Anti-Defection Law

The Tenth Schedule, inserted by the 52nd Amendment Act 1985, disqualifies a legislator who voluntarily gives up party membership or defies a party whip. Para 7 excluding judicial review was struck down in Kihoto Hollohan, and the split defence was deleted by the 91st Amendment 2003.

The Tenth Schedule, inserted by the Constitution (Fifty-second Amendment) Act, 1985, provides for the disqualification of members of Parliament and of State Legislatures on the ground of defection. It is given effect by Art.102(2) for Parliament and Art.191(2) for the State Legislatures.

The mischief it addressed: In the decades after 1967 the frequent crossing of the floor by legislators, often for office or reward, brought down governments and made a mockery of the popular mandate. The expression "Aaya Ram Gaya Ram" entered political vocabulary. The Schedule seeks to stabilise governments and to hold a legislator to the platform on which the electorate chose him, at the cost of restricting his individual freedom to change his mind.

Legal Framework

Provision	Subject	Key Rule
Para 1	Interpretation	Defines "House", "legislature party", "original political party" and "paragraph"
Para 2(1)(a)	Voluntarily giving up membership	A member of a political party is disqualified if he voluntarily gives up his membership of that party
Para 2(1)(b)	Defying the whip	Disqualified if he votes or abstains from voting contrary to a direction of his party, unless he had prior permission or the act is condoned within fifteen days
Para 2(2)	Independent members	A member elected otherwise than as a candidate set up by a political party is disqualified if he joins any political party after the election
Para 2(3)	Nominated members	Disqualified if he joins a political party after the expiry of six months from the date on which he takes his seat
Para 3	Split	Omitted by the 91st Amendment Act, 2003. It formerly exempted a split by not less than one third of the legislature party
Para 4	Merger	Exempts a merger where not less than two thirds of the members of the legislature party agree to it
Para 5	Presiding officers	Exempts a person who, on being elected Speaker, Chairman or Deputy, severs his connection with his party, and does not rejoin it while holding office
Para 6	Decision on disqualification	Decided by the Chairman or the Speaker of the House, whose decision is stated to be final
Para 7	Bar on jurisdiction of courts	Struck down in Kihoto Hollohan v Zachillhu (1992) for want of ratification under Art.368(2)
Para 8	Rules	The presiding officer may make rules for giving effect to the Schedule

The Two Grounds of Disqualification

First ground, voluntarily giving up membership (Para 2(1)(a)). The expression is wider than formal resignation. An inference may be drawn from the member's conduct, such as publicly supporting a rival party, attending its meetings, or writing to the Governor in support of another leader. What matters is whether the conduct is inconsistent with continued membership of the original party.

Second ground, defying the whip (Para 2(1)(b)). This applies only where the member votes or abstains contrary to a direction of the party. The direction must have been issued by the party or a person authorised by it. Two escapes exist: prior permission, and condonation by the party within fifteen days of the vote. Note that the ground is confined to voting and abstention; speaking against the party line is not by itself covered, though it may support an inference under Para 2(1)(a).

Changes Made by the 91st Amendment Act, 2003

Change	Provision	Effect
Deletion of the split defence	Para 3 omitted	A split by one third of the legislature party is no longer a defence; only a merger by two thirds now saves the defector
Ceiling on the Council of Ministers	Art.75(1A) and Art.164(1A)	Total number of Ministers may not exceed fifteen per cent of the total strength of the House of the People or of the Legislative Assembly, subject to a floor of twelve Ministers in a State
Defector barred from office	Art.75(1B) and Art.164(1B)	A member disqualified for defection is also disqualified from being appointed a Minister for the remainder of his term, until he is re-elected
Bar on remunerative political posts	Art.361B	A person disqualified for defection is disqualified from holding any remunerative political post for the like period

Why the split defence was deleted: Paragraph 3 was intended to distinguish a genuine ideological division within a party from an act of individual opportunism. In practice it produced the opposite of what was intended, because it created an incentive to engineer defections in blocks of one third, which was often easier to arrange than to resist. The 91st Amendment removed the loophole and left only the merger exemption, which requires the far higher threshold of two thirds.

**Kihoto Hollohan v Zachillhu (1992)** Supreme Court of India

Facts: The constitutional validity of the entire Tenth Schedule was challenged, principally on the grounds that it violated the freedom of speech of legislators, that the finality conferred on the Speaker's decision was unconstitutional, and that Para 7 ousting the jurisdiction of the courts had been enacted without the ratification by State Legislatures required by Art.368(2).

