Anti-Defection Law in India- A Critical Analysis ABBREVIATIONS A.I.R. All India Reporter A.P. Andhra Pradesh Art Article Bom. Bombay C.A.D Constitutional Assembly Debate C.J Chief Justice Co. Company E.g. Example Etc Etcetera I.C Indian Constitution I.L.R Indian Law Report J.I.L.I Journal of Indian Law Institute Ltd., Limited S.C.C Supreme Court Cases SC Supreme Court
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Anti-Defection Law in India- A Critical Analysis
ABBREVIATIONS
A.I.R. All India Reporter
A.P. Andhra Pradesh
Art Article
Bom. Bombay
C.A.D Constitutional Assembly Debate
C.J Chief Justice
Co. Company
E.g. Example
Etc Etcetera
I.C Indian Constitution
I.L.R Indian Law Report
J.I.L.I Journal of Indian Law Institute
Ltd., Limited
S.C.C Supreme Court Cases
SC Supreme Court
Sec Section
U.O.I Union of India
U.S.A United Nations of America
Vol. Volume
Anti-Defection Law in India- A Critical Analysis
BIBLIOGRAPHY
BOOKS REFERRED:
1) Austin Mitchell, “The Whig in Opposition” 1815-1830 (1967)
2) Basu D.D, “Introduction to the Constitution of India”; Prentice Hall of India P.
(Ltd.), 1994
3) De. D. J., The Constitution of India”, Asia Law House, 2nd Edition, 2005
4) Dicey A.V., Law of Constitution, Ed: 9, 1939
5) Diwan Paras, “Aya Ram Gaya Ram: The Politics of Defection”, (1979) 21 JILI 291
6) Gilbert Martin, “The Wilderness Years”, Houghton Mifflin Co, 1982
7) Jackson J. Robert, Rebels and Whips, London, 1968
have become apparent which have very much compromised the effectiveness of the law to
achieve its objectives. This has very much hampered on the term “representative
government”.
As is already discussed, the anti-defection laws under the Constitution of India is
passed without deliberate discussions and it lacks certainties at several places; it utterly fails
to define important and key terms like ‘defection’, ‘political parties’ etc. The resulting factor
due to lack of definition of these terms is very serious which will be discussed at length in the
subsequent paragraphs of the discussion for e.g. the lack of definition for the term ‘defection’
under the Tenth Schedule and inclusion of Para 2 (1) (b) under the Tenth Schedule has
changed the very dimensions of the term democracy and hampered the conduct of democracy
both in letter and in spirit, by mandating unquestioned obedience to whips issued by the
parties, in order to curtail a few cases of unparliamentary practises (voting against party for a
consideration by a member).
In order to fill the lacuna that existed in our polity, the Indian Parliament, under the
able leadership of Mr. Rajiv Gandhi brought an Amendment to the Indian Constitution in the
year 1985. In this amendment Art 102 and Art 191 was made more effective by adding a
clause of disqualification under Tenth Schedule for defection. Also, in the same amendment
the Tenth Schedule was incorporated in parlance to Art 102(2) & Art 191(2) so to specifically
tackle the evil of defection, which is so omnipresent.
5.2 Tenth Schedule and the 52nd Amendment to the Constitution of India
Articles 102(2) and 191(2)
Provisions as to disqualification on ground of defection:
1. Interpretation- in this Schedule, unless the context otherwise requires,-
Anti-Defection Law in India- A Critical Analysis
(a) “House” means either House of Parliament or the Legislative Assembly or, as the
case may be, either House of the Legislature of a State;
(b) “legislature party,” in relation to a member of a House belonging to any political
party in accordance with the provisions of paragraph 2 or 62[***], paragraph 4, means
the group consisting of all the members of that House for the time being belonging to
that political party in accordance with the said provisions;
(c) “original political party,” in relation to a member of a House, means the political
party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 ;
(d) “paragraph” means a paragraph of this schedule.
2. Disqualification on ground of defection.-
(1) Subject to the provisions of 63[paragraphs 4 & 5, a member of a House belonging
to any political party shall be disqualified for being a member of the House-
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction
issued by the political party to which he belongs or by any person or authority
authorized by it in this behalf, without obtaining, in either case, the prior
permission of such political party, person or authority and such voting or
abstention has not been condoned by such political party, person or authority
within fifteen days from the date of such voting or abstention.
Explanation.- For the purposes of this sub-paragraph.-
62 The words “paragraph 3, or as the case may be” omitted by the Constitution (Ninety First Amendment) Act
2003, section 5(a) with effect from (1-1-2004)63 Subs. The words “paragraph 3, or as the case may be” omitted by the Constitution (Ninety First Amendment)
Act 2003, section 5(b) with effect from (1-1-2004)
Anti-Defection Law in India- A Critical Analysis
(a) an elected member of a House shall be deemed to belong to the political
party, if any, by which he was set up as a candidate for election as such
member;
(b) a nominated member of a House shall.-
(i) where he is a member of any political party on the date of his
nomination as such member, be deemed to belong to such political
party;
(ii) in any other case, be deemed to belong to the political party of
which he becomes, or, as the case may be, first becomes, a member
before the expiry of six months from the date on which he takes his
seat after complying with the requirements of article 99 or, as the case
may be, article 188.
(2) An elected member of a House who has been elected as such otherwise than as a
candidate set up by any political party shall be disqualified for being a member of the
House if he joins any political party after such election.
(3) A nominated member of a House shall be disqualified for being a member of the
House if he joins any political party after the expiry of six months from the date on
which he takes his seat after complying with the requirements of article 99 or, as the
case may be, article 188.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph,
a person who, on the commencement of the Constitution (Fifty-second Amendment)
Act, 1985, is a member of a House (whether elected or nominated as such) shall.-
(i) where he was a member of a political party immediately before such
commencement, be deemed, for the purposes of sub-paragraph (1) of this
Anti-Defection Law in India- A Critical Analysis
paragraph, to have been elected as a member of such House as a candidate set
up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who
has been elected as such otherwise than as a candidate set up by any political
party for the purposes of sub-paragraph (2) of this paragraph or, as the case
may be, be deemed to be a nominated member of the House for the purposes
of sub-paragraph (3) of this paragraph.
64[***]
4. Disqualification on ground of defection not to apply in case of merger.-
(1) A member of a House shall not be disqualified under sub-paragraph (1) of
paragraph 2 where his original political party merges with another political party and
he claims that he and any other members of his original political party-
(a) have become members of such other political party or, as the case may be,
of a new political party formed by such merger; or
64 Paragraph 3, omitted by the Constitution (Ninety First Amendment) Act 2003, section 5(c) with effect from
(1-1-2004). Prior to omission paragraph 3 stood as under
3. Disqualification on ground of defection not to apply in case of split – Where a member of a
House makes a claim that he and any other members of his legislature party constitute the group representing a
faction which has arisen as a result of a split in his original political party and such group consists of not less
than one third of the members of such legislature party, -
(a) he shall not be disqualified under sub-paragraph 1 of paragraph 2 on the ground –
(i) if he has voluntarily given up his membership of such political party; or
(ii) if he votes or abstains from voting in such House contrary to any direction issued by the
political party to which he belongs or by any person or authority authorized by it in this
behalf, without obtaining, in either case, the prior permission of such political party, person or
authority and such voting or abstention has not been condoned by such political party, person
or authority within fifteen days from the date of such voting or abstention; and
(b) from the time of such split, such faction shall be deemed to be the political party to which he
belongs for the purposes of sub-paragraph 1 of paragraph 2 and to be his original political party for the
purposes of this paragraph.
Anti-Defection Law in India- A Critical Analysis
(b) have not accepted the merger and opted to function as a separate group,
and from the time of such merger, such other political party or new political
party or group, as the case may be, shall be deemed to be the political party to
which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to
be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, 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.
5. Exemption- Notwithstanding anything contained in this schedule, a person who has
elected to the office of the Speaker or the Deputy Speaker of the House of the People or the
Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the
Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative
Assembly of a State, shall not be disqualified under this Schedule,-
(a) if he, by reason of his election to such office, voluntarily gives up the membership
of the political party to which he belonged immediately before such election and does
not, so long as he continues to hold such office thereafter, rejoin that political party or
become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of
the political party to which he belonged immediately before such election, rejoins
such political party after he ceases to hold such office.
6. Decision on questions as to disqualification on ground of defection.-
(1) If any question arises as to whether a member of a House has become subject to
disqualification under this schedule, the question shall be referred for the decision of
Anti-Defection Law in India- A Critical Analysis
the Chairman or, as the case may be, the Speaker of such House and his decision shall
be final.
Provided that where the question which has arisen is as to whether the
Chairman or the Speaker of a House has become subject to such disqualification, the
question shall be referred for the decision of such member of the House as the House
may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any
question as to disqualification of a member of a House under this schedule shall be
deemed to be proceedings in Parliament within the meaning of article 122 or, as the
case may be, proceedings in the Legislature of a State within the meaning of article
212.
7. Bar of jurisdiction of courts.- Notwithstanding anything in this Constitution, no court
shall have any jurisdiction in respect of any matter connected with the disqualification of a
member of a House under this schedule.
