CHAPTER –2

HISTORICAL BACKGROUND OF ANTI-DEFECTION

LAW

Before discussing the existing provisions of anti-defection law, the

researcher deems it fit to discuss the history of the Anti-Defection law in

India. It is necessary to discuss the history of the Tenth Schedule to the

Constitution of India to understand the aims, objectives and provisions of

the different Constitutional Amendment Bill which led to the

incorporation of the Tenth Schedule to the Constitution of India. It is the

historical background of the anti-defection law which throws light over

the rationale behind the introduction of Anti-defection law in India.

The problem of defections has not been new to the functioning of the

Indian Parliamentary democracy. Indian politics had seen defections right

from the pre-independence Central Legislative Assembly and Provincial

autonomy days. During Montford Reforms, Shyam Lal Nehru, a member

of the Central Legislature who was elected on the Congress ticket but

subsequently he crossed the floor and joined the British Side. At that time

Pandit Moti Lal Nehru who was leader of the Assembly party strongly

30
 criticized and condemned him and Mr. Shyam Lal Nehru was expelled

from the party.36

In 1948 the Congress Socialist Party left the Congress and directed

all its members to resign from their seats in the assemblies and to seek re-

election. But this ideal could not become a precedent. In Uttar Pradesh,

again in 1950, twenty three MLAs defected from the Congress and

formed the Jana Congress. Again in 1958 some ninety eight MLAs

openly defied the Government which led to the fall of the Sampurnanand

ministry. The Praja Socialist Party (PSP) is a good case study of

defections. In 1953 the PSP leader Prakasam defected from the PSP and

joined the Congress to form the Government in Andhra Pradesh.37Thanu

Pillai from the Travancore-Cochin is another instance of defection from

the PSP. More or less some defections have been taking place in all the

states but did not succeed to create more than a ripple. For instance,

during the period 1957-1967, ninety seven members defected from the

Congress and 419 defected to it. While in 1967-68 within a year 175

defected from it and 139 defected to it. During the period of 1957-1967,

ninety three defected from the PSP and only 11 to it.38

36
Moolchand Shyam, “Politics of Defections and Democracy” (1979) 13 JCPS 328,
329
37Paras Diwan, “Aya Ram Gaya Ram: The Politics of Defection” Vol.21, JILI,
July-September 1979, No. 3, and Krishan Singh Chauhan, “Problems of Defection
and Indian Constitution: A Study of Emerging Trends,” (1996) Pg.1,
38 Ibid

31
 2.1. Fourth General Election- Formation of Coalition Government

Failure of the political parties in the fourth general elections held in

the year 1967, to secure absolute majority to enable many of them to form

the Government at the Centre as well as in the States gave rise to wide-

spread political defections by elected M.P.s and M.L.A.s. Absence of a

strong law on registration of political parties further accentuated the

problem. Some M.L.A.s, just with the sole motive for monetary gain and

for grabbing power, changed parties three or four times in a day.

In the fourth general election, Congress retained majority in the Lok

Sabha by securing 283 seats out of 520 seats but lost absolute majority in

eight of the Sixteen States of the Union that went to the polls. 39 Even in

States where the party retained control, its strength was much

depleted.40However, in the eight States where Congress has failed to get

absolute majorities no single party has taken its place.

The 1967 elections initiated the dual era of short-lived coalition

governments and politics of defection. However, the election broke

Congress’s monopoly of power in the states. As a consequence of fourth

general elections, the virtual monopoly of political power by Congress

39 In fourth general Election Congress lost majority in the State Assemblies of

32
party was shattered away. The highly disunited opposition saw in the

situation an opportunity to seize power. The political parties which fought

tooth and nail against each other at the polls forget their ideological

differences and came forward to share power on the basis of what was

called the common minimum programme.