Issue: Whether the Tenth Schedule is valid, whether Para 7 is valid, and what is the nature of the Speaker's function under Para 6.

Held: By majority, the Schedule was upheld except Para 7, which was struck down for want of ratification under Art.368(2), since it affected the powers of the Supreme Court and the High Courts under Arts.136, 226 and 227. Applying the doctrine of severability, the rest of the Schedule survived. The Speaker or Chairman deciding under Para 6 acts as a tribunal, so the decision is subject to judicial review under Arts.136, 226 and 227, but only on narrow grounds: infirmities based on violation of a constitutional mandate, mala fides, non-compliance with the rules of natural justice, and perversity. There can be no interlocutory interference; review lies only against the final order. The minority, Verma and Sharma JJ, held the whole Schedule invalid for want of ratification.

Relevance: The foundational case. Every answer on anti-defection must state the survival of the Schedule, the fall of Para 7, the tribunal characterisation of the Speaker, and the four grounds of review.

**Ravi S Naik v Union of India (1994)** Supreme Court of India

Facts: Members of a party in Goa were held disqualified for having voluntarily given up membership. They had not resigned, and contended that in the absence of a formal resignation Para 2(1)(a) could not apply.

Issue: What is the meaning of "voluntarily gives up his membership" in Para 2(1)(a)?

Held: The expression has a wider connotation than resignation. Where there is no formal resignation, an inference may still be drawn from the conduct of the member that he has voluntarily given up his membership.

Relevance: The standard authority on the width of the first ground. Cite it wherever the facts show conduct rather than a written resignation.

**Keisham Meghachandra Singh v Hon'ble Speaker, Manipur Legislative Assembly (2020)** Supreme Court of India

Facts: Disqualification petitions against a member who had defected remained undecided by the Speaker for a long period, during which the member continued to sit and even to hold office. A mandamus was sought to compel a decision.

Issue: Whether the Speaker is bound to decide a disqualification petition within a time limit, and what the courts may do in the face of prolonged inaction.

Held: Disqualification petitions under the Tenth Schedule should be decided by the Speaker within a reasonable period, which, absent exceptional circumstances, would ordinarily be about three months. The Court also observed that Parliament may wish to reconsider whether the Speaker, who belongs to a political party, is the appropriate authority to decide such petitions, and suggested an independent tribunal.

Relevance: The practical answer to the commonest abuse of the Schedule, which is delay rather than error. Pair it with Rajendra Singh Rana on the consequences of failure to exercise jurisdiction.

Illustrations

Conduct amounting to voluntarily giving up: A member elected on party A's ticket shares a platform with party B, campaigns for its candidates and writes to the Governor supporting its leader, but does not resign. Applying Ravi S Naik (1994), the inference of voluntarily giving up membership under Para 2(1)(a) may properly be drawn.
Defying the whip: The party issues a whip to vote for a Bill. A member votes against it. He is disqualified under Para 2(1)(b) unless he had prior permission or the party condones the act within fifteen days.
Abstention: A member, whipped to vote in favour, deliberately stays away from the division. Abstention is expressly covered by Para 2(1)(b), so the same consequence follows.
Speaking against the party: A member criticises his party's Bill in debate but votes for it as whipped. Para 2(1)(b) is not attracted, since he neither voted nor abstained contrary to the direction. Whether Para 2(1)(a) applies depends on whether his overall conduct shows he has given up membership.
Independent member joining a party: An independent member joins party A after the election. He is disqualified under Para 2(2). Note the asymmetry: he may support a party without joining it, and no disqualification follows.
Nominated member: A nominated member joins a party four months after taking his seat. He is not disqualified, Para 2(3) allowing him six months in which to do so.
Split no longer available: Fifteen of forty members of a legislature party break away, claiming a split of more than one third. Since Para 3 was omitted by the 91st Amendment, 2003, the defence does not exist and all fifteen are exposed to disqualification.
Merger: Twenty eight of forty members agree to merge their party with another. Two thirds of forty is roughly twenty seven, so the threshold is met and Para 4 protects both the merging group and those who choose to remain with the original party.
Speaker's exemption: A member is elected Speaker and resigns from his party. He is protected by Para 5, provided he does not rejoin the party while he holds office.
Defector cannot be a Minister: A member is disqualified for defection and is then offered a ministerial post. Art.164(1B) bars the appointment for the remainder of his term unless he is re-elected in the meantime.

