CONSTITUTIONAL LAW II
MODULE IV: UNION & STATE EXECUTIVE
ANTI-DEFECTION LAWS
(Part 1 of 2)
ANTI-DEFECTION: MEANING &
HISTORICAL BACKGROUND
• Defection – revolt, dissent and rebellion by a person or a party.
• Leaving an association to join another.
• In political scenario it is a situation when a member of a political party
leaves his party and joins hands with other parties.
• Traditionally, this phenomenon is known as 'floor crossing' which had
its origin in the British House of Commons where a legislator changed
his allegiance when he crossed the floor and moved from the
Government to the Opposition side, or vice-versa.
• Anti-defection – limitation of the ability to switch political parties.
• The practice of ‘defection’ in Indian politics has always been the
breeding ground of political instability and uncertainty in the country,
often tending to shift the focus from ‘governance’ to ‘governments’.
• The history of defections in India can be traced back to the days of
Central Legislature when Shri Shyam Lai Nehru, a member of Central
Legislature changed his allegiance from Congress Party to British side.
• In 1937 Shri Hafiz Mohammed Ibrabim, who was elected to the Uttar
Pradesh Legislative Assembly on the Muslim League ticket defected
to join the Congress.
• In late sixties, the phenomenon of changing political party for reasons
other than ideological, engulfed the Indian polity.
• According to the Chavan Committee Report (1969), following the
Fourth General Elections, in the short period between March 1967 and
February 1968, the Indian political scene was characterized by
numerous instances of change of party allegiance by legislators in
several States.
• Out of roughly 542 cases in the entire two-decade period between the
First and the Fourth General Elections, at least 438 defections
occurred in these 12 months alone.
• That the lure of office played a dominant part in decisions of
legislators to defect was obvious from the fact that out of 210
defecting legislators of various States, 116 were included in the
Councils of Ministers which they helped to form by defections.
“Aaya Ram Gaya Ram”
• 1967 – first Assembly elections were held in Haryana.
• An independent candidate ‘Gaya Lal’ was elected MLA from
Hassanpur assembly seat.
• Within hours of being elected, Gaya Lal joined Congress. A few hours
later he joined the United Front coalition and by evening he rejoined
Congress.
• In 9 hours, Gaya Lal had switched parties thrice.
• In the evening during a press conference, Congress Leader Birender
Singh told the media “Gaya Ram ab Aaya Ram hai”.
• Recent examples of ‘aaya Ram gaya Ram’?
EFFORTS TOWARDS ANTI-
DEFECTION LAWS
• Private member’s resolution on 11 Aug 1967 by Shri P.
Venkatasubbaiah – following which ‘Committee on Defections’
headed by Home Minsister Y.B. Chavan was established.
• The Chavan Committee submitted its report on 18 February 1969 –
defector should be debarred for a period of one year or till such time as
he resigned and got himself re-elected.
• 32nd Amendment Bill, 1973 – Joint Committee became defunct on
dissolution of Fifth Lok Sabha.
• 44th Amendment Bill, 1978 – opposition from ruling and opposition
party led to withdrawal of the bill.
52nd Amendment Act, 1985: THE ANTI-
DEFECTION LAW
• Amendment of Art. 101, 102, 190 and 191 of the Constitution to
provide for grounds for vacation of seats.
• Insertion of X Schedule with provisions regarding disqualification on
grounds of defection – w.e.f. 1 March 1986.
• As per Paragraph 9 of X Schedule – The Members of Lok Sabha
(Disqualification on ground of Defection) Rules, 1985 framed by the
Speaker, Lok Sabha – w.e.f. 18 March 1986.
• Art. 102(2) & 191(2) – disqualified as member of Parliament or State
Legislature if so disqualified under X Schedule.
KEY PROVISIONS OF X SCHEDULE
Paragraph 2: Disqualification on ground of defection
(1) Member of a House belonging to a political party –
• Has voluntarily given up membership of such political party.
• Votes, or abstains 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 disqualified.
(2) Independent candidate joins a political party after the election.
(3) Nominated member of House joins any political party after expiry of
6 months from the date when he becomes a member of the legislature.
Paragraph 3: Disqualification on ground of defection not to apply in
case of split (Omitted by 91st Amendment Act, 2003)
• 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.
Paragraph 4: Disqualification on the ground of defection not to
apply in case of merger
(1) A member of the House shall not be disqualified where his original
political party merges with another political party, and he and any other
members of his political party –
• Have become members of the other political party, or of a new
political party formed by such merger
• Have not accepted the merger and opted to function as a separate
group.
From the time of the merger, such political party or new political party
shall be deemed to be the political party to which he belongs for the
purpose of Paragraph 2(1) and to be his original political party.
(2) The merger of the original political party of a member of a House
shall be deemed to have taken place if, and only if, not less than two-
thirds of the members of the legislature party concerned have agreed to
such merger.
Paragraph 5: Exemption
Speaker/ Deputy Speaker or Deputy Chairman or Chairman/ Deputy
Chairman shall not be disqualified under this Schedule –
• If by reason of election to such office, he voluntarily gives up
membership of political party (before the election) and does not rejoin
or join another party till the duration of the office.
• If having given up his membership by reason of election to office,
rejoins the party after he ceases to hold such office.
Paragraph 4 & 5 thus, provide for exceptions to disqualification on
ground of defection – (1) merger with 2/3 members of the party and (2)
Speaker/Deputy Speaker, Chairman/Deputy Chairman during the term
of his office.
Paragraph 6: Decision on questions as to disqualification on ground
of defection
(1) Question shall be referred for the decision of the Chairman or
Speaker and his decision shall be final.
Proviso – question regarding disqualification of Speaker or Chairman
shall be referred to a member as the House may elect and his decision
shall be final.
(2) Proceedings deemed to be that in Parliament under Art. 122 or in
State Legislature under Art. 212.
Paragraph 7: Bar of jurisdiction of Courts
Non obstante clause – no court shall have any jurisdiction with respect
to matter connected with disqualification under this Schedule.
Paragraph 8: Rules
• Chairman or Speaker to make rules for giving effect to the provisions of X
Schedule.
• Rules shall be laid before the House for a total period of 30 days (whether
in one or more sessions) – shall take effect after expiry of such 30 days or
sooner if approved.
• Without prejudice to Art. 105 or 194 – wilful contravention of rules may be
dealt with the same manner as breach of privilege of the House.
• Discussion on criticism of Anti-Defection provisions – does it serve the
purpose of avoiding defections?