8. Rules. –
(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or
the Speaker of a House may make rules for giving effect to the provisions of this
Schedule, and in particular, and without prejudice to the generality of the foregoing,
such rules may provide for-
(a) the maintenance of registers or other records as to the political parties, if
any, to which different members of the House belong;
(b) the report which the leader of a legislature party in relation to a member
of a House shall furnish with regard to any condonation of the nature referred
to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member,
Anti-Defection Law in India- A Critical Analysis
the time within which and the authority to whom such report shall be
furnished;
(c) the report, which a political party shall furnish with regard to admission to
such political party of any members of the House and the officer of the House
to whom such report shall be furnished; and
(d) the procedure for deciding any question referred to in sub-paragraph (1) of
paragraph 6 including the procedure for any inquiry which may be made for
the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph
(1) of this paragraph shall be laid as soon as may be after they are made before the
House for a total period of thirty days which may be comprised in one session or in
two or more successive sessions and shall take effect upon the expiry of the said
period of thirty days unless they are sooner approved with or without modifications or
disapproved by the House and where they are so approved, they shall take effect on
such approval in the form in which they were laid or in such modified form, as the
case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions
of article 105or, as the case may be, article 194, and to any other power which he
may have under this Constitution direct that any wilful contravention by any person of
the rules made under this paragraph may be dealt with in the same manner as a breach
of privilege of the House.
Anti-Defection Law in India- A Critical Analysis
5.3 Discussions on various paragraphs of the Tenth Schedule:
Interpretation clause:
The definition clause suffers from a serious lacuna in as much as it defines “legislature party”
and “original political party” but fails to define a “political party”. This was particularly
important as by the Fifty Second Amendment the concept of political parties was finding a
mention in the Constitution of India for the first time. With this the political parties were
coming to have a constitutional recognition. Thus far, the Election Commission recognised
political parties but it was only for the purposes of allocation of electon symbols.
During the eighth Lok Sabha following the cases of expulsion(s) of members of
Congress, Akali Dal and A.G.P the Speaker referred to the Attorney General for opinion
inter-alia the question whether it would not be desirable to lay down the definition of a
political party and specify conditions for its recognition for purposes of the Anti-Defection
Law. The Attorney General agreed that it would be desirable to do so in order to put the
position beyond doubt. It was particularly imperative in view of the constitutional provision
of para 3 of the Tenth Schedule to the effect that the break away faction following a split
would be deemed to be a “political party” for purposes of para 2(1).
Direction 120 of the Directions by the Speaker provides for recognising a
Parliamentary Part or group. To be recognised as a party, the minimum number required is
one tenth of the membership and for a group it should be at least thirty. But, after the Anti
Defection Law, every member of the House who is not elected as an independent or
nominated, belongs to his party even if he be the only member of his party, i.e., irrespective
of the number of its members in the house, every party that is represented in the House comes
to automatically get constitutional recognition as a party. Thus, there is some contradiction
between the constitutional provisions and the Speaker’s directions. One of the two would
Anti-Defection Law in India- A Critical Analysis
need to be amended. Until that is done, in case of a conflict between the two, the
constitutional provision would naturally prevail.
The 1989 Amendment to the Representation of the People Act sought to define
“Political Party” as an association or a body of individual citizens of India registered with the
Election Commission as a political party under section 29A. This definition is however again
for the limited purpose of registration of parties with the Election Commission in connection
with the elections. It does not apply to “political parties” under the Anti Defection Law. It
cannot, for example, cover cases of ‘split’ and ‘merger’ where under the resultant faction or
group or party is to be deemed to be ‘political party’ and ‘original political party’.
The other two most important term used in the Tenth Schedule are “split” and
“merger”. Surprisingly those have also not been defined in the definition clause or elsewhere.
Most of the problems in the proper implementation and interpretation of the Tenth Schedule
have been caused due to the ambiguity of the terms ‘political party’, ‘splits’ and ‘merger’.
Para 2:
Under Para 2 of the Tenth Schedule,
(i) An elected member of Parliament or a State Legislature, who has been elected as a
candidate set up by a political party and nominated member of Parliament or a
State Legislature who is a member of a political party at the time he takes his seat
would be disqualified on the ground of defection if he voluntarily relinquishes his
membership of such political party or votes or abstains from voting in the house
contrary to any direction of such party;
(ii) An independent member of Parliament or a State Legislature will be disqualified
if he joins any political party after his election;
Anti-Defection Law in India- A Critical Analysis
(iii) A nominated member of Parliament or a State Legislature who is not member of
a political party at the time of his nomination and who has not become a member
of any political party before the expiry of six months form the date on which he
takes his seat shall be disqualified if he joins any political party after the expiry of
the said period of six months;
(iv) Subject to the provisions of paras 3, 4 and 5 i.e., except in case of a party split or
merger of parties or in the case of Speaker or Deputy Speaker every ‘elected
member of a House shall be deemed to belong to the political party, if any, by
which he was set up as a candidate for election as such member’.
This would rule out any elected member set up by a political party being at any stage
regarded as anything but as a member of that party. If he defects, he is disqualified. His
membership can continue with a changed party liable only in case of merger or split under
paras 3 and 4. There is thus no provision for a party member being labelled as unattached
etc., under any circumstance.
Serious doubts have been expressed whether this disqualification provision does not
militate against the basic freedoms of association, opinion and expression – including the
freedom of changing the association, opinion etc, guaranteed under the Fundamental Rights
chapter of the Constitution. Also the most fundamental privilege of members guaranteed
under Article 105 and 194 of the Constitution namely that of Freedom of Speech and
Expression in the Houses of Legislatures stands curtailed. Limiting the freedom of choice or
binding the vote of a legislator may amount to tampering with the fundamentals of the
constitution and democratic polity.
Defiance of party direction is not punished by unseating the member concerned in
countries like U.K, Canada, Australia and New Zealand where Parliamentary Democracy
Anti-Defection Law in India- A Critical Analysis
similar to India prevails. Dissent is not considered defection because a dissenting member or
one who does not comply with a particular party directive has neither changed sides, nor
crossed the floor; he continues to be a member of his party.
A question has been raised, if votes are allowed to be altered by arguments and speeches,
what is the use of the forum of Parliament? Also, if to ensure compliance by the members all
that is to be done is issuance of a Whip, what happens to the quintessence of Parliamentary
Democracy which is the continuous and day to day answerability of the Government
enforced through the doctrine of ministerial responsibility?
Parliament is required to exercise its powers in certain matters which are quasi judicial in
nature, example under Article 61 (relating to the impeachment of the President of India),
Article 124(4) (relating to the removal of Supreme Court Judges), Article 148(1) (relating to
the removal of The Controller and Auditor General), Article 217(1)(b) (relating to the Judge
of a High Court) and Article 324(5) (relating to the removal of the Chief Election
Commissioner). The proceedings in Parliament of such quasi judicial nature may be
influenced by the issue of a party directive under para 2 of the 52nd Amendment Act which is
against the rule of Natural Justice.
Sub para 2 of para 2 of the Tenth Schedule deals with an independent member who has
not been set up by a political party. Under this sub para, an independent member will be
disqualified if he joins any political party after his election as member of the Legislature. But
under sub para 3 of para 2 of the said Schedule, a nominated member is allowed to join a
political party within six months of his nomination as a member. An independent members’
freedom to join a party is fettered although he is a master of himself and owes his election to
no political party. On the contrary, the ruling party picks and chooses persons for nomination
and in a way puts them under obligation. Such members are therefore, likely to join the ruling
Anti-Defection Law in India- A Critical Analysis
party. Both these provisions are vitiated by an inbuilt irrationality and bias and are therefore
violative of Article 14.
The Supreme Court has held in Kihota Hollohon v. Zachilhu65:
(i) That paragraph 2 of the Tenth Schedule to the Constitution is valid, its provisions
do not suffer from the vice of subverting democratic rights of elected members of
the Parliament and the Legislatures of the States. It does not violate their freedom
of speech, freedom of vote and conscience as contended.
(ii) The provisions of paragraph 2 do not violate any rights or freedom under Articles
105 and 194 of the Constitution;
(iii) The provisions are salutary and are intended to strengthen the fabric of Indian
Parliamentary Democracy by curbing unprincipled and unethical political
defection.
(iv) The contention that the provisions of the Tenth Schedule even with the exclusion
of paragraph 7, violate the basic structure of the Constitution in that they affect the
democratic rights of elected members and, therefore, of the principles of
Parliamentary Democracy, is unsound and is rejected.
(v) The expression ‘any direction’ occurring in para 2(1)(6) of the Tenth Schedule
requires to be construed harmoniously with the other provisions and appropriately
confined to the objects and purposes of the Tenth Schedule. Those objects and
purposes define and limit the contours of its meaning. The assignment of a limited
meaning is not to read it down to promote its constitutionality but because such
construction is a harmonious construction in the context. There is no justification
to give the words wider meaning.
65 AIR 1993 SC 412
Anti-Defection Law in India- A Critical Analysis
(vi) The disqualification imposed by para 2(1) (b) must be so construed as not to
unduly impinge on the freedom of speech of a member. This would be possible if
para 2(1) (b) is confined in its scope by keeping in view the object underlying the
amendments contained in the Tenth Schedule, namely, to curb the evil or mischief
of political defection motivated by the lure of office or other similar
considerations. For this purpose the direction given by the political party
belonging to it, the violation of which may entail disqualification under para 2(1)
(b), would have to be limited to a vote on motion of confidence or no confidence
in the Government or where the motion under consideration relates to a matter
which was an internal policy and program of a political party on the basis of
which it approached the electorate.
(vii) Keeping in view the consequence of the disqualification i.e., termination of the
membership of a House, it would be appropriate that the direction or whip which
results in such disqualification under para 2(1)(b) is so worded as to clearly
indicate that voting or abstaining from voting contrary to the said direction would
result in incurring the disqualification under para 2(1)(b) of the Tenth Schedule so
that the member concerned has fore-knowledge of the consequences flowing from
his conduct in voting or abstaining from voting contrary to such a direction.
Also in Ravi S. Naik v. Union of India 66 the Supreme Court has further held that the
expression “voluntarily given up his membership” in Para 2(1) (a) does not hold the same
meaning as of “resignation”, it implies a wider connotation. A membership of a political
party can be given up voluntarily by any member without even tendering a resignation to that
party, an inference about his voluntarily giving up a membership can be drawn from the
conduct of that member.
