Anti Defection Law in Indian

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..R Indian a! Report
J.I..I Journal of Indian a! Institute
td." imited
#.C.C #upreme Court Cases
#C #upreme Court
#ec #ection
$.%.I $nion of India
$.#.A $nited &ations of America
'ol. 'olume

TABLE OF CONTENTS
PAGE No.
CHAPTER I: Introduction
(.( Research Problem
(.) %b*ecti+e of the #tudy
(., -ypothesis
(.. #ignificance of Research
(./ 0ethod of #tudy
(.1 Chapteri2ation
CHAPTER II: Historical Backround and Conc!"tual
#!$!lo"%!nt o& Anti'#!&!ction La(s in India
).( Introduction
).) -istorical Bac3ground
)., Etymology of the term 4defection5
).. Rationale behind the la! relating to defection
)./ Defections around the 6lobe
).1 #pecial reference to $nited 7ingdom
).8 Anti Defection a! 9 Indian context
).: Conclusion
CHAPTER III: Co%%on(!alt) E*"!ri!nc! on Political #!&!ction
,.( Introduction
,.) -andling Defection !ithout egislation
,., Anti; defection egislation
,.,.( 'oluntarily gi+ing up of membership

,.,.) 'iolating party directions< =hips
,.,., #plits< 0ergers
,.,.. #plit Pro+ision Deleted in India
,.,./ Independent and &ominated 0embers
,.,.1 Expelled 0embers
,.,.8 Exempting the Presiding %fficer
,.,.: Presiding %fficer as Deciding Authority
,.,.> ?ime imit stipulated for deciding
the cases relating to defection
,.. Conclusion
CHAPTER IV: Anti'#!&!ction La( and #!%ocrac+
..( Introduction
..) Effect of ?enth #chedule on Democracy
.., Comparison bet!een Party 6o+ernance and
Indi+idual Representation
... Conclusion
CHAPTER V: T)! Constitutional #!$!lo"%!nts
and Pro$isions on ,Anti ' #!&!ction La(-
/.( Introduction
?enth #chedule and the /) Amendment to
/.)
nd
the Constitution of India

/., ?he =hips@ A Critical Appraisal
/.,.( Arguments for =hips
/.,.) Arguments against =hips
/.. Critical Analysis of Po!ers of #pea3er under
the ?enth #chedule
/...( Arguments for Para 1 and Para 8 of
the ?enth #chedule
/...) Arguments against Para 1 and Para 8 of
the ?enth #chedule
/./ Conclusion
CHAPTER VI: .udicial d!$!lo"%!nt on t)! T!nt) Sc)!dul!
1.( Introduction
1.)?he #upreme Court in 7ihota -ollohon5s Case
1.,De+elopments subseAuent to 7ihota -ollohon5s Case
1..Conclusion
CHAPTER VII: Conclusion
8.(
8.( 6uidelines

8.) #uggestions

CHAPTER I / Introduction
?he politics of defection has been the bane of the parliamentary system in India. ?he
+ice of defection has been rampant in India for Auite some time" especially at the #tate le+el.
?he first chapter gi+es an insight into the highlights of the study !ith regard to the research
problem" the hypothesis" the method adopted for the conduct of the study. It further gi+es a
brief description about the +arious chapters and their concerns in this study.
$nder Chapter II !hich gi+es a historical account of the de+elopment of Anti
Defection a!s in India. It further analyses the meaning and definition of the term
BDefectionC and also thro!s light upon the instances of 4Defections5 around the globe !ith
special reference to the $nited 7ingdom and gi+es an account of the de+elopment of the la!
relating to defections in India. ?o further expand our hori2on of study to analyse the
de+elopment of the Anti;Defection a!s in some of the Common!ealth countries. ?he
+arious pro+isions under the Constitutions of these countries ha+e been considered under
Chapter III.
Democracy is the Corner stone of Indian Constitution" in this aspect an analyses is
made !ith respect to the di+ide created bet!een the Party" the Elected Representati+e and the
people in so far as curbing the po!er of the elected representati+e in +oicing the +ie!s of the
people in the -ouse in the light of the conditions imposed for defection under the ?enth
#chedule.
?o proceed in the path adopted under Chapter I'" in the succeeding chapter an
attempt has been made to study the details of the +arious pro+isions under the Constitution of
India relating to 4Defections5. Pro+isions relating to 4defection5 both at the Central and #tate
le+els has been analysed. It also analyses the effect of defections on the formation of

Parliament" Composition of the Council of #tates" Composition of the -ouse of the People"
'acation of #eats and DisAualifications for 0embership of the -ouse is dealt under Chapter
'.
After analysing the constitutional de+elopment" the *udicial de+elopment !ith regard
to the same is understood in Chapter 'II. ?his chapter gi+es a detailed account of the
*udgment of the -on5ble #upreme Court of India in the case of 7ihota -ollohon +. Dachilhu
as reported in AIR (>>, #C .(). It also gi+es a detailed position of la! as it existed before
and subseAuent to 7ihota -ollohon5s case. An attempt has been made in this chapter to
analyse the stand point of the Judiciary on the ?enth #chedule of the Constitution of India.
Certain guide lines and suggestions in order to ma3e the ?enth #chedule more
practical and effecti+e in trying to protect the democratic polity is the conclusion to this
study.
0.0 R!s!arc) Pro1l!%
?he problem of defection; s!itching loyalty from one political party to another has been
haunting the Indian polity for o+er ,E years. Beginning in (>1Es" the politics of FAya Ram
and 6aya RamF has reached such a le+el that freAuent defections" splits" and the conseAuent
go+ernmental instability ha+e +itiated the democratic ethos of our polity. ?he anti;defection
la! of (>:/ and the latest Constitutional amendment to plug the loopholes ha+e hardly made
any impact. Rather than sol+ing or containing the problem of defection" the la! has
aggra+ated it. Contributing to the problem of go+ernmental instability at the centre and in
many states" the la! has exposed the most immoral and unethical character of our politicians
ma3ing a moc3ery of our democracy. ?his research paper presents +arious perspecti+es on
defections !ith specific reference to defection politics in India. Examining the rather usual

political beha+iour of our elected representati+es" it analy2es +arious pro+isions of the anti;
defection la! and their impact. It argues that !hile our electoral and political systems
coupled !ith the domestic compulsions ma3e us different from other democracies" !e
certainly reAuire a la! to curb defections. -ighlighting the loopholes in the existing la!" the
researcher intends to come out !ith specific suggestions for curbing the menace of
defections. At this *uncture the researcher has identified the follo!ing issues.
-o! the term 4representati+e go+ernment5 being suppressed under the anti;defection
(.
la!s in IndiaG
=hether defiance of the party !hip may be regarded as 4dissent5 or 4defection5 in a
).
parliamentary democracy.
,. -o! do they address defecting 0P5sG
-o! are the po!ers of the #pea3er under the ?enth schedule leading to unbridled
..
licensing of parliamentary pri+ilegesG
0.2 O13!cti$!s o& t)! Stud+
India being a country !hich has one of the largest number of political parties
representing the interests and ideologies of +arious groups of people has so far been
successful in its endea+our to run a successful parliamentary and democratic form of
go+ernment. But" the recent de+elopments ha+e forced the legislature to rethin3 the
functioning of modern democracy in the light of defections by the legislators belonging to
+arious political parties !hich has resulted in go+ernment instability !hich is undemocratic
as it negates the electoral +erdict. ?hus in order to maintain the true spirit of democracy it is
+ery much necessary for the legislature to bring in such legislations as for instance the Anti;
Defection a!s.

?he main ob*ecti+es of the conducting research on this topic are@;
(. ?o ascertain and clarify the pro+isions relating to defection under the Constitution.
). ?o examine *udicial stand point on the tenth schedule.
,. ?o examine" the conseAuence of defection.
.. Impact on inner;party democracy.
/. 'ote of an 0P +is;aH;+is +ie!s of his<her constituency.
0.4 H+"ot)!sis
?he anti;defection la!s in India though made !ith the most laudable idea is
undemocratic in the light of Paragraph )I(J IbJ of the ?enth #chedule of the Constitution of
India. ?he present pro+isions in the Constitution no! disAualify legislators !ho s!itch
allegiances and reAuire them to +ote as per the instructions of the party !hip. It no longer
matters !hat an indi+idual legislator or his<her constituency thin3s. It only matters !hat the
party leadership reAuires him<her to thin3 !hile +oting. ?he concept of =hip may be
appreciated only !hen the Bill or the discussion is pertaining to 0oney Bill or a
Constitutional Amendment or such other Bills of paramount importance. =ithout
demarcating the importance attached to the 3inds of =hip and the attitude of the egislators
to!ards such =hips has caused serious in*ury to the term Brepresentati+e go+ernmentC under
democracy.
0.5 Sini&icanc! o& R!s!arc)
?he research paper brings into forefront the need of the hour that is the real
go+ernance by the real go+ernors. An attempt is made in this research paper to ma3e sure that
the la!s go+erning defections are !ell administered in order to up hold the true spirit of

democracy. ?his research is better appreciated by the Election Commission" egislators"
0embers of Parliament" Bureaucrats" Academicians" Ad+ocates and a! #tudents and at last
but the most benefitted" to!ards !hich the entire the tas3 is de+oted to" the public at large.
0.6 7!t)od o& t)! Stud+
In this study the researcher has adopted doctrinal method for collecting information of
data through secondary sources li3e boo3s" !ebsites" articles" *ournals" *udgments" and
internet sources.
0.8 C)a"t!ri9ation
C)a"t!r I: ?he first chapter gi+es an insight into the highlights of the study !ith regard to
the research problem" the hypothesis" the method adopted for the conduct of the study. It
further gi+es a brief description about the +arious chapters and their concerns in this study.
C)a"t!r II: ?he second chapter is entitled -istorical Bac3ground and Conceptual
De+elopment of anti;defection la!s in India. It gi+es a brief introduction and gi+es a
historical account of the de+elopment of Anti Defection a!s in India. It further analyses the
meaning and definition of the term BDefectionC and also thro!s light upon the instances of
4Defections5 around the globe !ith special reference to the $nited 7ingdom and gi+es an
account of the de+elopment of the la! relating to defections in India.
C)a"t!r III: ?he third chapter is entitled BA Common!ealth Experience on Political
DefectionC the different strategies that are used to tac3le the problems of defections has been
discussed. ?his chapter also analyses the de+elopment of the Anti;Defection a!s in some of
the Common!ealth countries. ?he +arious pro+isions under the Constitutions of these
countries ha+e been analysed.

C)a"t!r IV:?he fourth Chapter is entitled BAnti;Defection a! and DemocracyC. ?his chapter
mainly analyses the impact of Anti Defection a! on the representati+e form of 6o+ernment. It also
analyses the di+ide created bet!een the Party" the Elected Representati+e and the people in so far as
curbing the po!er of the elected representati+e in +oicing the +ie!s of the people in the -ouse in the
light of the conditions imposed for defection under the ?enth #chedule.
C)a"t!r V: ?he third chapter is entitled B?he Constitutional De+elopments and Pro+isions
on 4Anti Defection a!5C. It gi+es the details of the +arious pro+isions under the Constitution
of India relating to 4Defections5. Pro+isions relating to 4defection5 both at the Central and
#tate le+els has been analysed. It also analyses the effect of defections on the formation of
Parliament" Composition of the Council of #tates" Composition of the -ouse of the People"
'acation of #eats and DisAualifications for 0embership of the -ouse.
C)a"t!r VI: ?his chapter is entitled BJudicial de+elopment on the ?enth #cheduleC. ?his
chapter gi+es a detailed account of the *udgment of the -on5ble #upreme Court of India in
the case of 7ihota -ollohon +. Dachilhu as reported in AIR (>>, #C .(). It also gi+es a
detailed position of la! as it existed before and subseAuent to 7ihota -ollohon5s case. An
attempt has been made in this chapter to analyse the stand point of the Judiciary on the ?enth
#chedule of the Constitution of India.
C)a"t!r VII: An attempt has been made in this chapter to lay do!n certain guide lines and
suggestions in order to ma3e the ?enth #chedule more practical and effecti+e in trying to
protect the democratic polity. Kor this purpose" the +ie!s expressed by the egislators on the
?enth #chedule under the Constitution of India ha+e been considered.


C)a"t!r II
Historical Backround and Conc!"tual #!$!lo"%!nt o& anti'd!&!ction la(s
in India
2.0 Introduction
Democracy" as aptly defined by Abraham incoln" Bis the 6o+ernment of the people" by
the people and for the people.C ?he !ill of the people is expressed through the ballot box.
?he ballot determines the party !hich !ould run the 6o+ernment. Election is thus a +ital
component in a democratic system of go+ernance. In a democracy" emergence of political
parties !ith different and di+erse ideologies is but natural. Kree and fair competition amongst
political parties at the hustling for !resting po!er to go+ern the country is indicati+e of a
+ibrant democracy. Political parties gi+e concrete shape to di+ergent ideologies and are
essential for success of any democracy. -o!e+er" defections are a matter of concern for the
party system.
?o be in po!er" a party or a combination of parties must ha+e the support of ma*ority of
the members of the -ouse. =hen no party commands ma*ority" some parties agree to form a
coalition 6o+ernment on the basis of a broad common programme. #ometimes" political
parties e+en form a pre;poll alliance" particularly in the era of coalition go+ernments. It is in
such a situation that defection by a fe! members reduces the coalition go+ernment into a
minority. Defection may ta3e place on grounds of ideology and principle or other!ise. Be
that as it may" defection or changing of affiliation is a political reality in a democratic polity
and more so in a parliamentary polity.

2.2 Historical Backround
Bet!een the fourth and the fifth general elections in (>18 and (>8) from among the
."EEE odd members of the o3 #abha and the egislati+e Assemblies in the #tates and the
$nion ?erritories" there !ere nearly )"EEE cases of defection and counter;defection. By the
end of 0arch (>8( approximately /EL of the legislators had changed their party affiliations
and se+eral of them did so more than once;some of them as many as fi+e times. %ne 0A
!as found to ha+e defected fi+e times to be a 0inister for only fi+e days. Kor some time" on
an a+erage more than one legislator !as defecting each day and almost one #tate 6o+ernment
falling each month due to these changes in party affiliations by members. In the case of #tate
Assemblies alone" as much as /E./L of the total number of legislators changed their political
affiliations at least once. ?he percentage !ould be e+en more alarming if such #tates !ere
left out !here 6o+ernments happened to be more stable and changes of political affiliations
or defections from parties remained +ery infreAuent. ?hat the lure of office played a dominant
part in this Bpolitical horse;tradingC !as ob+ious from the fact that out of )(E defecting
legislators of the +arious #tates during the first year of Bdefection politicsC" ((1 !ere
included in the Councils of 0inisters in the 6o+ernments !hich they helped to form.
(
Concerned o+er the malaise of political defections in national life" the o3 #abha
adopted a non;official resolution on : December" (>18 urging the appointment of a high le+el
committee. In pursuance thereof" a Committee of Constitutional experts and representati+es
of political parties !as set up in 0arch (>1:" under the Chairmanship of the then -ome
0inister" M.B. Cha+an to consider the problem of legislators changing their allegiance from
one party to another and their freAuent floor crossing" in all its aspects and to ma3e
recommendations in that regard. Informing the o3 #abha of the appointment of the
7ashyap #ubhash C." Anti-Defection Law and Parliamentary Privileges, Pg@ )" Ed@ )" $ni+ersal a!
( n d
Publishing Co. P+t. td." )EE,.