Between the fourth and the fifth general election in 1967 and of the

Lok Sabha and the Legislative Assemblies in the States and the Union

Territories, there were nearly 2,000 cases of defection and counter-

defection. By the end of March 1971 approximately 50 per cent of the

legislators had changed their party affiliations and several of them did

1972 from among the 4,000 odd members so more than once – some of

them as many as five times. One MLA was found to have defected five

times to be a Minister for only five days. For some time, on an average

more than one legislator was defecting each day and almost one State

Government falling each month due to these changes in party affiliations

by members. In the case of State Assemblies alone, as much as 50.5 per

cent of the total number of legislators changed their political affiliation at

least once. The percentage would be even more alarming if such States

were left out where Governments happened to be more stable and changes

of political affiliations or defections from parties remained very

infrequent. That the lure of office played a dominant part in this “political

horse-trading” was obvious from the fact that out of 210 defecting

33
 legislators of the various States during the first year of “defection

politics”, 116 were included in the Councils of Ministers in the

Governments which they helped to form. 41

The phenomenon of defection became acute and apparent after the

fourth General Elections in 1967 about which the figures speak for

themselves. Whereas up to 1967, there have been about only 400

defections, within one year from the election of 1967, there were 500 odd

defections, of which the figures also say, 118 were by persons who

became Ministers or Ministers of State. The problem became so important

from the point of view of preserving the best traditions of democracy and

of setting certain norms of political behaviour.42

The following table43indicates the number of defection that took

place between March 1967 to March 1970 from one party to another or to

independent side. In six states namely Haryana, Punjab, Bihar, Madhya

41
S. Agarwal, “Anti-Defection Law in India,” The Parliamentarian, January, 1986
and Subhash C. Kashyap, “The Politics of Power”, New Delhi, 1974.
42
On October 30, 1967, a Haryana Legislator, Gaya Lal who had earlier crossed the
floor to join the United Front Ministry returned to the opposition thereby
reducing the Front strength to 38 and increasing the opposition strength to 41.
But within 9 hours, Gaya Lal once again changed his party to rejoin the United
Front; he became a Parliamentary Secretary on November 1, 1967. Thus by
defecting thrice within a fortnight, Gaya Lal set a new record in the chronicle of
defection politics in Haryana. It is said that the title of “Aya Ram Gaya Ram” was
given to Gaya Lal by Rao Birender Singh.
43
Table is taken from Article “Aya Ram Gaya Ram: The Politics of Defection” by
Paras Diwan, published in JILI, Vol.21, July-September 1979, No. 3

34
 Pradesh and West Bengal even the Chief Minister-ship went to a defector

and most of the defectors were included in the ministry.44

Sl. Name of Defectio Defection by Total No.

No the States n by Independent of

. member s member Defectio

of n

political

party

1 Uttar 294 58 352

Pradesh

2 Madhya 237 25 262

Pradesh

3 Bihar 161 41 202

4 Gujarat 142 16 158

5 Andhra 73 57 130

Pradesh

6 Punjab 114 16 130

7 Haryana 85 24 109

8 Mysore 79 23 102

9 Orissa 61 3 64

44
Supra Note 2

35
 10 Kerala 35 5 40

11 Rajasthan 25 6 31

12 Tamilnadu 19 1 20

13 Maharashtr 19 1 20

14 Himachal 5 7 12

Pradesh

15 Assam 2 2 4

16 Jammu & 3 - 3

Kashmir

TOTAL 1562 313 1875

2.2. Formation of the Committee on defection

On August 11, 1967 a prominent Congress member of the Lok Sabha,

P.Venkatasubbaiah who was the Secretary of Congress party in

Parliament, moved a non official resolution seeking appointment of a

Committee on Defections. The Lok Sabha discussed the matter at length

on November 24 and December 8, 1967. The resolution was adopted by

the House with an amendment moved by the S.S.P. leader Madhu

Limaye. The resolution as passed by the House reads as follows-

36
 “This House is of opinion that a high level Committee consisting of

representatives of political parties and constitutional experts set up

immediately by the government to consider the problems of

legislators changing their allegiance from one party to another and

their frequent crossing of floor in all its aspects and make

recommendations in this regards”.

Madhu Limaye’s amendment sought to omit the concluding portion

of the original resolution which had provided for the proposed

Committee’s evolving of special machinery and taking the effective

measures by to suitable legislation to arrest this growing phenomenon

which is assuming alarming proportion so that the country can function on

sound and healthy lines of parliamentary democracy. He was of the

opinion that it would be the contrary to the provisions of the Constitution

to impose by law any restrictions on floor crossing.45

The Committee which was constituted by the Houses consisted46 of

the Union Home Minister as Chairman, the Union Law Minister, and the

Union Minister for Parliamentary Affairs, the representatives of eight

political parties and three independent groups recognised by the Speaker in

the Lok Sabha. The other members were, Shri P. Venkatasubbaiah, Shri

45
(1967) L.S.D. (December 8, 1967) and quoted Subhash C Kashyap, “The Politics
of Power, Defections and State Politics in India”, 1974, Pg.89, (1985) LSD (January
30, 1985)
46 (1967) L.S.D. (November 24, 1967) and Subhash C Kashyap,”The Politics of
Power Defections and State Politics in India”, 1974.

37
Jaya Pakash Narayan, Shri H.N. Kunzru, Shri C.K. Daphtary, Shri H.M.

Seervai, Shri M.C. Setalvad and Shri Mohan Kumarmangalam.

Representatives of political parties are as follows-

1. Prof. N.G. Ranga – Swatantra party

2. Prof. Balraj Madhok – Jan Sangh party

3. Shri S.N. Dwivedy - PSP

4. Shri Madhu Limaye - SSP

5. Shri Bhupesh Gupta - CPI

6. Shri P. Ramamurti - CPM

7. Shri Ambazhagan - DMK

8. Shri N.C. Chatterjee – Progressive Group

9. Shri Raghuvir Shastri – Nirdaliya Sanghathan

10. Dr. Karni Singh – Independent Parliamentary Group

In pursuance of the Lok Sabha Resolution, the Government of India

decided in February 1968 to appoint a Committee in the name of the

Committee on Defections under the Chairmanship of the then Union Home

Minister, Shri Y.B. Chavan to study the problems of political defections

and suggest remedial measures in this connection. Informing the Lok

Sabha of the appointment of the Committee on 21 March, 1968, the Home

38
 Minister described defections as “a national malady” which was “eating

into the very vitals of our democracy”.47

The Committee held six meetings on March 26, April 18, May 12,

July 14, August 8 and September 28, 1968. The report of the Committee

on Defections was signed on January 7, 1969 and was presented to

Parliament on February 18, 1969.48

In drawing up its report and formulating its recommendations, the

Committee on defections placed before itself the following considerations:

(a) There can be no perfect or infallible deterrent for the kind of

political defections that are rooted in political irresponsibility and

opportunism and create instability, besides bringing the functioning

of the democratic institutions into disrepute;

(b) The task of devising remedial measures for a complex political

problem has to balance carefully the need for ensuring political

stability with -

i. The natural processes of organic growth of parties;

ii. The inevitability of a period of transition preliminary to the

forgoing of ideological polarisation or clarity, with

uncertainties attendant on the transition; and

47
(1968) L.SD (March 21, 1968), RSD (August 12, 1969); also quoted in, Subhash C.
Kashyap, “Anti-defection law and Parliamentary Privileges”, Third Edition Pg.3,
48Supra note 1, Pg.7.

39
 iii. The avoidance of rigidity which would impinge adversely

on honest and genuine dissent or change of convictions or

on readjustment of party alignments, in the form of merger,

splits, etc., as part of the process of reaching ideological

polarisation or clarity;

(c) The best legislative or constitutional device cannot succeed without a

corresponding recognition on the part of political parties of the

imperative necessity for a basic political morality and the

observance by them of certain properties and decencies of public

life, and their obligations mutually to one another and in the last

analysis to the citizens of the country; and

(d) The problem requires to be attacked simultaneously on the political,

educational and ethical planes so that by an intensive political

education both of the elite and the masses, a full consciousness of

the values of democratic way of life is created.49

The Committee in its report dated 7th January, 1969 observed:

“Following the Fourth General Elections, in the short period

between March, 1967 and February, 1968, the Indian political

scene was characterised by numerous instances of change of party

49
Similar opinion has been expressed by Subhash C Kashyap., The Politics
of Power, Defections and State Politics in India (1974), page 92, and the
Report of the Committee of Defections (1969).

40
 allegiance by legislators in several States. Compared to roughly

542 cases in the entire period between the First and the Fourth

General Elections, at least 438 defections occurred in these 12

months alone. Among Independents, 157 out of a total of 376

elected, joined various parties in this period. That the lure of office

played a dominant part in decisions of legislators to defect was

obvious from the fact that out of 210 defecting legislators of the

States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan,

Uttar Pradesh and West Bengal, 116 were included in the Council

of Ministers which they helped to bring into being by defections.

The other disturbing features of this phenomenon were: multiple

acts of defections by the same person or set of persons (Haryana

affording a conspicuous example); few resignations of the

membership of the legislature on the part of defectors to political

proprieties, constituency preference or public opinion, and the

belief held by the people and expressed in the press that corruption

and bribery were behind some of these defections.”

2.3. Recommendation of Committee on Defection

The Committee on Defections after a careful consideration has

accepted the following definition of ‘defector’ : “ An elected Member of a

Legislature who had been allotted the reserved symbol of any political

party, can be said to have defected if, after being elected as a Member of

41
 either House of Parliament or of the Legislative Council or the Legislative

Assembly of a State or Union Territory, he voluntarily renounces

allegiance to or association with such political party, provided his action

is not in consequence of a decision of the party concerned.”

This definition was accepted by the Committee on Defections and

made several recommendations suggesting ethical, political,

constitutional and legislative solution of the problem in hand. The main

recommendations of the Committee were:

(i) The political parties themselves should arrive at a Code of Conduct

inter alia providing against a defector being taken into the fold of

another party;

(ii) A representative should be deemed to be bound to the party under

whose aegis he wins the election. This follows from a clear

understanding of the nature and character of representation and the

duties of an elected representative;

(iii) No one who was not initially a member of the Lower House should

be appointed as Prime Minister or Chief Minister and necessary

constituted amendment in this regard should be given prospective

effect;

(iv) Every defector should be debarred from appointment as a Prim

Minister, Chief Minister or any minister for a prescribed period or

until he gets himself re-elected;

42
(v) There should be a ceiling on the size of ministries both at the Centre

and the State levels. This was considered necessary because the

number of people who were included in the Council of Ministers

sometimes appears to be unending. As the life of the Government

proceeded, the Council of Ministers went on inflating. And

sometimes it was found that most of the members of the party

forming the government were in the Council of Ministers.

Therefore, in order to find the solution to this problem, the

recommendation was made by the Committee that there should be

limitation on the size of the Council of Ministers.