66 AIR 1994 SC 1558 (Para 11)
Anti-Defection Law in India- A Critical Analysis
In G. Vishwanathan v. Speaker, Tamil Nadu67 an expelled member continues to be a
member of the party that had set him up as a candidate at the polls.
Para 3:
While para 2 contains general provision for disqualification on grounds of defection,
para 3 is in the nature of a provisio to para 2 in as much as it provides that no disqualification
would be incurred where a member claims that he belongs to a group representing a faction
arising from a split in a party if the group consists of not less than one third of the members
of the legislature party concerned.
One interpretation has been that once such a claim is made the only concern of the
Speaker is to see whether the group consists of not less than one third of the legislature party
members and if that condition is satisfied no member belonging to that group will be subject
to disqualification. Under this interpretation, it is argued that since the word “used” is only
‘claims’ and the speaker is concerned only with the House and the Legislature Parties, it is
not his function to enquire into what happens in the political party outside. It is not for him to
pronounce upon whether or not there has been a valid split in the party outside.
The other possible interpretation that has been put forward is that in order to provide a
defecting member the protection of Para 3, Speaker will also have to determine whether there
has been a split in the political party outside, and whether the member belongs to the group
which represents the faction arising out of the split. In case this interpretation is accepted, the
most crucial words are ‘arisen as a result of’. These words make it crystal clear that the rising
of a group in a legislature party as a result of the split in the original political party outside is
67 AIR 1996 SC 1060
Anti-Defection Law in India- A Critical Analysis
a process and cannot be a sudden event taking place at a particular or a precise point of time.
‘Arise’ necessarily involves the concept of growing of ascending gradually.
Split in a national party itself cannot be in the nature of a guillotine that abruptly falls
and in a moment divides the party members all over the country into two. Members are
thinking human beings who need some time to decide which way to go. There in no mention
in Para 3 of duration within which a faction must arise from the split or when the members
representing the faction must make a claim that they constitute a group.
There is no concept in Para 3 or elsewhere in the Tenth Schedule of a split in the
legislature party as such. ‘Split’ in Para 3 refers to the split in the original political party only.
What happens in the legislature party is only the rise of groups representing the factions
resulting from the split outside. Also, for the split in the original political party, there is no
requirement of numbers – one third or the like – breaking away or splitting the party.
A question that has often been raised is whether it was fair to make a distinction
between defection by individuals and defection by groups merely because the latter might
follow or might for the sake of convenience be called split of a party or merger of parties
particularly when motivations behind splits and mergers or group defections may not often be
very different from those for individual defections? Whether an individual defector should be
punished while defectors in a group should go scot free under the garb of a party split?
Para 3 recognises the political phenomenon of splits in parties, but it has laid down
that disqualification on ground of defection shall not apply to a member only if he and other
members of the party constitute a group representing a faction arising as a result of the split
in the original political party and such group consists of not less than one third of the
members of the legislature party. There is no nexus between numbers and the fact of a split.
Anti-Defection Law in India- A Critical Analysis
The split is a complex phenomenon. It may occur because of differences over policy and
programs, organisational principles, functioning and alignment of social forces within a
political party etc. Elements of personality and temperamental incompatibility may also not
be wholly absent.
There is nothing sacrosanct about the figure one third. It has been argued that Para 3
of the Tenth Schedule relating to splits is, therefore, not based on any rationale or intelligible
differentia, violates the principles of equality and the basic constitutional structure.
The Supreme Court, has, however, held that the meaning to be given to “Split” must
necessarily be examined in each case in the context of its particular facts.
Para 4:
Para 4 of the Tenth Schedule is analogues to Para 3 and the analysis in regard to Para
3 applies to Para 4 also except that Para 4 deals with the merger of an original political party
with another and for a merger to be deemed to have taken place in the political parties, “not
less than two thirds of the legislature party concerned must have agreed to such merger”. In
the case of split, the development takes place entirely outside the House. It is not dependent
on any action by the members of the legislature party concerned. In fact, the recognition of a
group of one third members has not been subject to disqualification depends upon its
representing a faction resulting from the split outside. In case of merger, however, under Para
4(2), it is clear that no merger of a political party in another can be deemed to have taken
place unless at least two thirds of the members of the legislature party concerned have
already agreed. Thus, the merger of political party outside becomes dependent on the
agreement of two third majority in its legislative wing, for purposes of the Tenth Schedule.
Anti-Defection Law in India- A Critical Analysis
Para 5:
Para 5 is a special provision intended to cover the Presiding Officers of the Houses of
Legislatures who on their election may like to express their firm resolve to function in a non-
partisan manner by resigning and severing their links from their erstwhile political party. The
para provides that no disqualification shall be incurred by such Presiding Officers voluntarily
giving up their party membership on rejoining their party on ceasing to hold the office of
Presiding Officer.
Para 6:
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 or the Speaker of
the respective House; where the question is with reference to the Chairman or the Speaker
himself it will be decided by a Member of the concerned House elected by it in that behalf.
All proceedings in relation to any question as to disqualification of a Member of a
House under the Schedule will be deemed to be proceedings in Parliament within the
meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State
within the meaning of Article 212.
In its judgment of 18th February 1992 in Kihota Hollohon v. Zachilhu68, the Supreme
Court held that the Speaker’s functions under the Tenth Schedule called for a judicial
determination of issues under the law. The process of determining the question of
disqualification could not be considered part of the proceedings of the House and as such not
amenable to judial review. The Supreme Court further held that Para 6(1) of the Tenth
Schedule, to the extent it seeks to impart finality to the decision of the Speakers or Chairmen
is valid. But the concept of statutory finality embodied in para 6(1) does not detract from or
abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as 68 AIR 1993 SC 412
Anti-Defection Law in India- A Critical Analysis
infirmities based on violation of Constitutional mandates, malafides, non-compliance with
rules of Natural Justice and perversity, are concerned. The deeming provision in para 6(2) of
Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the
Constitution as understood and explained in Keshav Singh’s case69 to protect the validity of
proceedings from mere irregularities of procedure. The deeming provision, having regard to
the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of
a State” confines the scope of the fiction accordingly.
The Speakers or Chairmen while exercising powers and discharging functions under
the Tenth Schedule act as Tribunals adjudicating rights and obligations under the Tenth
Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the constitutional scheme in the Tenth Schedule, judicial
review should not cover any stage prior to the making of the decision by the Speakers or
Chairmen. Having regard to the constitutional intendment and the status of the repository of
the adjudicative power, no quia timet actions are permissible, the only exception for any
interlocutory interference being cases of interlocutory disqualifications or suspensions which
may have grave, immediate and irreversible repercussions and consequences.
The objectives of entrusting the responsibilities of defection under the Tenth Schedule
to the Speaker were the need for (1) expedition in determination of defection cases (2)
ensuring impartial, objective and non-partisan decisions. Some of the cases in the courts of
the Speakers have taken too long and the objective of taking quick decisions has been
defeated. Also, in present day conditions it would be very unrealistic to expect a speaker to
completely eschew party considerations even in matters where questions of life and death for
his party or its Government or its leadership may be involved.
69 1965 (1) SCR 413
Anti-Defection Law in India- A Critical Analysis
Taking decisions on disqualification of members on grounds of defection is not part
of the business of the House where of course the Presiding Officer’s authority should be
supreme and unfettered by courts of law outside. Also, ideally it is not and should never be
part of the duties of the exalted office of the Presiding Officer to be involved in highly
political and controversial cases of conflicts of party interests and healthy and unhealthy
manoeuvrings of power politics. It would have added to the high prestige of the Presiding
Officers if they had unanimously resolved that it was wrong for the Anti Defection Law to
put the Presiding Officers in position where they would become subjects of political
controversies. It was not fair to put them in a situation where their decisions would cause the
fall or enable the continuance of Governments. The Presiding Officers could have asked for
being relieved of all duties under the Anti Defection Law. That would have raised their
prestige in the esteem of the people at large. The law could then be amended to entrust the
responsibility of determining within a strict time frame all matters of disqualification to a
special bench in the Supreme Court and High Courts or an independent body consisting of
judges.
Para 7:
Para 7 had sought to bar the jurisdiction of courts completely from cases of
disqualification on grounds of defection.
The Supreme Court however struck down para 7 and declared that the provisions of
Para 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change
in the operation and effect of Articles 136, 226 and 227 of the Constitution of India, and,
therefore, the amendment should have been got ratified by State Legislatures in accordance
with the Provisio to sub clause (2) of Article 368 of the Constitution. Since such ratification
had not been obtained the provision of para 7 was not valid.
Anti-Defection Law in India- A Critical Analysis
Para 8:
The Chairman or the Speaker of the House was empowered to make the rules for
giving effect to the provisions of the Schedule. The rules were required to be laid before the
House and were subject to modification or disapproval by the House.
The Members of Lok Sabha (Disqualification on the ground of defection) Rules, 1985
were duly made and laid on the table of the House on 16 th December 1985. Lok Sabha having
made no change, these rules came into force with effect from 18th March 1986. Houses of
State Legislatures have made their own rules as has the Rajya Sabha. These are all largely on
the lines of Lok Sabha Rules.
Under the Rules, for a member to be disqualified on the ground of defection, a former
petition in relation to the Member has to be instituted before the Speaker and every such
petition has to be verified in the manner laid down in the Code of Civil Procedure 1908. A
petition against a Member required to be instituted is to be addressed to the Speaker and in
the case of the Speaker it is to be addressed to the Secretary General. Any petition alleging
disqualification by any Member has to be forwarded to the concerned Member, and if such
petition is not made by the leader thereof, to him for his comments. The Speaker may decide
the case after considering the comments on his own, or send it to the Privileges Committee
for a report to be presented before him after a preliminary inquiry. The procedure for
determining the question should be more or less the same as adopted by the Privileges
Committee for determining a breach of privilege of the House by a Member. No Member can
be subject to disqualification unless he is given a reasonable opportunity to represent his case
and to be heard in person.
