Anti-Defection laws in India

Constitutional Governance

Group 2

Anita V (003), Ayush Singh(006),Raj Santoshi

Routray(024),Sachin Yadav (025),Shibashankar Panda(032),
Urmi Panwar(043), Vidushi Verma(044)
 ANTI DEFECTION LAWS

I.INTRODUCTION

India is a democratic nation. Democracy is often defined as a government of the people by

the people and for the people. The will of people to choose a government is determined by
elections. In order to ensure the functioning of the wheels of democracy and to keep intact its
vibrancy, it is better to have a multi-party system like India, wherein people have a bouquet
of choices of different political parties with different ideologies. However, one of the major
risk to this structure is defection. Defection is defined as “conscious abandonment of
allegiance or duty.”1 In political scenario it is a situation when a member of a political party
leaves his party and joins hands with other parties.2

The impressions of elections as well as defection were quite visible in colonial phase of the
country as well. Traditionally in the British House of Commons this was known as the ‘floor
crossing’ when a member of the government in power used to present his allegiance and
moved to the opposite side, or vice versa. 3 The first instance of defection in India dates as
back as the year 1919, when Shri Shyam Lal, member of the central legislature, switched his
allegiance from Congress party and joined British side. This act was highly criticized and he
was expelled from the party. 4

Post-independence the instances of defection increased as the government was not very stable
and people were exploring ideologies and purpose. In the year 1950, Uttar Pradesh witnessed
defection by 23 MLAS who defected from Congress and went on to establish the Jana
Congress. Further in 1958, ninety-eight MLAs in Uttar Pradesh openly challenged the
government, leading to the downfall of then CM, Dr. Sampurnanaand’s Ministry. 5 In 1956,
Thanu Pillai from the Travancore-Cochin state switched sides from PSP to Congress, which
facilitated the formation of a Congress government. In Mysore state, in 1956, the then Chief
Minister Kengal Hanumanthaiah was forced to step down when 21 elected representatives of

1
Defecction, Merriam Webster < https://www.merriam-webster.com/> assessed on 02/09/2023.
2
Lok sabha docs, Anti defection law in India, Reference note, No. 16/ RN/Ref/July/2022
<https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/15072022_111659_1021205175.pdf>.
3
Ibid.
4
Paras Diwan, ‘Aya Ram Gaya Ram: The Politics Of Defection’ (1979) 21(3) Journal of the Indian Law
Institute <https://www.jstor.org/stable/43950639> assessed on 02/09/2023.
5
Shyamlal Yadav, ‘Dr. Sampurnanand. Second UP CM, Sanskrit scholar and ex journalist’ Indian Express
(March 05, 2022) < https://indianexpress.com/elections/dr-sampurnanand-sanskrit-scholar-ex-journalist-
7750206/> assessed on 02/09/2023.

1
his party brought a no-confidence motion against him. 6 These were some incidents at state
level. However, between the fourth and fifth general elections of 1967, there were nearly
2,000 cases of defections. Around 438 cases occurred in the twelve month period between
1967 to1968.7 Remarkable incident in that aspect was on October 30, 1967, when a Haryana
Legislator Gaya Lal defected thrice within 9 hours thereby setting a new record of political
defections and also received the title of ‘Ayaram Gayaram’.8

Thus, on 11th August, 1967, a private member, Shri P Venkatasubbaiah moved a resolution to
bring in anti-defection laws. This resolution resulted in establishment of a committee
consisting of experts as well as representatives of political parties under the chairmanship of
Shri Y.B. Chavan. The Committee recommended to draft a model code of conduct for the
political parties with particular reference to the problem of defections and to observe its
implementation.9

However, recommendations by the Committee was not enough to solve the issue of
defection. Thus. the Constitution (Thirty-second Amendment) Bill, 1973 was introduced in
the Lok Sabha. This Bill was strongly opposed and couldn’t see a bright future due to
dissolution of Lok Sabha on 18th January, 1977. Another attempt was made on 28 August
1978 by Janata Party by introducing the Constitution (Forty-eighth Amendment) Bill, 1978 in
Lok Sabha. Several members belonging to both ruling party and opposition parties opposed
the Bill at the introduction stage itself. In view of stiff opposition, the Minister withdrew the
motion for leave to introduce the Bill.

Finally, it was the Rajiv Gandhi led government which introduced the Constitution (Fifty-
second Amendment) Bill, 1985 on 24 January 1985 which led to amendment in Article 101,
102, 190 and 191 of the Constitution to provide the grounds for vacation of seats for the
disqualification of the members; and also inserted Tenth Schedule.

6
GP Nail, ‘ Resignation dramas to pull down government must stop’ Deccan Herald ( July 22, 2020)
<https://www.deccanherald.com/opinion/resignation-dramas-to-pull-down-governments-must-stop-864087.html
>,assessed on 02/09/2023.
7
Dr. Vinod Patidar, ‘Anti Defection Law: A Critical Reappraisal’ (2018) 5(9) JETIR
<https://www.jetir.org/papers/JETIR1809664.pdf > assessed on 02/09/2023.
8
Supra note 4.
9
Supra note 2.