(vi) The Committee on Defections recommended, inter alia: “ Articles

102 (1)(e) and 191 (1)(e) of Constitution empower Parliament to

make a law providing for disqualification a person for being chosen

as, and for being, a member of either House of Parliament or of the

State Legislative Assembly or Legislative Council. As standing for

election to Parliament or State Legislature is only a statutory right as

distinguished from a fundamental right, it is open to Parliament to

impose such restrictions or conditions on the exercise and

enjoyment of that right as it considers necessary or reasonable

restriction in public interest. On that basis, it is possible to provide

in a special legislation that a legislator who renounces the

membership of or repudiates his allegiance to a political party shall

43
 be disqualified from continuing as a member of Parliament/State

Legislature.”50

(vii) Provision for recall may not be advisable or practicable

The then Home Minister Shri Y.B. Chavan while concluding the

discussion by responding to the House on the recommendations of the

“Committee on Defections” had observed -

“Therefore, the major field of recommendations that the Committee

has made is the legislative measures that this Parliament should

undertake. One recommendation is about the size of the Council of

Ministers. The second is about barring the members who have defected

from the party in terms of definition that the Committee has given. The

third is that the Chief Minister of a State or the Prime Minister of the

country should be member of the Lower House and not of the Upper

House. These are the three major recommendations of this Committee.”51

After discussion before the Parliament, no measure was taken till 1973.

The condition of the defection continued unchecked. During March 1967

to March 1971 some thirty two Governments were toppled. Significantly,

almost every single case of collapse of State Government was the direct

result of change of allegiance by legislators. Several other States where

Government did not topple were also affected, to a larger or smaller

50
P. Chakraborty, “Office of Profit Disqualification & Anti Defection,” Edn 2009,
Capital Law House, p.275.
51
(1969) R.S.D. (August 13, 1969) Pg.3943

44
 degree, by this politics of defection. After 1971 election to Lok Sabha the

three Governments in Mysore, U.P. and Gujarat fell in quick succession

in last week of March 1971, because of group defections. 52

2.4. The Constitution (Thirty-Second Amendment) Bill 1973

Keeping in view the recommendations of the Committee on

Defection, the Constitution (Thirty-Second Amendment) Bill, 1973 was

introduced in the Lok Sabha on 16th May, 1973, seeking to amend Art.

102 and 191 of the Constitution and to provide, inter alia, for

disqualifying a Member from continuing as a Member of either House of

Parliament or the State Legislature on his voluntarily giving up of the

membership of the political party by which he was set up as a candidate at

such election or of which he became a Member after such election, or on

his voting or abstaining from voting in such House contrary to any

direction issued by such political party or by any person or authority

authorised by it in this behalf without obtaining prior permission of such

party, person or authority.

The Bill also provided that the Prime Minister/Chief Minister who is

not a member of the House of the People/Legislative Assembly as the

case may be shall acquire is membership within six months of assumption

52
(1969) R.S.D. (August, 12 1969) Pg.3718

45
 of that office.53 The Statement of Objects and Reasons appended to the

Bill stated:

“When the Report of the Committee on Defections was considered, it

was felt that the recommendations that a defector should be rendered

ineligible for certain offices of profit for a stipulated period would not

provide an adequate solution and that it would be more appropriate to

amend the Constitution with a view to disqualifying a defector from his

continued membership of the legislature.”54

It was proposed to insert the following clause to Article 102 of the

Constitution-

2. A person shall be disqualified for continuing as a member of either

House of the Parliament-

a) If he, having been elected as such member, voluntarily gives up his

membership of the political party by which he was set up a candidate

in such election or of which he became member after such election,

b) If he votes or abstains from voting in such House contrary to any

direction issued by such political party or by any person or authority

53
The Constitution (32nd Amendment) Bill, 1973 proposed to amend Article 75 by
incorporating the following clause (5) - “5. Prime Minister who for any period of
six consecutive months is not a member of the House of the People or any other
Minister who for any period of six consecutive months is not a member of either
House of the Parliament, shall at the expiration of that period cease to be the
Prime Minister or as the case may be a Minister” A similar provision was proposed
to be substituted by clause (4) of Article 164.
54
The Constitution (Thirty-second Amendment) Bill, 1973

46
 authorized by it in this behalf without obtaining prior permission of

such party; person or authority.

3. Notwithstanding anything in clause (2) a member of either House of

the Parliament shall not be disqualified under sub clause (a) of

clause (2) on the ground that he has voluntarily given up his

membership of any political party if he has given up his membership

of such political party by reason of split therein.

4. Notwithstanding anything in clause (2), where there has been split in

any political party (referred to in this clause as “Original political

party”) and any group of members thereof has been registered under

any law or any rule, regulation, order or notification having force of

a law with respect to matters relating to, or in connection with,

election to either House of Parliament as a separate political party

(referred to in this clause as “New political party”) then a member

of either House of Parliament who belonged to the Original political

party and who became member of the New political party shall not

be disqualified under sub-clause (b) of clause (2) on the ground that

he, at any time after the registration of the new political party, has

voted or abstained from voting contrary to any direction of the

47
 original political party or any person or authority authorized by it

for the purpose of that sub clause.”55

The Constitution (32nd Amendment) Bill, 1973 was a very short

document consisting of ten clauses. This amendment sought to amend

eight articles of the Constitution namely Articles 75, 101, 102, 103, 164,

190, 191 and 192. But it would be seen that the recommendations of the

Committee on Defections had not been incorporated in the Constitution

(32nd Amendment) Bill, 1973. On the other hand, proposal which was

opposed by some members of the Committee on Defection or which was

not at all considered by the Committee included in the proposed

amendment Bill.

