Polity & Constitution

LECTURE-2D : Topic 2: Anti Defection Law - II

Theme 5:

Union & State Legislatures

Atish Mathur
Website : atishmathur.com | Telegram : Atish Mathur Official | Email : contact@atishmathur.com
 Prelims PYQ Analysis (2011-2022)
Year No. Broad nature of questions

2022 4 Constitution Amendment Bill, LS Exclusive Powers, Anti Defection Law, Deputy Speaker (LS),

2021 2 Difference between British & Indian form of parliamentary democracy, LS Elections Laws

2020 6 Parliamentary System of Government, Disqualifications, Motion of Thanks (President) + Sessions, LS RS Powers, MPLAD Scheme, Budget
Components
2019 2 Office of Profit (Disqualification), Motion of Thanks (Governor) + SLA following LS rules

2018 4 Money Bill, Leader of Opposition, Removal of SLA Speaker, Committee on Subordinate Legislation

2017 5 Advantage of Parliamentary form of Government, Private Member Bill, Motions, First Past the Post (Lok Sabha) + Speaker from Majority party,
Eligibility to contest LS Elections

2016 2 Bill Lapses, Parliament legislating on state list

2015 5 Parliamentary form of government features, Composition of State legislative council, Budget/CFI/PAI withdrawal provisions, Joint sitting, RS
Money Bill Powers,
2014 3 No confidence motion, Anti Defection Law, Largest parliamentary committee

2013 6 Parliamentary law to implement treaties, Constitutional Amendment, Presiding Officers of the RS, parliamentary form of government,
committee on public accounts, RS Money Bill Powers
2012 6 Deadlock, Parliamentary control over finance, RS Special Powers, LS Speaker, RS Composition + Parliament Composition, Adjournment Motion

2011 4 Vote on Account + Interim Budget, Failure to pass budget, Contingency Fund of India Composition, CFI withdrawal authorization
 Mains PYQ (2013-2022)
Year Question
2013 The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive
debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was
legislated but with a different intention?
2014 The ‘Powers, Privileges and Immunities of Parliament and its Members’ as envisaged in Article 105 of the Constitution leave
room for a large number of un-codified and un-enumerated privileges to continue. Assess the reasons for the absence of
legal codification of the ‘parliamentary privileges’. How can this problem be addressed?
2016 “The Indian party system is passing through a phase of transition which looks to be full of contradictions and paradoxes.”
Discuss.

2017 The Indian Constitution has provisions for holding joint session of the two houses of the Parliament. Enumerate the
occasions when this would normally happen and also the occasions when it cannot, with reasons thereof.

2017 ‘Simultaneous election to the Lok Sabha and the State Assemblies will limit the amount of time and money spent in
electioneering but it will reduce the government’s accountability to the people’ Discuss.

2017 To enhance the quality of democracy in India the Election Commission of India has proposed electoral reforms in 2016. What
are the suggested reforms and how far are they significant to make democracy successful? (250 words)
Year Question

2018 Why do you think the committees are considered to be useful for parliamentary work? Discuss, in this context, the role or the
Estimates Committee.

2019 Individual Parliamentarian’s role as the national lawmaker is on a decline, which in turn, has adversely impacted the quality
of debates and their outcome. Discuss.

2020 ‘Once a Speaker, Always a Speaker’! Do you think this practice should be adopted to impart objectivity to the office of the
Speaker of Lok Sabha? What could be its implications for the robust functioning of parliamentary business in India?
2020 Rajya Sabha has been transformed from a ‘useless stepney tyre’ to the most useful supporting organ in past few decades.
Highlight the factors as well as the areas in which this transformation could be visible.
2021 To what extent, the Parliament is able to ensure accountability of the executive in India?

2021 Explain the Constitutional provisions under which the Legislative Councils are established. Review the working and current
status of Legislative Councils with suitable illustrations.

2021 Do departmental parliamentary standing committees keep the administration on its toes and inspire reverence for
parliamentary control? Evaluate the working of such committees with examples. (250/15):

2022 Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature
under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate
may be declared void? What remedy is available to the aggrieved party against the decision ? Refer to the case laws.
Theme 5 : Union & State Legislatures

• Topic 1 : Outline, Approach, PYQ Analysis

• Topic 2 : Composition
• Topic 3 : Presiding Officers
• Topic 4 : Procedures
• Topic 5 : Functions
• Topic 6 : Committees
• Topic 7 : Analysis of Parliamentary Form of Government
 Prelims Syllabus
Code (P)