Committee on )( 0arch" (>1:" the -ome 0inister described defection as Ba national
maladyC !hich !as Beating into the +ery +itals of our democracyC.
egislation in pursuance of the recommendations of the Cha+an Committee on
Defections had a much chec3ered history. #e+eral attempts pro+ed aborti+e. ?he 6o+ernment
introduced a Constitution Amendment Bill in the o3 #abha on (1 0ay" (>8,. ?he
Constitution Amendment Bill !as referred to a Joint Committee of t!o houses. -o!e+er"
before the Committee could complete its deliberations" the o3 #abha !as dissol+ed and the
Bill lapsed. Another Bill on the sub*ect at the stage of introduction itself both by some ruling
party members and the %pposition as certain features of the Bill did not satisfy them. After
some discussion" the motion for introduction of the Bill !as !ithdra!n by lea+e of the
-ouse.
Immediately after the general elections held in December (>:." the President of India
said in his address to both -ouses of Parliament assembled together on (8 January" (>:/ that
the 6o+ernment intended to introduce in that session a Bill to outla! defections. In fulfilment
of that assurance" the Kifty #econd Amendment Bill to the Indian Constitution !as
introduced. As the preface to the Amendment Bill states@
The evil of political defections has been a matter of national
concern If it is not combated, it is li!ely to "ndermine the very
fo"ndations of o"r democracy and the principles which s"stain it #ith
this ob$ect, an ass"rance was given in the address by the President to
Parliament that the %overnment intended to introd"ce in the c"rrent
session of Parliament an anti-defection &ill This &ill is meant for
o"tlawing defection and f"lfilling the above ass"rance'

?he Amendment introduced pro+isions to ensure disAualification of a member of a
-ouse belonging to a political party if@
If he has +oluntarily gi+en up his membership of such political partyN or
IaJ
If he +otes or abstains from +oting in such -ouse contrary to any direction issued
IbJ
by the political party to !hich he belongs or by any person or authority authorised
by it in this behalf" !ithout obtaining" in either case" the prior permission of such
political party" person or authority and such +oting or abstention has not been
condoned by such political party" person or authority !ithin fifteen days from the
date of such +oting or abstention.
)
2.4 Et+%olo+ o& t)! t!r% :d!&!ction;
?he term defection appears to ha+e been deri+ed" as the dictionary meaning suggests"
from the atin !ord 4defectio5" indicating 4an act of abandonment of a person or a cause to
!hich such person is bound by reason of allegiance or duty" or to !hich he has !ill fully
attached himself5. It" similarly" indicates re+olt" dissent" and rebellion by a person or a party.
Defection thus connotes the process of abandoning a cause or !ithdra!ing from it or from a
party or programme. It has thus an element" on the one hand" of gi+ing up one and" on the
other" an element of *oining another. =hen the process is complete by reason of a person
defecting from a cause or a party or a programme" he is termed as a defector. Defection thus
is a process by !hich a person abandons or !ithdra!s his allegiance or duty. ?raditionally"
this phenomenon is 3no!n as 4floor crossing5 !hich had its origin in the British -ouse of
Extracts from the ?enth #chedule of the Constitution of India
)

Commons !here a legislator changed his allegiance !hen he crossed the floor and mo+ed
from the 6o+ernment to the opposition side" or vice-versa .
,
2.5 Rational! 1!)ind t)! la( r!latin to d!&!ction
?here ha+e been cases of political defection both !ithin and outside the
Common!ealth. ?herefore" efforts ha+e been made by +arious Parliaments to cope !ith the
problem !ith the help of legislations. 6enerally spea3ing" the rationale behind enacting an
anti;defection la!" pro+iding for puniti+e measures against a member !ho defects from one
party to another after election is that it is aimed at ensuring stability especially in a
parliamentary form of go+ernment. ?he la! on defection see3s to pro+ide safety measures to
protect both the go+ernment and the opposition from instability arising out of shifts of party
allegiance.
?here are instances !here go+ernments ha+e fallen due to defection from or split in a
political party. Kor example" in #ri an3a on t!o occasions" in (>1. and )EE(" 6o+ernment
fell due to defection. 6o+ernments ha+e also fallen else!here in the !orld" including in the
$nited 7ingdom !here there is no anti;defection la!" due to defection or split in a political
party. In India also e+en after the anti;defection la! came into operation" 6o+ernments ha+e
fallen in +arious #tates due to political defections as in the case of 6oa in (>:>" #i33im in
(>>. and Arunachal Pradesh in (>>> O )EE,. ?hese examples are only illustrati+e and
.
exhausti+e.
In modern democracies" most of the members of the members are elected to
Parliament !ith substantial support and help from their parties and on the basis of their party
0alhotra 6.C"Anti Defection Law in India and the Commonwealth, o3 #abha #ecretariat" Page &o. E," ((
, th
Edition" )EE/" 0etropolitan Boo3 Co. P+t. td.
0alhotra 6.C" Cabinet (esponsibility to Legislat"re) *otion of confidence and +o-Confidence in Lo! ,abha
.
and ,tate Legislat"res, Pg@ (:8" IDelhi 0etropolitan )EE.J.

manifestos. Constituents cast their +otes in fa+our of contestants not only 3eeping in mind
their mind personal Aualities but also the policies and programmes of their parties. It is"
therefore" argued that a successful candidate is bound by the pledges made by his party
during the electioneering. -e is expected to remain loyal to his party and abide by the party
discipline. If he chooses to lea+e the party" he must lose his membership too.
?his logic could be put for!ard eAually forcefully in the case of the countries ha+ing
the system of proportional representation in !hich parties play a crucial role in getting their
members elected. Anti;defection la! should be an essential component of such a system to
ensure that the results of an election are not ad+ersely affected by defecting members !ho
gained their seats in the legislature solely because of their position on the party list.
%n the other hand there is also a school of thought !ho holds the +ie! that the anti;
defection la!s tend to restrict the freedom of 0embers of Parliament in the performance of
their duties and interference !ith the member5s right to freedom of speech and expression. In
+ie! of the abo+e" it may not be out of place to mention here that !hile stability of the
go+ernment is important" eAually desirable is its accountability to the -ouse !hich consists
of members !ho in turn are accountable not only to their political parties but also to the
electorate.
2.6 #!&!ctions around t)! lo1!:
?he phenomenon of defection !as not something altogether un3no!n to the older
democracies li3e 6reat Britain. Political stal!arts li3e =illiam 6ladstone" Joseph
Chamberlain" =inston Churchill and Ramsay 0cDonald !ere 3no!n to ha+e changed their
party allegiance at one time or another; some of them e+en more than once. i3e!ise in
Australia" Canada and the $#A" there had been instances of politicians defecting from one
party to another. It is" ho!e+er interesting that the need or the desirability of banning

defections by la! or through a constitutional pro+ision !as not considered in any of the
!estern democracies. ?he only countries to pass anti;defection la!s ha+e been four countries"
+i2. India I(>:/J" Pa3istan I(>>8J" #ri an3a I(>8:J and &epal I(>>8J. In all the four
countries" the anti defection la!s pro+ed ineffecti+e. In India" the result !as a larger number
of defections" !ith groups instead of indi+iduals defecting. In &epal also" group defections
and toppling of go+ernments could not be pre+ented. In Pa3istan" the operation of la! !as
stayed by the court and subseAuently democracy itself !as toppled by military dictatorship.
/
2.8 S"!cial R!&!r!nc! to <nit!d =indo%:
It may be mentioned in this connection that in the early stages of their parliamentary
struggles for political po!er in the $nited 7ingdom" members resorted to defections
freAuently and e+en in large numbers. =illiam 6ladstone" regarded as the Bgrand old manC of
British liberalism" began his Parliamentary career as an Conser+ati+e 0ember !hen he !as
elected to Parliament in December (:,). During Peel5s second 0inistry I(:.(;.1J" he
crossed o+er to the iberal side and !as made 'ice; President of the Board and later
#ecretary of #tate for the Colonies. In (::1" there !as a mass defection from the iberal
Party. Joseph Chamberlain !as strongly opposed to the Irish -ome Rule Bill and crossed the
floor along !ith >, other iberal and =hig 0P5s. ?he defectors formed an independent
group called the iberal $nionists" but they +oted !ith the Conser+ati+es. ?he -ome Rule
Bill !as defeated at the second reading stage and the 6ladstone 0inistry had to resign.
1
=inston Churchill5s political career !as mar3ed by repeated floor crossing. Churchill began
his Parliamentary life as a Conser+ati+e. In (>E. he defected from the Conser+ati+e Party and
7ashyap #ubhas C." B?he Politics of Po!erC" (>8.
/
Austin 0itchell" B?he =hig in %pposition (:(/;(:,E I(>18JN also see Di!an Paras" 4Aya Ram 6aya Ram@
1
?he Politics of Defection5 I(>8>J )( JII )>(" #harma 0ool Chand" BPolitics of Defections and DemocracyC
I(>8>J (, J.C.P.#. ,):

crossed o+er to the iberal Party. Krom (>E. to (>))" Churchill remained a iberal. In (>))"
he contested the Election as a Bloyd 6eorge iberalC.
8
2.> Anti #!&!ction La( / Indian cont!*t
Indian politics has seen defection right from the pre;independence Central egislati+e
Assembly and Pro+incial autonomy days. ?he year (>18 ho!e+er ushered in an
unprecedented era of political instability and horse;trading preceding and follo!ing the
formation of coalition go+ernments in se+eral #tates. ?he formation of such coalition
go+ernments !as most often a marriage of con+enience. ?hey !ere constituted of
heterogeneous elementsPpolitical parties coming together to share po!er often ha+ing no
ideological similarity. #e+eral #tate 6o+ernments fell li3e the pro+erbial nine pins in Auic3
succession. ?he fall !as usually brought about by dissatisfied and disgruntled legislators
!ho" it !as !idely belie+ed" could not be accommodated as 0inisters and the li3e or
other!ise lucrati+ely recompensed. ?hey changed their party affiliations and !ere !elcomed
!ith open arms by other political parties !hich" though in minority" cherished the dream of
forming a 6o+ernment on the strength of such synthetic ma*ority. ?his ga+e rise to a +ery
unhealthy trend !hereby legislators !ere lured a!ay from their political parties !ith a +ie!
to toppling the existing 6o+ernments and forming ne! ones !ith different permutation and
combinations.
:
-I wo"ld go to the length of giving the whole congress a decent
b"rial, rather than p"t "p with the corr"ption that is rampant- ;;;
Mahatma Gandhi May 1939
0alhotra 6.C" Anti Defection Law in India and the Commonwealth, o3 #abha #ecretariat" Page &o. E," ((
8 t h
Edition" )EE/" 0etropolitan Boo3 Co. P+t. tdN #ee also #udershan Aggar!al" ?he Anti Defection a! in India"
Parliamentarian" January (>:1" Q'II &o. (" Page )).
ibid
:

?his !as the outburst of 0ahatma 6andhi against rampant corruption in Congress
ministries formed under (>,/ Act in six states in the year (>,8. ?he disciples of 6andhi
ho!e+er" ignored his concern o+er corruption in post;Independence India" !hen they came to
po!er. %+er fifty years of democratic rule has made the people so immune to corruption that
they ha+e learnt ho! to li+e !ith the system e+en though the cancerous gro!th of this malady
may finally 3ill it. Politicians are fully a!are of the corruption and nepotism as the main
reasons behind the fall of Roman Empire" the Krench Re+olution" %ctober Re+olution in
Russia" fall of Chiang 7ai;#he3 6o+ernment on the mainland of China and e+en the defeat of
the mighty Congress party in India. But they are not ready to ta3e any lesson from the pages
of history.
?he history of corruption in post;Independence India starts !ith the Jeep scandal in
(>.:" !hen a transaction concerning purchase of *eeps for the army needed for 7ashmir
operation !as entered into by '.7.7rishna 0enon" the then -igh Commissioner for India in
ondon !ith a foreign firm !ithout obser+ing normal procedure. Contrary to the demand of
the opposition for *udicial inAuiry as suggested by the InAuiry Committee led by
Ananthsayanam Ayyangar" the then 6o+ernment announced on #eptember ,E" (>// that the
Jeep scandal case !as closed. $nion 0inister 6.B.Pant declared Rthat as far as 6o+ernment
!as concerned it has made up its mind to close the matter. If the opposition !as not satisfied
they can ma3e it an election issue.C #oon after on Kebruary ," (>/1 7rishna 0enon !as
inducted into the &ehru cabinet as minister !ithout portfolio.
In (>/E" A.D.6or!ala" an eminent ci+il ser+ant !as as3ed by 6o+ernment of India to
recommend impro+ements in the system of go+ernance. In his report submitted in (>/( he
made t!o obser+ations@ B%ne" Auite a fe! of &ehruFs ministers !ere corrupt and this !as
common 3no!ledge. ?!o" e+en a highly responsible ci+il ser+ant in an official report as

early as (>/( maintained that the 6o+ernment !ent out of its !ay to shield its ministersC
IReport on Public Administration" Planning Commission" 6o+ernment of India (>/(J
Corruption charges in cases li3e 0udgal case I(>/(J" 0undra deals I(>/8;/:J"
0ala+iya;#ira*uddin scandal I(>1,J" and Pratap #ingh 7airon case I(>1,J !ere le+elled
against the Congress ministers and Chief 0inisters but no Prime 0inister resigned.
?he #anthanam Committee" !hich !as appointed by the 6o+ernment in (>1) to
examine the issue of corruption in its report submitted in (>1. obser+ed@ B?here is
!idespread impression that failure of integrity is not uncommon among ministers and that
some ministers" !ho ha+e held office during the last sixteen years ha+e enriched themsel+es
illegitimately" obtained good *obs for their sons and relations through nepotism and ha+e
reaped other ad+antages inconsistent !ith any notion of purity in public life.C
?he follo!ing comments of &ehru on the memorandum of charges against Pratap
#ingh 7airon submitted to the President of India by the non;Communist opposition in Pun*ab
suggest his approach on corruption ; B?he Auestion thus arises as to !hether the chief
minister is compelled to resign because of ad+erse findings on some Auestions of fact by
#upreme Court. ?he ministers are collecti+ely responsible to the legislature. ?herefore" the
matter !as one" !hich concerned the assembly. As a rule therefore" the Auestion of remo+ing
a minister !ould not arise unless the legislature expressed its !ish by a ma*ority +ote.C
?hus" !e find that !hile &ehru5s tolerance of corruption among his ministers
legitimi2ed this malady" his daughter Indira 6andhi institutionali2ed it by holding both the
posts of the Prime 0inister and party president. By doing so she !as herself controlling the
party funds" !hich ga+e birth to the money po!er in politics. ?he famous '.P.0alhotra
IChief Cashier of #tate Ban3 of IndiaJ case in !hich he got a telephone call belie+ing from