2
 II. SCHEDULE X OF THE CONSTITUTION

Need for insertion of tenth schedule

Defection is the process in which any member of a political party switches

party without prior permission from the party. Defection is generally done in the pursuit of
better position in the party and also in the government. This became an issue of concern when
the stability of the government became difficult to hold with a lot of defections taking place.
From 1967 to 1970, in three years 1562 cases of defection were seen throughout the country.
This raised a serious need for the law of defection to keep the stability of the Government and
also to keep the democracy alive. Committees were formed for better investigation into the
matter and to give out suggestions for facing this situation. Attempts were made in this regard
to bring a law. However, the attempts failed in the Thirty-second Amendment Bill, 1973 and
forty-eighth Amendment Bill, 1978.

Introduction of the schedule

In 1985, tenth schedule of the 52 nd amendment to the constitution of India

was passed by the parliament of India. This brought in the required law against defection. It
lays down the process by which legislator may be disqualified on ground of defection by the
presiding officer of a legislature based on a petition by any other member of the legislature.
This law prohibits the unfair trade of parliamentarians and the political leaders that
sometimes leads to instability of the government. The tenth schedule to the constitution has 8
paragraphs, that is designed in order to tackle every situation that were present at that
moment and also for the future problems that might come in the future.

Provisions as to disqualification on the ground of defection

1. The first paragraph of the tenth schedule is the interpretation paragraph and describes
the terms "house", “legislature party”, “original party”, and “paragraph”. This was the

3
 first time when the term political party got mention in the constitution in any form.
This paragraph describes “house” as any house of the state or the central legislature,
“legislature party” as the group of all the members of that house for the time being
belonging to that political party, “original party” as the political party to which the
member of the house belong or in other words the party on whose ideology they have
become a member of such house, “paragraph” as paragraph of this schedule.

2. Disqualification on ground of defection

Disqualification on ground of defection can occur in three ways. One, of the
members who are elected from any party, two, an independent candidate who have
become a member of the house, and a nominated member.
When a member of any house is elected from any political party they can be
disqualified when they voluntarily give up their membership to such party or when
they vote against the motion of their original party or abstain from voting, without any
prior permission from the party.
In the second scenario when a member of the house has been elected as an
independent candidate and they join any party after the completion of such election,
they can be disqualified on the ground of defection.
In the third scenario the nominated candidates in the house are given 6 months
of time to make their decision with regard to their ideologies and believes and join
any party of their choice. But if any nominated member joins any party after the
expiry of 6 months from the date of their nomination, they can be disqualified under
the defection law.

3. This paragraph was repealed by the 91st Amendment Act, 2003.

4. Paragraph 4 talks about an exception in the law of defection. This provides that, in
case of an merger between two or more parties with the agreement of 2/3 rd of the total
member of the parties, disqualification on ground of defection will not apply.
91st amendment act,2003 introduced that disqualification on ground of defection
will not apply in case of split between parties.
In case any members of such parties don’t agree for such merger or split and
chooses to be recognised as independent party, these members are also not subject to
disqualification on ground of defection.

4
 5. Exemption
A member who has been elected to the office of the speaker or deputy speaker in
the house of the people, speaker and deputy speaker of legislative assembly, or
chairperson or deputy chairperson of council of states, cannot be disqualified on the
ground of defection if they,
a. Join the party they have left, when being elected to such office, after the end of
their tenure in the office; or
b. By reason of their election to such office have voluntarily given up their
membership of the political party, and after the ending of his tenure if he joins the
party, he has left voluntarily or become a member of another political party.

6. All the decisions on questions as to disqualification on the ground of defection on any

member, is to be taken by the speaker or the chairperson of the house as the case may
be and his decision shall be final.
When a question arises as to whether the chairperson or the speaker of a house
has become subject to such disqualification, the house will appoint a person for the
decisions of such question and his decision shall be final.
All such proceedings will take place as proceedings under Article 122 or Art
212 as the case may be in the parliament or the state legislature.

7. Bar of jurisdiction on courts

Notwithstanding anything in this schedule no courts in the country can interfere in
the matter of disqualification on the ground of defection and the decision taken by the
speaker or the chairperson as the case may be, cannot be challenged.
Paragraph 7 declared invalid for want of ratification in accordance with the
proviso to clause (2) of article 368 as per majority opinion in Kihoto Hollohan Vs.
Zachilhu10 and others11.

8. Paragraph 8 of the schedule provides that the speaker or the chairperson as the case
may be can make rules for giving effect to the provisions of this schedule. Such rules
may provide for the maintenance of registers, report by the leader of any party about

10
(1992) 1 S.C.C 309.
11
Ibid.

5
 any member in relation to defection, report with regard to new admissions of any
members of the house and the officer of the House to whom such report shall be
furnished, the procedure for deciding any question, including the procedure for any
inquiry.