Anti-Defection Law in India- A Critical Analysis
5.4 The Whips Under Anti Defection Law
In its literal dictionary connotation, the word “the whip” means a lash with a stick or
handle used for punishing a person for an offence or in driving a horse-driven carriage for
thrashing or beating the horse to urge it to move forward faster. As a verb ‘to whip’ similarly
means to lash a person or animal or to strike by a whip. The word is believed to have had its
origin in the terminology developed in hunting where the hunter’s employee responsible for
managing the hounds and keeping them in their places is called the Whippers-in.
In the context of political parties and parliamentary life, the office of the “Whip” is a
vital link in the relationship between the parties and their members. The “whip” acts as a two-
way channel for information flow between party leaders and members. The “Whip” is the
officer of the parliamentary party or group responsible for enforcing attendance of the
members, keeping them informed of the party line on various issues and from time to time
issuing necessary directives—or Whips—for adhering to party discipline in the matter of
voting on specific issues coming up on the floor of the House. On the other hand, the Whip
also collects information about the opinion among members on various issues and provides
valuable feedback to party leaders.
It is believed that the term was first used in a parliamentary context in the British
House of Commons in the Eighteenth Century by Sir Edmund Burke. It was in 1769 that
Edmund Burke referred in the House of Commons to intense lobbying over a division and
described how the King’s Ministers had made intense efforts to bring their followers together,
how they had sent for their members from all directions ‘whipping’ them in. The phrase used
by Burke caught public fancy and soon became popular in parliamentary usage.
Actually, the gradual evolution of the concept of whip in Britain coincided with the
evolution of voting on party lines. During the year 1836, for example, the percentage of cases
Anti-Defection Law in India- A Critical Analysis
in which voting in divisions on the floor was on party lines was only 23, i.e., on 77 issues out
of 100 there was cross voting by members. By 1898, the percentage of voting on party lines
had risen to 69. During 1924-28 it touched the 95 percent mark and in 1958 further rose to as
much as 98 percent.70
The institution of whip is not confined to the Westminster model of Parliaments. It
exists even in countries like the United States where each party in the House of
Representatives is served by a member known as the Whip. The Whips in the U.S. Congress
as at Westminster carryout an essential two-way communication, conveying the views of the
party membership to the leaders and informing the membership of the views of the
leadership. In the Indian Parliamentary context, the Whip of Parliamentary group is the one
who has been designated to ensure that members of the party are present in adequate numbers
and vote according to the line decided by the party on important questions. The Chief Whip
of the Government party in Lok Sabha/ Rajya Sabha is the Minister of Parliamentary Affairs
and he is directly responsible to the Leader of the House. It is a part of his duties to advise the
Government on parliamentary business. The Chief Whip acts as the eyes and ears of the
Leader of the Party so far as the members are concerned. During sessions, in his capacity as
adviser to the Leader, he has to be in constant touch with the Prime Minister. The Chief Whip
is assisted by two Ministers of State. This responsibility of keeping everybody at his post and
keeping his party united, strong and well-knit falls on him.
The Whips of the ruling party and of parties in opposition come into contact with each
other to sort out matters of common interest and to understand and accommodate each other
on many crucial occasions. Whips of the ruling party as well as those in opposition thus play
a very significant role in the smooth and efficient functioning of parliamentary democracy.
Over the decades, functional uses of the Whips have multiplied and expanded in many
70 Jackson J. Robert, Rebels and Whips, P 4, London, 1968.
Anti-Defection Law in India- A Critical Analysis
directions. In a parliamentary polity particularly, the institution of Whips plays a vital role.
For, continuance or otherwise of the Government may depend on a single crucial vote on the
floor of the House. The Government party Whip has “to make a House and to keep a House”
which means that it is his responsibility to ensure a quorum throughout the sitting of the
House by keeping the members within the sound and range of the division bells, particularly
when some important business is under consideration. His most important job is ensuring the
presence of members and more particularly marshalling of his party forces on important
issues. The whips are the party managers in Parliament and the art of parliamentary party
management may be called Whip Craft.
As a floor manager, the Chief Whip of the Ruling Party has to smoothen differences
and plan the business of the House in consultation with the Whips of other parties. He has to
act as a liason between the Houses of Parliament, their Presiding Officers and their
Secretaries on the one hand and the Ministries and Ministries and Departments of the
Government on the other. In short, the functions of the whips today encompass those of
management, communication and persuasion. They keep their members informed about the
business of the House and the party line on various issues and enforce party discipline. Here,
we are mainly concerned with the limited managerial role or disciplining functions of the
Whips. Besides the office of the whip, the term ‘whip’ has another connotation. During
sessions, whips of different parties send to their member’s periodic notices and directives
informing them of important debates and divisions, telling them of the probable hour of
voting and demanding their presence at that time. Such notices and/or, directives are also
called ‘whips’. Such ‘whips’ are reported to have been in use in the British House of
Commons as far back as in 1621 when notices underlined six times were issued to King’s
friends.
Anti-Defection Law in India- A Critical Analysis
In Britain, receiving a Whip is regarded as a privilege of party membership and a
member is free to refuse the Whip. In the House of Commons, issue of a Whip is an internal
party matter and the Whip is issued always outside the House. Issue of a Whip—oral or
written—on the floor of the House is inconceivable. Issuance of such a Whip and warning a
member not to disobey the Whip, might, in fact, amount to contempt of the House. The Whip
only seeks to inform members of the business and ensure their attendance. One member
trying to prevent another member from speaking or asking him not to proceed with his speech
might amount to molestation of the member. Also, the whips cannot arrogate the function of
the Chair and a Whip cannot be used for restraining members from challenging a ruling given
by the Speaker in House. There has been no case in the long history of the British House of
Commons when a Whip was issued on the floor of the House or where the Chief Whip of a
party issued any Whip to only a selected few members of the party.
According to Robert Jackson, the Whips job of preventing open revolts in the British
parties is not conducted in the language of threats. But, there is also the other opinion which
emphasises the essential role of sections in ensuring adherence to the obligations of party
membership. For instance, the Labour Party’s code of conduct provides for a number of
disciplinary actions of increasing severity. The first is a written reprimand from the Chief
Whip. The second is a ‘suspension’, in effect a period of probation in which the member
though excluded from party colloquies is expected to comply with the party Whip. A more
serious sanction is the withdrawal of the party Whip which (like suspension) is decided upon
by the Parliamentary Labour Party. The effect of the withdrawal is that a member no longer
receives the weekly circular of guidance from the Whips and is in effect no longer a member
of the parliamentary party. By itself, this weapon may prove a boomerang, in that rewhipped
member can then speak and vote as he pleases and may cause more trouble outside than
inside the parliamentary party. A further step is to expel him from the national party and
Anti-Defection Law in India- A Critical Analysis
refuse him read option as the party’s candidate in his constituency. In the House of
Commons, however, for many years now the power to expel a member from the party has not
been used to punish MP’s for disobeying the party Whip in the division lobbies.
The office of the Whip is not mentioned in the Constitution of India or in the Rules of
Procedure of the House. In fact, till recently the political parties also found no such mention
or recognition. With the passing of the Constitution (Fifty-Amendment) Act, 1985, popularly
known as Anti-Defection Law, the ‘Whip’ has assumed a very important role in our
parliamentary system of democracy. The Amendment, inter alia, provides for disqualification
on ground of defection, as under:
(1) A Member of Parliament or State Legislature belonging to any political party shall be
disqualified for being a member of that House—
(a) If he has voluntarily given up his membership of such political party; or
(b) If he votes or abstains from voting in such House contrary to any direction
issued by the political party to which he belongs or by any person or authority
authorised by it in this behalf without obtaining in either case, the prior
permission of such political party, person or authority and such voting or
abstention has not been condoned by such political party, person or authority
within 15 days from the date of such voting or abstention.(emphasis supplied)
The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985
framed by the Speaker under the provisions of the Tenth Schedule to the Constitution inter
alia provide that no reference to any question as to whether a member has become subject to
disqualification under the Tenth Schedule shall be made except by a petition to the Speaker.
At the conclusion of the consideration of a petition, the Speaker may either dismiss the
petition or declare that the member in question has incurred disqualification. (Clauses 6 & 8)
Anti-Defection Law in India- A Critical Analysis
It is thus obvious that after coming into force of the Constitution (Fifty-Second
Amendment) Act, 1985 and the Anti-Defection Rules framed there under, political parties
came to have constitutional recognition and legitimacy and the directives issued by party
leadership came to have relevance in law. Disobedience of party directives or Whips
thereafter could result in disqualifying a member and losing his membership. It is, however,
to be noted that in order to incur disqualification a member had to vote or abstain from
“voting in such House contrary to any direction issued by the political party”. It did not apply
to acts other than voting, i.e. it did not interfere with a member’s right of freedom of speech
in the House.71 However, this analogy of curtailing the voting right by means of issuing whips
and countering it by saying that issuance of whips does not interfere with a member’s right of
freedom of speech in the House is a rationale which baffles logic. It is an analogy which is
too far-fetched and has no legs to stand. This can be better illustrated by discussing the facets
of freedom of speech and the ancillary rights attached in the exercise of this freedom, for a
Member of Parliament to claim this right of representation and help the Constitution to
become a necessary pulley in drawing the vehicle of democracy.
As is already portrayed from the plethora of cases delivered by the Custodian of
Justice with regard to the importance attached to the Part III of the Constitution of India in
the previous chapter, let us push the same into much wider waters to examine the same in
light of democracy. The necessity of this exercises are to bring out the variances in opinion
with regard to Whips. In furtherance of this motive the researcher analyses the various facets
of whips and the reasons for the inclusion of Para 2(1) (b) under the Tenth Schedule of the
Constitution.