Clauses 2 and 6 of the Bill seek to amend Articles 75 and 164 with a

view to implement the proposal that the Prime Minister of India and the

Chief Minister of the States should be the Member of the Lower House of

the respective legislatures. In case a person who is not a member of the

Lower House is appointed as the Prime Minister or Chief Minister, he

cannot continue as such for more than six months without getting elected

to that House. Clause 10 provides that the amendment of article 164 shall

not be applicable to any present incumbents of the office of the Chief

Minister till the expiry of a period of six months.

55
A similar provision was proposed to be substituted by amendment to Article 191
of the constitution

48
 Clause 4 and 8 of the Bill sought to disqualify a person from

continuing to be a Member of Parliament or State Legislature if he

voluntarily gives up the membership or votes or abstains from voting

against the direction of the party by which he was set up a candidate for

election. But in the Bill, it was also provided that the proposed

disqualification shall not apply to those cases where a legislator resigns

from or votes against his party by reason of split in his party.

Clause 5 and 9 provided that the President and the Governor, as the

case may be, shall not entertain any question regarding the disqualification

of a legislator unless it is referred to him by the political party concerned.

However, the Bill left the Independent Members or Members of the

smaller unrecognized parties completely out of the purview of the

disqualification clause.

It is pertinent to mention here that, under the Constitution (32nd

Amendment) Bill 1973, ‘Political Party’ has been defined to mean any

party classified as recognized political party under elections laws or any

other party recognised by the Speaker or Chairman of the House as a

political party and consisting of not less than 1/15th of the total

membership of such House. Again, the Constitution (32nd Amendment)

Bill 1973, did not include independent MPs and MLAs within its purview.

The Constitution (32nd Amendment) Bill was referred to a Joint

Committee of two Houses. However, before the Committee could

49
 complete its deliberations, the Lok Sabha was dissolved on 18th January,

1977 and the Bill lapsed.

2.5. Election Commission Recommendation regarding Anti-Defection

Law

The Election Commission of India in 1977 made a specific

recommendation that defection of legislators from one political party to

another should be prohibited by providing that some other disqualifications

culminating into vacation of seat should result from such defection.

The Election Commission of India had expressed its dissatisfaction

regarding the unethical practice of defection which adversely affected the

Indian democracy and said that-

“The Fourth General Elections of 1967 brought in its trail a wind of

swift changes in the political atmosphere of this country. That wind is still

blowing sometimes with the velocity of a storm and other times at a lower

speed. Perhaps in a developing democracy as ours is that is not quite

unexpected and that may even be regarded as teething trouble of a healthy

growing child.”56

“When the results of the Fourth General Elections of 1967 were

declared, it was found that the Indian National Congress which had till

then have been the dominant political party throughout India had lost its

majority in a number of State Legislative Assemblies and its majority in

56
Election Commission Report on the mid-term General Election in India 1968-69.

50
 the House of People had also drastically dwindled. This not only resulted

in the formation of non-congress Governments in a number of State

Assemblies but also forgot the election promises and pledges held out to

the electorate at the time of election by and on behalf of parties by whom

they were sponsored and started defecting in large numbers in quick

succession from their respective parties. The elected representatives forgot

that defection and re-defection from one party to another is not paying in

the long-run, and more often than not it acts as a boomerang hitting the

person by whom it is resorted to. The moral consequences of defection and

floor-crossing are sometimes far-reaching and serious”.57

2.6. The Constitution (Forty-Eight Amendment) Bill, 1978

When the Constitution (32nd Amendment) Bill 1973, lapsed with the

dissolution of the House on 18th January, 1977, the Election Commission

of India in 1977 made a specific recommendation that defection of

legislators from one political party to another should be prohibited by

providing that such defection shall result in vacation of seat held by the

legislator concerned in Parliament or the State Legislatures, as the case

may be.

But at the same time, the Commission felt that no amendment to the

Constitution would be required for that purpose except an amendment to

57
Supra note 50, pp.275-276.

51
the Representation of the People Act, 1951. The contentious matter was

referred to a Committee headed by the then Union Home Minister,

Choudhary Charan Singh, and on the basis of the recommendations of the

Choudhary Charan Singh Committee, another Bill viz, the Constitution

(Forty-Eight Amendment) Bill 1978 was introduced in the Lok Sabha on

28th August, 1978.

