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Anti-defection Act and Supreme Court judgements

Anti-defection Act: Key points

  1. A member can be disqualified in two circumstances
  • If he/she has voluntarily given up his/her membership of such political party ; or
  • If he/she votes or abstains from voting in such House contrary to any direction issued by the political party to which he/she 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.
  1. An member of a House shall be deemed to belong to the political party, if he was set up as a candidate for election as member of a political party
  2. A nominated member of a House shall be deemed to belong to the political party, if
  • He is a member of any political party on the date of his nomination
  • If not a member of a political party on the date of his nomination, 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.
  1. Disqualification under the act
  • If a member of a political party gives up his/ her membership of such political party
  • If a member of a political party votes or abstains from voting against the directives of that political party
  • If a nominated member joins any political party after the expiry of six months from the date on which he/ she takes his/ her seat.
  • An elected member, who is elected otherwise, joins any political party after such election
  1. Paragraph 3 of the Tenth Schedule originally recognize a ‘split’ if at least one-third members of the legislature party decided to form or join another political party.

However, this provision was done away with by the 91st Amendment to the Constitution in 2003. The amendment, which came into force in January 2004, does not recognize a ‘split’ in a legislature party. Instead, it recognizes a ‘merger’ that requires at least two-third members of a legislature party to join another political formation or form a new one without inviting the wrath of the anti-defection law.

  1. Disqualification on ground of defection does not apply in the case of merger provided not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

However, if some members do not accept the merger and opted to function as a separate group, are not disqualified.

  1. Exemption: a person who has been 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, if he/ she give up the membership of such political party, or rejoin afterward.
  2. Under the anti-defection law, even an expelled legislator is required to follow the whip issued by the party on whose ticket he was elected to the House and vote for his/her original party during a floor test.
  3. Paragraph 6 of the Tenth Schedule clearly said that the Speaker’s or the Chairperson’s decision on questions of disqualification on ground of defection shall be final as all such proceedings 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.
  4. Further, Paragraph 7 said, “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.”

However, while upholding the Constitutional validity of the Tenth Schedule, a Constitution Bench of the Supreme Court in Kihoto Hollohan vs Zachillhu and Others (1991) declared paragraph 7 unconstitutional. It also said the Speaker’s decision was subject to judicial review as he acted as a tribunal while deciding cases under the anti-defection law.

Anti-defection Act & Supreme Court: a timeline

  • Added to the Constitution as the Tenth schedule by the 52nd Amendment Act in 1985
  • In Kihoto Hollohan vs Zachillhu and Others (1991), SC declared paragraph 7 unconstitutional. It also said the Speaker’s decision was subject to judicial review as he acted as a tribunal while deciding cases under the anti-defection law
  • In the 1994 Ravi Naik vs. Union of India case, the Supreme Court (SC) said: “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”
  • In G Viswanathan versus Hono’ble Speaker, Tamil Nadu State Assembly, the Supreme Court ruled in 1996 that an expelled member was bound by the party’s whip even after expulsion, and failure to adhere to it would result in his/her disqualification from the House.
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