The rules made by the chairman or the speaker shall be laid down before the house for
a maximum of 30 days, that can be a single or multiple sessions and this becomes
effective on expiry of such time period. The chairperson or the speaker of a house
may direct that any wilful contravention by any person of the rules made under this
paragraph may be dealt with in the same manner as a breach of privilege of house.

III CONSTITUTIONALITY OF X SCHEDULE

The constitutionality of the Tenth Schedule of the Indian Constitution, also known as the
Anti-Defection Law, has been challenged in several court cases. The main arguments against
the constitutionality of the Tenth Schedule are that it:

 Violates the freedom of speech and expression of legislators.

 Violates the right to vote of the people.

 Is arbitrary and unreasonable.

 Takes away the power of judicial review from the courts.

The landmark judgment that upheld the constitutionality of the Tenth Schedule, was
deliberated by the Supreme Court in Kihoto Hollohan v. Zachilhu12.

Facts

 When the Tenth Schedule to the Constitution, also known as the "anti-defection law,"
was established in 1985, the law governing lawmakers' disqualification and the
Speaker's authority to decide such cases was added to the statute book. The Tenth
Schedule faced a constitutional challenge, which the Supreme Court resolved in
"Kihoto Hollohan."

12
Supra note at 10.

6
  The Supreme Court's main concern in this issue was whether the Speaker's powerful
position violated the doctrine of basic structure, which is the judicial rule that certain
fundamental provisions of the Constitution cannot be changed by modifications by
Parliament.

Analysis

It was argued that the anti-defection statute is incompatible with freedom of speech, dissent,
and conscience in the case of Kihoto Hollohan. According to the Supreme Court, the act is
designed to deal with unprincipled defections that are not protected by intellectual liberty,
freedom of conscience, or the right to dissent. Because of this, even though this rule has
certain unintended consequences, it is essential in today's society when dealing with political
concerns.

The court subsequently ruled that the measure did not infringe on anyone's right to free
speech or the fundamental principles of parliamentary popular government. The Supreme
Court held that the Tenth Schedule is constitutional because it is a reasonable restriction on
the freedom of speech and expression of legislators. The Court also held that the Tenth
Schedule does not violate the right to vote of the people because it does not prevent the
people from electing the representatives of their choice. The court held that the Speaker's
decision can be subject to judicial review, but only on certain limited grounds, such as mala
fide (bad faith), violation of principles of natural justice, and other procedural irregularities.
However, the court also emphasized that the Speaker's decision regarding disqualification is
final, and courts cannot question it on the merits of the decision.

This case established an important balance between the autonomy of the legislative bodies to
manage their internal affairs and the need for judicial oversight to prevent abuse of power. It
clarified the extent to which the courts can intervene in matters of disqualification under the
Anti-Defection Law. As it established a compromise between the requirement for judicial
scrutiny and the idea of the autonomy of the legislative bodies to handle their internal affairs.

The constitutionality of the Tenth Schedule is still a matter of debate. Some argue that it is
necessary to prevent the instability caused by political defections, while others argue that it is
an infringement on the democratic rights of legislators. It attempted to uphold the separation
of powers between the legislative and the court while preventing the Speaker from making

7
arbitrary judgments. An important problem in Indian politics, the scope of judicial review in
cases involving defection, was clarified by this case.

Following Developments:

 It's important to note that this case has continued to have an impact on following
defection and Speaker power cases in different Indian states.
 Current legal and political debates centre on how to interpret and put into practice the
concepts articulated in this decision.

IV. ANALYSING JUDGMENTS RELATING TO ANTI-DEFECTION

The following judgments mentioned, contain pertinent aspects in the development of

constitutional jurisprudence relating to Anti-defection, and the inter-party democracy.
At a glance, the main issues that can be deciphered from studying the three jugments,
are as follows:

• If a member is expelled from old party and he joins another party after being expelled,
will it be considered as having voluntarily given up his membership?

• The main issue before the court was whether Naik's act of leaving the INC and joining
the BJP amounted to defection.

• whether the act of defectors in supporting the leader of opposite party against their
own government constituted defection under the anti-defection laws.

The judgments, analysis and their pertinence to the development of Anti-defection are
discussed in the succeeding portions of this material.

A. G. VISHWANATHAN V. SPEAKER, TAMIL NADU LEGISLATIVE

ASSEMBLY13 (1996)

FACTS

In this case, two AIADMK candidates elected to the Tamil Nadu Legislative Assembly were
expelled from their party and declared "unattached" members by the Speaker. Subsequently,

13
(1996) 2 SCC 353.

8
they joined another party, resulting in their disqualification as per the Tenth Schedule of the
Indian Constitution.

QUESTIONS OF FACT BEFORE SUPREME COURT

1. Consequences of members being expelled from their political party and how that
expulsion affects their status and eligibility as members of the legislative assembly?
2. Whether members declared as "unattached" by the Speaker of the Legislative
Assembly have any legal significance in the context of disqualification under the
Tenth Schedule?

The answer to the first question is that the consequences of members being expelled from
their political party and how it affects their status and eligibility as legislative assembly
members typically include disqualification, loss of party privileges, a change in party
affiliation, potential legal challenges, and the possibility of triggering by-elections in their
constituencies. The exact impact varies depending on the jurisdiction's laws and regulations.