Unlike the earlier Bill, this Bill sought to specify defection from a

Member’s original political party as a disqualification under Art. 102 or

191, as the case may be. A schedule to be called as the ‘Tenth Schedule’

was also proposed to be inserted in to the Constitution for making detailed

provisions as to disqualification on the ground of defection. Paragraph 2 in

the proposed Tenth Schedule lays down as follows:

“Subject to the other provisions of Paragraph 3, a person shall be

disqualified on the ground of defection for continuing as a

member of a House

(a) If he voluntarily gives up his membership of the political party

to which he belongs or

(b) If he votes in such House contrary to any direction issued by

the political party to which he belongs by any person or any

authority authorized by it in this behalf, without obtaining the

prior permission of such political party, person or authority

52
 and he has been expelled from such political party within thirty

days of such voting on the ground that he so voted.”58

Definition of’ Political Party’ – Paragraph 1 of the Tenth Schedule to

the Constitution proposed by the Constitution (48th Amendment) Bill,

1978, defined Political Party in relation to a House as follows:

i. An association or body of citizens of India which is registered or

deemed to be registered under this schedule Xth Schedule) with

the Election Commission for the purpose of elections to such

House, or

ii. An association or body of members of the House (whether or not

such association or body includes other person) which is

recognised by the Chairman or as the case may be, the Speaker

of such House as a political party for the purpose of this

schedule.”59

Paragraph 3 of the proposed Tenth Schedule which was proposed to be

substituted by the Constitution (48th Amendment) Bill, 1978 read as

follows:

“A member of a House shall not be disqualified under Paragraph 2

if he gives up his membership of his original political party and

58
Paragraph 2 of the Constitution (48th Amendment) Bill, 1978
59
The Constitution (48th Amendment) Bill, 1978

53
 becomes a member of a new political party formed as a result of

split in his original political party.

Provided that (i) not less than 25% of the members of the legislative party

concerned or where the strength of such legislative party is less

than twenty not less than five members of such party are members

of the new political party.

The new political party has been recognized by the Chairman or the

case may be, the Speaker of such House or registered with the

Election Commission under this Schedule.”60

After a comparative examination of the two Bills, it is found that both

the Bills envisaged somewhat similar approach towards the problem of

defection. Under the 1978 Bills, split cases were exempted and termed as

‘genuine split’ in a party. However, a split being defined as the breaking

away of not less than 25% of the members of the party in the legislature

and where a party has lesser than 20 legislators, the split may be affected

by breaking away of not less than five members.

On the other hand the Constitution (32nd Amendment) Bill, 1973 also

provided that the proposed disqualification shall not apply to those cases

where a legislator resigns from, or votes against his party by reason of split

in the party. Political party has been defined to mean any party classified

60
Supra Note 59

54
 as a recognised political party under the election law or any other party

recognised by the Speaker or the Chairman of the House as the case may

be, as a political party and consisting of not less than 1/15th of the total

membership of the House. Both the Bills left the independent members

completely out of the purview of disqualification clause inserted in the

proposed amendment Bills.

The Constitution (Forty Eight Amendment) Bill, 1978 was opposed at

the stage of introduction itself both by some ruling party members as well

as the opposition as certain features of the Bill did not satisfy them. After

some discussion, the motion of introduction of the bill was withdrawn by

leave of the House.

In 1982, an alarming picture of political defections was presented by

the Jammu and Kashmir High Court in the case of Mian Bashir Ahmad vs.

State of Jammu and Kashmir61. The number of defections as shown in the

Judgment was 41 in 1977, 57 in 1978, 69 in 1979, and 74 in 1980. What

could be the worse political indiscipline and betrayal to the democratic

ethics than this?

61
AIR 1982 J. &K. 26.

55
2.7. The Constitution (Fifty-Second Amendment) Act, 1985.

After seven years from the lapse of the second Bill sufficient damage

having been caused to the political moral and ethics in the country and the

President of India said in his Address to both Houses of Parliament

assembled together on 17th January, 1985 that the Government intended to

introduce in that session a Bill to outlaw defections. In fulfilment of that

assurance, the Government introduced the Constitution (Fifty-Second

Amendment) Bill in the Lok Sabha on 24th January, 1985. The Statement

of Objects and Reasons appended to the Bill stated as such:

1. The evil of political defections has been a matter of national

concern. If it is not combated, it is likely to undermine the very

foundations of our democracy and the principles which sustain it.

With this object, an assurance was given in the Address by the

President to Parliament that the Government intended to introduce

in nominated the current session of Parliament an anti-defection

Bill. The Bill is meant for out-lawing defections and fulfilling the

above assurance.

2. The Bill seeks to amend the Constitution provides that an elected

member of Parliament or a State Legislature, who has been elected

as a candidate set up by a political party and a member of

Parliament or a State Legislature, who is a member of a political

party at the time he takes his seat or who becomes a member of a

56
political party within six months after 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 such House contrary to any direction of such party or is

expelled from such party. An independent Member of Parliament or

a State Legislature shall also be disqualified if he joins any political

party after his election. A nominated member of Parliament or a

State Legislature who is not a 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 or six months from the date on

which he takes his seats shall be disqualified if he joins any political

party after the expiry of the said period of six months. The Bill also

makes suitable provisions with respect to splits in, and mergers of

political parties. A special provision has been included in the Bill to

enable a person who has been elected as a presiding officer of a

House to sever his connection with his political party. The question

as to whether a member of a House of Parliament or State

Legislature has become subject to the proposed disqualification will

be determined by the presiding officer of the House; where the

question is with reference to the presiding officer himself, it will be

decided by a member of the House elected by the House in that

behalf.