5.4.1 Arguments for Whips
71 Kashyap C. Subhas, Anti-Defection Law and Parliamentary Privileges, Pg: 100, Ed: 2, Universal Law
Publishing Co. Pvt. Ltd. 2003
Anti-Defection Law in India- A Critical Analysis
The classic way of stating the difference between democracy and dictatorship is
exemplified by the arguments that the first is a multi-party system, whereas the other is a one
party system. The difference between a multi-party system and a one-party system can be
stated as follows: by virtue of its very mechanics a multi-party system democratizes power,
while a one-party system makes it autocratic. For when many parties exist simultaneously, a
party governs only insofar as it takes the part of the governed; whereas a single party governs
permanently and has only the internal problem of who will govern the party itself. The roles
and the corresponding role perceptions are so different in the two contexts that one may well
wonder if it is proper to use the term party for both systems.72
It is trite thus to observe that rights are not divorced from obligations. System is
interlinked. Right of representation being statutory should also be so. Representative having
accepted party pledge and platform can further be said to be obliged to follow it, while he sits
as the member-representative. When he crosses floor or defies party mandate, he contributes
to disorder and breaks the initial pledge. Was it, therefore, with reference to these and to instil
democratic discipline arising under party-system that the Tenth Schedule was added to the
Constitution? Is it the inherent purpose of the Tenth Schedule to interlink the obligation of
party-discipline in the matters of functioning of the elected representative? How far the
process of this link of obligation with rights of freedom could be stretched, so as to control
even the vote of the elected representative, and could be valid, requires deeper probe and
scrutiny.73
The second hypothesis what the researcher tries to lay down is of a logical
consequence and it requires clear understanding of the vitals of democracy and parliamentary
system in India. At the outset it must be observed that people elect their representatives who
could only mean, “Opinion of the people,” that which the subjects, not the sovereign, had in
mind. But nowadays we can find a popular opinion which is in no meaningful sense the
people’s opinion. Hence the distinction is crucial and ambiguity as to the meaning of public
opinion should be carefully avoided. It is therefore that public opinion only when it is
relatively free and autonomous opinion, that is, to the extent that it expresses a relatively
independent will of the people and not when it becomes a mere reflection of the will of the
State.78
After discussing the probabilities for inclusion of Whips and criticising the fact for
being included it under the Tenth Schedule, the researcher takes a vault towards the
alternative that can be done in order to achieve the objective set out in Tenth Schedule for
curbing the evil of defection in a much more effective manner.
On a fair perusal of the position of anti-defection laws in the various Common Wealth
nations and also some developed nations like the United States of America and the United
Kingdom, the researcher in this research paper tries to draw parlance with that part of the
anti-defection laws in these nations regarding Whips, which have deviated from the course
adopted by the Indian Parliamentarians in tackling the problem of defection, in a much more
effective manner to fight defection.
It is much appreciated by the researcher if a holistic view on the reasons for issuance
of party Whips is considered. One of the prime reasons substantiated by party heads for
issuance of whips being, to regulate parliamentary debates and have a healthy ambience
during discussions of serious concerns. As is already discussed Whips in England are issued
only in case of procuring attendance of a member.
78 ibid
Anti-Defection Law in India- A Critical Analysis
Whereas the position of Whips in Australia and USA run in parlance, each Political
Party has a Whip in the upper House and in the Lower House. He arranges the order in which
his party’s members will speak in debate. He disciplines his voting. He makes sure that all
members available are in the particular house when an important vote is about to be taken. He
also arranges a “pair79”.
In the UK the Government Chief Whip and the opposition Chief Whip constitute what
are known as the ‘usual channels’ whereby negotiations are carried on regarding conduct of
public business.80
The Government control over its majority is substantial. To vote against the
Government is to vote against the party.81 To rebel against te Government is to leave the
party. To leave the party is to lose party support at the next election since the average elector
votes for the party label, this means, probably, that the member will not be re-elected.
Membership of the House and accession to office alike depend on party service and party
support.
The House of Commons consist of parties. The Government as a party authority, has
control over one or more of them. It appoints ‘Whips’ and pays many of them out of public
funds. It is their function to see that members of the Party attend the House and support the
Government. If the Government has a majority and so long as that majority holds together,
the House does not control the Government but the Government controls the House.82
79 Krishan Singh Chauhan, “ Anti Defection Law in India a Critical Appraisal” M.D. University, Rhotak, 1996
page 130; also see Lane, P.H. “An Introduction to the Australian Constitution” 2nd Edition 1997 page 80.80 Morrison, “Government and Parliament” page 102.
81 ibid
82 Krishan Singh Chauhan, “Anti Defection Law in India a Critical Appraisal” M.D. University, Rhotak, 1996
page 130; also see Laski, Harold J. “Parliamentary Government in England”; Finer Herman “The Theory and
Practice of Modern Government” 4th Edition.
Anti-Defection Law in India- A Critical Analysis
The Parliamentary Secretary to the treasury and the Lords of the Treasury have some
departmental duties in the Treasury. They have to sign Treasury Warrants, but their main
function is to control the proceedings of the House of Commons and keep the majority
together, as Government Whips under the direction of the Prime Minister or the leader of the
House. They are about thirty other Parliamentary Secretaries or other persons ranking as
assistant Ministers. In addition, there are five appointments in the Royal Household which are
regarded as Political Offices. The holders of these offices, too are Whips if they are in the
House of Commons, and assist in Government Business in the house of Lords if they are
peers.
If we look at the positions of the whips in other countries and the nature of the
evolution of whips as is previously discussed, it is clear that the plenary object of issuing
whips being to procure the attendance of members to the House in order to have debates on
key proceedings of the House. In short the whips perform an “exemplary judicious duty”. So
what is applauded by the researcher in this research paper is that the weapon of whips must
be used in such a manner as to enable the whips to perform its “exemplary judicious duty” in
a much more effective manner, resulting in utilisation of whips rather than issuing them when
they are totally uncalled for, thus bringing a hurdle to the spirit of democracy.
In order to achieve this laudable objective, with the prevailing circumstance in the
Indian polity, it is much feasible for the operation of whips in its domain effectively, if the
diverging object of issuing party whips in Tenth Schedule be constrained to matters of prime
importance. What is suggested is that whips issued for cases where the party’s mandate is
bound to the members, where it relates to a Bill for an Amendment to the Constitution,
Money bill, and the like because these bills are of national importance and dissent by a few
biased individuals and their concern cannot be adhered to in view of the Bentham’s principle.
Anti-Defection Law in India- A Critical Analysis
Whereas party whips for voting on a much less important bill where the member tries to
reflect his people’s view and bills which apprehend suffering to his constituent people,
sufficient space must be provided to these representatives in order to fulfil the objectives of
democracy.
From the above discussion it is clear that the whips, in our process of conduct of
Parliamentary proceedings must be “Subject Based” i.e. whips which control the exercising
of right to vote of a member within the precincts of the House must be guided by the subject-
matter or the nature of the bill that is to be discussed. If this is done a right balance can be
struck between the rights of the representatives and the unflinching party affiliation by the
members towards their respective parties and their policies. By considering the above
suggestion it can be asserted that the goals of democracy is celebrated in a much more
glorifying manner so as to enable our Constitution to reach a step ahead in contributing to the
process of development of this great nation.
5.5 Analysis of the Powers of Speaker under the Tenth Schedule
A complete harmony between judicial review and parliamentary supremacy is an
outstanding achievement by the architects of the Indian Constitution. The doctrine of an
absolute balance of powers between the different wings of the Government is not feasible.
Practically, someone must be empowered with having the final say in the matter of disputes.
This is the reason that the system of separation of powers in the Constitution of America has
failed in real practice. The judiciary in America has its dominance over other organs of the
Government under the power of interpretation of the Constitution. Due to this domineering
tendency, it is known as ‘safety valve’ or the ‘balance wheel’ of the Constitution. Chief
Justice Hughes has aptly remarked, “The Constitution of the USA is what the Supreme Court
says it is”. It has power to declare a law null and void passed by the legislature even on the
Anti-Defection Law in India- A Critical Analysis
ground that it is not consistent with the general principles of the Constitution. Thus, the
American judiciary can poke its nose into the legislative policy like a third chamber or super-
chamber of the legislature.83
In England, Parliament is supreme. It is free to do what it pleases. Every wing of the
Government has to heed what parliament says or does. Blackstone has rightly described the
might and majesty of the British Parliament, “it can do everything that is not naturally
impossible”. That is why the British judges refuse having any power “to sit as a court of
appeal against Parliament.”84
With a view to avoiding either extreme, the Indian Constitution has adopted a golden
mean between supremacy of American judiciary and the supremacy of British parliament. If
the judiciary rides the high horse and behaves arrogantly, the Parliament can bring an
amendment in the Constitution. Pandit Nehru has rightly described this unique feature of the
Indian Constitution, “No Supreme Court, no judiciary, can stand in judgment over the sole
will of Parliament, representing the will of the entire community. It can pull up that sovereign
will if it goes wrong, but, in the ultimate analysis, when the future of the community is
concerned, no judiciary can come in the way......Ultimately, the fact remains that the
legislature must be supreme and must not be interfered with by the Court of Law in such
measures as social reforms.”85
Moreover, the Indian judiciary has stood by the people through thick and thin. It has
ever paid due regard to the “Sovereign will” of the people but during emergency its wings
were clipped and left it in trauma through 42nd Amendment but afterwards in the regime of
the Janta Government it was restored to the pre-1976 position to a great extent. Now, it has
83 Tyagi B.S., Judicial Activism in India, Pg No: 4&5, 1st Edition, 2000, Sristi Publishers
84 ibid
85 DD Basu, Introduction to the Constitution of India; Prentice Hall of India P. (Ltd.) also Delhi, 1994, Pg: 39
Anti-Defection Law in India- A Critical Analysis
gained ground by declaring itself that judicial review is a basic feature of the Constitution. It
has helped the court to cover a wide range of judicial activities to do “complete justice”. As
S.B. Jai Singhani says, “under Art 142 of the Constitution, the Apex Court was given an
extraordinary power of the widest amplitude to pass any decree or make any order as was
considered necessary for doing complete justice in any cause or matter pending before it—no
matter whether the ordinary law of the land provided for such a measure.”86
If most of the countries in the world have adopted democracy, it is not because it is a
perfect system or the best way to lead a contended life but because it is a better system. The
term ‘democracy’ has been discussed from Plato to the present day by thinkers who tend to
think of a better and just society. Hence, we have a wide variety of its connotations; yet it is
to be interpreted with the tint of contemporary experience. As democracy aims at establishing
a just society, the judiciary is logically and inevitably associated with it. Both are
complementary to each other. If democracy prepares the ground to realize lofty ideals of life,
the court acts as a sentinel on the ‘qui vive’. How judicial review is a watch word when
democracy especially in India—a land of religion and philosophy, aims at providing people
all good conditions which make life worth-living.87
5.5.1 Arguments for Para 6 & Para 7 of the Tenth Schedule of the
Constitution:
The drafters of the Constitution after considering the working of Constitution around
the globe, with deliberations left the idea of including the doctrine of separation of power out
rightly in Constitutional provisions and the same is designed in such a manner so to have its
effect on all the three organs of the Government. Though the Montisque’s theory has been
86 Article in the India Express: Dec 23, 1996
87 Tyagi B.S., Judicial Activism in India, Pg No: 16, 1st Edition, 2000, Sristi Publishers
Anti-Defection Law in India- A Critical Analysis
criticized severally for its failure in its paradigm modes, it is much appreciated when certain
modulations are adhered to in its application. The Indian Constitution has profusely used this
changed application of the Montisque’s separation doctrine to avoid water-tight
compartmentalization of the powers of the three organs of the Government and instead used
the formula of Checks and Balance in the working of our Magna Carta, thus glorifying the
objects of democracy.