Further, in response to the second question, since "unattached" members were not explicitly
included as a separate category, the Court held that even if a member who was initially
elected with one political party later joined another, they could still be deemed to have
voluntarily renounced their membership, even though they were listed as "unattached."

JUDGMENT ANALYSIS

The Supreme Court clarified that even "unattached" members can be disqualified for such
actions, as the Schedule doesn't recognize them as a separate category.

The Supreme Court held that even members designated as "unattached" could be disqualified
for leaving one political party and joining another. The status of being "unattached" did not
exempt them from disqualification. The court's decision clarified that expulsion from the
party, even if the members became "unattached," could result in disqualification under the
Tenth Schedule of the Indian Constitution, which aims to prevent political defections and
uphold the integrity of Indian democracy.

B. RAVI S. NAIK V. UNION OF INDIA14(1994)

In this case 2 petitions were filed.

Petition I
14
Ravi S. Naik v. UOI, (1994) SUPP 2 SSC 641.

9
FACTS

After the 1989 Goa Legislative Assembly elections, the MGP won 18 seats, Congress won
20, and Independents secured 2 seats. Congress initially formed a government with
independent support. Later, the GPP emerged, forming a coalition called the Progressive
Democratic Front (PDF) with the MGP.

A political crisis unfolded when the MGP withdrew support from the PDF in December
1990. Subsequently, the Congress Legislature Party claimed support from 20 lawmakers,
creating the Congress Democratic Front (CDF) with members from Congress, GPP, and
MGP.

JUDGMENT ANAYLSIS

High court rejected the petition because the speaker made his judgment primarily on
newspaper photographs of appellants with governor and other MLAs & the appellants didn’t
argue against the fact. Later appeal was filed in SC,

SC agreed with HC decision and rejected the petition.

Petition II

FACTS

This appeal relates to the disqualification appeal of Ravi Naik, who had taken the oath as
Goa's Chief Minister. Dr. Kashinath Jhalmi filed a petition claiming that Naik had voluntarily
abandoned his original party, the MGP, which violated the Constitution and disqualified him
from the Assembly.

Upon receiving the petition, the Speaker issued a notice to Naik. Naik argued that the MGP
had split, and he led a new group, the MGP (Ravi Naik Group).

Naik contended that the MGP party split, forming the MGP (Ravi Naik Group) with eight
members, including himself.

JUDGMENT ANALYSIS

In the High Court, Naik challenged this decision, claiming that the Speaker had unfairly
relied and had disregarded a stay order imposed by the High Court. Although the stay order
was issued after the Speaker's initial disqualification ruling and at a time when the Tenth

10
Schedule of the Constitution had not yet been deemed unlawful, the High Court maintained
the Speaker's judgment.

The Supreme concluded that the Speaker was required to abide by the High Court's stay
order, and that because of the Speaker's failure to do so, the subsequent disqualification
ruling is invalid. The Supreme Court also ruled that the Speaker's reading of the Tenth
Schedule was invalid because it failed to take the effects of the stay order into account. They
thereby overturned the Speaker's order to disqualify.

C. RAJENDRA SINGH RANA AND ORS VS SWAMI PRASAD MAURYA AND

ORS15

FACTS

In 2002, after elections in Uttar Pradesh, a coalition led by Ms. Mayawati of the Bahujan
Samaj Party (B.S.P.) came to power. They decided to dissolve the Assembly, and Ms.
Mayawati resigned. The Samajwadi Party aimed to take over.

Thirteen B.S.P.-affiliated assembly members sought the Governor's permission to form a new
government under the Samajwadi Party. The Governor declined to dissolve the Assembly and
gave Mulayam Singh Yadav of the Samajwadi Party two weeks to demonstrate majority
support.

Swami Prasad Maurya, a B.S.P. leader, requested the dismissal of the 13 members supporting
Mr. Yadav, claiming they had left the B.S.P. Later, 37 Assembly members claimed to
represent 40 B.S.P. members and formed a new group called the Lok Tantrik Bahujan Dal,
which was later announced to have joined the Samajwadi Party. The Speaker did not decide
on the B.S.P.'s request to oust the 13 members but acknowledged three more participants
supporting the new group.

JUDGMENT ANALYSIS

The Speaker denied Mr. Maurya's request to expel the 13 B.S.P. members. He had previously
postponed this request due to the current case. The Speaker's decision was contested in court
via a legal petition.

15
Appeal (civil) 765 of 2007.

11
The issue focused on how the Constitution's Tenth Schedule, which addresses eligibility for
leaving a political party, should be interpreted. The main point of contention was whether the
Speaker had the authority to decide independently whether there had been a split in the party
or whether such a judgment required first determining whether the members had defected.

The Court concluded that the Speaker's conduct was unconstitutional and procedurally
improper. They decided that the 13 lawmakers who had sent a letter to the governor ought to
be removed from their seats in the legislature.

