may be
express or implied14.
4.2.Paragraph 4 of the Tenth schedule

It is with the above part of the schedule that this paper is concerned with as it is the
misuse and manipulation of this provision that has been perfected as an art of subversion in
the recent days by politically powerful parties.
While the grounds of disqualification of elected members are mentioned under para 2 of
the tenth schedule, para 4 mentions that disqualifications will not apply in case of
mergers.
Para 4 says that a member of a House shall not be disqualified paragraph where
11
Oath or affirmation by members Every member of either House of Parliament shall, before taking his seat,
make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation
according to the form set out for the purpose in the Third Schedule
12
Oath or affirmation by members Every member of the Legislative Assembly or the Legislative Council of a
State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that
behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule
13
1994 SCC (11) 641
14
(1996) 2 SCC 353
 a) his original political party merges with another political party and if he claims that he
and any other members of his original political party have become members of such
other political party or of a new political party formed by such merger; or
b) If they have not accepted the merger and opted to function as a separate group,
c) 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.

4.3. Other Exemptions

Exemptions have been given to the following from disqualification under this
schedule: a person elected to the office of the Speaker/ the Deputy Speaker of the House
of the People/ the Deputy Chairman of the Council of States / the Chairman/ the Deputy
Chairman of the Legislative Council of a State / the Speaker or the Deputy Speaker of the
Legislative Assembly of a State, shall not be disqualified under this Schedule.
The exemptions are given for the positions that have been given the power to take
decisions on the disqualification. Unlike in the UK, where “once a speaker, always a
speaker” is practised as a convention to honour the non-partisan nature of the speaker, in
India, speaker is elected or nominated by the ruling party, and he is not always elected
unopposed. That means he is not above party-politics which might affect his functions of
administrative, judicial and regulatory matters within the ambit of his powers. Justice
J.S.Verma in his Minority view in the case of Kihoto Hollohan vs Zaichillu wrote, The
Speaker being an authority within the House and his tenure being dependent on the will

of the majority therein, likelihood of suspicion of bias could not be ruled out 15 .The
Speaker is vested with the power relating to the disqualification of a member of the Lok
Sabha on grounds of defection 16 and the same goes for the speaker of a legislative
assembly. So, it would be a practical day dream to expect non-partisan attitude of the
speakers in making decisions vis a vis defection and the related disqualifications.

5. Defections after Anti-Defection Laws

Given the above back ground, let us take a look at the defection scenarios in since the
enactment of the anti-defection law, especially, in the last decade:
15
1992 Supp (2) SCC 651
16
Paragraph 6 of the Tenth schedule
 In 2008, the BJP poached over 4 MLAs from Janata Dal (S) and 3 from Congress who
circumvented the tenth schedule by resigning and opting to contest bye elections. This
way the BJP’s “operation Lotus” was a success and its tally went up from to 116 in the
assembly and attained clear majority to retain its hold over the government.
Shift to year 2019 to the state of Karnataka when the political manoeuvres in the art of
defections and forming government has been mastered, the art has been perfected to
circumvent the Anti defection law by resigning. Before the 33rd Constitutional
Amendment was affected, a member of a Legislative Assembly could resign from office
by a unilaterally as referred in Union of India v. Gopal Chandra Misra17 and there was no
requirement of acceptance18
Article 101 (3) (b) and 190 (3) (b) gives the scope of the Speaker’s duty in accepting
resignation by an elected member of his House. The Speaker can refuse a resignation if it
is not “voluntary” or “genuine”. The inquiry should be to find out if the resignation is out
of free will and is genuine. Genuine would simply mean that the writing of resignation is
by the member and is not forged by a third person. Hence, if the resignation is voluntary
and genuine, the speaker has no option other than to accept. Constitutionally, the Speaker
is not permitted to consider any other extraneous factors to accept the resignation. The
Speaker’s satisfaction, of course, is subject to judicial review19.

Now what the effect of disqualification is, apart from disqualification was given by the
91st amendment20, which sought to prevent potential damage to the democracy by defections
by strengthening the anti-defection law of 1985, by introducing the Articles 75(1B)21,
164(1B)22 and 361B23 in the Constitution.

17
(1978) 2 SCC 301
18
Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka (WRIT PETITION (CIVIL) NO. 992 OF 2019)
19
Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka (WRIT PETITION (CIVIL) NO. 992 OF 2019
20
The Constitution (Ninety-First Amendment) Act, 2003
21
A member of either House of Parliament belonging to any political party who is disqualified for being a
member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a
Minister under clause (1) for duration of the period commencing from the date of his disqualification till the
date on which the term of his office as such member would expire or where he contests any election to either
House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is
earlier.
22
A member of the Legislative Assembly of a State or either House of the Legislature of a State having
Legislative Council belonging to any political party who is disqualified for being a member of that House under
paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for
duration of the period commencing from the date of his disqualification till the date on which the term of his
office as such member would expire or where he contests any election to the Legislative Assembly of a State or
either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of
such period, till the date on which he is declared elected, whichever is earlier.
 The provisions of the newly introduced articles throw a bar on any person who is
disqualified under the Tenth Schedule from being appointed as a Minister or from holding
any remunerative political post from the date of disqualification till the date on which the
term of his office would expire or if he is re-elected to the legislature, whichever is earlier.