Indira 6andhi to pay Rs"1E la3hs to one &agar!al remained a mystery. Corruption cases
li3e Kairfax" -BJ Pipeline" and -D= #ubmarine deal came up since then. ?he famous
Bofor5s deal is !ell 3no!n. &arsimha Rao !as the first Prime 0inister being prosecuted in
corruption charges. Cases li3e Rs.)/EE crore ;Airbus A;,)E deal !ith Krance in+ol+ing
3ic3bac3 I(>>EJ" -arshad 0ehta security scam I(>>)J" 6old #tar #teel and Alloys
contro+ersy I(>>)J" J00 bribery case" -a!ala scam of Rs. 1/ crore and $rea scam I(>>1J
also came up during the period of &arsimha Rao 6o+ernment.
Corruption is an abstract term. According to =orld Ban3 report (>>8 abuse of public
po!er for pri+ate gains is described as corruption. But this appears to be too simplistic
explanation of corruption. In fact it is a multi; faceted e+il" !hich gradually 3ills a system. A
basic conflict bet!een the ethos and system has !ea3ened the Indian polity. ?he feudal
outloo3 of the ruling class polluted the people5s mindset" !hich *udge the status of an
indi+idual on his capability to flout the la! to fa+our them. ?his is the reason !hy corruption
is no more +ie!ed by people !ith abhorrence in Indian society. eaders li3e aloo"
Jayalalitha" #u3hram and others" !ho are facing corruption charges" continue to ha+e !ide
range of people5s support. ?ransparency" responsi+eness" accountability" probity in public
life and good go+ernance are no! only slogans. ?he legislature has failed to ma3e the
*udiciary" executi+e and e+en media sensiti+e to the cause of the common people. ?he failure
of the political leadership to ta3e a principled stand against corruption has clouded the system
to the extent that it is no! difficult to understand !hether the system is ali+e or dead.
?he collapse of the Janata Party 6o+ernment I(>88;:EJ" fall of '.P.#ingh and
Chandrashe3har 6o+ernment I(>>E;>(J" turning his minority 6o+ernment into ma*ority by
&arsimha Rao" split in ?elugu Desam Party I(>>.J" defection of A*it #ingh !ith his
supporters to Congress I(>>,J" defection of #.#.'aghela from BJP" manoeu+ring defection

by 7alyan #ingh to 3eep the BJP led 6o+ernment in po!er in $P are some of examples to
pro+e that a si2eable number of our politicians are not immune to corruption.
In the present context" corruption is so much lin3ed !ith po!er that our politicians
ha+e adopted a cynical attitude to!ard political morality. 0anoeu+ring the anti; defection
la! for electoral politics !ith the help of both money and muscle po!er and other unfair
means for the sa3e of po!er ha+e affected the political morality of all the political parties and
as such none of them can claim themsel+es to be faithful to nation in true sense. It is in this
bac3ground that the la!s relating to defection !as enacted in the ?enth #chedule.
2.? Conclusion:
Defections and splits in parties ha+e al!ays been a feature of Indian Politics. E+ery
time the &ational Parliament or #tate egislatures return a less;than; certain outcome" out
come the RsuitcasesR and allegations of horse trading dro!n out e+ery other public discourse.
In the mad circus that follo!s" parties spirit their legislators a!ay" hide them" suborn them"
and then triumphantly parade them before the !orld.

C)a"t!r III
A Co%%on(!alt) E*"!ri!nc! on Political #!&!ctions
4.0 Introduction
?he phenomenon of defection or shifting party allegiance by legislators is 3no!n be
different nomenclatures; such as 4floor;crossing5" 4carpet;crossing5" 4party;hopping5"
4dispute5 and 4!a3a;*umping5; in different parts of the Common!ealth. In some countries
defections are a non;issue and not percei+ed as a problem" !hereas in some other countries"
they ha+e at times threatened the +ery stability of the go+ernment. &aturally" therefore" !hile
some countries deal !ith defections !ith the help of !ell;established customs" con+entions
and parliamentary practices and procedures" others ha+e framed la!s and rules to tac3le the
problem.
?he e+olution of any la! can be traced out by t!o !ays either by means of loo3ing
bac3 into the history of the one5s o!n nation as to factors that ga+e rise to the preposition of
the la! as it stands today or by ma3ing a comparati+e analysis of different nations legal
system to !hose legal system it resembles. ?hese are the path findings left for any researcher
in order to ascertain the de+elopments of la! in a particular aspect.
=ith regard to the matter in issue" the researcher has adopted both the means that is
digging into the past and ta3ing an out loo3 at the position of la! for defection around the
globe ha+ing parliamentary form of go+ernment. ?he first aspect of historical bac3ground
and factors that led to the gro!th of anti;defection la!s in India has been elaborately

discussed in the pre+ious chapter" !hile a sincere attempt has been made in the follo!ing
chapter to bring in the practice that pre+ails in the other common!ealth nations.
?he purpose of this analysis is that by adopting a study on the position of different
parliamentary practices has a close nexus !ith the sub*ect matter under discussionN this can
be !ell understood by dra!ing an analogy !ith the term Bcommon!ealthC. At the outset the
term 4common!ealth5 means 4countries that !ere the colonies of the 6reat British Empire5.
?his being the meaning attached to the term" it cannot be negated that the le. loci of these
nations ha+e nexus !ith or influence of English la!. India being one of the biggest prides
among the +arious diamonds in the British Empire Crown is definitely influenced by English
legal system. It is at this *uncture that the comparati+e analysis of +arious common!ealth
nations ha+ing parliamentary forms of go+ernment is of paramount importance.
?his being the scenario let us begin the discussion on the +arious common!ealth
nations and their ta3e on anti;defection la!s.
4.2 Handlin #!&!ctions (it)out L!islation
Koremost among the (8 Parliaments ha+ing no la! to deal !ith defections is the
0other of Parliaments itself. In the $nited 7ingdom there is no bar on members changing
their party affiliations. A member !ho defects is not reAuired to resign. #eating in the -ouse
of Commons is go+erned by con+entions and not rules" but a member !ho has defected
!ould normally sit separately from party members. In the Australian Parliament as !ell"
there are no la!s or rules go+erning defections" other than internal party arrangements.
#imilar is the case of the Parliament of Canada" !here there is no prohibition; legal or
constitutional; against the practise of crossing the floor. ?he member5s entitlement to sit as a
member in the -ouse is not contingent upon his political affiliation. ?he =hip ma3es

changes in the seating of a member or members !ithin a party and notifies the #pea3er.
=here a member decides to cross the floor and sits !ith another party" his ne! party =hip
determines the seating arrangement for him.
In Barbados" there is no anti;defection la! though there are cases of defection.
-o!e+er" there is a consensus that if a member defects" his seat should be declared +acant
thereby pa+ing the !ay for a by;election.
In 0alaysia also" there is no la! regulating defections" though there ha+e been cases
of defection and there has been a demand to enact legislation in this regard. In fact" there !as
a Pri+ate 0ember5s Bill in (>8: to chec3 defection of elected representati+es by reAuiring a
member of parliament to +acate his seat !ithin ,E days on his resignation or expulsion from
the party on !hose tic3et he !as originally elected.
?he peculiarity of the Parliament of &auru is that it has no cohesi+e force in the form
of political parties. ?he members are elected on the basis of adult suffrage and are free to act
according to their conscience. %nce elected they become members either of the ruling group
called 4caucus5 or the opposition called 4bac3benchers5. ?his being so" the Parliament of
&auru has not faced the problem of defection in the true sense of the term. -ere the problem
is such that members of the 4caucus5 often shift their allegiance to bac3benchers to form
coalitions and bring do!n the go+ernment of the day by mo+ing &o;confidence 0otion as
pro+ided in article ).I(J of the Constitution of &auru.
Apart from these" there are Parliaments li3e Anguilla" Bermuda" Bots!ana"
Cameroon" Cyprus" Dominica" 6renada" Jamaica" &amibia" #eychelles and ?u+alu !here
there are no la!s or rules to deal !ith the cases of defection.

4.4 Anti'#!&!ction L!islations in t)! Co%%on(!alt)
?urning to the countries" !hich ha+e enacted legislations or framed rules to deal !ith
defections" an attempt has been made in the follo!ing paragraphs to gi+e information in brief
under certain parameters and thereby elucidate the position pre+alent in different countries
comparati+ely. ?he position in India is ta3en as a reference point to facilitate a comparison.
4.4.0Voluntaril+ i$in u" %!%1!rs)i" o& t)! "art+
?he anti;defection la! in India inter alia pro+ides that an elected 0ember of
Parliament or a #tate egislature" !ho has been elected as a candidate set up by a political
party" !ould be disAualified for being a member of the -ouse" on the ground of defection if
he +oluntarily gi+es up his membership of such political party. ?he la! on the sub*ect passed
by Bangladesh Parliament" in (>:E" pro+ides inter alia that a 0ember of Parliament shall
+acate his seat if he resigns from the political party on !hose tic3et he contested that election.
In Beli2e" the la!" !hich came into force in January )EE(" pro+ides that a person ceases to be
a member by reason of crossing the floor.
In 6hana" Art >8I(J IgJ of the Constitution inter alia pro+ides that a 0ember of
>
Parliament shall +acate his seat in Parliament if he lea+es the party of !hich he !as a
member at the time of his election to Parliament" to *oin another party or remains in
Parliament as an independent member.
Constitution o& G)ana Articl! @>: IChapter Q Composition of ParliamentJ
>
IgJ if he lea+es the party of !hich he !as a member at the time of his election to Parliament to *oin another
party or see3s to remain in Parliament as an independent memberN
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In 6uyana" !hich as a system of proportional representation" a Constitution
Amendment Act !as brought about in the year )EEE pro+iding for disAualification of those
members !ho declare that they !ould not support the list from !hich their names !ere
extracted" or abstain from supporting the list or declare support for another list. In 7enya" if a
member of the &ational Assembly resigns from the Parliamentary Party he belongs to" he
shall +acate his seat forth!ith" unless in the meantime that party has ceased to exist as a
Parliamentary Party or he has resigned his seat.
In esotho" an amendment to the Electoral Act pro+ides for disAualification of
proportional representation members if he crosses the floor or resigns from the party" !hich
had supported his candidature. -o!e+er" the la! is not applicable to the members ha+ing
constituency seats. In 0ala!i " the practice is that the spea3er declares +acant the seats of
(E
those members !ho ha+e +oluntarily ceased the membership of their party or *oined another
party or association or organisation !hose acti+ities are political in nature. ?he Parliament of
0o2ambiAue has a la!" i.e. la! )<>/ of : 0ay (>>/" to pre+ent the phenomenon of defection.
$nder the la!" a Deputy loses his seat !hen during that particular egislature" he becomes
S!ction 86 o& t)! Constitution o& 7ala(i: DC)a"t!r VI T)! L!islatur!E
(E
1/I(J ?he #pea3er shall declare +acant the seat of any member of the &ational Assembly !ho !as" at the time
of his or her election" a member of one political party represented in the &ational Assembly" other than by that
member alone but !ho has +oluntarily ceased to be a member of that party and has *oined another political party
represented in the &ational Assembly.
I)J &ot!ithstanding subsection I(J" all members of all parties shall ha+e the absolute right to exercise a free
+ote in any and all proceedings of the &ational Assembly" and a member shall not ha+e his or her seat declared
+acant solely on account of his or her +oting in contradiction to the recommendations of a political party"
represented in the &ational Assembly" of !hich he or she is a member.
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member or carries out duties of another party" other than the party through !hich he !as
elected.
In &e! Dealand" !here floor;crossing is called 4=a3a;*umping5" after the election
and formation of a coalition 6o+ernment in (>>>" the Electoral IIntegrityJ Amendment Act
)EE( !as passed" !hich came into force on )) December )EE(. ?he la! inter alia pro+ides
that a member5s seat in Parliament falls +acant if he ceases to be a Parliamentary member of
the political party for !hich he !as elected . It is a temporary la! and !ill automatically
((
expire at the time of general election due in )EE/.
S!ction 66 A o& t)! N!( F!aland El!ctoral DInt!rit+E A%!nd%!nt Act 2CC0 7!%1!r c!asin to 1!
((
"arlia%!ntar+ %!%1!r o& Political Part+
BI(J this section applies to e+ery 0ember of Parliament" except a member elected as an independent.
BI)J ?he seat of a member of Parliament to !hom this section applies becomes +acant if the 0ember of
Parliament ceases to be a parliamentary member of the political party for !hich the 0ember of Parliament !as
elected.
BI,J Kor the purposes of subsection I)J" a member of Parliament ceases to be a parliamentary member of the
political party for !hich the member of Parliament !as elected if" and only if"P
BIaJ the member of Parliament deli+ers to the #pea3er a !ritten notice that complies !ith section //BN or
BIbJ the parliamentary leader of the political party for !hich the member of Parliament !as elected deli+ers to
the #pea3er a !ritten notice that complies !ith section //C.
+ew section //Aapplies to all members of Parliament other than members !ho !ere elected as independent
members. ?he seat of a 0ember of Parliament to !hom this section applies becomes +acant if the member
ceases to be a parliamentary member of the political party for !hich the member !as elected. A member ceases
to be a parliamentary member of the political party for !hich the member !as elected if" and only if"P
S the member deli+ers to the #pea3er a !ritten notice that complies !ith new section //&I!hich is a notice
indicating that the member has resigned from parliamentary membership of the political party to !hich he or
she !as elected or !ishes to be recognised for parliamentary purposes as either an independent member of
Parliament or a member of another political partyJN or
S the parliamentary leader of the political party for !hich the member of Parliament !as elected deli+ers to the
#pea3er a !ritten notice that complies !ith new section //C.
#ource@)tt":AA(((.l!islation.o$t.n9 ast +isited on@ (:<E)<)E(E

