2. 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.
3. Anti-defectionlaw
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’.
4. Groundsfordisqualification
Paragraph 2 of the Tenth Schedule provides the following grounds for disqualification:-
(i) 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.
(ii) 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.
(iii) Nominated Members- if such a member joins any political party after the expiry of six
months from the date he takes his seat.
5. Exceptionstothelawofdefection
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 13rd
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.
6. 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.
7. Authoritytodecidequestionofdisqualification
Paragraph 6 to the Tenth Schedule states the question as to whether a Member of a House of
Parliament or state Legislature has become subject to disqualification will be determined by the
Chairman/ Speaker of the House and his decision will be final. Where the question is with
reference to the Chairman/ Speaker himself it will be decided by a member of the House elected by
the House in that behalf and his decision will be final.
In Speaker, Orissa Legislative Assembly V. Utkal Keshari Parida, AIR 2013 SC 1183, the SC
held that only a member of the House, but any person interested, would also be entitled to bring to
the notice of the speaker the fact that a member of the House had incurred disqualification under the
Tenth Schedule of the Constitution.
8. Judicialreviewofdecision
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.
9. Powerstoframerules
Paragraph 8 of the Tenth Schedule authorises the Chairman/ Speaker of a House to make rules
for “giving effect” to the provisions of this schedule. The rules are required to be laid before each
House and are subject to modifications/ disapproval by the House.
The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985, as
framed by the Speaker under the Tenth Schedule were laid on the Table of the House on 16th
December, 1985, which came into force with effect from 18th March, 1986.
In Jagjit Singh V. State of Haryana, AIR 2007 SC 590, Proceedings in respect of
disqualification of member are comparable neither to a trial in a court of law nor departmental
proceedings for disciplinary action.
