ELECTION LAW ASSIGNMENT ON

“ANTI DEFECTION LAW”

In Partial Fulfilment of the degree of Bachelors in Law

SUBMITTED BY SUBMITTED TO

DHARMENDER SINGH MS. SRISHTI BALAM

ASSISTANT
11751103819 PROFESSOR
Introduction

 Defection is one of the 5th disqualifications. It means floor-

crossing by a member of one political party to another party.
 Defection is undemocratic as it negates the electoral verdict. A
party which fails to get majority in the House through election
may yet be able to manoeuvre a majority in the House and form
government by inducing defections from other parties. It was
realized that if the evil of political defection is not contained,
it would undermine the very foundations of democracy in
India.
 The jargon “Aaya Ram Gaya Ram” relates to 1967, Gaya Lal,
an independent candidate got elected to the Haryana Assembly
and joined the Congress. Within a fortnight, he changed parties
thrice. First from the Congress to Janta party, then back to the
Congress and then back again to the Janta party.
 A committee, under the Chairmanship of (late) Shri Y. B.
Chavan, know as ‘Committee on Defections’ recommended
the disqualification of such defectors. Consequently, in 1985,
the Constitution was amended by the Fifty-second Amendment
Act, 1985.
Anti-Defection Law

 The Constitution (Fifty Second Amendment) Act, 1985 is

popularly known as the anti-defection law, which came into
force w.e.f. 1st March, 1985. It amended four Articles of the
Constitution, viz, Articles 101(3)(a), 102(2), 190(3)(a) and
191(2), and added the Tenth Schedule.
 Under Article 102(2), a person is disqualified to be a member
of either House of Parliament if he is so disqualified under the
Tenth Schedule.
 In the case of Kihota Hollohan V. Zachilhu and Ors., AIR
1993 SC 412, the SC observed that the ‘object of anti-defection
act is to curb the evil of political defections motivated by lure
of office or other similar considerations which endanger the
foundations of our country’.

Grounds for disqualification

• Members belonging to political parties- if such a member either

voluntarily gives up his membership of such political party or
if he votes or abstains from voting contrary to the issued
direction by the political party and the same has not been
condoned by such political party within fifteen days.
 • Member elected otherwise than as Candidate set up by any
political party- an independent candidate who has been elected
as a member of a House, shall be disqualified if he joins any
political party after such election.
• Nominated Members- if such a member joins any political
party after the expiry of six months from the date he takes his
seat.

Exceptions to the law of defection

1) Exception in case of split- Paragraph 3 of the Tenth Schedule

made an exception on the ground of split in the party to which they
belonged, provided their strength was not less than one-third of the
members of their legislature party in the House.
In Mayawati V. Markandeya Chand, AIR 1998 SC 3340, in
October 1997, 22 members of the Congress party and 12 members of
the Bahujan Samaj Party defected from their parties and supported the
Confidence motion in the BJP Government to give it a majority in the
UP LA. Later, all the defectors were made Ministers and the Council
of Ministers came to have 94 members. The leader of BSP complained
to the Speaker that the defectors ought to be disqualified from the
membership of the House. The speaker procrastinated and ultimately
decided that there was a split in BSP and that 1\3rd members of the party
(23 MLAs) had split and hence the defecting MLA (12) had not
incurred disqualification. The speaker’s decision was appealed from
before the SC. Of the 3 Judges, Thomas, J. held that the decision of the
speaker was perverse. Srinivas, J. on the contrary, upheld the decision
of the speaker. Punchhi, CJ did not voice any final view but opined that
the matter should be referred to the Constitution Bench for decision.
The difference of opinion was left unresolved and the appeal was
disposed of finally in November, 2004.

Following the Mayawati decision in 1999 the Law Commission

of India in its 170th Report on “Reform of Electoral Laws”
recommended omission of Paragraph 3 of the Tenth Schedule.
The same view was expressed by the National Commission to
Review the Working of the Constitution ( NCRCW).
By the Constitution (Ninety First Amendment) Act, 2003
paragraph 3 of the Tenth Schedule was omitted. Article 64(1B)
& Article 361B were also introduced by the 2003 Amendment
Act.
2) Exception in the case of ‘merger’ of parties- Paragraph 4 of the
Tenth Schedule provides that the disqualification on the ground of
defection is not attracted in the case of merger of a political party with
another political party. A party shall be deemed to have merged with
another party, if and only if, not less than the two-thirds of the members
of the legislature party concerned have agreed to such merger.
3) Exception in the case of presiding officers of Houses- Paragraph
5 of the Tenth Schedule provides that this disqualification do not apply
to the speakers& deputy speakers and chairman & deputy chairman of
the legislatures, if they resign from their party on being elected to the
said officers.
In Luis Proto Barbosa V. Union of India, AIR 1992 SC 1812, the
speaker of the Goa legislative assembly was held by the SC to be
disqualified, as he resigned from the membership of his original
political party, while still functioning as the Speakers, to form a new
party with some other members of the legislative assembly.

Judicial review of decision

Paragraph 7 of the Tenth Schedule sought to bar the jurisdiction of
all courts in respect of any matter connected with the disqualification
of a member of a House under the schedule. But the SC in Kihota
Hollohan V. Zachilhu, AIR 1993 SC 412, struck down that
paragraph as unconstitutional on the ground that it affected the
powers of the Supreme Court and High Courts of judicial review
under Articles 136, 226 and 227 of the Constitution (52nd
amendment) Act, 1985, was not ratified under Article 368, which
prescribes the procedure for amendments to the Constitution
relating, inter alia, to the powers of those courts. However, by a
majority decision in that case, the SC upheld the validity of the
remaining provisions of the Tenth Schedule.