In &igeria" defection is 3no!n as Bcarpet;crossingC. A member of the #enate or the
-ouse of Representati+es shall +acate his seat if being a person !hose election to the -ouse
!as sponsored by a political partyN he *oins another party before the expiration of the period
for !hich that -ouse is elected . ?he Constitution of #ierra eone pro+ides that a 0ember
() (,
of Parliament shall +acate his seat in Parliament if he ceases to be a member of the political
party for !hich he !as a member at the time of his election to Parliament. ?he Constitution
of the Republic of #ingapore under Art .1I)J IbJ pro+ides that the seat of a member shall
become +acant if he ceases to be a member of" or is expelled or resigns from the political
party for !hich he stood in the election .
(.
S!ction 8?D0EDE o& t)! Constitution o& T)! F!d!ral R!"u1lic o& Ni!ria 0@@@ GC)a"t!r V T)!
()
L!islatur! C ' Huali&ications &or 7!%1!rs)i" o& National Ass!%1l+ and Ri)t o& Att!ndanc!I
1:. I(J A member of the #enate or of the -ouse of Representati+es shall +acate his seat in the -ouse of !hich
he is a member if ;
IgJ being a person !hose election to the -ouse !as sponsored by a political party" he becomes a member of
another political party before the expiration of the period for !hich that -ouse !as electedN
Pro+ided that his membership of the latter political party is not as a result of a di+ision in the political party of
!hich he !as pre+iously a member or of a merger of t!o or more political parties or factions by one of !hich
he !as pre+iously sponsoredN
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THE CONSTIT<TION OF SIERRA LEONEB 0@@0 DAct No. 8 o& 0@@0E C)a"t!r VI / Part 0
(,
S!ction >>: T!nur! o& S!ats o& 7!%1!rs o& Parlia%!nt
I(J A 0ember of Parliament shall +acate his seat in ParliamentP
I3J if he ceases to be a member of the political party of !hich he !as a member at the time of his election to
Parliament and he so informs the #pea3er" or the #pea3er is so informed by the eader of that political partyN
Sourc!:)tt":AA(((.si!rra'l!on!.orALa(sAconstitution0@@0 Last $isit!d on 06AC2A2C0C
CONSTIT<TION OF THE REP<BLIC OF SINGAPOREB 0@86
(.
Part VI

In Papua &e! 6uinea" an anti;defection legislation called the Integrity of Political
Parties and Candidates a! !hich came into force for the )EE) election restricts the freedom
of politicians to change party affiliation. ?he la! also en+isages penalties if members of the
egislature lea+e their party" !ith !hich they !ere aligned !hen first elected and *oin
another party or become independent. If the member changes the party" he is reAuired to face
the 4leadership tribunal5 Ithe %mbudsman CommissionJ" !hich decides !hether the grounds
for resignation are +alid. $nder the la!" +alid resignation is possible !hen the Party has
breached its o!n constitution or !hen it has been declared insol+ent. If the tribunal rules
against the member" a by;election must be held.
(/
Article .1 P I)J ?he seat of a 0ember of Parliament shall become +acant P
IbJ if he ceases to be a member of" or is expelled or resigns from" the political party for !hich he stood in the
electionN
#ource@)tt":AAstatut!s.ac.o$.s ast +isited on@ (1<E)<)E(E
IN#EPEN#ENT STATE OF PAP<A NEJ G<INEA
(/
PART 6. / STRENGTHENING OF POLITICAL PARTIES. #i$ision 6. #!&!ction &ro% Political Part+
and Votin R!striction
Article 1/. DEKEC?I%& KR%0 %R '%?I&6 A6AI&#? A RE6I#?ERED P%I?ICA PAR?M
I(J A 0ember of the Parliament" !ho !as an endorsed candidate of a registered political party at the election at
!hich he !as elected to the Parliament" shall" during the term of the Parliament for !hich he !as elected 9
IaJ not !ithdra! or resign from that registered political party except in accordance !ith Di+ision )N and
Conti
IbJ sub*ect to #ection 1EI)JIdJ or #ection 1EI,JIaJ" not *oin another registered political partyN and
IcJ sub*ect to #ubsection I)J" +ote only in accordance !ith a resolution of that registered political party as
determined by the member of that registered political party !ho are 0ember of the Parliament is the follo!ing
only@ 9
IiJ a motion of no;confidence brought against the Prime 0inister" the 0inistry or a 0inister under #ection (./
Imotion of no confidenceJ of the ConstitutionN and
IiiJ a +ote for the election of a Prime 0inister under #ection (.) I?he Prime 0inisterJ of the ConstitutionN and

In Pa3istan also" anti;defection la! is in existence and there ha+e been instances of
political defections. ?he Constitution of Pa3istan vide Art 1,A lays do!n the grounds of
defection on !hich a member of parliamentary party in a -ouse is disAualified. ?hese" inter
alia" are if he resigns from membership of his political party or *oins another parliamentary
party.
(1
IiiiJ a +ote for the appro+al of the &ational BudgetN and
Ii+J a +ote to enact" amend or repeal a Constitutional a!.
I)J A member of the Parliament !ho is a member of a registered political party may abstain from +oting in
cases referred to in #ubsection I(JIcJ.
11. '%?E C%&?RARM ?% PR%'I#I%&# %K #EC?I%& 1/I(JICJ &%? ?% BE C%$&?ED.
?he +ote of a 0ember of the Parliament contrary to the pro+isions of #ection 1/I(JIcJ shall not be counted.
18. DEE0ED RE#I6&A?I%& KR%0 %KKICE.
=here a member of the Parliament contra+enes #ection 1/I(J 9
IaJ he is deemed to ha+e resigned from the registered political party of !hich he !as a memberN and
IbJ the #pea3er shall gi+e notification of the matter to the RegistrarN and
IcJ the Registrar shall refer the matter to the %mbudsman CommissionN and
IdJ the matter shall proceed under #ection />I.J" #ections 1E and 1( as if the resignation !ere a resignation
under #ection /:.
1:. %?-ER PE&A?IE# K%R C%&?RA'E&?I%& %K #EC?I%& 1/.
A 0ember of the Parliament !ho contra+enes #ection 1/" but to !hom #ection 1E applies 9
IaJ shall refund to the registered political party all campaign and other expenses recei+ed from the registered
political party in supporting him at the electionN and
IbJ #hall not be appointed as a Prime 0inister" 0inister" 'ice;0inister or Chairman or Deputy Chairman of a
Committee of the Parliament for the remainder of the life of the Parliament.
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In #amoa" the Electoral Amendment Act )EE/ !hich came into force on ( April )EE/
amended Part IIA of the Principal Act by inserting #ection (/K" !hich inter alia pro+ides that
a candidate elected as a member" !here that ballot paper for such election cites the
candidate5s membership of a political party" shall sit in the egislati+e Assembly as a
member of that political party during the term for !hich the candidate !as so elected. =here
the ballot paper for such election cites the candidate5s membership of a political party and
T)! Constitution o& t)! Isla%ic R!"u1lic o& Pakistan
(1
PART III T)! F!d!ration o& Pakistan
C)a"t!r 2: THE 7A.LIS'E'SHOORA DParlia%!ntE
1,A. DisAualification on grounds of defection" etc.
I(JIf a member of a Parliamentary Party composed of a single political party in a -ouse;
IaJ resigns from membership of his political party or *oins another Parliamentary PartyN or
IbJ +otes or abstains from +oting in the -ouse contrary to any direction issued by the Parliamentary Party to
!hich he belongs" in relations to;
IiJ election of the Prime 0inister or the Chief 0inisterN or
IiiJ a +ote of confidence or a +ote of no;confidenceN or
IiiiJ a 0oney BillN
he may be declared in !riting by the -ead of the Parliamentary Party to ha+e defected from the political party"
and the -ead of the Parliamentary Party may for!ard a copy of the declaration to the Presiding %fficer" and
shall similarly for!ard a copy thereof to the member concerned@
Pro+ided that before ma3ing the declaration" the -ead of the Parliamentary Party shall pro+ide such member
!ith an opportunity to sho! cause as to !hy such declaration may not be made against him.
I)J A member of a -ouse shall be deemed to be a member of a Parliamentary Party if he ha+ing been elected as
a candidate or nominee of a political party !hich constitutes the Parliamentary Party in the -ouse or" ha+ing
been elected other!ise than as a candidate or nominee of a political party" has become a member of such
Parliamentary Party after such election by means of a declaration in !riting.
I,J $pon receipt of the declaration under clause I(J" the Presiding %fficer of the -ouse shall !ithin t!o days
refer the declaration to the Chief Election Commissioner !ho shall lay the declaration before the Election

upon election" but prior to ta3ing the oath of allegiance" it appears that such political party
does not ha+e sufficient membership to be recogni2ed as a political party in the egislati+e
assembly" under #tanding %rders" the candidate" may" prior to ta3ing the oath of allegiance"
*oin another political party or become an independent in the manner pro+ided by #tanding
%rder and thereafter the elected candidate shall sit in the egislati+e Assembly as a member
of such other political party or as an independent" as the case may reAuire" during the term for
!hich the candidate !as so elected. -o!e+er" if a candidate resigns subseAuently from such
political party and becomes a member of another political party during the term for !hich the
candidate !as so elected" the seat of such candidate as a 0ember of Parliament shall become
+acant and such candidate shall be disAualified from holding such seat.
Commission for its decision thereon confirming the declaration or other!ise !ithin thirty days of its receipt by
the Chief Election Commissioner
Conti
I.J =here the Election Commission confirms the declaration" the member referred to in clause I(J shall cease to
be a member of the -ouse and his seat shall become +acant.
I/J Any party aggrie+ed by the decision of the Election Commission may !ithin thirty days" prefer an appeal to
the #upreme Court !hich shall decide the matter !ithin three months from the date of the filing of the appeal.
I1J &othing contained in this Article shall apply to the Chairman or #pea3er of a -ouse.
I8J Kor the purpose of this Article;
IaJ R-ouseR means the &ational Assembly or the #enate in relation to the Kederation and a Pro+incial Assembly
in relation to the Pro+ince" as the case may be.
IbJ RPresiding %fficerR means the #pea3er of the &ational Assembly" the Chairman of the #enate or the #pea3er
of the Pro+incial Assembly" as the case may be.

In #outh Africa" #..8 of the Constitution " as amended by Act &o. ) of )EE, pro+ides
(8
inter alia that a person loses membership of the &ational Assembly if he ceases to be a
member of the party that nominated him as a member of the Assembly" unless that member
has become a member of another party in accordance !ith #chedule 1A. #imilarly" #.(E1 as
amended pro+ides inter alia that a person loses membership of Pro+incial egislature if he
ceases to be a member of the party that nominated him as a member of the egislature" unless
that member has become a member of another party in accordance !ith #chedule 1A.
#chedule 1A inter alia lays do!n a mechanism of !indo! period !hich pro+ides for
retention of membership of &ational Assembly or Pro+incial egislature after a change of
party membership" merger bet!een parties" subdi+ision of parties and subdi+ision and merger
of parties. In terms of legislation" the time of (/ day !indo! periods are from the first to the
fifteenth day of #eptember in the second year follo!ing the date of an election of the
legislature and from the first to the fifteenth day of #eptember in the fourth year follo!ing the
date of an election of the legislature. ?he Act also made a pro+ision for the members to
change their party allegiance during the first (/ days immediately follo!ing the date of
commencement of the Act.
Sout) A&rica Constitution o& t)! R!"u1lic o& Sout) A&ricaB 0@@8B Go$!rn%!nt Ga9!tt! Vol. 624 Ca"!
(8
To(n Constitution Fourt!!nt) A%!nd%!nt Act o& 2CC?. ()ic) ca%! into !&&!ct on @ .anuar+ 2CC@
t )
C)a"t!r 5 / Parlia%!nt
#ection .8I,J
A person loses membership of the &ational Assembly if that person
a. ceases to be eligibleN
b. is absent from the Assembly !ithout permission in circumstances for !hich the rules and orders of the
Assembly prescribe loss of membershipN or
c. ceases to be a member of the party that nominated that person as a member of the Assembly.
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It must" ho!e+er" be noted that in order to retain the membership of the egislature in
the e+ent of change of party membership" merger" subdi+ision and subdi+ision O merger of
parties" a member of a legislature !ho becomes a member of a party Ithe ne! partyJ other
than the party !hich nominated that person as a member Ithe nominating partyJ" !hether the
ne! party participated in an election or not" remains a member of that legislature if that
member" !hether by himself or herself or together !ith one or more other members !ho"
during the !indo! period ceased to be members of the nominating party" represents not less
than (EL of the total number of seats held by the nominating party in that legislature.
In #ri an3a" under Art >>I(,J of the Constitution" a member !ho ceases to be a
member of his political party or independent group by !ay of resignation" expulsion or
other!ise" loses his seat in the egislature upon the expiration of a period of one month from
the date of his ceasing to be such member.
(:
THE CONSTIT<TION OF THE #E7OCRATIC SOCIALIST REP<BLIC OF SRI LAN=AB 0@>>
(:
CHAPTER MIV ' THE FRANCHISE AN# ELECTIONS Oriinal Articl! @@ r!"!al!d and r!"lac!d 1+
t)! Fourt!!nt) A%!nd%!nt to t)! ConstitutionB S!c D>E.
#ection >> I(,J Proportional Representation@
I(,J IaJ =here a 0ember of Parliament ceases" by resignation" expulsion or other!ise" to be a member of a
recogni2ed political party or independent group on !hose nomination paper Ihereinafter referred to as the
Rrele+ant nomination paperRJ his name appeared at the time of his becoming such 0ember of Parliament" his
seat shall become +acant upon the expiration of a period of one month from the date of his ceasing to be such
member @
Conti
Pro+ided that in the case of the expulsion of a 0ember of Parliament his seat shall not become +acant if prior to
the expiration of the said period of one month he applies to the #upreme Court by petition in !riting" and the
#upreme Court upon such application determines that such expulsion !as in+alid. #uch petition shall be
inAuired into by three Judges of the #upreme Court !ho shall ma3e their determination !ithin t!o months of
the filing of such petition. =here the #upreme Court determines that the expulsion !as +alid the +acancy shall
occur from the date of such determination.