Recall Check

State the two grounds of disqualification in Para 2(1) and the exceptions to each.
What happened to Para 3 and Para 7, and by what means in each case?
On what four grounds may the Speaker's decision under Para 6 be judicially reviewed?

Key Cases

Kihoto Hollohan v Zachillhu (1992) Kihoto Hollohan v Zachillhu 1992
Issue: Validity of the Tenth Schedule, of Para 7 ousting the courts, and the nature of the Speaker's function under Para 6.
Rule: Para 7 required ratification under Art.368(2) as it affected Arts.136, 226 and 227; the Speaker under Para 6 acts as a tribunal, so review lies on narrow grounds only.
Held: The Schedule upheld and Para 7 struck down, with severability saving the rest; review available for violation of a constitutional mandate, mala fides, breach of natural justice or perversity, and only against the final order.

Ravi S Naik v Union of India (1994) Ravi S Naik v Union of India 1994
Issue: Whether "voluntarily gives up his membership" requires a formal resignation.
Rule: The expression is wider than resignation and may be inferred from conduct.
Held: The disqualification was sustainable although the members had not resigned.

Rajendra Singh Rana v Swami Prasad Maurya (2007) Rajendra Singh Rana v Swami Prasad Maurya 2007
Issue: The consequence of the Speaker's failure to decide, and the point in time at which a claim of split had to be established.
Rule: Failure to exercise jurisdiction is itself amenable to correction, and the question of disqualification must be judged as at the date of the act of defection.
Held: The Speaker's omission to decide the disqualification petitions could not be allowed to defeat the Schedule, and the Court intervened.

Keisham Meghachandra Singh v Speaker, Manipur Legislative Assembly (2020) Keisham Meghachandra Singh v Speaker Manipur 2020
Issue: Whether a time limit binds the Speaker in deciding a disqualification petition.
Rule: Such petitions must be decided within a reasonable period, ordinarily about three months, absent exceptional circumstances.
Held: Directions issued accordingly, with the observation that an independent tribunal might be a more appropriate adjudicator.

Distinctions

Basis	Split (former Para 3)	Merger (Para 4)
Status	Omitted by the 91st Amendment, 2003	Still in force
Threshold	Not less than one third of the legislature party	Not less than two thirds of the legislature party
Requirement of a second party	None	The original party must merge with another party
Effect	Formerly protected the breakaway group	Protects both those who accept the merger and those who choose to remain with the original party

Basis	Para 2(1)(a)	Para 2(1)(b)
Trigger	Voluntarily giving up party membership	Voting or abstaining contrary to a party direction
Proof	May be inferred from conduct	Requires a direction and a vote or abstention contrary to it
Defences	None expressly provided	Prior permission, or condonation within fifteen days
Applies to	Members belonging to a political party	Members belonging to a political party

Basis	Independent member (Para 2(2))	Nominated member (Para 2(3))
Disqualifying act	Joining any political party after election	Joining a political party
Time allowed	None; joining at any time disqualifies	Six months from taking his seat
Support without joining	Permissible	Permissible within the six months

Flashcards

Which amendment inserted the Tenth Schedule, and in what year?

The Constitution (Fifty-second Amendment) Act, 1985.

Through which articles does the Tenth Schedule operate?

Art.102(2) for Parliament and Art.191(2) for the State Legislatures.

What are the two grounds of disqualification under Para 2(1)?

Voluntarily giving up membership of one's political party, and voting or abstaining contrary to a party direction.

What are the two defences to the whip ground?

Prior permission of the party, and condonation by the party within fifteen days of the vote or abstention.

Does "voluntarily gives up membership" require a resignation?

No. Ravi S Naik (1994) held it is wider than resignation and may be inferred from conduct.

What happened to Para 7 of the Tenth Schedule?

It was struck down in Kihoto Hollohan (1992) for want of ratification under Art.368(2), because it affected Arts.136, 226 and 227.

In what capacity does the Speaker act under Para 6?

As a tribunal, which is why his decision is amenable to judicial review under Arts.136, 226 and 227.

On what grounds may that decision be reviewed?

