The seeds for anti-defection law were sown in the late 1960s with the
infamous turncoat Gaya Lal changing his political affiliation thrice in a
fortnight, this impregnated the ill-famed phrase Aaya Ram, Gaya Ram
Over the decades, the Aaya Ram, Gaya Ram politics mushroomed and in 1985 the
ruling dispensation under the leadership of Shri Rajiv Gandhi implemented the
Anti-defection law by adding the 10th schedule through the 52nd amendment. The
primary objective of this law was to encumber snolly gosters from throttling the
throat of democracy.
Over the years with numerous court cases, clarity was obtained with regard to
the provisions of the law. The relevant provisions of the 10th schedule of the
constitution read as:
If an elected representative of a political party:
- Voluntarily gives up the membership of his political party, or
- Votes, or does not vote in the legislature, contrary to the directions
of his political party. However, if the member has taken prior permission,
or is condoned by the party within 15 days from such voting or abstention,
the member shall not be disqualified.
- If an independent candidate joins a political party after the election.
- If a nominated member joins a party six months after he becomes a member
of the legislature
As per the original provisions of the law the presiding officer, can also be
referred as the speaker of the house, both in the legislative assembly and the
parliament was given carte blanche authority, however, after the much-celebrated
judgement in the Kihoto Hollohan v. Zachillu
, 1992, the decision of the
presiding officer was made a subject to judicial review, however, only after the
decision was made.
Through the judgement given by the apex court in Ravi S. Naik v. Union of
1994, the SC interpreted Voluntarily gives up the membership of his
political party and suggested that it had a wider connotation and did not
merely mean resignation.
With the judgement given by the court in G. Vishwanathan v. Speaker of Tamil
Nadu Legislative assembly,
1996, the apex court clarified that even if the
joins another political party after being expelled from his old political party,
it will fall under the ambit of Voluntarily gives up the membership of his
With these provisions, there are certain exceptions also,
If a member goes out of his party as a result of a merger of the party with
another party. A merger takes place when two-thirds of the members of the party
have agreed to such a merger.
If a member, after being elected as the presiding officer of the
House, voluntarily gives up the membership of his party or rejoins it after he
ceases to hold that office. This exemption has been provided in view of the
dignity and impartiality of the office.
Using exception (a), the congress party was successful in forming the government
after the result of the election to the Rajasthan Legislative Assembly in 2018.
The solitary respite available to the presiding officer is Article 212 of the
Indian Constitution, it explicitly averts judicial review into the proceeding of
the house. This aforementioned article has been cited numerously in the cases of
Just as everything has an inherent nature of duality, so is the case with this
- Loyalty to the mandate
The legislation to a certain extent ensures that the elected representative
stays loyal to the mandate given to them by their constituents and that they
do not steal the mandate for personal gains.
Due to this legislation toppling the ruling dispensation becomes an uphill
task, as legislators are prevented from switching sides.
- Scope for punitive measures
The legislation provides a scope to reprimand the elected representatives
who have defected from one party to another.
Silences internal dissent
An elected representative belonging to a political party having complaints
against the policies of his party will be diffident in expressing the same as
there exists a scope for him to be reprimanded.
Partisan role of the presiding officerOver the years it has been observed that the presiding officer who, not
necessarily, but in most cases has a political affiliation fails to perform his
Such legislations are imperative for a democracy to run on all four wheels, the
law in question has been a subject of review on multiple occasions elaborated as
Dinesh Goswami Committee, 1990
It suggested three changes:
- The disqualification provision should specifically be limited to defying
the party whip in motions of confidence, money bill, vote of thanks to the
- Instead of the speaker, the authority of disqualifying the elected
representative should be vested with the governor and/or the president who
will act on the counsel of the Election Commission.
- Nominated members should incur disqualification if they join any
political party at any time.
The constitution review committee, 2002The defectors should also be debarred to hold any public office of a minister or
any other remunerative political post for at least the duration of the remaining
term of the existing legislature or until, the next fresh elections whichever is
earlier. The vote cast by a defector to topple a government should be treated as
invalid. Further, the power to decide questions as to disqualification on ground
of defection should vest in the Election Commission instead of in the Chairman
or Speaker of the House concerned.
On a concluding note, it is high time the legislation either reviews or
implements the recommendations given by the various committees because repealing
the legislation is not a plausible option, as transparency and impartiality are
the hallmarks of any robust institution. It is time that the legislature
restores its sanctity.
Authentication No: AG30671265538-3-720