• Indian Polity (P1)and Governance-

• Constitution, (P2)
• Political System, (P3)
• Panchayati Raj, (P4)
• Public Policy (Common to Polity, Governance, and Social Justice) (P5)
• Rights Issues, etc. (Common to Polity, Governance, and Social Justice) (P6)
 Mains Syllabus - (Code – M)
General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
• Indian Constitution—
• historical underpinnings, (M1.1)
• evolution, (M1.2)
• features, (M1.3)
• amendments, (M1.4)
• significant provisions (M1.5) and
• Basic structure (M1.6)
• Functions and responsibilities of the Union and the
States (M2.1), issues and challenges pertaining to the
federal structure (M2.2)
• devolution of powers and finances up to local
levels and challenges therein. (M2.3)
• Separation of powers between various organs ;
(M3.1)
• Dispute redressal mechanisms and institutions.
(M3.2)
• Comparison of the Indian constitutional scheme with
that of other countries. (M4)
• Parliament and State legislatures—
• Structure, (M5.1)
• functioning, (M5.2)
• conduct of business (M5.3)
• powers & privileges (M5.4) and issues arising out of
these. (applies to all)
• Structure, organization and functioning of the Executive
(M6.1.1…) and the Judiciary (M6.2.1…)—Ministries and
Departments of the Government (M6.3.1…) ; pressure groups
and formal/informal associations and their role in the Polity.
• Salient features of the Representation of People’s Act. (M7.1)
• Appointment to various Constitutional posts, powers,
functions and responsibilities of various Constitutional Bodies.
(M8.1)
• Statutory, regulatory and various quasi-judicial bodies. (M9.1)
 Lecture Flow
• Context
• Related Terms
• International Comparison
• Historical Context
• Evolution
• The Anti Defection Law
• Critical Analysis of the law
• Intent & Impact Analysis
• Important Judgements (Integrated)
• Suggestions/Committee Recommendations
The Grounds : ‘Voluntarily gives up his membership’
• The phrase has a wider connotation than resignation
• It is not very clear whether indulging in acts like working against the interests of the party, supporting a
candidate of other party in elections, etc., which, technically speaking do not amount to giving up the
membership of the party may be considered as the member having voluntarily given up the membership of
the party
• However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the
giving up of membership can be inferred by his conduct. [Ravi Naik vs Union of India, 1994]
• Members who have publicly expressed opposition to their party or support for another party were deemed to
have resigned. on being expelled from the party, the member, though considered ‘unattached’, still remains
the member of the old party for the purpose of the Tenth Schedule. However, if the expelled member joins
another political party after expulsion, he is considered to have voluntarily given up the membership of his
old political party [( G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras&
Another, 1996),
• A letter by an elected party member to the Governor requesting him to call upon the leader of the opposite
party to form a Government would by itself amount to an act of voluntarily giving up membership of the
party of which he is an elected member. (Rajendra Singh Rana vs. Swami Prasad Maurya and Others, 2007)
• Halim Committee on anti-defection law (1994) : The words ‘voluntarily giving up membership of a political
party is not comprehensively defined. Restrictions like the prohibition on joining another party or holding
offices in the government be imposed on expelled members. The term political party should be defined
clearly.
The Grounds : DISSENT
• Allows disqualification if any member votes contrary to the directives issued by the leadership of a political party or in fact,
refuses to vote at all.
• Kihoto Hollohan v. Zachillhu & Ors., 1992 : freedom of speech of a legislator is a qualified one and the Schedule does not
make any legislator liable in Court for any statement made in a House. Xth Schedule not in violation of the right of free
speech of legislators guaranteed under Articles 105 and 194 of the Indian Constitution
• The essence of a representative democracy lies in the accountability of the elected to the electors. If non-observance of
voting on the lines of political whips leads to a the suppression of the voice of individual legislators, it carries a threat of
undermining the spirit of a representative democracy. Not only does this restrict a legislator form voting against his or her
conscience, but the ramifications of such a situation are such that it impedes the true nature of the responsibilities of an
elected representative. It is also worth noting, that even the rules framed under the Representation of People Act, recognise
political parties merely for allotment of symbols, disclosure of accounts and registration with the Election Commission.
• A whip can be issued for every action but does not have to be issued for every action. Does not allow legislators to challenge
the part whip if it conflicts with the wishes of the electorate.
• In a parliamentary system, legislators are expected to exercise their independent judgement while determining their position
on an issue. The choice of the member may be based on a combination of public interest, constituency interests, and party
affiliations. This fundamental freedom of choice could be undermined if the member is mandated to vote along the party line
on every Bill or motion. Even if the member has an opinion that differs from his party leadership, he does not have the
freedom to vote as per his choice. For example, in a discussion on river water sharing between states, MPs representing
constituencies in different states may be forced to vote in a unanimous manner, despite holding divergent views, in order to
avoid the risk of disqualification from office.
• The anti-defection law deters a legislator from his duty to hold the government accountable, by
requiring him to follow the instruction of the party leadership on almost every decision.
Therefore, he may debate and dissent from his party position on an issue in Parliament, but will
still be compelled to vote as per the instruction of the party whip.
• For example, in December 2012, there was a vote in Lok Sabha on whether 51% foreign direct investment should be
allowed in multi-brand retail. During the vote, all the members of the Congress party in the House voted for the
policy and all the members of the Bharatiya Janata Party voted against the policy. It is unlikely that all legislators from
a party had an identical stance on an issue with such wide-ranging implications.
• By definition, the party or coalition in power has the majority of the membership in Lok Sabha. By
prohibiting dissent, the anti-defection undermines the system of executive accountability to the
legislature, and gives the executive control over Parliament on all votes. As a result, the legislator
is no longer empowered to act as an effective check on the government of the day.
• The Dinesh Goswami Committee on Electoral Reforms (1990) had recommended that
disqualification on grounds of defection should be limited to: (i) an elected member voluntarily
giving up membership of his political party, and (ii) voting contrary to the party whip only in
respect of vote of confidence/no-confidence, money bill, or motion of vote of thanks to the
President’s address
Authority : Presiding Officer (Speaker mostly)
• The Speaker's decision is final but there is no time limit for him to arrive at any decision.
• The Court said that the Speaker’s order is final and cannot be reversed internally, subject to judicial review as held in Kihoto Hollohan.
• The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court
in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. While functioning under the Tenth
Schedule, the presiding officer acts as a tribunal and exercises judicial power. Decisions taken in such capacity are subject to judicial review. A party can
move court, but only after the Speaker has announced his decision [Kihoto Hollohon v. Zachilhu, 1992]
• In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been delay by the Telangana
Assembly Speaker in acting against a member under the anti-defection law
• There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions. [Speaker, Haryana
Vidhan Sabha Vs Kuldeep Bishnoi & Ors., 2012, Mayawati Vs Markandeya Chand & Ors., 1998]
• In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
• There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of
their original parties in the legislature
• The Supreme Court has observed that while acting as a tribunal under the Tenth Schedule, the speaker is bound to decide disqualification petitions
within a reasonable period. While what time period is reasonable will depend on the facts of each case, the Court held that disqualification petitions
must be decided within three months from when they are filed. [Keisham Meghachandra Singh v. The Hon’ble Speaker Manipur Legislative Assembly &
Ors, 2020]
• The Dinesh Goswami Committee on Electoral Reforms and the Election Commission recommended that the power to decide on the issue of
disqualification under the Tenth Schedule should be given to the President or the Governor of the State, who shall act on the advice of the Election
Commission. However, no amendments have been made in the Act giving effect to these recommendations.
Punishment
• No criminal or civil proceedings, just disqualification, can recontest.
• 91St CA, 2003 : Also, be disqualified to be appointed a Minister or hold a remunerative political post
• In its 170th report, the Law Commission of India (1999) had observed that the country’s experience with the Tenth Schedule had not
been satisfactory.
• The provision exempting splits in political parties from disqualification has been abused the most.
• The Law Commission had recommended repealing the provision exempting certain mergers from the Tenth Schedule.
• Not only have defections continued by way of mergers, but legislators have also defied party whips and either cross-voted or abstained from voting
on important motions/resolutions.
• For instance, when the United Progressive Alliance government brought a confidence motion in 2008, more than 20 MPs belonging to different political parties cross-
voted defying party whips.