57
3. The Bill seeks to achieve the above objects.

In order to bring about a national consensus on the Bill, the Prime

Minister held prolonged consultations with the leaders of opposition

groups. The Government acceded to the demand of dropping a

controversial clause from the Bill relating to disqualification of a member

on his expulsion from his political party for his conduct outside the House.

Intervening in the debate, the then Prime Minister Rajiv Gandhi said that

the Bill was only “the first step towards cleaning up public life” and that

the Government would initiate other reforms in consultation with the

opposition.

The Bill was passed by Lok Sabha and Rajya Sabha on 30thand 31st

January, 1985, respectively. It received the President’s assent on 15th

February, 1985. The Act came into force with effect from 1stMarch, 1985

after issue of the necessary notification in the Official Gazette.

The Constitution (Fifty-Second Amendment) Act, 1985, amended

Articles 101, 102, 190 and 191 of the Constitution regarding vacation of

seats and disqualification from membership of Parliament and the State

Legislatures and added a new Schedule (Tenth Schedule) to the

Constitution setting out certain provisions as to disqualification on grounds

of defection. The Tenth Schedule inter alia provided that:

58
 (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;62

(ii) An independent member of Parliament or a State Legislature will

be disqualified if he joins any political party after his election63

(iii) A nominated member of Parliament or a State Legislature who is

not a 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 from 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.64

(iv) No disqualification would be incurred where a member claims that

he belongs to a group representing a faction arising from a split in a

party65 or merger of a party in another provided that in the event of

a split the group consists of not less than one-third of the members
62
Paragraph 2(1) of the Tenth Schedule of Constitution of India
63
Paragraph 2(2) of the Tenth Schedule of Constitution of India
64
Paragraph 2(3) of the Tenth Schedule of Constitution of India
65
Paragraph 3 of the Tenth Schedule to the Constitution of India Para 3 omitted by
the Constitution (Ninety-First Amendment) Act, 2003, s.5 (w.e.f.1.1.2004)

59
 of the legislature party and in case of a merger of not less than two-

thirds of the members of the legislature party concerned.66

(v) No disqualification is incurred by a person who has been elected to

the office of the Speaker or the Deputy Speaker of the House of the

People or of the Legislative Assembly of a State or to that office of

the Deputy Chairman of the Council of States or the Chairman or

the Deputy Chairman of the Legislative Council of a State, if he

serves his connection with his political party.67

(vi) 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.68

(vii) The Chairman or the Speaker of a House has been empowered to

make rules for giving effect to the provisions of the Schedule. The

rules are required to be laid before the House and are subject to

modifications/disapproval by the House.69

(viii) All proceedings in relation to any question as to disqualification of

a member of a House under the Schedule will be deemed to be

66
Paragraph 4 of the Tenth Schedule of Constitution of India
67
Paragraph 5 of the Tenth Schedule of Constitution of India
68
Paragraph 6(1) of the Tenth Schedule of Constitution of India
69
Paragraph 8 of the Tenth Schedule of Constitution of India

60
 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 212.70 and

(ix) Notwithstanding anything in the Constitution, no court will have

any jurisdiction in respect of any matter connected with the

disqualification of a member of a House. Paragraph 7 of the Tenth

Schedule of Constitution of India.71

2.8. The Constitution (Ninety-First Amendment) Act, 2003.

Demands have been made from time to time in certain quarters for

strengthening and amending the Anti-defection Law as contained in the

Tenth Schedule to the Constitution of India, on the ground that these

provisions have not been able to achieve the desired goal of checking

defections. The Tenth Schedule has also been criticised on the ground that

it allows bulk defection while declaring individual defection as illegal. The

provision for exemption from disqualification in case of split as provided

in paragraph 3 of the Tenth Schedule to the Constitution of India has, in

70
Paragraph 6(2) of the Tenth Schedule of Constitution of India
71
Para 7 has been declared by the Apex court as ultra vires of the constitution in
Kihota Hollohon Vs. Zachilhu & others, AIR 1993, SC 412