Violation of a constitutional mandate, mala fides, non-compliance with the rules of natural justice, and perversity.

Is interlocutory interference with proceedings before the Speaker permitted?

No. Kihoto Hollohan held that review lies only against the final order.

What is the threshold for a protected merger?

Not less than two thirds of the members of the legislature party must agree to it.

What is the ceiling on the size of the Council of Ministers?

Fifteen per cent of the total strength of the House of the People or the Legislative Assembly, with a minimum of twelve Ministers in a State.

Within what period should a Speaker decide a disqualification petition?

Ordinarily about three months, absent exceptional circumstances (Keisham Meghachandra Singh, 2020).

Who is exempt from disqualification on giving up party membership?

A person who does so on being elected Speaker, Chairman or Deputy, provided he does not rejoin while in office (Para 5).

Exam Scenario

Problem: In an Assembly of 60 members, party P has 30. Ten of them are unhappy with the leadership. Nine of the ten attend a rally of party Q, praise its leader and write jointly to the Governor asking him to invite Q to form a government; they do not resign from P. The tenth, Farida, remains in P but abstains from voting on a confidence motion despite a whip to vote in favour; her party writes to her on the twentieth day saying it takes no objection. Meanwhile the Speaker, himself elected on P's ticket, keeps the disqualification petitions pending for fourteen months, during which two of the nine are sworn in as Ministers. Advise on the position of the nine, of Farida, and on what may be done about the delay.

Step 1: Draw the inference against the nine under Para 2(1)(a)

Apply Para 2(1)(a) of the Tenth Schedule and Ravi S Naik v Union of India (1994). Absence of a formal resignation is not decisive; conduct suffices.

Attending a rival party's rally, praising its leader and jointly petitioning the Governor to install it in office is conduct wholly inconsistent with continued membership of P, so the inference of voluntarily giving up membership is properly drawn.

Step 2: Close off the split and merger defences

Defence	Provision	Why it fails
Split	Para 3	Omitted by the 91st Amendment, 2003, so the defence no longer exists. In any event nine of thirty is less than one third
Merger	Para 4	P has not merged with Q, and the two thirds threshold, being twenty of thirty, is not met

Step 3: Test Farida under Para 2(1)(b)

Apply Para 2(1)(b). Abstention contrary to a whip is squarely within the paragraph. Examine the two defences.

Defence	Requirement	On these facts
Prior permission	Permission before the vote	Absent. There was none
Condonation	Must come within fifteen days	Out of time. The party's letter came on the twentieth day

She is exposed to disqualification. It is worth arguing that the delay is a matter the Speaker may weigh, since the party plainly does not treat her conduct as defection.

Step 4: Check the ministerial appointments under Art.164(1B)

Apply Art.164(1B). A member disqualified for defection cannot be appointed a Minister for the remainder of his term.

Since the disqualification has not yet been adjudicated, the appointments are not void on their face. But they will fall if disqualification is declared, and they illustrate why delay matters.

Step 5: Compel the Speaker to decide

Argue in this order:

Keisham Meghachandra Singh v Speaker, Manipur Legislative Assembly (2020). Fourteen months far exceeds the reasonable period of about three months, and the Court has held such inaction to be justiciable.
Rajendra Singh Rana v Swami Prasad Maurya (2007), where the failure to exercise jurisdiction was itself corrected by the Court.
Kihoto Hollohan (1992) sets the limit: there can be no interlocutory interference with the merits. A direction to decide is not interference with the merits and is therefore permissible.

Traps in this problem

Para 3 no longer exists. The split defence was omitted by the 91st Amendment, 2003, so do not argue the one third figure as though the defence survived.

Merger is not the same as a breakaway. Para 4 needs an actual merger of P with Q, plus two thirds, here twenty of thirty.

Condonation carries a fifteen day limit. The letter on the twentieth day is out of time under Para 2(1)(b), whatever the party's present attitude.

Art.164(1B) bites on adjudication. The two ministerial appointments are not void on their face; they fall when disqualification is declared.

Kihoto Hollohan bars interference with the merits, not a direction to decide. Keep that distinction sharp when framing the relief sought.

Conclusion. The nine are likely to be disqualified. Farida is exposed, although the belated condonation is a mitigating circumstance. The ministerial appointments are vulnerable, and a writ lies to compel the Speaker to decide within a fixed period.