V. ANALYSING JUDGMENTS RELATING TO THE SPEAKER’S POWERS

UNDER SCHEDULE X

Through the case laws, two questions are explored:

1.To what extent the speaker/ presiding officer can use his ‘quasi-judicial’ powers under the
10th Schedule of the constitution?

2. What is the limit, if any, in which the speaker has to give his decision on Defection cases?

There are two judgments of the supreme court on Anti defection which can answer our 2
questions in the contention.

A. SHRIMANTH BALASAHEB PATIL V. HON’BLE SPEAKER, KARNATAKA

LEGISLATIVE ASSEMBLY AND OTHERS

Facts of the case

15th legislative elections were held in Karnataka, Bjp was the single largest party, however
two minor parties in this case, Namely INC and JDS were successful to form a coalition
government. This government remained in power for about 14 months then due to defection
by 17 MLAs, the government failed to show majority and eventually fell. As a result of this
Disqualification proceedings were imminent but before that 15 out of 17 MLAs tendered
their resignation to the speaker which the speaker did not accept and disqualified them till
the end of the term as well as debarred them from next legislative election.

12
Defected MLAs went to supreme court under article 32 of the constitution of India.

Some significant questions before supreme court:

● Was the writ maintainable?

● Was the speaker right in his decision to ignore the resignation and to disqualify all of
the MLAs?
● Even if the speaker was right to disqualify them, was he right to disqualify them till
the end of their term?

The answer to the first question is in affirmative. It was held that the speaker is a ‘quasi-
judicial authority’ and thus the writ though maintainable under article 32 should first be
petitioned in the High court under Article 226 of the constitution, as a party must exhaust all
available legal remedies before coming to the Supreme Court. However, the Supreme Court
also noted that this doctrine is not a rule of law but merely a rule of policy, convenience and
discretion, where principles of natural justice are violated. The court may allow a party to
come directly to the Supreme Court even if the party has other legal remedies available to it.

Furthermore, in support of its decision to allow this writ, SC held principles of natural justice
and fair hearing are traceable to the Rule of law that is embodied in the article 14 of the
Indian Constitution. SC also referred to a case of Ujjam Bai VS State of UP16 in which it was
held that writ jurisdiction is available when principles of natural justice are violated.

In reference to the second issue, The Supreme Court held that accepting or rejecting a
resignation is up to the satisfaction of the Speaker, he has to ascertain the veracity and
genuineness of the resignation under Schedule X. In this specific case, Supreme Court noted
that it was only tendered to avoid the disqualification proceedings and to defeat the
provisions of the constitution. Furthermore, Supreme Court also noted that tendering
resignation cannot help in avoidance of disqualification proceedings as the root cause of it
happened way before tendering of resignation i.e., defection is the root cause. If the practice
of tendering resignation just to avoid disqualification proceedings after defection allowed,
then the whole point of 52 amendment would be defeated.
16
1962 AIR 1621.

13
In respect to the 3rd issue, the Supreme Court held that the 10th Schedule only provides for
disqualification by the speaker. Nor Representation of people act,1951 and neither Schedule
X of the constitution bars the members from contesting the elections at the end of the term.
Also, the 91st amendment doesn’t give the right to the speaker to bar the members from
elections. However, they can be subjected to sanctions under 75(1B), 164(1B) and 361(1B) of
the Constitution, which bars the members to hold any remunerative post till the date of end
term of the disqualification.

Hence the speaker cannot fix the term of disqualification as well as debar members from
subsequent elections. Therefore, the Supreme Court held that the Speaker's decision to
disqualify them till the end of the term was unconstitutional and hence was wrong. The
MLAs were allied to recontest in the forthcoming elections.

B. KEISHAM MEGHACHANDRA SINGH V. THE HON'BLE SPEAKER

MANIPUR LEGISLATIVE ASSEMBLY & ORS

A MLA contested in election in 2017 as an INC member and after winning defected and
backed BJP. The Speaker delayed the adjudication on disqualification so a petition was filed
in HC, HC refused to intervene on the condition that speaker still has not given any decision
so HC can not interfere as long as matter is subjudice in front of the Speaker.

It was held that The Apex Court was of the opinion that the High Court erred in ruling that
the question of the Court's authority to order the Speaker was still up for debate. According to
the bench, the question was addressed in Rajendra Singh Rana vs Swami Prasad Maurya 17,
which held that the Speaker's refusal to execute his authority would give rise to judicial
review.

Furthermore, the Court also noticed that right now there is no provision regarding the time
limit in which the speaker has to adjudicate the matter under the 10th Schedule.

To contain this liberty of the Speaker, the Court in the recent judgment held that, “unless
there are any exceptional circumstances, disqualification petitions under the Tenth Schedule
should be decided by Speakers within three months.18”

17
4 SCC 270.
18
Supra note at 17.

14
There is no denying the fact that Schedule X provides the speaker with some discretionary
power, but that is contained to few subject matters only, it is not absolute. Speaker is a post
that should remain unbiased and uphold the constitutional values of our country.