• Since the coming of the tenth schedule

• there have 10 claims of splits and 14 claims of mergers in Rajya Sabha.
• In Lok Sabha there has been 22 claims of splits and 13 of mergers
• The thirteen and the tenth Lok Sabha amounts to greatest number of claims regarding splits and mergers.
• In state legislatures there have been 75 claims of splits and 100 claims of mergers.
• Basically, it is difficult to garner the support of two-third of members for merger so it basically uses the tactics if split in the party. Later merge the
splinter groups in bloc

• National Commission to review the working of the Constitution (2002) :

• Vote cast by a defector to overthrow the government would amount to be inavalid
• Defectors should be debarred from holding any office of profit during the ongoing term.
Exemptions
• Prior Permission, Party Condonation within 15 days, Presiding
Officers, 2/3rd Mergers
• Makes no provision to cope with the situation arising out of expulsion
of a member from his political party.
• Does the law, while deterring defections, restrict a legislator from voting
as per his conscience and erode his independence?

• Does the law lead to suppression of healthy intra-party debate and

dissent?

• Does it restrict representatives from voicing the concerns of their voters

in opposition to the official party position?

• Should the decision on defections be judged by the Speaker who is

usually a member of the ruling party or coalition, or should it be
decided by an external neutral body such as the Election Commission?