Anti-defection law

1. The amendments

• Fifty-second Amendment, 1985. Inserted the Tenth Schedule and amended Articles 101, 102, 190 and 191 so that a member disqualified under it loses the seat.
• Ninety-first Amendment, 2003. Deleted paragraph 3, which had protected a “split” of one-third of a legislature party. It also capped the size of the Council of Ministers at fifteen per cent of the strength of the House (Articles 75(1A) and 164(1A)), barred a disqualified member from being a Minister until re-elected (Articles 75(1B) and 164(1B)), and from holding a remunerative political post (Article 361B).

2. Grounds of disqualification (paragraph 2)

• Voluntarily giving up membership of the political party on whose ticket the member was elected (para 2(1)(a)).
• Voting or abstaining contrary to the party whip without prior permission, unless the party condones it within fifteen days (para 2(1)(b)).
• An independent member who joins a political party after election (para 2(2)).
• A nominated member who joins a political party after six months from taking the seat (para 2(3)).

3. Exceptions

• Merger (paragraph 4). No disqualification where the original political party merges with another and at least two-thirds of the legislature party agree to it. This is now the only group exception.
• Presiding officers (paragraph 5). A member elected Speaker or Deputy Speaker may give up party membership and rejoin after leaving the office.
• Split. The one-third split exception no longer exists. After 2003, a faction that leaves without a valid merger is disqualified, whatever its size.

4. Who decides (paragraphs 6 and 7)

Paragraph 6 makes the Speaker or Chairman the authority to decide questions of disqualification, and declares the decision final. Paragraph 7 went further and barred the jurisdiction of all courts.

5. Kihoto Hollohan (1992): the Schedule upheld, the ouster struck

In Kihoto Hollohan v. Zachillhu, 1991 INSC 287, 1992 Supp (2) SCC 651, a five-judge Bench held by 3:2:

• The Tenth Schedule is valid. It does not violate the freedom of speech of members or the basic structure; it promotes the stability of governments and the integrity of the electoral mandate.
• Paragraph 7 is invalid. Because it took away the jurisdiction of the Supreme Court and the High Courts under Articles 136, 226 and 227, it needed ratification by half the States under the proviso to Article 368(2). It was not ratified. It was severed from the rest of the Schedule.
• The Speaker acts as a tribunal. The finality in paragraph 6 does not exclude judicial review, but review is confined to jurisdictional errors, violation of natural justice, mala fides and perversity. Courts will not interfere before the Speaker decides.

The minority (Verma and Lalit Mohan Sharma JJ.) held paragraph 7 inseparable and the whole amendment void, and doubted that a Speaker dependent on the majority could be an impartial adjudicator. That doubt has proved prophetic and is worth quoting in the criticism section.

6. “Voluntarily giving up membership”: Ravi Naik

In Ravi S. Naik v. Union of India, 1994 INSC 57, 1994 Supp (2) SCC 641, the Court held that the words are not synonymous with resignation. A member may give up membership by conduct, and the Speaker can infer it from what the member does — for instance, publicly supporting a rival party or attending its meetings to form a government. The Speaker must, however, follow natural justice in deciding.

7. Delay by the Speaker: Keisham Meghachandra Singh

The weakness of the Kihoto scheme was that a Speaker could defeat it simply by not deciding. In Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly, 2020 INSC 65, a Congress MLA had joined the ruling side and become a Minister, and the disqualification petition lay undecided for years. The Court held that the Speaker must decide within a reasonable period, which absent exceptional circumstances means three months. It also asked Parliament to consider replacing the Speaker with a permanent independent tribunal headed by a retired judge.

8. Subhash Desai (2023): the Shiv Sena split

In Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 INSC 516, a five-judge Bench decided the dispute arising from the 2022 change of government in Maharashtra:

• The Court declined to decide the disqualification petitions itself; the Speaker must decide them within a reasonable period.
• The whip is appointed by the political party, not by the legislature party. The Speaker's recognition of a whip chosen by the breakaway legislators was illegal.
• The defence of “split” is not available after the deletion of paragraph 3. A faction cannot claim to be the party merely because it has a majority in the legislature.
• The Governor had no objective material to call a floor test. But since the Chief Minister had resigned without facing it, the Court could not restore his government.
• The correctness of the Nabam Rebia rule (a Speaker facing a removal notice cannot decide disqualification) was referred to a seven-judge Bench.

9. Criticism and reform

• The partisan arbiter. The Speaker is usually from the ruling party, and decides or delays according to party interest.
• Curbs on dissent. The whip applies to every vote, so a member cannot vote on conscience even on matters that do not affect the survival of the government.
• The merger route. Mass defections are now arranged as two-thirds “mergers”, or through resignations followed by by-elections.
• Reform proposals. The Dinesh Goswami Committee (1990) and the Law Commission's 170th Report (1999) suggested that the decision lie with the President or Governor on the advice of the Election Commission, and that the whip be confined to votes of confidence and money matters.

How this is examined

Anti-defection appears in the recent KSLU papers as an essay or short note: “Explain the anti-defection law” or “Discuss the role of the Speaker under the Tenth Schedule.”

The answer runs: mischief, the two amendments, grounds, exceptions (merger only, split deleted), the Speaker as tribunal, then Kihoto, Ravi Naik, Meghachandra and Subhash Desai in that order, and finish with the reform debate. If you have time for only one case in a short note, use Kihoto Hollohan and state both its holdings: the Schedule valid, paragraph 7 struck.