$nder the Constitution of ?an2ania" (>88" Art 8(I(J IeJ pro+ides that a member of the
&ational Assembly shall cease to be a member and shall +acate his seat in the &ational
Assembly if he ceases to be a member of that political party to !hich he belonged !hen he
!as elected or appointed as 0ember of Parliament.
In ?rinidad and ?obago" as per section .>AI(J of the Constitution" !here a member
resigns from or is expelled by a political party" the eader of the concerned party in the
-ouse of Representati+es is reAuired to inform the #pea3er about the same in !riting. After
being so informed" the #pea3er at the next sitting of the -ouse ma3es a declaration about the
resignation<expulsion !ithin (. days. If he does not do so" he shall +acate his seat at the end
of the said period of (. days. If !ithin the stipulated period" the concerned member institutes
legal proceedings" he is not reAuired to +acate his seat until the proceedings institutes by him
are !ithdra!n or the Auestion has been finally determined by a decision upholding the
resignation or expulsion. -o!e+er" the #tanding %rders of the -ouse of Representati+es had
not been amended to gi+e effect to section of the Constitution till April )EE).
In $ganda" Art :,I(J IgJ of the Constitution pro+ides that any 0ember of Parliament
!ho lea+es the political party of !hich he stood as a candidate for election to Parliament and
*oins another party or remains in Parliament" as an independent member shall +acate his seat.
In the Dambian Parliament also a member of the &ational Assembly !ho becomes a member
IbJ =here the seat of a 0ember of Parliament becomes +acant as pro+ided in Article 11 Iother than paragraph
IgJ of that ArticleJ or by +irtue of the preceding pro+isions of this paragraph the candidate from the rele+ant
recogni2ed political party or independent group !ho has secured the next highest number of preferences shall be
declared elected to fill such +acancy.
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of a political party other than the party of !hich he !as an authorised candidate !hen he !as
elected to the &ational Assembly loses his seat in the Parliament.
In Dimbab!e if a member" elected from one of the ()E common roll constituencies"
ceases to belong to his political party and the party !rites to the #pea3er declaring that they
ha+e since parted !ays !ith the members" the member ceases to be the member of the
egislature.
(>
4.4.2 Violatin Part+ #ir!ctionsAJ)i"
A 0ember of Parliament or a #tate egislature in India also comes under the rigour of
anti;defection la! if he +otes or abstains from +oting in the -ouse contrary to any direction
issued by the political party to !hich he belongs or by any person or authority authori2ed by
it in this behalf" !ithout obtaining" in either case" the prior permission of such political party"
person or authority and such +oting or abstention has not been condoned by such political
party" person" person or authority !ithin fifteen days from the date of such +oting or
abstention. #imilarly" in Bangladesh the Constitution pro+ides that a 0ember of Parliament
shall +acate his seat if he +otes in Parliament against the party.
THE CONSTIT<TION OF FI7BABJE
(>
CHAPTER V PART 5' G!n!ral 7att!rs R!latin to Parlia%!nt
Article .( ?enure of seats of members
I(J #ub*ect to the pro+isions of this section" the seat of a member of Parliament shall become +acant onlyP
IeJ if" being a member referred to in section ,:I(JIaJ and ha+ing ceased to be a member of the political party of
!hich he !as a member at the date of his election to Parliament" the political party concerned" by !ritten notice
to the #pea3er" declares that he has ceased to represent its interests in ParliamentN
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?he defection la! as confined in Art 1,A of the Constitution of Pa3istan inter alia
)E
pro+ides that a 0ember of Parliamentary party in the -ouse !ill be disAualified if he +otes or
abstains from +oting in the -ouse contrary to any direction issued by the parliamentary party
to !hich he belongs in relation to election of the Prime 0inister or the Chief 0inister" a 'ote
of Confidence or a 'ote of &o;Confidence or a 0oney Bill.
In Papua &e! 6uinea" the anti;defection la! en+isages that 0embers of Parliament
elected !ith party endorsement must +ote in accordance !ith their party5s position on 3ey
issues including the election of a Prime 0inister" the Budget" +otes of no;confidence and
Constitutional Amendments. In #ierra eone" a member is reAuired to +acate his seat for
sitting and +oting !ith members of a different party. Interesting" in 0ala!i" #ection1/I)J of
the Constitution pro+ides that all members of parties shall ha+e absolute right to exercise a
free +ote in any and all proceedings of &ational Assembly and a member shall not ha+e his
seat declared +acant solely on account of his +oting in contradiction to the recommendations
of his political party in the &ational Assembly.
4.4.4 S"litsA7!r!r
In India" the anti;defection la! as contained in the Constitution IKifty;#econd
AmendmentJ Act" (>:/ pro+ided that no disAualification !ould be incurred in cases !here
split in a party or merger of a party !ith another !as claimed pro+ided that in the e+ent of a
split in the egislature Party not less than one;third of its members decided to Auit the party
and in the case of a merger the decision !as supported by not less than t!o;thirds of the
members of the egislature party concerned.
4.4.5 S"lit Pro$ision #!l!t!d in India
,"pra
) E

?he pro+ision relating to split !as se+erely criticised in India on the ground that !hile
indi+idual defection !as punished" collecti+e defection !as condoned. ?herefore" the
pro+ision relating to split has been deleted by the Constitution I&inety;first AmendmentJ Act
)EE,.
In Bangladesh" there is no specific pro+ision for splits and mergers in the Constitution
or in any la! or Rules of Procedure. In 6hana" a merger of parties at the national le+el
sanctioned by the Constitution or membership of a coalition go+ernment of !hich his original
party forms part shall not affect the status of a 0ember of Parliament. In &igeria" exemption
is gi+en in cases of splits and mergers. -o!e+er" there is no prescribed number as to !hat
constitutes a split or a merger. In #ierra eone" both collecti+e as !ell as indi+idual
defections are penali2ed. In #outh Africa" as mentioned earlier" follo!ing the laid do!n
conditions and procedure" a party could merge" sub;di+ide or sub;di+ide and merge only once
by !ritten notification to the #pea3er during the (/;day !indo! period. In Beli2e" 6uyana"
&e! Dealand" #ri an3a" ?rinidad and ?obago" there are no legal pro+isions for splits and
mergers. In 0o2ambiAue" the la! does not formally recogni2e splits amounts to a change in
party affiliation and is dealt !ith as such under the pro+ision of la!. In Dimbab!e" no
exemption is gi+en in cases of splits and mergers.
4.4.6 Ind!"!nd!nt and No%inat!d 7!%1!rs
%ne more important dimension of anti;defection la! is !ith regard to the status of
independent and nominated members in the e+ent of their *oining a political party. In India an

independent 0ember of Parliament or a #tate egislature is disAualified if he *oins any
political party after his election. A nominated 0ember of Parliament or a #tate egislatur e
!ho is not a member of a political party at the time of his nomination and !ho has not
become a member of any political party before the expiry of six months from the date on
!hich he ta3es his seat in the -ouse" is disAualified if he *oins any political party after the
expiry of the said period of six months.
In Bangladesh" if a person after being elected as a 0ember of Parliament as an
independent candidate *oins any political party" he is deemed to ha+e been elected as a
nominee of that party. ?here is no pro+ision for nominated members in Bangladesh
Parliament. In 6hana and #ierra eone also a 0ember of Parliament shall +acate his seat in
Parliament if he !as elected as an independent candidate and *oins a political party. In Beli2e
and 6uyana" there are no pro+isions in respect of independent and nominated members. In
0o2ambiAue if a Deputy resigns or is expelled from his party or parliamentary bench and he
remains not affiliated to another party" he becomes an independent.
In esotho" 0ala!i and &e! Dealand" independent members !ould not lose their
seats if they *oin any political party after election. In Papua &e! 6uinea" a member shall
+acate his seat in Parliament if ha+ing been elected as an independent candidate" he *oins a
political party. In 7enya" a member of the &ational Assembly ha+ing accepted appointment
as a nominated member of a political party shall +acate his seat. In #amao" a candidate
elected as a member" !here the ballot paper for such election cites the candidates as
independent Imeaning the candidate is not a member of political party at the time of electionJ"
may" prior to ta3ing the oath of allegiance" *oin a political party in the manner pro+ided by
the #tanding %rders and thereafter such elected candidate shall sit in the egislati+e
Assembly as a member of that political party during the term for !hich the candidates !as so

elected. In #ingapore also" a nominated member5s seat becomes +acant if the member stands
as a candidate for any political party in an election or if he is elected as a 0ember of
Parliament for any constituency.
In #ri an3a" independent candidates cannot contest indi+idually. But they can contest
under the symbol of an independent group and they !ould be sub*ect to the pro+isions of
anti;defection la!. In ?rinidad and ?obago there are no pro+isions !ith respect to
independent or nominated members. In $ganda" any 0ember of Parliament !ho lea+es the
political party to !hich he stood as a candidate for election to Parliament and *oins another
party or remains in Parliament as an independent member shall +acate his seat. In Dambia" if
an independent member or a nominated 0ember of Parliament is not debarred from *oining a
political party of their choice after election or nomination.
4.4.8 E*"!ll!d 7!%1!rs
?he position !ith regard to members !ho ha+e been expelled from the original
political parties differs from country to country. ?he anti;defection la! in India does not state
the position and status of members !ho are expelled from their political parties. #uch a
member" ho!e+er" continues to be a member of the -ouse and is seated separately from the
bloc of seats earmar3ed for his original political party. In Bangladesh" if a member is
expelled from his political party" the 4dispute5 is referred to the Election Commission !hose
decision is final and no appeal can be made against it. In esotho" in case a member is
expelled from his political party" he is not disAualified from the membership of the same
party but is seated separately in the -ouse as is the case in India. In Beli2e and 6uyana" the
Constitution does not ha+e any pro+isions dealing !ith the members expelled from their
parties. In 0ala!i" a member !ho is expelled by his party for reason other than crossing the

floor does not lose his seat. -e remains not affiliated to another party" he becomes an
independent. -e 3eeps his seat and status as Deputy of Parliament for the full tenure of the
egislature as a representati+e of his +oters.
In &e! Dealand" a member5s seat falls +acant if he is expelled from the membership
of his political party. In #ierra eone" the practice is that !hen a member is expelled from the
party" the #pea3er sets up a committee !hich enAuires into the matter and reports to the
#pea3er and the #pea3er ta3es a +ie! in the matter. ?he #pea3er5s decision is" ho!e+er"
appealable in a Court of a!. In #ingapore and #ri an3a" if a member is expelled from his
party" he !ill lose his seat in Parliament. In Dambia" !here the #pea3er recei+es intimation
from a political party regarding the expulsion of a member from the party" he has the mandate
of the la! in such a situation to inform the President and Electoral Commission that a
+acancy has occurred in the membership of &ational Assembly.
In Dimbab!e" the circumstances under !hich a member can be deemed to ha+e
ceased to belong to his party are not defined !hich means it can be through resigning" being
expelled or defection" thus lea+ing a lot of discretion !ith the party and the member
concerned. In such e+entually" the seat of the member is declared +acant and an election has
to be held.
4.4.> E*!%"tin t)! Pr!sidin O&&ic!r
In order to facilitate the neutrality of the Presiding %fficers" they need to be exempted
from the rigour of the la! if they se+er their political connection !ith their original political
party after election to the chair. $nder the anti;defection la! in India" a special pro+ision has

been made in respect of Presiding %fficers and Deputy Presiding %fficers !hich enable then
to se+er their connections !ith the political party they originally belonged !ithout incurring
any disAualification. ?hey can re*oin the political party after laying do!n the office" under the
rele+ant la! in Bangladesh" 6uyana" &igeria" #ingapore and #ri an3a no such pro+ision for
exemption is a+ailable to the #pea3er or the Deputy #pea3er. In Beli2e" the #pea3er is also
sub*ect to disAualification as a member of the -ouse of Representati+es if he crosses the
floor. In 7enya" exemption is gi+en to a member !ho is elected as #pea3er and he does not
attract the pro+ision relating to the la! in this regard. In 0o2ambiAue" the #pea3er and the
Deputy #pea3er of the Assembly are not reAuired to exercise any impartiality or dissension
from the political parties they belong to. Kurther" they ha+e the right to +ote" !hich in
principle" !ould be affected in compliance !ith the party through !hich they !ere elected.
In &e! Dealand" Presiding %fficers Iunless originally elected as independent
membersJ are not treated differently from other members of their parliamentary party. In
Pa3istan also the defection la! as contained in Art 1,A of the Constitution of Pa3istan is not
applicable to Chairman or the #pea3er of a -ouse. In Dimbab!e" the Auestion of defection or
change of party affiliation in the case of the #pea3er does not arise because the #pea3er is not
member of the Assembly. ?he Constitution of Dimbab!e under Art 1>I(J pro+ides that there
shall be a #pea3er of the &ational Assembly !ho shall be elected by the members of the
Assembly from amongst persons !ho are Aualified to be elected as members of the Assembly
but are not members of the Assembly.
4.4.? Pr!sidin O&&ic!r as #!cidin Aut)orit+
=hile in se+eral Parliaments Presiding %fficers are competent and the final authority
to ta3e a decision !ith regard to defection cases" in some countries an appeal can be made to

the Court or the Election Commission or some other bodies. ?he position in India is that the
Chairman or the #pea3er of the respecti+e -ouse determines the Auestion as to !hether a
member a member of a -ouse of Parliament or a #tate egislature has become sub*ect to
disAualification. ?he Presiding %fficers" ho!e+er" cannot ta3e any initiati+e s"o moto . It has
to be on the basis of a petition to be filed by a member. =here the Auestion is !ith reference
to the Chairman or the #pea3er himself" a member of the concerned -ouse" elected by it" in
that behalf" !ill be decide by it. Although anti;defection la! in India en+isaged that no court
shall ha+e any *urisdiction respect of any matter connected !ith the disAualification of a
member of a -ouse under the la!" the #upreme Court of India has held this pro+ision" !hich
bars the *urisdiction of Courts in such matters as ultra +ires. -ence" members on many
occasions ha+e mo+ed the concerned courts challenging the orders of the #pea3er. ?he
court5s *udgments ha+e been implemented also.
In Bangladesh" all the decisions gi+en by the Election Commission are final and no
pro+ision for appeal lies against such decisions. =hereas in India only a member of the
-ouse can file a petition for disAualification of another member" in Bangladesh any person or
a member can bring the dispute to the notice of the #pea3er. ?he #pea3er then prepares a
statement containing all details and sends it to the Election Commission. In Beli2e" the
#pea3er is competent to ta3e decision in cases relating to floor crossing. -o!e+er" the
decision of the #pea3er is appealable in the #upreme Court. In esotho" the Auestion
regarding disAualification of a member is ta3en up by the Presiding %fficer s"o moto In
0ala!i" the #pea3er5s decision is preceded by a motion from another member. ?he Presiding
%fficer cannot act unless there is a motion for the remo+al of a member. In 0o2ambiAue" the
loss of the mandate of a Deputy is declared by the #tanding Committee" a body chaired by the
#pea3er" !hich should be announced in the plenary and published in the 6o+ernment
6a2ette. It is upon the #tanding Committee to discuss the sanctions in consultations !ith the

Chief =hip of the bench the deputy belongs to. Kurther" there is the choice to appeal against
the sanctions to the plenary !ithin eight days after notification.
In &e! Dealand" the #pea3er acts only upon a !ritten notice recei+ed either from the
member himself in case of his resignation from the parliamentary membership of a party or
from the parliamentary leader of a party in case of member5s expulsion from that party. ?he
#pea3er cannot raise the issue on his o!n initiati+e. In both the e+entualities" the #pea3er is
concerned only !ith !hether a notice in the correct form has been gi+en. As ad+ice in the
case of resignation can only come from the member himself" there is unli3ely to be any
conflict. In the case of expulsion" the #pea3er has no po!er to re+ie! a parliamentary party5s
decision to expel a member. -o!e+er" a member can only be expelled if at least t!o;thirds of
the parliamentary members of the party support the member5s expulsion.
In Pa3istan" if a member comes under the rigour of disAualification on the grounds
laid do!n under Art 1,A of the Constitution of Pa3istan" he may be declared in !riting by
the -ead of the Parliamentary Party to ha+e defected from the political party" and the -ead of
the Parliamentary Party may for!ard a copy of the declaration to the Presiding %fficer and
the member concerned. -o!e+er" before ma3ing such declaration" the -ead of Parliamentary
Party shall pro+ide the member !ith an opportunity to sho! cause as to !hy such declaration
may not be made against him. ?he Presiding %fficer shall" !ithin t!o days" refer the
declaration to the Chief Election Commissioner. =here the Election Commission confirms
the declarations" the member shall cease to be a member of the -ouse and his seat shall
become +acant. Any party aggrie+ed by the decision of the Election Commission may prefer
an appeal to the #upreme Court" !ithin thirty days and the Court shall decide the matter
!ithin three months from the date of the filing of the appeal.