VI. CONTEMPORARY CASES OF ANTI-DEFECTION

DEFECTION IN GOA: 2022

The decade of 1970s; a time before Goan lawmakers emerged as torchbearers of defection
and slithery architects of unstable governments, the wrath of a Spanish saint, St. Francis
Xavier, had deterred a set of defectors from the United Goans Party, from fully embracing the
subsequent assembly elections.

In Goa’s political primer, the decade from 1990-2000 represents the peak of legislative
hustling. As many as 13 chief ministers came, conquered and were pulled down, some after
occupying the top chair for a mere six days (Ravi Naik) and 18 days (Churchill Alemao). But
the tryst of the country’s smallest state with political defection, occurred through the 1960-
70s when Goa was still a Union Territory.

A Portuguese colony till 1961, Goa had just joined the vast network of states and territories
administered by the Indian Union, where defections were already in style. Goa, which was
still new to the numbers game in an electoral democracy, caught up to the trend in the late
1960s with the grand backdrop for the split in the (UGP), then a major opposition party.19

ISSUES:

• Whom does the need for 2/3 rd majority to be beyond the ambit of the law actually
benefit?

• Can the speaker delay their decision in case of deciding defection of a member of the
house indefinitely?

19
Marcus Mergulhao ‘Goa’s Tryst with Defections Goes Back over Half a Century: Goa News, Times of
India’ (September 15, 2022) <https://timesofindia.indiatimes.com/city/goa/goas-tryst-with-defections-
goes-back-over-half-a-century/articleshow/94211322.cms> accessed 7 September 2023.

15
 • What effect does the judicial interpretation of the laws of anti-defection hold over the
actions of the members?

OVERVIEW OF DEFECTION IN GOA 2022:

After experiencing the effect of defections in 2019, the same year when they
witnessed their largest loss in the parliament as well, Congress was desperate for the win in
Goa, which at the moment was one of the only states that still had hopes of not getting shaded
by the tsunami of the rapidly growing orange of BJP. Thus, the party led by their national
leader, Rahul Gandhi, tried to ensure every possible way to save themselves from the another
loss and get at least one victory linked to break the chain of losses since the last 3 years. They
made each of legislative assembly election candidates swear allegiance to the party and to
ensure their safety from the trend of defections prevalent in the state made each of their sign
an affidavit for not defecting from the party.

Yet, after the results were announced, 8 of the 11 elected MLAs from Congress, defected into
BJP within 6 months of results being announced. These MLAs formed a faction within the
party and were led by two prominent figures in the Goan political scene, Mr. Digambar
Kamat and Mr. Michael Lobo.

The issue with defection in this instance arises out of the fact that, 2 months prior to the final
defection, the same faction had tried to defect again, however, 2 of the members backed out
at the very last moment. Thus, making the rest of the 6 members liable to be prosecuted under
the provisions for defection law.20

As per the law, the party petitioned against the defectors before the speaker of the assembly,
Ramesh Tawadkar. The speaker took time to give the decision in the case, within which the
separated faction convinced two other MLAs from the remaining strength which then made
their prosecution void.21

Opinion of Jurists on the legal validity of the affidavits:

20
Shukla S and Chhabra A, ‘Will Goa BJP Reward Congress Defectors? Chief Minister Said This’ NDTV,
(15 September 2022) <https://www.ndtv.com/india-news/watch-will-goa-congress-defectors-be-
ministers-in-bjp-government-what-chief-minister-said-3346858> accessed 7 September 2023.
21
‘Curse of Goa: On Congress MLAs Defection to BJP’, The Hindu, (September 16, 2022)
<https://www.thehindu.com/opinion/editorial/curse-of-goa-the-hindu-editorial-on-congress-mlas-
defection-to-bjp/article65895115.ece> accessed 7 September 2023.

16
One of the arguments put forward by the party in Goa was that each of the elected members
had previously signed affidavits specifically debarring them from defecting to other parties.
Though the argument on paper had provisional validity, the legal validity of the affidavits
was still a matter of contention. Though the case never went to the court for decision, its legal
validity was discussed upon by prominent jurists of the country.

THE LOOPHOLES IN THE PRESENT LAWS: -

The incident in Goa brings forth before lawmakers and the public alike the major loophole in
the defection law, which is the strength of 2/3 rd of existing members defecting from a party,
making it an exception to the law and taking the defections away from the ambit of
prosecution or actions against the defectors in the house.

Similar cases have risen in the past in various states at various times; many of which have
been discussed and decided by the highest of judicial courts, however the interpretation of
judiciary is focused more upon supporting the ideological differences of the representatives
from their parties than the provisions of the law itself.

Also, this provides a backdoor for defectors to defect for personal gains putting their own
agendas ahead of the party and by the extension the people that led them to the position of
power.

Similar cases have happened before, as discussed henceforth

• Other cases of the same in different parties and states, like JD(U) MPs from Rajya
Sabha, in Andhra Pradesh and Telangana in 2016.

