Anti-Defection Law

Notes

The 52nd Amendment Act, 1985 (Rajiv Gandhi Government) added the Tenth Schedule to curb political defections. It was a response to the "Aaya Ram, Gaya Ram" phenomenon of the 1960s (named after Gaya Lal, an MLA in Haryana who changed parties several times in a single day in 1967). It applies to both Parliament and State legislatures.

Grounds for disqualification

Members of a political party: (a) voluntarily gives up membership of the party; (b) votes or abstains from voting in the House contrary to the party whip without prior permission, and the party has not condoned it within 15 days.
Independent members: disqualified if they join any political party after election.
Nominated members: disqualified if they join a party after six months from taking their seat.

Exceptions

Merger: if two-thirds of the members of the legislature party agree to merge with another party, they are not disqualified.
A member elected as Presiding Officer (Speaker, Chairman) who gives up party membership to maintain impartiality, and rejoins after ceasing to hold office, is not disqualified.
The original split provision (one-third members) was deleted by the 91st Amendment (2003).

Deciding authority: the Presiding Officer (Speaker or Chairman), whose decision was made final by para 6 and barred from judicial review by para 7.

Judicial pronouncements

Kihoto Hollohan v Zachillhu (1992): upheld the Tenth Schedule; struck down para 7 (bar on court jurisdiction) since it required ratification by half of the States; Speaker's decision is subject to judicial review on grounds of mala fides, perversity, violation of natural justice and constitutional mandates.
Ravi S. Naik v Union of India (1994): "voluntarily giving up membership" can be inferred from conduct.
Rajendra Singh Rana v Swami Prasad Maurya (2007), Nabam Rebia (2016) and Subhash Desai v Principal Secretary, Maharashtra (2023) addressed the Speaker's powers and the role of the party whip.
Keisham Meghachandra Singh v Speaker, Manipur (2020): Speakers must decide disqualification petitions within three months; Parliament should consider an independent tribunal headed by a retired judge.

91st Amendment (2003) also barred a member disqualified for defection from holding a ministerial post or any remunerative political post until re-elected (Art. 75(1B), 164(1B), 361B).

Reform proposals: the Dinesh Goswami Committee (1990) and the Law Commission (170th Report) suggested limiting disqualification to voluntarily giving up membership and defying the whip in confidence motions and Money Bills; the Election Commission should decide disqualification (President or Governor acting on its advice).

Key Points

Tenth Schedule: 52nd Amendment (1985).
Grounds: voluntarily leaving, defying the whip; independents joining a party; nominated members joining after six months.
Merger exception: two-thirds of the legislature party (91st Amendment removed the one-third split).
Presiding Officer decides; subject to judicial review (Kihoto Hollohan, 1992).
Speakers should decide within three months (Keisham Meghachandra, 2020).

MCQs

Q1. The Tenth Schedule (Anti-Defection Law) was added by the: (a) 42nd Amendment (b) 52nd Amendment (c) 61st Amendment (d) 91st Amendment Ans: (b). 1985.

Q2. The provision for disqualification exemption in case of a split (one-third members) was removed by the: (a) 52nd Amendment (b) 73rd Amendment (c) 91st Amendment (d) 97th Amendment Ans: (c). 2003.

Q3. Which case held that the Speaker's decision on disqualification under the Tenth Schedule is subject to judicial review? (a) Kihoto Hollohan v Zachillhu (b) Minerva Mills (c) S.R. Bommai (d) Kesavananda Bharati Ans: (a). 1992.