In Papua &e! 6uinea" if a member chooses to change the party then he is reAuired to
face the 4leadership tribunal5 Ithe %mbudsman CommissionJ" !hich shall decide !hether the
grounds for resignation are +alid. $nder the legislation" +alid resignations are possible only
!hen the party has breached its o!n constitution or !hen the party has been declared
insol+ent. If the tribunal rules against the member" a by;election must be held.
In #ingapore" the Constitution gi+es Parliament the po!er to decide any Auestion
relating to the disAualification of a member. ?he decision of the Parliament in such cases is
final. In #outh Africa" a member could resign from a party" during the !indo! period" to
form another party !ithin the egislatur e !hich had not been registered in terms of
applicable la! needed to formally apply for registration !ithin the !ithin the !indo! period.
Registration of the ne! party needed to be confirmed by the appropriate authority Ii.e. the
Independent Electoral CommissionJ !ithin four months after the expiry of the !indo!
period. =ithin se+en days after expiry of the !indo! period" the #pea3er !ould publish in
the 6a2ette details of the altered composition of the egislature. =here applicable" a party is
reAuired !ithin se+en days after the !indo! period to submit to the #ecretary of the
egislature a ne! list of candidates.
In #ri an3a" there is no pro+ision to enable a member to file a petition for
disAualification against another member. #imilarly the Presiding %fficer has no authority to
ta3e up a matter relating to defection. -o!e+er" in case of the expulsion of a member" his seat
shall not become +acant if prior to the expiration of one month he applies to the #upreme
Court by petition in !riting and the #upreme Court upon such application determines that
such expulsion !as in+alid. If the Court determines that the expulsion !as +alid" the +acancy
shall occur from the date of such determination.
4.4.@ Ti%! Li%it sti"ulat!d &or d!cidin t)! cas!s r!latin to d!&!ction

$nder the anti;defection la! in India" no time limit has been stipulated for deciding
the cases relating to defection. ?here is a feeling in some Auarters that there should be a
reasonable time frame !ithin !hich decision under the anti;defection la! should be gi+en.
$nli3e India" in Bangladesh" the #pea3er shall" !ithin thirty days after a dispute has arisen"
prepare a statement and send it to the Election Commission to hear and determine the dispute.
=here a dispute has been referred to the Election Commission by the #pea3er for hearing and
determination" the Commission shall" unless it is of opinion that a reference on any point
regarding the dispute is reAuired to be made to the #pea3er" communicate" !ithin fourteen
days of the receipt of the statement" the statement to the parties to the dispute as3ing them to
submit statements in !riting" if any" on the dispute !ithin such time as may be specified by it.
?he Election Commission decides the case and communicates its decision of the Election
Commission is final and no appeal lies against such decision. ?he position in Beli2e is that
!here a person is sub*ect to disAualification for crossing the floor" the eader of his party in
the -ouse of Representati+es shall" !ithin se+en days of such crossing of the floor" notify the
#pea3er in !riting of such member crossing the floor. $pon receipt of the notice the #pea3er
shall" if satisfied" ma3e a declaration at the next sitting of the -ouse of Representati+es after
recei+ing the notice that the member has ceased to be a member by reason of crossing the
floor. ?he member may" !ithin )( days of ma3ing the declaration to the #pea3er regarding
disAualification" appeal against the declaration to the #upreme Court !hose decision on the
matter shall be final.
In &e! Dealand" !hen a member is expelled" he is gi+en )( !or3ing days time limit
to respond and after considering the response Iif anyJ" at least t!o;thirds of the parliamentary
members of that party shall agree that the leader should gi+e notice to the #pea3er that the
member has been expelled from the party. In Pa3istan upon receipt of the declaration from
the -ead of the Parliamentary Party addressed to the Presiding %fficer regarding defection of

a member" the Presiding %fficer of the -ouse shall" !ithin t!o days" refer the declaration to
the Chief Election Commissioner" !ho shall lay the declaration before the Election
Commission for its decision thereon confirming the declaration or other!ise !ithin thirty
days if its receipt by the Chief Election Commissioner. Any party aggrie+ed by the decision
of the Election Commission may prefer an appeal an appeal to the #upreme Court !ithin
thirty days and the Court shall decide the matter !ithin three months.
In #ri an3a" !here a 0ember of Parliament ceases by resignation" expulsion or
other!ise" to be a member of a recognised political party or independent group on !hose
nomination paper his name appeared at the time of his becoming such 0ember of Parliament"
his seat shall become +acant upon the expiration of a period of one month from the date of his
ceasing to be such member. As mentioned earlier" in ?rinidad and ?obago" a member !ho
has been declared as ha+ing resigned from or been expelled by the party" has a right to
institute legal proceedings challenging his resignation or expulsion. -o!e+er" if any !ithin
(. days of such a declaration by the #pea3er" the concerned member does not challenge the
allegation of his resignation or expulsionN he shall +acate his seat at the end of (. days. If
!ithin the stipulated period of (. days" the concerned member institutes legal proceedings
challenging his resignation or expulsion" he is not reAuired to +acate his seat until the
proceedings instituted by him are !ithdra!n" or the Auestion has been finally determined by a
decision upholding the resignation or expulsion" he shall +acate his seat at the end of (. days.
If !ithin the stipulated period of (. days" the concerned member institutes legal
proceedings challenging his resignation or expulsion" he is not reAuired to +acate his seat
until the proceedings instituted by him are !ithdra!n" or the Auestion has been finally
determined by a decision upholding the resignation or expulsion.
4.5 Conclusion

Anti; defection la!s are e+ol+ing and dynamic. =hile many Parliaments ha+e
addressed the issue !ith the help of parliamentary rules" customs and con+entions" some ha+e
passed la!s and framed specific rules to cope !ith the issues relating to changing party
affiliation by members.
%n a fair perusal of the different strategies that are used to tac3le the problems of
defections" the researcher in the process of incorporating this chapter in the research paper
!ould cull out the important and 3ey !ays to handle the problem of defection in India !hich
!ould be categorically addressed at the later part of the discussion" in accordance !ith the
hypothesis.

C)a"t!r IV
Anti'#!&!ction La( and #!%ocrac+
5.0 Introduction:
Before the /) Amendment !as brought to the Indian Constitution" the la!s
nd
go+erning disAualification of 0embers of Parliament and #tate egislature !ere dealt under
Art (E) and Art (>( of the Constitution of India respecti+ely. #pecial egislation 3no!n
)( ))
Art (E)@ DisAualification for membershipP
) (
I(J A person shall be disAualified for being chosen as" and for being" a member of either -ouse of
ParliamentP
IaJ If he holds any office of profit under the 6o+ernment of India or the 6o+ernment of any #tate"
other than an office declared by Parliament by la! not to disAualify its holder
IbJ If he is of unsound mind and stands so declared by a competent courtN
IcJ If he is an undischarged insol+entN
IdJ If he is not a citi2en of India" or has +oluntarily acAuired the citi2enship of a foreign #tate" or
is under nay ac3no!ledgment of allegiance or adherence to a foreign #tateN
IeJ If he is so disAualified by or under any la! made by Parliament.
I)J A person shall be disAualified for being a member of either -ouse of Parliament if he is so
disAualified under the ?enth #chedule
Art (>(@ DisAualifications for membershipP
) )
I(J A person shall be disAualified for being chosen as" and for being" a member of egislati+e
Assembly or egislati+e Council of #tateP
IaJ If he holds any office of profit under the 6o+ernment of India or the 6o+ernment of any #tate
specified in the Kirst #chedule" other than an office declared by the egislature of the #tate not to
disAualify its holder
IbJ If he is of unsound mind and stands so declared by a competent courtN
IcJ If he is an undischarged insol+entN
IdJ If he is not a citi2en of India" or has +oluntarily acAuired the citi2enship of a foreign #tate" or is
under nay ac3no!ledgment of allegiance or adherence to a foreign #tateN
IeJ If he is so disAualified by or under any la! made by Parliament.
Conti I)J A person shall be disAualified for being a member of either -ouse of Parliament if he is so

as the Representation of People5s Act" (>/( !as also concerned !ith matter affecting
disAualification of members. -o!e+er" it is pertinent to note that the abo+e la!s aimed at
disAualifying a member either from a Parliament or from a #tate egislature for being guilty
of electoral offences" corrupt practices etc. After the inclusion of the horrendous anti;
defection la! +ia tenth schedule" there has been a bac3log !hich exists in the !or3ing of one
of the largest democracies across the globe.
As already discussed in Chapter I" !hile flipping the pages of history that ga+e birth
to the /) Amendment it is euphemistically referred to the reasons for incorporating anti;
nd
defection la!s in India. After a fair discussion on the different strategies adopted by different
common!ealth nations around the !orld" it can be asserted that defection exists e+ery!here.
It !as seen during the discussion in Chapter II" some countries ha+e enacted legislation to
handle defection" !hile some other countries ha+e not adhered to the process of enacting
legislation" by not treating defection as a threat or a problem.
Bet!een the fourth and the fifth general elections in (>18 and (>8) from among the
."EEE odd members of the o3 #abha and the egislati+e Assemblies in the #tates and the
$nion ?erritories" there !ere nearly )"EEE cases of defection and counter;defection. By the
end of 0arch (>8( approximately /EL of the legislators had changed their party affiliations
and se+eral of them did so more than once;some of them as many as fi+e times. %ne 0A
!as found to ha+e defected fi+e times to be a 0inister for only fi+e days. Kor some time" on
an a+erage more than one legislator !as defecting each day and almost one #tate 6o+ernment
falling each month due to these changes in party affiliations by members. In the case of #tate
Assemblies alone" as much as /E./L of the total number of legislators changed their political
affiliations at least once.
),
0alhotra 6.C" Anti Defection Law in India and the Commonwealth, o3 #abha #ecretariat" Pg@ E," Ed@(("
) , t h
0etropolitan Boo3 Co. P+t. td" )EE/

Concerned o+er the malaise of political defections in national life" the o3 #abha
adopted a non;official resolution on : December" (>18 and appointed the Cha+an Committee.
Immediately after the general elections held in December (>:." the President of India said in
his address to both -ouses of Parliament assembled together on (8 January" (>:/ that the
6o+ernment intended to introduce in that session a Bill to outla! defections. In fulfilment of
that assurance" the Kifty #econd Amendment Bill to the Indian Constitution !as introduced.
?he anti;defection !as !ell concei+ed" !ith good intentions" but it !as born in sin
and too3 too long to be born. ?he moti+ation and timing !ere not entirely honest or !holly
honourable. It !as a Bill prepared in haste and rushed through the t!o -ouses at a time !hen
the ruling party had an unprecedented ma*ority in the o3 #abha. It !as natural for the leader
as the !atch;dog of party interests to !ant to ensure that his sheep 3ept together and did not
desert the floc3. ?he anti;defection la! ser+ed the Congress Party !ell inasmuch as for fi+e
years it !or3ed as an admirable deterrent against party dissidents turning defectors and
threatening the stability of the 6o+ernment. During the Eight o3 #abha period" there !as
only one case of defection in !hich the member !as disAualified under the ?enth #chedule. It
is important that those !ho !ax eloAuent about the basic purpose of the anti;defection la!
and its ob*ecti+es of pre+enting unprincipled acts of defections should not forget this factual
bac3ground and perspecti+e.
).
5.2 E&&!ct o& T!nt) Sc)!dul! on #!%ocrac+
People often mean by BfreedomC or BlibertyC both the absence of constraint and
something else as !ellPfor instance" as a distinguished American Judge !ould ha+e said"
BEnough economic security to allo! its possessor the en*oyment of a satisfactory lifeC. ?he
7ashyap #ubhash C." Anti-Defection Law and Parliamentary Privileges, Pg@ 8:" Ed@ )" $ni+ersal a!
) . n d
Publishing Co. P+t. td." )EE,.

same people +ery often fail to reali2e the possible contradictions bet!een these t!o different
meanings of freedom and the unpleasant fact that you cannot adopt the latter !ithout
sacrificing to a certain extent the former" and +ice +ersa. ?heir syncretistic +ie! of freedom is
simply based on a semantic confusion.
)/
?oday freedom and constraint pi+ot more and more on legislation. People generally
reali2e fully the extraordinary importance of technology in the changes that are ta3ing place
in contemporary society. %n the hand" they do not seem to reali2e to the same extent the
parallel changes brought about by legislation" often !ithout any necessary connection !ith
technology. =hat they appear to reali2e e+en less is that the importance of the latter changes
in contemporary society depends in its turn on a silent re+olution in a present day ideas about
the actual function of legislation. In fact" the increasing significance of legislation in almost
all the legal systems of the !orld is probably the most stri3ing feature of our era" besides
technological and scientific progress. =hile in the Anglo;#axon countries common la! and
ordinary courts of *udicature are constantly losing ground to statutory la! and administrati+e
authorities" in the Continental countries ci+il la! is undergoing a parallel process of
submersion as a result of the thousands of la!s that fill the statute boo3s each year. %nly
sixty years after the introduction the 6erman Ci+il Code and a little more than a century and
a half after the introduction of the Code &apoleon the +ery idea that the la! might not be
identical !ith legislation seems odd both to students of la! and to laymen.
)1
egislation appears today to be a Auic3" rational and far;reaching remedy against
e+ery 3ind of e+il or incon+enience" as compared !ith" say *udicial decisions" the settlement
of disputes by pri+ate arbiters" con+entions" customs and similar 3inds of spontaneous
ad*ustments on the part of indi+iduals. A fact that almost al!ays goes unnoticed is that a
eoni Bruno"0reedom and the Law, Pg@ ." D. 'an &ostrand Company Inc. Princeton" &e! Jersey" (>1(
) /
ibid
) 1