THE PROBLEM WITH JUDICIAL INTERPRETATION:

As discussed above, the cases of political defections are often saved from judicial scrutiny by
the loopholes in the law provided by the parliament itself. However, even the cases which did
get judicial attention haven’t provided much of a precedent to follow upon. The biggest issue
perhaps in such cases is the delay done by the speaker in deciding the cases for the defectors.
This issue was brought out and discussed in the case of Keisham Meghachandra Singh vs The
Hon’ble Speaker of Manipur22, where the Supreme Court of India decided there should be a

22
Civil Appeal No. 547 of 2020.

17
time limit put on the speaker to give his decisions in the cases of defection brought before
him in the house.

However, no law any kind regarding the issue has ever been discussed or introduced before
the parliament. Thus, treating the decision as more of an advice than an order.

LIST OF SUGGESTIONS:

THE DINESH GOSWAMI COMMITTEE:-

ESTD. IN :- 1990

ADVICE :-

• Advised by the Dinesh Goswami committee report to have the President or the
governor to be the deciding authority on the disqualification question in accordance to
the directives and advice provided by the election commission.23

THREE JUDGE BENCH HEADED CJI NV RAMANNA: -

DECIDED IN:- 2021

ADVICE :-

• Advised by 3-judge bench of the Supreme Court led by former CJI NV Ramanna, to
make a separate mechanism to enable a permanent tribunal consisting retired judges
to decide upon the disputes regarding the issues related to 10th schedule in the future.

ANTI DEFECTION IN MAHARASHTRA : A CASE STUDY

I. Overview of Defection in Maharashtra

In the case of Maharashtra, defection has been seen multiple times, over the last decade. A
Simplistic overview of these instances, both politically and legally, have been mentioned
below :

In 2014, the Supreme Court disqualified 12 NCP MLAs for defecting to the BJP. The MLAs
had claimed that they had defected due to "internal democracy" issues within the NCP, but

23
'Vulnerability in Political System’: What Papers Say about Congress Defections in Goa’ Newslaundry
(15 September 2022) <https://www.newslaundry.com/2022/09/15/vulnerability-in-political-system-what-
papers-say-about-congress-defections-in-goa> accessed 7 September 2023.

18
the Supreme Court ruled that they had not met the requirements for a split under the anti-
defection law.

In 2017, the Shiv Sena disqualified 12 MLAs for defecting to the NCP. The MLAs had
claimed that they had defected due to "political differences" with the Shiv Sena leadership,
but the party argued that they had not met the requirements for a split under the anti-defection
law. The case is still pending in court.

In 2022, the Shiv Sena disqualification case against Eknath Shinde and 15 other MLAs is
pending in the Supreme Court. The MLAs had defected to the BJP, but the Shiv Sena argued
that they had not met the requirements for a split under the anti-defection law.

In the first two instances of defection, there was a substantial decision made by the Speaker
and Deputy Speaker of the Maharashtra Legislative Assembly, following which challenges
towards the decision were brought before the Supreme Court under the Tenth Schedule.

In the following analysis, the facts and decision surrounding the 2022 split in the Shiv Sena -
NCP Alliance will be studied, as this particular instance raised the question of the role of the
Speaker in Anti-Defection proceedings, as well as the unique question of the definition of
“Original Party” and “Legislative Party” under Paragraph I of the Tenth Schedule.

II. Instances leading up to defection proceedings :

In 2019, Mr. Uddhav Thackeray of the Shiv Sena, heading the Maha Vikas Aghadi (MVA)
alliance with the Congress and Nationalist Congress Party (NCP), was sworn in as Chief
Minister of Maharashtra. Prior to this, the BJP-Shiv Sena Alliance had won the assembly
elections, however, due to various power-sharing conflicts, led to the breaking of the alliance.

Later, in June 2022, BJP won three of the six Rajya Sabha seats in the State, following which
they won five out of ten seats in the Council Polls. One day after the results of the Council
Polls, Mr. Eknath Shinde, part of the Shiv Sena, went missing along with a number of MLAs.
The Chief Minister, Mr.Thackeray called an emergency party meeting, where these MLAs
did not attend, and thus, the Shiv Sena removed Mr. Shinde as the Legislature Party Leader,
which was approved by Mr. Narhari Zirwal, the Deputy Speaker of the Legislative Assembly.

Mr. Shinde then claimed that over 40 MLAs of the Shiv Sena were standing with him, and as
this constituted a significant portion of the party, Mr.Thackeray was no longer the party’s
chosen representative. It was following this instance, that Mr. Thackeray urged the Deputy

19
Speaker to being disqualification proceedings against the rebel Shiv Sena MLAs, for
defecting from the party.

Interestingly, on the same day, two independent MLAs moved a “no-confidence” motion
against the Deputy Speaker, via an anonymous email. This motion was rejected by the
Deputy Speaker, as an unauthorised email lacked authenticity. Further, he issued
disqualification proceedings against the rebel MLAs. The Deputy Speaker gave the Shinde
faction two days to respond to the disqualification notice.