Now coming to Para 6 and 7 of the Tenth Schedule, it is one of the examples for the
working of the separation of powers in its widest amplitude. The battle for establishing
supremacy over each other viz legislature over judiciary and judiciary over legislature, has
been a trademark for the Separation doctrine in our Constitution. Many jurists have put forth
saying that legislature somehow finds a place above judiciary, equal is the number of jurists
who are the strong protagonists of supremacy of judiciary. However it judicious to strike
balances so as to create harmony between these two organs, the parameters being the various
provisions of the Constitution.
Harnessing the doctrine of separation of power in the light of para 6 & 7 of the Tenth
Schedule, which deals with finality of the decision of the Speaker and the bar of jurisdiction
of Courts respectively demands an overall view of the position of Speaker and crawl to the
rationale behind the insertion of para 7 of the Tenth Schedule.
A Speaker of the House, before assuming the Office gives up his party affiliation and
then leads the House. The reason for the Speaker to give up his party is quite obvious. The
Speaker is the authority within the precincts of the House which he presides. The Office of a
Speaker is very high and is entrusted upon a person with utmost faith and regard. Such
positions cannot be dubbed with far-fetched logics of continuing party affiliation. However
Anti-Defection Law in India- A Critical Analysis
this can be further substantiated by throwing light on the fact that a no-confidence motion can
be seeked against the Speaker, which further rushes to clear all doubts.
Anti-defection law under the Indian Constitution is included within the precincts of
the House because the Tenth Schedule has been annexed in the Constitution in furtherance of
the amendment brought to Arts. 102 & 191 of the Constitution, and under Art 103 & 192 the
decision of disqualification under Art 102 and Art 191 is entrusted with the Speaker and his
decision is final, so para 6 of Tenth Schedule is very much constitutional and no question
arises as regards its legality.
Now targeting para 7 of the Tenth Schedule which creates a bar on the jurisdiction of
the Courts with respect to decision of the Speaker on matters of disqualification of members
is very much appreciated, the reason being upholding the independence of legislature and
creating a scope for the application of doctrine of separation of power. If jurisdiction of
courts is extended to the decisions of the Speaker, it amounts to overlapping of powers and
disturbs the separation doctrine. Also, the Speaker acts as a judge in the House, this House is
constituted by the representative of the people, if review is extended to such People’s Court it
amounts to insult of the House.
Further, if an argument is raised against the credibility of the Speaker in making
decision while discharging his duty as a Judge, by some lame logics of party affiliation and
that is the reason as to why judicial review must be had on the decision of the Speaker has no
legs to stand because similar allegations may find place against the Judges who are involved
in the reviewing exercise. As a matter of convention, faith is always had in persons who sit as
a Judge to uphold justice. Also, the Speaker would have assumed the Office only after two-
thirds majority in the House, so no doubt must exist as to his credibility and capability. Thus
Anti-Defection Law in India- A Critical Analysis
it can be concluded that anti-defection law is a piece of legislation independent of judiciary to
protect the privilege of the House.
5.5.2 Arguments against Para 6 & Para 7 of the Tenth Schedule of the
Constitution:
The Montisque’s Doctrine of Separation of Power allows for three independent
organs of a Government to function independently, however as discussed in the previous
Chapter, in the Indian context there has been slight variation in the adoption of this
doctrine for our Governance. Though there is no unwarranted interference among the three
organs of the State, provisions are carefully incorporated in the Constitution so has to
ensure that none of the organs of the State will become Supreme in the Union.
At this juncture it is important to note that the Constitution has laid down provisions
to enable, the legislature, the executive and the judiciary become the three pillars of our
democratic set up. The underlying object to make these organs the three pillars is that all
of them stand at the same footing and at the same time each one of them are independent
of each other. One of the organs tries to establish supremacy over either of the two
remaining organ results in the collapse of that organ which is subject to suppression,
resulting in collapse of that pillar and the infrastructure of democracy. So the framers of
the Constitution have repeatedly made sure that the three organs are vested with such
powers so that the other organ/s cannot single handed or together dominate over it and
thus facilitate in harmonious existence of all the three organs.
Confining our discussion with respect to the existence and functioning of legislature
and judiciary, it is very much relevant to discuss the role played by the same two organs in
keeping a check over each other in the past. At this juncture it is pertinent to note that the
term “judicial review” has no express mention in the text of the Indian Constitution. This
Anti-Defection Law in India- A Critical Analysis
doctrine was evolved by the Honourable Supreme Court in Minerva Mill’s case wherein the
SC held that judicial review is a part of the basic structure of the Constitution and cannot be
amended. From then on the SC by using its power of judicial review has always acted as the
Guardian against the atrocities of the legislature in so far as trying to usurp the power given
to them under the Constitution with a malafides motive of destroying the democratic polity
and trying to slit the fine fabric of balance between the powers as enshrined in the
Constitution.
The SC has used this concept of judicial review and has always acted as the guardian
of the Constitution which can be observed in the recent decision with respect to the Ninth
Schedule, where the legislations were kept out from the ambit of judicial scrutiny, but the SC
usurped the power of judicial review and made a path-breaking event in the Indian history
thus time and again reiterating the fact that the courts are still the custodians of justice and no
fraud can be played by any person on the Constitution.
The real challenge is mainly on the ground that Paragraph 7 of the Tenth Schedule, in
terms and in effect sought to make a change in chapter IV of Part V and Chapter V of Part VI
of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136
and that of the High Court under Articles 226 and 227 of the Constitution, and, therefore, the
Bill before presentation to the President for assent would require to be ratified by the
legislatures of not less than one-half of the States by resolution to that effect as envisaged by
the proviso to Article 368(2); that in the absence of such a ratification the whole Amendment
Bill was an abortive attempt to bring about the amendment indicated therein; that even
assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of
the Schedule is liable to be struck down as it takes away the power of judicial review; that the
very concept of disqualification for defection is violative of the fundamental values and
principles under-lying parliamentary democracy and violates an elective representative’s
Anti-Defection Law in India- A Critical Analysis
freedom of speech, right to dissent and freedom of conscience and is destructive of a basic
feature of the Constitution; that the investiture of power to adjudicate disputed defections in
the Chairmen/Speakers, who being nominees of political parties are not obliged to resign
their party affiliations, does not stand the test of an independent and impartial adjudicatory
machinery and is, therefore, violative of the basic feature of the Constitution.88
5.6 Conclusion:
The anti-defection law has played a pivotal role in curtailing the defections in the
democratic polity consisting of a huge number of political parties. The law being passed in as
back as in the year1985 has shown a new dimension and has created a new path in securing
the dream of having a stable government keeping in mind the aspirations of the crores of
people who have been striving hard to make our democratic polity work by exercising their
right to vote and to reassure the faith in the single largest democracy of the world.
It is well agreed that this portion of the Constitution of India is enacted in order to
protect the privileges of the House, however as every other law is not static and require
changes, the Tenth Schedule in the wake of securing the privileges of House and to ensure
smooth conduct of Parliamentary affairs has slightly touched upon the corners of democracy
and if it is properly amended to suit the changing circumstances it may assist in living the
dreams of our Constitution drafters and the deciders of the faith of this great nation.
88 Kihota Hollohon v. Zachillhu, AIR 1993 SC 412
Anti-Defection Law in India- A Critical Analysis
CHAPTER: VI
Judicial development on the Tenth Schedule
5.1Introduction:
It is well known that the Legislature makes law, the Executive executes the laws made
by the Legislature and the Judiciary interprets and applies the law as the circumstance
demands. After considering the Constitutional Development on the position of law with
regard to Anti-Defection under the Tenth Schedule, let us look into the judicial interpretation
of the same by the Indian Judiciary.