6. Representation of People Act,1951 and Anti-Defection

Section 36(2)24 of the Representation of People Act, 1951 which provides rejection of
nomination by the Returning Officer does not state that a nomination of a candidate may be
rejected if he is disqualified “for being chosen” to fill the seat under Article 191 of the
Constitution. Thus, effectively, a person who is disqualified “for being “a member of the
House is not disqualified “for being chosen” as a member of the House. This was the what
the apex court held in the case of the writ petition Shrimanth Balasaheb Patil vs Honble
Speaker Karnataka25 wherein the apex court the Speaker’s act of disqualifying the defected
MLAs but struck down the part wherein the speaker disqualified them for the term of the
assembly.

7. Recent Developments and Discussion

23
A member of a House belonging to any political party who is disqualified for being a member of the House
under paragraph 2 of the Tenth Schedule shall also be disqualified to hold any remunerative political post for
duration of the period commencing from the date of his disqualification till the date on which the term of his
office as such member would expire or till the date on which he contests an election to a House and is declared
elected, whichever is earlier.
Explanation. – For the purposes of this article,-
(a) the expression “House” has the meaning assigned to it in clause (a) of paragraph 1 of the Tenth Schedule;
(b) the expression “remunerative political post” means any office-
(i) under the Government of India or the Government of a State where the salary or remuneration for such office
is paid out of the public revenue of the Government of India or the Government of the State, as the case may be;
or
(ii) under a body, whether incorporated or not, which is wholly or partially owned by the Government of India
or the Government of State, and the salary or remuneration for such office is paid by such body,
except where such salary or remuneration paid is compensatory in nature.

24
The returning officer shall then examine the nomination papers and shall decide all objections which may be
made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if
any, as he thinks necessary, reject any nomination on any of the following grounds:— that on the date fixed for
the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat
under any of the following provisions that may be applicable, namely:— Articles 84, 102, 173 and 191, Part II
of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
25
Writ Petition (Civil) No. 992 Of 2019
Until Karnataka discovered the way of “resignations,” the “exemption” clause to the Tenth
schedule by “merger” was used by elected members of the parties which had small number of
members as in the case of TDP members when 10 out of the 15 merged with TRS in 2014
and later in Goa, where 10 out of the 15 congress MLAs merged with BJP, as the numbers
which merged formed two-third majority which did not attract any disqualification by the
Paragraph 4 of the Tenth schedule26.

Later, what happened in Karnataka in 2019 was a precursor to the perfecting the art of
defection through resignation was to et perfected with a series of processes that involved
resorts, speaker, court and floor tests. In 2020, in the case of Madhya Pradesh, when
resignations were tendered, and seats became vacant.

What followed in the case of Shivraj Singh Chouhan vs Speaker Madhya Pradesh27 the court
ordered for floor test on March 2020 to prove the majority and end the uncertainty in the
state. Consequently, the Congress government resigned and BJP came to power after the
floor test. The bench prioritised the certainty in the state over the plea by the congress to
hold the floor test after the bye elections due to resignations and the resultant vacancies in the
house.

The defections and the judgements of the different benches of the Supreme Court, upon
hearing petitions in both the instances made no effective distinction between those who were
disqualified and those whose resignations were accepted, as both categories of people were
free to contest the byelection to the seats that were vacant. In effect, they can return to the
legislature if they won the byelections28.

The trend of defectors contesting on the nominations by the party defected to has brought
about a process where the defections and the consequent application of defection law

26
Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not
be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another
political party and he claims that he and any other members of his original political party— (a) have become
members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger,
such other political party or new political party or group, as the case may be, shall be deemed to be the political
party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political
party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) 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.
27
Writ Petition (C) No. 439 of 202
28
https://frontline.thehindu.com/politics/article31249526.ece-last accessed on May 10 2020
meaningless and non-effective in sum, as the defectors win by elections and continue to
remain as the elected members.

The 91st amendment which sought to counter the defections by barring the members
disqualified by the tenth schedule from holding ministerial positions and “remunerative
political post” has been rendered meaningless in the light of defectors wining byelections to
return to the assembly, thereby effectively circumventing the objects and reason of the 91 st
amendment to deter the defection.

8. Conclusion

The recent instances of defections, recontests, winning to return to the assembly for offers
made and indulging in all these by way of manipulations to circumvent law specifically made
makes it crystal clear that if defections have to be curbed to save the constitutional sanctity
and political stability in the country, there has to be an amendment which will ensure that
defections will put an end to the political career. Unless such a deterrence comes into force,
the political hocus – pocus will ensure to circumvent the existing laws and reward those who
continue to destabilise the governance through defections.