The very next day, the Shinde faction approached the Supreme Court, challenging the
disqualification proceedings with two contentions: First, that there was a no-confidence
motion passed against the speaker, therefore, his orders succeeding the same, had no bearing.
Second, that the notice given was unlawful, as a minimum of seven days are to be given.

At the same time, the Shinde group also approached Governor Bhagat Singh Koshyari.
They expressed their withdrawal of support for the MVA alliance. The Governor
directed that a floor test be conducted on June 30th to see if the Uddhav Thackeray
government still commanded the support of the Maharashtra Legislature. The
Thackeray faction challenged the floor test before the SC in light of the pending
disqualification proceedings against the rebel MLAs. However, the Court refused to
stay the floor test on June 29th 2022, stating that the results of the floor test would be
subject to the outcome of the hearings before the SC. Soon after the SC’s Order, CM
Thackeray resigned without facing the floor test.

III. Proceedings before the Supreme Court: Subash Desai v. Principal Secretary,
Maharashtra Legislative Assembly 24

A 5-Judge Constitution Bench led by CJI D.Y. Chandrachud began hearing the case on
February 14th, 2023. There were multiple issues necessitated for deliberation in the
present matter, however, the issues pertaining to the aspects of defection, are listed
below :

1. Is splitting within a political party the same as defecting from the party?
2. Does the rebellion by Mr. Eknath Shinde and other MLAs against erstwhile
Chief Minister Mr. Uddhav Thackeray amount to defection?

24
Writ Petition (C) No. 493 of 2022.

20
 3. What is the scope of the power of the Speaker to determine the whip and leader
of house of the legislative party?

IV. Analysing the Judgment with regards to Defection

On the first two questions, the Bench held that, in the past, the intervention by the
Supreme Court, while the decision of the Speaker in an anti-defection proceeding is to
be limited to the following circumstances: First, an extraordinary circumstance or set
of circumstances, Second, the speaker has not given the decision within a reasonable
period. In this particular instance, the decision before the Deputy Speaker was still
pending, and therefore, the Court refused to entertain these issues at first instance.

The Bench merely urged the Deputy Speaker, to decide with the Election Commission,
on the matter, within a reasonable period of time, as stated in the judgment of Kihoto
Hollohan 25 .

As the question before the Court was who was the true representative of the Shiv
Sena, and thus, who could decide the Whip, the Court held that, an examination of the
terms, “Original Party” and “Legislature Party 26 ” in the first and second paragraphs of
the Tenth Schedule were necessary.

The Supreme Court, in their analysis of the terms, relied on logical deduction, stating
that in the case of the term, “Original Party 27 ”, the schedule refers to the ticket used by
the MLA while being elected, and thus, refers to their original membership. If this
term, is taken to mean, “legislature party” 28 as contended by the Thackeray faction, it
would make the entire ambit of defection an pursuable cause. Thus, the whip and
leadership of the house of the original party, ought to be first determined.

As the political party, and not the legislature party, appoints the whip and the leader of
the party, the Bench ordered the Election Commission, along with the Deputy Speaker
to hear and deliberate on the same, as both are empowered to adjudicate petitions
under the Tenth Schedule and the Symbols Order. The Court further held that, the
whip, appointed by the Political Party, includes both the direction to vote, and the
choice of abstaining from voting. The court held that allowing the legislative wing to

25
(1992) 1 S.C.C 309.
26
Constitution of India, Tenth Schedule, Paragraph 1(c).
27
Constitution of India, Tenth Schedule, Paragraph 1(b).
28
Supra at 27.

21
act independently from the political party contradicts the constitutional system of
governance.

The Court, in the last issue of inner party democracy and defection, stated that in
instances such as these, the Speaker must prima facie determine the political party
first, where two or more factions claim to be the original party, and decide two
contesting whips. The other pertinent observation included that MLAs have the right
to participate in proceedings of the House regardless of the pendency of any petitions
for disqualification.

Conclusion:

In the above judgment, the Supreme Court, stated that two key questions from Nebam
Rabia 29 judgment are to be further deliberated:

• Whether the temporary disablement of the functions of the Speaker under the
Tenth Schedule is prone to misuse by MLAs who anticipate that
disqualification petitions will be instituted against them or by MLAs against
whom disqualification petitions have already been instituted; and

• Whether a “constitutional hiatus” in the operation of the Tenth Schedule ensues

because of the temporary disablement of the Speaker?

Further, following the 170 th Law Commission Report (1999), Dinesh Goswami
Committee (1990), National Commission to Review the Working of Constitution
(NCRWC) Report (2002), it is recommended by the Researcher that the following
aspects relating to Ant-Defection ought to be revisited :

• Exclusion ought to be restricted to circumstances in which a part (a) willfully

leaves his political party, (b) goes without casting a ballot, or votes against the
party whip in a movement of certainty or no-certainty. 30

• The phrase "political party" should be properly defined. Pre-election electoral

fronts, for example, could be considered as political parties under the
legislation.

29
(2017) 13 SCC 332
30

22
 • As suggested by the 170 th Law Commission report 31 , having a comprehensive
law for regulating affairs of political parties.

31

23