remedy by !ay of legislation may be too Auic3 to be efficacious" too unpredictably far;
reaching to be !holly beneficial" and too directly connected !ith the contingent +ie!s and
interests of a handful of people i.e. the legislators" !hoe+er they may be" to be" in fact" a
remedy for all concerned. E+en !hen all this is noticed" the criticism is usually directed
against legislation as such" and a ne! remedy is al!ays loo3ed for in BbetterC statues instead
of in something altogether different from legislation.
)8
In fact" the problem of fundamental rights enshrined in Part III of the Constitution" its
character" +itality and *udicial obligations to uphold the same at all times and in all
circumstances offer the historical bac3ground as !ell as ho! the *udicial psychology
percei+ed and penetrated these issues. Incisions to deflate any claim to total supremacy of
Parliament ha+e been resorted to so as to preser+e and safeguard these guarantees to citi2ens.
Right from A1 %opalan v ,tate of *adras to 1esavananda &harati v ,tate of 1erala
23 24
and *inerva *ills Ltd v 5nion of India " the underlying thin3ing had been the same. In
67
A1 %opalan8s case " 0u3her*ee. J pointedly referred to the phrase BfreedomC and asserted
69
that these are secured to indi+idual sub*ects to restrain in the interest in the interests of
society. In 1evalappara 1 1och"ni v ,tate " the Court eAuated these rights ha+ing
62
transcendental position and in &asheer +ath v I T Commissioner " the Court ruled that in
66
matters of rights" there is neither opinion nor !ai+er possible. ?he fundamental rights
operati+e and applicati+e field touches both substanti+e as !ell as procedural la!s this has
eoni Bruno"0reedom and the Law, Pg@ /" D. 'an &ostrand Company Inc. Princeton" &e! Jersey" (>1(
) 8
AIR (>/E #C )8
) :
AIR (>8, #C (.1(
) >
AIR (>:E #C (8:>
, E
AIR (>/E #C )8
, (
AIR (>1E #C (E:E
, )
AIR (>/> #C (.>
, ,

been laid do!n in ,tate of #est &engal v Anwar Ali N 1( (awat v ,tate of ,a"rashtra N
6: 6/
Lachamandas v ,tate of &ombay and ;"asim (a<vi v ,tate . ?he Court had been tolerant
6= 6>
to reasonable restrictions" if permissible under the scheme of the Constitution" this cardinal
principle has been reiterated in a plethora of cases by the guardian of *ustices +i2 Chintaman
(ao v ,tate of *P ? ,tate of *adras v ,mt Champa!am ? 11 1och"ni v ,tate ? +&
63 64 :7
1hare v ,tate of Delhi ? ,tate of *adras v @% (ao ? Dwara!a Prasad v ,tate of 5P ?
:9 :2 :6
Aaghir Ahmed v ,tate of 5P ? Bari 1hem" v Dy Commissioner of Police ? *C@,
:: :/
Ar"nchaala +adar v 5nion of India ? +arendra 1"mar v 5nion of India ? ,"perintendent
:= :>
Central Prison, 0ategarh v Dr (am *anohar Lohia ? &ab"lal v ,tate of *aharastra ?
:3 :4
1ameshwar Prasad v ,tate of &ihar ? C1 %hosh v DE Aoseph ? (an$it D 5deshi v
/7 /9
,tate ? Aan *ohammad v ,tate of %"$arat .
/2 /6
AIR (>/) #C 8/
, .
AIR (>/) #C (),
, /
AIR (>/) #C ),/
, 1
AIR (>/, #C (/1
, 8
AIR (>/( #C ((:
, :
AIR (>/( #C ))1
, >
AIR (>1E #C (E:E
. E
AIR (>/E #C (()
. (
AIR (>/) #C (>1
. )
AIR (>/. #C )).
. ,
AIR (>/. #C 8):
. .
AIR (>/1 Bom //>
. /
AIR (>/> #C ,EE
. 1
AIR (>1E #C .,E
. 8
AIR (>1E #C 1,,
. :
AIR (>1( #C ::.
. >
AIR (>1) #C ((11
/ E
AIR (>1, #C :()
/ (
AIR (>1/ #C ::(
/ )
AIR (>11 #C ,:/
/ ,

#ystem of rights of indi+idual is an integral part of democracy as a political form
adopted for the policy of the country. #ub+ersion of it sub+erts the +ery form and endangers
the democracy. ?he Courts thus stic3 to the premise both in the interest of the indi+idual" so
also the form !e ha+e adopted. E+en in countries ha+ing no !ritten Constitution but
possessing political format of democracy" such rights are treated to be inalienable.
As discussed in the pre+ious chapter another feature of legislation in contemporary
society apart from a fe! instances of direct democracy in small communities li3e the
#!it2erland !here the practice of BreferendumC exists" the legislators are assumed to
represent their citizens in the legislative process . It is ob+ious that representation" li3e
legislation" is something altogether extraneous to the procedures adopted for scientific and
technological progress. ?he +ery idea that a scientist or a technician should be represented by
other people in carrying on of a scientific or technical research should be entrusted" not to a
particular indi+iduals acting as such e+en !hen they collaborate in a team" but to some 3ind
of legislati+e committee empo!ered to reach a decision by ma*ority +ote. ?he resulting
situation in contemporary society is a 3ind of schi2ophrenia" !hich" far from being
denounced" has been hardly noticed so far.
?he researcher further goes to obser+es that people beha+e as if their need for
indi+idual decision !ere almost completely satisfied by the fact of their personal access to
their corresponding needs for indi+idual initiati+e and indi+idual decision in the political and
legal spheres seem to be met be ceremonial and almost magical procedures such as elections
of Brepresentati+esC !ho are supposed to 3no! by some mysterious inspiration !hat their
constituents really !ant and to able to decide accordingly. ?rue" indi+iduals still ha+e" at least
in the =estern !orld" the possibility of deciding and acting as indi+iduals in many respects.

?oday the fact that !e do not need to entrust to other people the tas3 of deciding" for
instance" ho! !e ha+e to spea3 or ho! !e should spend our leisure time fails to ma3e us
reali2e that the same should be true of a great many other actions and decisions that !e ta3e
in the sphere of la!. %ur present notion of la! is definitely affected by the o+er!helming
importance that !e attach to the function of legislation" that is" to the will of other people
relating to o"r daily behavio"r People are actually far from attaining through legislation the
ideal certainty of the la!" in the practical sense that this ideal should ha+e for anybody !ho
must plan for the future and !ho has to 3no!" therefore" !hat the legal conseAuences of his
decisions !ill be. =hile legislation is almost al!ays certain " that is" precise and recogni2able"
as long as it is Bin force"C people can ne+er be certain that the legislation in force today !ill
be in force tomorro! or e+en tomorro! morning. ?he legal system centred on legislation"
!hile in+ol+ing the possibility that other people Ithe legislatorsJ may interfere !ith our
actions e+ery day" also in+ol+es the possibility that they may change their !ay of interfering
e+ery day. As a result" people are pre+ented not only from freely deciding !hat to do" but
from foreseeing the legal effects of their daily beha+iour.
?he researcher does not maintain that legislation should be entirely discarded.
-o!e+er" that legislation is actually incompatible !ith indi+idual initiati+e and decision
!hen it reaches a limit that contemporary society seems already to ha+e gone far beyond.
?his may seem to be a radical +ie! but radical +ie!s are appreciated than syncretistic
theories that try to conceal the problem than enter the indomitable battle to resol+e them.
It appears that the basics of English Parliament are inter!o+en in the Indian
Constitutional basic structure. In India" the la! is singularly pronounced and not different.
Institutional edifice of legislature is erected bric3 by bric3 and not by bloc3s" indi+idual
citi2en pro+iding the bric3. egislatures are constituted by and composed of indi+idual

citi2en pro+iding the elected as such. Party or group remains the loose format for smooth
functioning" but does not compose the legislatures. Indi+idual comes !ith the gifts of
freedom of speech and expression" and similarly ha+ing full freedom of assembly as !ell of
forming association.
/.
In this context" !hat !as obser+ed on the English soil !ith all force by the 6reat
=inston Churchill can be Auoted" !hich is sufficient to express the inhibition that !ill affect
the freedom of the elected representati+e@
#hat is the "se of sending *embers of Parliament to say pop"lar
things of the moment, and saying things merely to give satisfaction to the
%overnment whips and by cheering lo"dly every *inisterial platit"deF
Bow co"ld Parliament s"rvive if the members stamped o"t every
individ"al independent $"dgementF'
//
An analysis of the abo+e Auotes brings into light the character of democratic
constitutional institution. Parliament is an institution of democracy !here right of assent as
!ell as dissent is sacrosanct. Kreedom in this regard is treated essential to the +ery sustenance
of the parliamentary democracy and any in road effects !hile shatter its foundation.
5.4 Co%"arison 1!t(!!n Part+ Go$!rnanc! and Indi$idual R!"r!s!ntation
?he founding fathers of the Constitution relied on the term Bsupreme goodC as the
+ehicle of democracy. In different !ays the Constitution reinforces it" spells it out" suggests
and indicates that any attempt to th!art !ould be repelled. After the ?enth #chedule !as
passed and made part of the Constitution" surprisingly !ithout much dissent" debate arises as
0asod3ar B.A."Law (elating to Dlectoral DisG"alification " Pg@ .E" Ed@ (" &.0. ?ripati P+t td" (>:1
/ .
6ilbert 0artin"The #ilderness Hears' " Pg@ ).>" -oughton 0ifflin Co" (>:)
/ /

to !hether that raises an ominous cloud o+er the glittering pattern of opting for a democracy
based on indi+idual freedom and !hether it dar3ens the assurances a+ailable there for. Real
battle at large !ould open in the Courts of la! !hen issues of basic structure or basic
principles !ould be raised in this context. Conflict of principles !ould cross s!ords to settle
the +ictory march for e+entual democratic format. Kirst and foremost is the shoc3 that !ould
affect the foundation of legislatures.
Apart from the indi+idual rights" the +ery fundamental structure of legislature" as
concei+ed by the Constitution" seems to suffer erosion by reason of restrictions imposed by
the ?enth schedule. It is no doubt possible to suggest that it fortifies the structure !hich must
ha+e ma*ority rule. -o!e+er" position is other!ise" ma*ority can be of indi+iduals and not
necessarily of the gi+en party. Indi+idual can remain a free agent to act according to his free
!ill and not a cog in a mo+ing machine" as a cog he !ould lose his +itality" initiati+e and
inherent ability. Does the Constitution pro+ide for a mere rule by such cogsG %r it opts for a
rule by enlightened" free self;determining personsG
?he pro+isions of the Constitution unmista3ably indicate that the Constitution of the
Parliament IArticle 8> to :(J and the pro+isions of the egislatures of the #tates IArticles (1:
to (8(J ma3e references to Bindi+idual membersC or the Belected membersC !hich are distinct
from Bthe partiesC. ?hese pro+isions do not refer to the parties that !ould compose or be the
constituent of these legislati+e bodies" nor does the Tenth ,ched"le amends these provisions,
altho"gh indirectly p"ts party over the member . =hen the ?enth #chedule no! imposes an
express rule of party dictate" it necessarily !ould eclipse the indi+idual member. E+en if he
!ere to +ote or abstain against it" he +acates his seat" in that he ceases to be the member. ?he
+ery structure ha+ing reference to indi+idual member and indi+idual representation has been
to large extent and fundamentally changed and appears to be affected. Pathetic as !ell as

political Auestions surrounding the !or3ing of this schedule are li3ely to arise. ?he
democratic set;up !hich !e ha+e opted for is not constitutionally Bone partyC or Bt!in partyC
or e+en Bmulti;partyC composition of the legislatures. Partyless position is not at all ruled out.
Party" no doubt" plays a part of bringing indi+iduals together united for achie+ing certain aims
and ob*ecti+es and ha+ing political goals. ?hey may be essential media for electing personnel
committed to certain ideology. But !hen !e come to the Constitution" it is Bthe indi+idual
representati+eC !ho is pi+ot" recognised and the pilot of his politics. -e is free and
constituent unit of legislature. ?o be free is both positi+e and negati+e !hile conducting as
member. egislatures" Parliament as !ell as #tate egislatures are made of these free;
!heeling units. Aspects of freedom of such representati+e !ill hereafter necessarily affect the
considerations !hile finding out the constitutional +alidity of the pro+isions of the ?enth
#chedule that raises a political party as an operational agency in legislatures and sub*ects the
continuance of members to the dictate of party;discipline. ?he pro+isions of the ?enth
#chedule ha+e reference to the conduct of legislatures and acts and omissions in the context
of the gi+en party. ?his is entirely a ne! path" a basic departure from the original format. %n
this aspect" as indicated" the rele+ance of Art :(" dealing !ith the constitution of Parliament"
as !ell as Article (8E and (8(" dealing !ith composition of legislati+e assemblies" cannot but
be re;emphasi2ed. #tructurally" these pro+isions do contemplate ha+ing indi+idual
representati+e free to be a member of any party or himself be the party. ?his is in contrast to
!hat party exists outside the -ouse. It is !ell nigh impossible to read !ithin it" constitutional
reference to a group of indi+idual or to a party as component constitutional part. Kor the
founding father" it !ould ha+e been easy to indicate so. E+en implications rule out such
possibility. Reference to democratic republic in the preamble of our Constitution highlights
the intent in pro+iding this form of composing legislatures. =hen the Constitution offers
unmista3able e+idence that supreme so+ereign legislature should be composed of BmembersC

and not of BpartiesC" no implication can be read !ithin its texture. It is the Bnumber of
membersC for the purpose of composition of the -ouse that has rele+ance" not their group or
party. In other !ords" Bindi+idual membersC chosen by the +oters from the gi+en
constituency to the respecti+e legislatures alone form the basic" constituent as !ell structural
part of the Indian legislature. #imply stated" the founding scheme is indi+idual;oriented and
not group;collecti+e or party;oriented. Democracy for all and of all" once elected"
representati+e of all and for all is +ery much the singular premise. Democratic republic is
instituted so that each and e+ery indi+idual citi2en independently is the part of it and not by
reason of his being a member of any group or party.
?he pro+isions a+ailable in Article :. or Article :/ concerning Aualification to be
Bthe representati+eC in Parliament and the pro+isions li3e Article (8, !ith regard to the #tate
legislature ha+e reference to indi+idual Brepresentati+eC. ?here is no reference" express or
implied" in these Articles as to the Aualifications of the members being the representati+es of
a particular party" nor the Aualifying oath reAuired under Article :: or Article (>> has any
reference to discipline of the party" representati+e id constitutionally bound and promises to
act according to his faith and of course !ithout fear or fa+our. Implications of this oath are
manifold. It has reference for all intent to the free !ill of the indi+idual" so as to 3eep him
free e+er for discharging his high functions. ?his should be so for reason of the complexity of
social and political life of heterogamous character" including those of linguistic and religious
ma*ority and minority consideration. &egati+ely too that freedom is" therefore" assured. If the
Korms of different oaths prescribed by the ?hird #chedule are read" the same refer to Bfree
faith and allegiance to the ConstitutionC and Bthe so+ereignty and integrity of IndiaC and
faithful Bdischarge of the dutyC as the indi+idual representati+e. IKorm BJ@ In other !ords" it
is atomised indi+idual representation rather than collecti+e group party representati+e. -o!
can a representati+e under dictate and in fear of losing his seat faithfully then discharge his