The question regarding the existence of discrepancy and the interpretation of the
provisions of the Tenth Schedule was considered for the first time before the Apex Court in
the case of Kihota Hollohon v. Zachillhu89. The judicial examination of the Tenth Schedule
was made after 6 years after, from the date of its inception in the Indian Constitution and till
date it stands as a reference point or a landmark decision in the aspect of questions that are
considered under Tenth Schedule especially with respect to para 2(1) (b), para 6 and para 7 of
the same.
In this decision, the Supreme Court answered some of the path breaking constitutional
queries and gave light to certain prime rules of interpretation of the provisions of the
Constitution and also the application of various doctrines will interpreting Constitution,
which play such pivotal role in understanding the maze of our Constitution.
While answering the question with respect to the constitutional validity of the para 2
(1) (b) it was held by the learned Judges of this case that the para 2 (1) (b) is unconstitutional
and abridges the fundamental right of the Members of the Parliament or the State Legislature.
The right to dissent is unequivocally covered under the right to speech and expression. Para 2
(1) (b) by the virtue of use of the word “any order” expands the horizons of the orders that
89 AIR 1993 SC 412
Anti-Defection Law in India- A Critical Analysis
can be passed and any dissent by any member of such orders passed results in removal of the
member by the Speaker of the House, thus curtailing the freedom of speech and expression
by the Members of the House.
When the finality clause under para 6 of the Tenth Schedule was considered, which
specifically deals with the decision of the Speaker being final and under para 7 where the
provision puts a bar on the jurisdiction of the Courts, the Apex Court held that para 7 forms
the crux of the Tenth Schedule and the doctrine of severability finds no application and
cannot be severed from the main text of the Tenth Schedule. When the authenticity of the
authority of the Speaker to act as independent adjudicatory machinery in the process of
decision making for the removal of the Member was considered by the Custodian of Justice,
it well thought-out that Speaker’s decision must be subject to judicial review.
From the above observations of the Supreme Court it is clear that due to the non-
severable character of para 2(1) (b) and para 7 of the Tenth Schedule, the entire 52 nd
Amendment Bill is rendered unconstitutional. If the modus operandi of para 2 (1) (b) and
para 7 is varied, so as to ensure freedom of speech and expression to the members and also
subject the decision of the Speaker under para 6 to judicial review in furtherance to change
the dimension of para 7, the goals of democracy will be cherished.
6.2 The Supreme Court in Kihota Hollohon’s Case :
The case of Kihota Hollohon v. Zachillhu90, is the landmark decision in this regard.
The Constitutional Bench headed by Justice VENKATACHALLIAH, M.N. gave an
elaborate, lucid and dynamic judgment. The constitutional questions considered,
the principles propounded and the interpretation of the various provision of the
Constitution of India, the extracts of the same from the judgment are produced
below.
90 ibid
Anti-Defection Law in India- A Critical Analysis
By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as the
Anti-defection law) the Tenth Schedule was inserted in the constitution of India providing for
disqualification of a Member of either House of Parliament or of a State Legislature found to
have defected from continuing as a Member of the House. Paragraph 2 of the Tenth Schedule
states that a Member of a House would incur disqualification if he voluntarily gives up his
membership of the party by which he was set up as a candidate at the election, or if he
without obtaining prior permission of the political party to which he belongs votes or abstains
from voting in the House contrary to "any direction" issued by such political party and such
voting or abstention has not been condoned by such political party within 15 days from the
date of such voting or abstention; or if a Member elected otherwise than as a candidate set up
by any political party joins a political party after the election; or, if a nominated Member
joins any political party after expiry of six months from the date he took his seat. Paragraph
6(1) states that the question of disqualification shall be referred for decision of the
Chairmen/Speaker of the House and his decision shall be final. It further provides that such
question in respect of Chairman/Speaker shall be referred for decision of such Member of the
House as the House may elect in this behalf. According to Paragraph 6(2) all proceedings
under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House
within the meaning of Article 122/212. Paragraph 7 states that no court shall have jurisdiction
in respect of any matter connected with the disqualification of a Member of a House.
A large number of petitions were filed before various High Courts as well as this
Court challenging the constitutionality of the Amendment. This Court transferred to itself the
petitions pending before the High Courts and heard all the matters together. The challenge
was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and ineffect
sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution
Anti-Defection Law in India- A Critical Analysis
as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High
Court under Articles 226 and 227 of the Constitution, and, therefore, the Bill before
presentation to the President for assent would require to be ratified by the legislatures of not
less than one-half of the States by resolution to that effect as envisaged by the proviso to
Article 368(2); that in the absence of such a ratification the whole Amendment Bill was an
abortive attempt to bring about the amendment indicated therein; that even assuming that the
amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is
liable to be struck down as it takes away the power of judicial review; that the very concept
of disqualification for defection is violative of the fundamental values and principles under-
lying parliamentary democracy and violates an elective representative’s freedom of speech,
right to dissent and freedom of conscience and is destructive of a basic feature of the
Constitution; that the investiture of power to adjudicate disputed defections in the
Chairmen/Speakers, who being nominees of political parties are not obliged to resign their
party affiliations, does not stand the test of an independent and impartial adjudicatory
machinery and is, therefore, violative of the basic feature of the constitution. It was also
contended that the expression "any direction" in Paragraph 2(1)(b) of the Schedule might be
unduly restrictive of the freedom of speech, and the right of dissent which may itself be
obnoxious to and violative of constitutional ideals and values. The respondents contended
that the Tenth Schedule created a non-justiciable constitutional area dealing with certain
complex political issues which have no strict adjudicatory disposition and the exclusion of
this area is constitutionally preserved by imparting a finality to the decision of the
Speakers/Chairmen by deeming whole proceedings as those within Parliament/House of
legislature envisaged in Articles 122 and 212 and further excluding the Court’s Jurisdiction
under Paragraph 7; that no question of ouster of judicial review would at all arise inasmuch as
the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function
Anti-Defection Law in India- A Critical Analysis
not as a statutory tribunal but as a part of state’s Legislative department; and that having
regard to the political issues, the subject matter is itself not amenable to judicial power but
pertains to the constitution of the House and the legislature is entitled to deal with it
exclusively.
The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow
and by its judgment dated 18.2.1992 gave the reasons. On the questions whether:
(1) The Tenth Schedule to the constitution inserted by the Constitution (Fifty-Second
Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative
of the fundamental principles of Parliamentary democracy and is, therefore, destructive of the
basic feature of the Constitution;
(2) Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in
operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill
introducing the amendment would require ratification as envisaged by the proviso to Article
368(2);
(3) The noncompliance with the proviso to Article 368(2) would render the entire Bill vitiated
and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be
invalidated with the application of the doctrine of severability;
(4) The Tenth Schedule created a new and non-justiciable constitutional area not amenable to
curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional
‘finality’ to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting
immunity under Articles 122 and 212, bar judicial review;
(5) The Chairmen/Speakers satisfy the requirements of independent adjudicatory machinery
or whether the investiture of the determinative and adjudicative jurisdiction in them under the
Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias.
Anti-Defection Law in India- A Critical Analysis
HELD:
(i) Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes
the jurisdiction of all Courts including the Supreme Court and High courts, and brings
about a change in the operation and effect of Articles 136, 226 and 227 of the
Constitution of India, and therefore, the amendment would require ratification in
accordance with the proviso to Articles 368(2) of the Constitution of India.
(ii) The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not
decisive. Such finality, being for the statute alone, does not exclude extraordinary
jurisdiction of the Supreme Court under Article 136 and of the High Courts under
Articles 226 and 227 of the Constitution.
(iii) The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under
para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and,
therefore, makes it justiciable on the ground of illegality or perversity inspite of the
immunity it enjoys to a challenge on the ground of "irregularity of procedure”.
JUDGMENT:
As per Justice VENKATACHALLIAH, M.N
(i) Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and
stands apart from, the main provisions of the Tenth Schedule which are intended to
provide a remedy for the evil of unprincipled and unethical political defection and,
therefore, is a severable part. The remaining provisions of the Tenth Schedule can and
do stand independently of Paragraph 7 and are complete in themselves workable and
are not truncated by the excision of Paragraph 7.
(ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of
a provision on account of the inclusion of which the Bill containing the amendment
requires ratification from the rest of the provisions of such Bill which do not attract and
Anti-Defection Law in India- A Critical Analysis
require such ratification. Having regard to the mandatory language of Article 368(2)
that "thereupon the Constitution shall stand amended" the operation of the proviso
should not be extended to constitutional amendments in a bill which can stand by
themselves without such ratification.
(iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far as it seeks to introduce
the Tenth Schedule in the Constitution of India, to the extent of its provision which are
amenable to the legal-sovereign of the amending process of the Union Parliament
cannot be over borne by the proviso to Article 368(2) which cannot operate in that area.
(iv) Paragraph 2 of the Tenth schedule to the constitution is valid. Its provisions do not
suffer from the vice of subverting democratic rights of elected Members of Parliament
and the legislatures of the States. It does not violate their freedom of speech, freedom of
vote and conscience; nor does it violate any rights or freedom under Article 105 and
194 of the Constitution. The provisions are salutory and are intended to strengthen the
fabric of Indian Parliamentary democracy by curbing unprincipled and unethical
political defections.
(v) The Tenth Schedule does not, in providing for an additional ground for disqualification
and for adjudication of disputed disqualifications, seek to create a non-justiciable
constitutional area.
(vi) The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial
power and act as Tribunal adjudicating rights and obligations under the Tenth schedule,
and their decisions in that capacity are amenable to judicial review.
(vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the
decision of the Speakers/Chairman is valid. But the concept of statutory finality
embodied therein does not detract from or abrogate judicial review under Articles 136,
226 and 227 of the Constitution in so far as infirmities based on violations of
Anti-Defection Law in India- A Critical Analysis
constitutional mandates, male fides, non-compliance with Rules of Natural Justice and
perversity are concerned.