61
 particular, come under severe criticism on account of its destabilising

effect on the Government.72

The Committee on Electoral Reforms (Dinesh Goswami Committee)

in its report of My, 1990, the Law Commission of India in its 170th Report

on “Reform of Electoral Laws” (1999) and the National Commission to

Review the Working of the Constitution (NCRWC) in its report of March

31, 2002 have, inter alia, recommended omission of paragraph 3 of the

Tenth Schedule to the Constitution of India pertaining to exemption from

disqualification in case of splits. The Constitution (Ninety-First

Amendment) Act, 2003 accepted and implemented many of these

recommendations of the Commission even if only partially. Thus, a new

Article 361 B was inserted into the constitution of India and Articles 75

and 164 were amended. The Constitution (Ninety-First Amendment) Act,

2003 provides that-

(i) the total number of Ministers in the Council of Ministers both at

the Union and the State level shall not be more than 15% of the

number of Members in the House of the People, provided that

the number of ministers in a state shall not be less than twelve;73

(ii) provides that a member of either House of Parliament or of a

State Legislature belonging to any political party who is

72
Statement of Objects and Reasons to the Constitution (Ninety-first Amendment)
Act, 2003
73
Section 3, The Constitution (Ninety-first Amendment) Act, 2003

62
 disqualified under paragraph 2 of the Tenth Schedule shall also

be disqualified to be appointed a minister or hold a remunerative

political post for the duration of the period commencing from

the date of disqualification till the date on which term of his

office as such member expire or where he contests an election to

either House of Parliament or Legislature of a State, before the

expiry of such period till the date on which he declared elected,

whichever is earlier;74

(iii) The Act omitted the provision regarding splits from the Tenth

Schedule to the Constitution of India.75

2.9. Review:

The menace of defections has not been new to the functioning of the

Indian Parliamentary democracy. But the magnitude of unethical,

unprincipled defection increased after the fourth General election, which

poses a threat to the Indian democracy. Several State Government falls

within a short period of time. Many people think that the evil of unethical

defection should be curbed. On 8th December 1967 the Lok Sabha passed a

resolution with a view to finding solution to the problem of defection and

74
Section 4, The Constitution (Ninety-first Amendment) Act, 2003
75
Section 5, The Constitution (Ninety-first Amendment) Act, 2003

63
accordingly the Government of India appointed a committee under the

chairmanship of Y.B.Chavan to study the problem.

The Committee on defection submitted its report on 7th January 1969

and recommended that the problem of defection should be tackle

simultaneously on ethical, political, constitutional and legislative

measures. Regarding ethical measure, the Committee suggested to draw a

Code of Conduct for every Political Parties. Regarding Constitutional

measure, it suggested that a defector should not be allowed to become a

Prime Minister, Chief Minister or any minister, the size of the council of

minister should not be large, and the right of dissolution of the popular

House should be vested in the Council of Ministers and not in the Prime

Minister or to the Chief Minister.

Keeping in view the recommendations of the Committee on Defection,

the Constitution (Thirty-Second Amendment) Bill, 1973 was introduced in

the Lok Sabha on 16th May, 1973, seeking to amend Art. 102 and 191 of

the Constitution and to provide, inter alia, for disqualifying a Member

from the House on the ground of voluntarily giving up of the membership

of the political party or on his voting or abstaining from voting in such

House contrary to any direction issued by such political party. The Bill did

not include independent legislators within its purview. It was a very short

Bill, consisting of ten clauses but the Bill lapsed on account of dissolution

of Lok Sabha.

64
 Considering the recommendation of the Election Commission of India

and the recommendations of the Choudhary Charan Singh Committee,

another Bill viz, the Constitution (Forty-Eight Amendment) Bill 1978 was

introduced in the Lok Sabha on 28th August, 1978. But the Bill was

opposed at the stage of introduction itself and it was withdrawn by leave of

the House.

After seven years from the lapse of the second Bill, the Constitution

(Fifty- Second Amendment) Act 1985 was passed and it incorporated

Tenth Schedule to the Constitution of India providing disqualification on

the ground of defection.

After a comparative examination of the Constitution (Thirty-Second

Amendment) Bill 1973 and the Constitution (Forty-Eight Amendment)

Bill 1978, it is found that both the Bills envisaged somewhat similar

approach towards the problem of defection. Under the 1978 Bill, split

cases were exempted and termed as ‘genuine split’ in a party. However, a

split being defined as the breaking away of not less than 25% of the

members of the party in the legislature and where a party has lesser than

20 legislators, the split may be affected by breaking away of not less than

five members. Both the Bills left the independent members completely out

of the purview of disqualification clause inserted in the proposed

amendment Bills.

65
 A comparison of the provisions of the Constitution (Thirty-Second

Amendment) Bill 1973 and the Constitution (Forty-Eight Amendment)

Bill 1978 on the one hand and the Constitution (Fifty-Second

Amendment) Bill 1985 on the other hand would bring out the avowed and

deliberate intent of Paragraph 7 of the Tenth Schedule. The Constitution

(Thirty-Second Amendment) Bill 1973 and the Constitution (Forty-Eight

Amendment) Bill 1978 contained similar provisions for disqualification on

the grounds of defection, but these two Bills did not contain any clause

ousting the jurisdiction of the Courts. Again, determination of disputed

disqualification on the ground of defection was left to the Election

Commission as in the case of other disqualifications under the Articles 102

and 103 in the case of Member of Parliament and Article 191 and 192 in

the case of members of Legislative Assembly of the States

66