The 52nd Amendment Act, 1985 lead 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.
The statement of objects and reasons been given for the amendment is:
"The evil of political defections has been a matter of national concern. If it
is not combated, it is likely to undermine the very foundation of our democracy
and the principles with sustain it."
Rule 2- Tenth Schedule
- Lays the grounds for disqualification of the member's i.e.:
- If a member of a house belonging to a political party:
- Has voluntarily given up his membership of such political party, or
- Votes, or abstain from voting in such House, contrary to the direction
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
- If an independent candidate joins a political party after the election.
- If a nominated member of a house joins any political party after the
expiry of six months from the date when he becomes a member of the
- State that there will be no disqualification of members if they
represent a faction of the original political party, which has arisen as a
result of a split in the party.
- A defection by at least one-third members of such a political part was
considered as a spilt which was not actionable.
Rule 4 and 5
- States the exemption from disqualifications i.e.:
- A member of the house shall not be disqualified where his original
political party merges with another political party, and he and any other
member of his political party:
- Have become members of the other political party, or of a new political
party formed by such merge
- Have not accepted the merger and opted to function as a separate group.
Loopholes in the Anti Defection law:
Power to the Speaker
- As per Rule 6 of the schedule, the Speaker of the House or the Chairman
has been given wide and absolute powers to decide the case related to
disqualification of the members on the grounds of defection.
- The Speaker still remains as the member of the party which had nominated
him/her for the post of speaker.
- As per the Rule 7, which bars the jurisdiction of the courts in any
matter connected with disqualification of a member of a House, which states
that it is outside the jurisdiction of all courts including the Supreme
Court under Article 136 and High Courts under Article 226 and 227 of the
Constitution to review the decisions made by the Speaker in this regard.
- Kihoto Hollohon v. Zachilhu and Others
- Held that the law is valid in all respects expect on the matter related
to the judicial review, which was held as unconstitutional
- Any law affecting Articles 136, 226 and 227 of the Constitution is
required to be ratified by the States under Article 368(2) of the
- As the required number of State assemblies had not ratified the
provision, the Supreme Court declared the rule to be unconstitutional.
- The Court also held that the Speaker, while deciding cases pertaining to
defection of party members, acts as a tribunal and nothing more than that,
and that his/ her decisions are subject to the review power of the High
Courts and the Supreme Court.
- Mentioning a rule of caution, the Supreme Court warned against the
exercise of power of judicial review prior to making of any decision by the
No individual stand on part of members According to the Rule 2 it can be seen that the anti-defection law puts the
members of the party into a bracket of obedience in accordance with the
rules and policies of the party, restricting the legislator's freedom to
oppose the wrong acts of the party, bad policies, leaders and bills.
What amounts to voluntarily giving up
- Rule 2(1)(a) of the Tenth Schedule mentions that the member of the House
would be disqualified from the party if he voluntarily gives up his
membership of the political party.
- But the Schedule does not clarify what "voluntarily giving up" means.
- Ravi Naik v. Union of India
- Court while interpreting the phrase held that it has a wider connotation
and can be inferred from the conduct of the members.
- The words 'voluntarily gives up his membership' were not held synonymous
- It was held that a person may voluntarily give up his membership of a
political party even without tendering his resignation from the membership
of that party.
- G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly
- A question arose whether joining another political party after being
expelled from the original party would amount to voluntarily giving up the
membership or not.
- It was held in this case that on being expelled from the party, the
member, though considered 'unattached', still remains the member of the old
party for the purpose of the Tenth Schedule.
- However, if the expelled member joins another political party after
expulsion, he is considered to have voluntarily given up the membership of
his old political party.
- Rajendra Singh Rana v. Swami Prasad Maurya and Others
- It was held in the case that a letter by an elected party member to the
Governor requesting him to call upon the leader of the opposite party to
form a Government would by itself amount to an act of voluntarily giving up
membership of the party of which he is an elected member.
Problem with merger provision
- While Rule 4 of the Tenth Schedule seems to provide some exception from
disqualification of members in the cases relating to mergers, there seems to
be some loophole in the law.
- The provision tends to safeguard the members of a political party where
the original political party merges with another party subject to the
condition that at least two-third of the members of the legislature party
concerned have agreed to such merger.
- The flaw seems to be that the exception is based on the number of
members rather than the reason behind the defection.
Role of Presiding Officers in Context of Anti-Defection Law:
- The 10th Schedule provides presiding officers of legislatures with the
power to decide cases of defection
- However, it has been noted that as the Speaker is dependent upon
continuous support of the majority in the House, he may not satisfy the
requirement of an independent adjudicating authority.
- In the past, decisions of the Speakers with regard to disqualifications
have been challenged before courts for being biased and partial.
- Several expert committees and commissions, including the Dinesh
Goswami Committee (1998), Commission to Review the Constitution (2002) and the
Law Commission (2015) have therefore recommended that defection cases must be
decided by the President or Governor for centre and states respectively, who
shall act on the advice of the Election Commission.
- This is the same practice that is followed for deciding questions
related to disqualification of legislators on other grounds, such as holding
an office of profit or being of unsound mind, under the Constitution
- However, note that the Supreme Court has upheld the provision granting
the presiding officer the power to take these decisions on the ground that
- The Speakers/Chairmen hold a pivotal position in the scheme of
parliamentary democracy and are guardians of the rights and privileges of
- They are expected to take far reaching decisions in the functioning of
- Vestibule of power to adjudicate questions under the Tenth Schedule in
such constitutional functionaries should not be considered exceptionable.
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