(viii) The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts immunity
analogous to that in Article 122(1) and 212(1) of the constitution to protect the validity
of proceedings from mere irregularities of procedure and confines the scope of the
fiction accordingly.91
(ix) Having regard to the constitutional scheme in the Tenth Schedule, judicial review
should not cover any stage prior to the making of a decision by the Speakers/Chairmen;
and no quia timet actions are permissible, the only exception for any interlocutory
interference being cases of interlocutory disqualifications or suspensions which may
have grave, immediate and irreversible repercussions and consequence.
(x) The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary
democracy and are guardians of the rights and privileges of the House. They are
expected to and do take far reaching decisions in the Parliamentary democracy.
Vestiture of power to adjudicate questions under the Tenth Schedule in them should not
be considered exceptionable.
(xi) A constitutional document outlines only broad and general principles meant to endure
and be capable of flexible application to changing circumstances-a distinction which
differentiates a statute from a Charter under which all statutes are made.92 In
considering the validity of a constitutional amendment the changing and the changed
circumstances that compelled the amendment are important criteria.93The Tenth
Schedule is a part of the Constitution and attracts the same canons of construction as
are applicable to the expounding of the fundamental law. One constitutional power is
98 H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 1 SSC 85,
referred to. Mask & Co.v.Secretary of State, AIR 1940 P.C. 105, referred to.
Anti-Defection Law in India- A Critical Analysis
options. This is reinforced by the legislative history of the anti-defection law. The
Constitution (Fifty-Second Amendment) Bill for the first time envisaged the investitute
of the power to decide disputes on the Speakers or the Chairmen whereas the two
similar Constitution (32nd and 48th amendment) Bills, (which had lapsed) did not
contain any clause ousting the jurisdiction of the Courts. The purpose of the enactment
of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the
Courts under Articles 136, 226 and 227 of the Constitution.
(xvii) The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution
envisaged by the proviso to Article 368(2) need not be direct. The change could be
either "in terms of or in effect". It is not necessary to change the language of Articles
136 and 226 of the Constitution to attract the proviso. If in effect these Articles are
rendered ineffective and made inapplicable where these articles could otherwise have
been invoked or would, but for Paragraph 7, have operated there is ‘in effect’ change in
those provisions attracting the proviso.
(xviii) Though the Amendment does not bring in any change directly in the language of
Articles 136,226 and 227 of the constitution,, however, in effect Paragraph 7 curtails
the operation of those Articles respecting matter falling under the Tenth Schedule.
There is a change in the effect in Articles 136, 226 and 227 within the meaning of
clause (b) of the proviso to Article 368 (2). Paragraph 7, therefore, attracts the proviso
and ratification was necessary.99
(xix) The criterion for determining the constitutional validity of a law is the competence of
the law making authority (which would depend on the ambit of the Legislative power
and the limitations imposed thereon as also on mode of exercise of the power). While
examining the constitutional validity of laws the doctrine of severability is applied
99 Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, [1952] SCR 89 Sajjan Singh v. State of
Rajasthan, [1965] 1 SCR 933
Anti-Defection Law in India- A Critical Analysis
which envisages that if it is possible to construe a statute so that its validity can be
sustained against a constitutional attack it should be so construed and that when part of
a statute is valid and part is void, the valid part must be separated from the invalid
part.100
(xx) Though the amending power in a constitution is in the nature of a constituent power and
differs in content from the Legislative power, the limitations imposed on the constituent
power may be substantive as well as procedural. Substantive limitations are those
which restrict the field of exercise of the amending power and exclude some areas from
its ambit. Procedural limitations are those which impose restrictions with regard to the
mode of exercise of the amending power, e.g. the limitation requiring a special majority
under Article 368(2) of the constitution is a procedural one. Both these limitations,
however, touch and affect the constituent power itself, and impose a fetter on the
competence of Parliament to amend the Constitution and any amendment made in
disregard of these limitations would go beyond the amending power and would
invalidate its exercise.
(xxi) Although there is no specific enumerated substantive limitation on the power in Article
368, but as arising from very limitation in the word ‘amend’, a substantive limitation is
inherent on the amending power so that the amendment does not alter the basic
structure or destroy the basic features of the Constitution.
(xxii) The proviso to Article 368(2) was introduced with a view to giving effect to the federal
principle. Its scope is confined to the limits prescribed therein and is not construed so as
to take away the power in the main part of Article 368(2).101 An amendment which
otherwise fulfils the requirements of Article 368(2) and is outside the specified\ cases 100 Cooley’s constitutional Limitations; 8th Edn. Vol. 1, p. 359-360, referred to. Also see R.M.D.
Chamarbaughwalla v. Union of India, [1957] SCR 930; Shri Kesavananda Bharti Sripadagalavaru v. State of
Kerala, [1973] Supp. 1 SCR; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206 and
Sambhamurthy & Ors. etc.v. State of Andhra Pradesh & Anr., [1987] 1 SCR 879, referred to.
Anti-Defection Law in India- A Critical Analysis
which require ratification cannot be denied legitimacy on the ground alone of the
company it keeps.
(xxiii) The words "the amendment shall also require to be ratified by the legislature" occurring
in the proviso to Article 368(2) indicate that what is required to be ratified by the
legislatures of the States is the amendment seeking to make the change in the
provisions referred to in clauses (a) to (e) of the proviso. The need for and the
requirement of the ratification is confined to that particular amendment alone and not in
respect of amendments outside the ambit of the proviso. The proviso can have,
therefore, no bearing on the validity of the amendments which do not fall within its
ambit.
(xxiv) A composite amendment which makes alterations in the First and Fourth schedules as
well as in other provisions of the Constitution requiring special majority under Article
368(2), even though passed by the simple majority and not by special majority, may be
upheld in respect of the amendments made in the First and Fourth schedules.102 There
is really no difference in principle between the condition requiring passing of the Bill
by a special majority before its presentation to the President for assent contained in
Article 368(2) and the condition for ratification of the amendment by the legislatures of
not less than one-half of the States before the Bill is presented to the President for
assent contained in the proviso.
(xxv) The principle of severability can be equally applied to a composite amendment which
contains amendment in provisions which do not require ratification by States as well as
amendment in provisions which require such ratification and by application of the
doctrine of severability, the amendment can be upheld in respect of the amendments
101 Madras & Southern Mahratta railway company v. Bazwada Municipality, (1944) 71 I.A. 113 and
Commissioner of Income Tax, Mysore v. Indo- Mercantile Bank Ltd.(1959), Supp. 2 SCR 256102 Bribery Commissioner v. Pedrick Ranasinghe, 1965A.C.172
Anti-Defection Law in India- A Critical Analysis
which do not require ratification and which are within the competence of Parliament
alone. Only these amendments in provisions which require ratification under the
proviso need to be struck down or declared invalid.
(xxvi) The test of severability requires the Court to ascertain whether the legislature would at
all have enacted the law if the severed part was not the part of the law and whether after
severance what survives can stand independently and is workable.
(xxvii) The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and
introduction of the Tenth Schedule is to curb the evil of defection which was causing
immense mischief in our body-politic. The ouster of jurisdiction of Courts under
Paragraph 7 was incidental to and to lend strength to the main purpose which was to
curb the evil of defection. It cannot be said that the constituent body would not have
enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was
not valid, nor can it be said that the rest of the provisions of the Tenth schedule cannot
stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions
of Paragraph 7 are therefore, severable from the rest of the provisions.
(xxviii) Democracy is a basic feature of the Constitution. Whether any particular brand or
system of Government by itself has this attribute of a basic feature, as long as the
essential characteristics that entitle a system of government to be called democratic are
otherwise satisfied is not necessary to be gone into. Election conducted at regular,
prescribed intervals is essential to the democratic system envisaged in the Constitution.
So is the need to protect and sustain the purity of the electoral process. That may take
within it the quality, efficacy and adequacy of the machinery for resolution of electoral
disputes.
(xxix) In the Indian constitutional dispensation the power to decide a disputed disqualification
of an elected Member of the House is not treated as a matter of privilege and the power
Anti-Defection Law in India- A Critical Analysis
to resolve such electoral dispute is clearly judicial and not legislative in nature. The
power to decide disputed disqualification under Paragraph 6(1) is pre-eminently of a
judicial complexion.103
(xxx) The word "Courts" is used to designate those Tribunals which are set up in an
organised State for the administration of justice. By Administration of Justice is meant
the exercise of judicial power of the State to maintain and uphold rights and to punish
"wrongs". Whenever there is an infringement of a right or an injury, the Courts are
there to restore the vinculum juris, which is disturbed. Where there is a lis an
affirmation by one party and denial by another-and the dispute necessarily involves a
decision on the rights and obligations of the parties to it and the authority is called upon
to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if
it does not have all the trappings of a court. Thus, the Speaker or the Chairman, acting
under Paragraph 6(1) of the Tenth Schedule is a Tribunal.104 A finality clause is not a
legislative magical incantation which has the effect of telling off Judicial Review.
Statutory finality of a decision presupposes and is subject to its consonance with the
statute. The principle that is applied by the courts is that in spite of a finality clause it is
open to the court to examine whether the action of the authority under challenge is ultra
vires the powers conferred on the said authority. An action can be ultra vires for the
reason that it is in contravention of a mandatory provision of the law conferring on the
authority the power to take such an action. It will also be ultra vires the powers
103 Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347; Special Reference 700 No. 1 of 1964, [1965] 1 SCR
413 & Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578,, referred to. Australian Boot Trade
Employees Federation v. Whybrow & Co., 1910 10 CLR 266
104 Associated Cement companies Ltd. v. P.N. Sharma and Anr., [1965] 2 SCR 366 and Harinagar Sugar Mills