duty !hile representing multifar ious interestsG Kreedom of *udgment and free !ill is" in fact"
essence of this affirmation in the context of the ob*ects and ideological dictates of party in the
*udgement of the representati+e may not harmonise or e+en may clash in interest. By reason
of the ?enth #chedule" if he acts contrary to party;dictate" he is to be remotely" to any such
dictate or its binding effect" nor can be read !ithin Bdischarge of the dutyC !hich has clear
reference to the duty of office of the representati+e and not member of party. All this is the
part of eligibility. #urely" such eligibility cannot be eclipsed by pro+iding disAualification
!hich affects the +ery basis and foundation of eligibility. #uch an exercise !ould be
un!or3able" self;defeating" basically destructi+e and abo+e all" arbitrary.
?he Auestion of Aualification has been touched upon in the case of Indira %andhi v
(a$ +arian " " though in a different context" but nonetheless the Court5s reasoning there
/1
suggests that as far as the constituent reference point is concerned" it is the indi+idual.
Democratic matrix is seminal. It is simple too. It inter!ea+es indi+idual into a political
pattern of its o!n. Indi+idual as a +oter" indi+idual as a candidate and indi+idual as a
representati+e. ?hat is ho! by indi+idual representations by their number the Parliament or
the #tate legislature is constituted. E+en upon dissolution of these bodies" consistently in the
phraseology employed by the Constitution reference is made to the member. =hen the
legislature is dissol+ed" it is the member !ho +acates the office and his capacity to represent
terminates. ?his atomised democracy" the Constitution has adopted and not mass;group;
/8
ruling democracy. 0ay be in the elegant hope that !e ha+e opted for more de+eloped form of
democracy ha+ing free !illing enlightened indi+iduals collected in assembly to steer the
affairs of 6o+ernment. Kundamentally" the matrix is clear" so also its goal" ob*ecti+es and
AIR (>8/ #C ))>>
/ 1
$. &. Rao +. Indira 6andi" AIR (>8( #C (EE)
/ 8

orientations. $nless drastic departures are initiated" introduced after full deliberations" this
atomised form of democracy is the core of the Constitution.
5.5 Conclusion
If the representati+e is sub*ected by reason of penalty and not by choice" then !e
!ould be eAuating the candidate of the party !hile he contests election to continue to be so
e+en !hen he steps in the legislati+e house and thereafter. ?he result is a !edloc3 !hich does
not permit dissent. %nce dissent" di+orce is a must. It is possible" ho!e+er" to suggest from
!hat is enacted in the ?enth #chedule that the party structure is no! being pre;empted and
treated as basic and fundamental" for upon breach of the party mandate in the matters of +ote
or abstaining from +oting or resignation" the representati+e loses his seat itself. Party
supremacy" thus" is accepted as a principle throughout" in that #chedule" !hich has !ide
ranging ramifications !hich do not appear to ha+e been 3ept in +ie! !hile enacting
amendment to the Constitution. ?he possible merit or principle appears to be to instil
discipline to erect and fortify party;system and stabilise it and a+oid and discourage unethical
conduct of cross;+oting or floor;crossing for +arious inducements and consideration. =ith all
these laudable ob*ects" !hich are not +ery much explicitly in the text of the #chedule"
inherently the scheme is in conflict !ith the initial scheme of our Constitution pattern that
relies upon indi+idual representati+e and confers unimpeded freedom upon him.
Curtailment of liberty and shift in the point of reference is li3ely to raise not only
intricate debates but direct and indirect Auestions of our basic philosophy. #imilarly"
institutions may undergo long range changes and e+en the democratic set;up may suffer
erosion by emergence of autocratic apparatus of party machine. ?his is more so for penalty
follo!s by reason of incurring disAualification on the ground of !hat is called BdefectionC

that cuts at the root of free dissent and independent *udgment of an elected representati+e.
?hat also puts Parliament under the shado! of party and its members echoing party +ie!s
li3e p"ppets . ?he +ery +eneer of and sap that sustains" free flo! of ideas may appear to be
e+aporating. Kor al!ays in matters of +ote or abstention" presence or non;presence" the
controlling *udgment of the party !ould pre*udge and rule the rostrum. egislati+e discussion
and its results may become farcical and counter; producti+e. Inherently" the good of liberty
and freedom !ould al!ays be at sta3e. ?his may foreshado! a rise of autocracy in the garb
of democracy and loss of representation of people.

C)a"t!r V
T)! Constitutional #!$!lo"%!nts and Pro$isions on ,Anti #!&!ction La(-
6.0 Introduction
?he Constitution of India right from its inception included in its body" pro+isions
relating to disAualification of members" Art (E) and Art (>( deals !ith disAualification of
/: />
a 0ember of Parliament and Art (>( deals !ith disAualification of 0ember of #tate
Art (E)@ DisAualification for membershipP
/ :
I,J A person shall be disAualified for being chosen as" and for being" a member of either -ouse of
ParliamentP
IfJ If he holds any office of profit under the 6o+ernment of India or the 6o+ernment of any #tate"
other than an office declared by Parliament by la! not to disAualify its holder
IgJ If he is of unsound mind and stands so declared by a competent courtN
IhJ If he is an undischarged insol+entN
IiJ If he is not a citi2en of India" or has +oluntarily acAuired the citi2enship of a foreign #tate" or
is under nay ac3no!ledgment of allegiance or adherence to a foreign #tateN
I*J If he is so disAualified by or under any la! made by Parliament.
I.J A person shall be disAualified for being a member of either -ouse of Parliament if he is so
Art (>(@ DisAualifications for membershipP
/ >
I)J A person shall be disAualified for being chosen as" and for being" a member of egislati+e
Assembly or egislati+e Council of #tateP
IfJ If he holds any office of profit under the 6o+ernment of India or the 6o+ernment of any #tate
specified in the Kirst #chedule" other than an office declared by the egislature of the #tate not to
disAualify its holder
IgJ If he is of unsound mind and stands so declared by a competent courtN
IhJ If he is an undischarged insol+entN
IiJ If he is not a citi2en of India" or has +oluntarily acAuired the citi2enship of a foreign #tate" or is
under nay ac3no!ledgment of allegiance or adherence to a foreign #tateN
I*J If he is so disAualified by or under any la! made by Parliament.
I,J A person shall be disAualified for being a member of either -ouse of Parliament if he is so

egislature. ?hese pro+isions of the Constitution relates particularly !ith holding office of
profit" if the person becomes insane" insol+ent and the li3e. Also under Art (E) IeJ and Art
(>(IeJ a person may be disAualified under any la! made by the Parliament.
?he Parliament has enacted the Representation of People5s Act" (>/(" to handle the
problem of electoral offences. $nder this Act it targets basically the code of conduct that is to
be maintained during elections" the irregularities that exist in the process of uni+ersal adult
franchise and the li3e. -o!e+er it se+erally failed to handle the problem of defection" so as to
cause obstruction for democracy to reach its 2enith.
?he politics of defection has been the bane of the parliamentary system in India. ?he
+ice of defection has been rampant in India for Auite some time" especially at the #tate le+el.
Defection means floor 9 crossing by a member of one political party to another party.
1E
Defection causes go+ernment instability" for a go+ernment may be toppled o+er due
to the defection of some of its supporters to the opposition party con+erting it from a minority
into a ma*ority party. Defection is undemocratic as it negates the electoral +erdict. A party
!hich fails to get ma*ority in the house through election may yet be able to manoeu+re a
ma*ority in the house and form the go+ernment by inducing defections from other parties.
?hus" the party !hich may ha+e !on a ma*ority through election" and got the mandate from
the people to form the go+ernment" may yet fail to do so because a fe! of its members defect
from the party.
1(
?he purpose underlying the anti;defection la! is to curb defections" but" at the same
time" not to come in the !ay of democratic realignment of parties in the house by !ay of
merger of t!o or more parties" or a split in the existing party. ?he anti;defection la! has been
Jain 0.P." Indian Constit"tional Law, Pg@.)" Ed@ / " )EE1" =adh!a Publications" &agpur
1 E t h
ibid
1 (

hailed as a bold step to clean public life in India" but" in course of time" certain defects therein
ha+e become apparent !hich ha+e +ery much compromised the effecti+eness of the la! to
achie+e its ob*ecti+es. ?his has +ery much hampered on the term Brepresentati+e
go+ernmentC.
As is already discussed" the anti;defection la!s under the Constitution of India is
passed !ithout deliberate discussions and it lac3s certainties at se+eral placesN it utterly fails
to define important and 3ey terms li3e 4defection5" 4political parties5 etc. ?he resulting factor
due to lac3 of definition of these terms is +ery serious !hich !ill be discussed at length in the
subseAuent paragraphs of the discussion for e.g. the lac3 of definition for the term 4defection5
under the ?enth #chedule and inclusion of Para ) I(J IbJ under the ?enth #chedule has
changed the +ery dimensions of the term democracy and hampered the conduct of democracy
both in letter and in spirit" by mandating unAuestioned obedience to !hips issued by the
parties" in order to curtail a fe! cases of unparliamentary practises I+oting against party for a
consideration by a memberJ.
In order to fill the lacuna that existed in our polity" the Indian Parliament" under the
able leadership of 0r. Ra*i+ 6andhi brought an Amendment to the Indian Constitution in the
year (>:/. In this amendment Art (E) and Art (>( !as made more effecti+e by adding a
clause of disAualification under ?enth #chedule for defection. Also" in the same amendment
the ?enth #chedule !as incorporated in parlance to Art (E)I)J O Art (>(I)J so to specifically
tac3le the e+il of defection" !hich is so omnipresent.
6.2 T!nt) Sc)!dul! and t)! 62 A%!nd%!nt to t)! Constitution o& India
nd

Articles (E)I)J and (>(I)J
Pro+isions as to disAualification on ground of defection@
0. Int!r"r!tation' in this #chedule" unless the context other!ise reAuires";
IaJ B-ouseC means either -ouse of Parliament or the egislati+e Assembly or" as the
case may be" either -ouse of the egislature of a #tateN
IbJ Blegislature party"C in relation to a member of a -ouse belonging to any political
party in accordance !ith the pro+isions of paragraph ) or TUUUV" paragraph ." means
1)
the group consisting of all the members of that -ouse for the time being belonging to
that political party in accordance !ith the said pro+isionsN
IcJ Boriginal political party"C in relation to a member of a -ouse" means the political
party to !hich he belongs for the purposes of sub;paragraph I(J of paragraph ) N
IdJ BparagraphC means a paragraph of this schedule.
2. #isNuali&ication on round o& d!&!ction.'
I(J #ub*ect to the pro+isions of Tparagraphs . O /" a member of a -ouse belonging
1,
to any political party shall be disAualified for being a member of the -ouse;
IaJ if he has +oluntarily gi+en up his membership of such political partyN or
IbJ if he +otes or abstains from +oting in such -ouse contrary to any direction
issued by the political party to !hich he belongs or by any person or authority
?he !ords Bparagraph ," or as the case may beC omitted by the Constitution I&inety Kirst AmendmentJ Act
1 )
)EE," section /IaJ !ith effect from I(;(;)EE.J
#ubs. ?he !ords Bparagraph ," or as the case may beC omitted by the Constitution I&inety Kirst AmendmentJ
1 ,
Act )EE," section /IbJ !ith effect from I(;(;)EE.J

authori2ed by it in this behalf" !ithout obtaining" in either case" the prior
permission of such political party" person or authority and such +oting or
abstention has not been condoned by such political party" person or authority
!ithin fifteen days from the date of such +oting or abstention.
E*"lanation .; Kor the purposes of this sub;paragraph.;
IaJ an elected member of a -ouse shall be deemed to belong to the political
party" if any" by !hich he !as set up as a candidate for election as such
memberN
IbJ a nominated member of a -ouse shall.;
IiJ !here he is a member of any political party on the date of his
nomination as such member" be deemed to belong to such political
partyN
IiiJ in any other case" be deemed to belong to the political party of
!hich he becomes" or" as the case may be" first becomes" a member
before the expiry of six months from the date on !hich he ta3es his
seat after complying !ith the reAuirements of article >> or" as the case
may be" article (::.
I)J An elected member of a -ouse !ho has been elected as such other!ise than as a
candidate set up by any political party shall be disAualified for being a member of the
-ouse if he *oins any political party after such election.

I,J A nominated member of a -ouse shall be disAualified for being a member of the
-ouse if he *oins any political party after the expiry of six months from the date on
!hich he ta3es his seat after complying !ith the reAuirements of article >> or" as the
case may be" article (::.
I.J &ot!ithstanding anything contained in the foregoing pro+isions of this paragraph"
a person !ho" on the commencement of the Constitution IKifty;second AmendmentJ
Act" (>:/" is a member of a -ouse I!hether elected or nominated as suchJ shall.;
IiJ !here he !as a member of a political party immediately before such
commencement" be deemed" for the purposes of sub;paragraph I(J of this
paragraph" to ha+e been elected as a member of such -ouse as a candidate set
up by such political partyN
IiiJ in any other case" be deemed to be an elected member of the -ouse !ho
has been elected as such other!ise than as a candidate set up by any political
party for the purposes of sub;paragraph I)J of this paragraph or" as the case
may be" be deemed to be a nominated member of the -ouse for the purposes
of sub;paragraph I,J of this paragraph.
TUUUV
1.
Paragraph ," omitted by the Constitution I&inety Kirst AmendmentJ Act )EE," section /IcJ !ith effect from
1 .
I(;(;)EE.J. Prior to omission paragraph , stood as under
4. #isNuali&ication on round o& d!&!ction not to a""l+ in cas! o& s"lit / =here a member of a
-ouse ma3es a claim that he and any other members of his legislature party constitute the group representing a
faction !hich 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" ;
IaJ he shall not be disAualified under sub;paragraph ( of paragraph ) on the ground 9
IiJ if he has +oluntarily gi+en up his membership of such political partyN or

5. #isNuali&ication on round o& d!&!ction not to a""l+ in cas! o& %!r!r.'
I(J A member of a -ouse shall not be disAualified under sub;paragraph I(J of
paragraph ) !here his original political party merges !ith another political party and
he claims that he and any other members of his original political party;
IaJ ha+e become members of such other political party or" as the case may be"
of a ne! political party formed by such mergerN or
IbJ ha+e not accepted the merger and opted to function as a separate group"
and from the time of such merger" such other political party or ne! political
party or group" as the case may be" shall be deemed to be the political party to
!hich he belongs for the purposes of sub;paragraph I(J of paragraph ) and to
be his original political party for the purposes of this sub;paragraph.
I)J Kor the purposes of sub;paragraph I(J of this paragraph" the merger of the original
political party of a member of a -ouse shall be deemed to ha+e ta3en place if" and
only if" not less than t!o;thirds of the members of the legislature party concerned
ha+e agreed to such merger.
IiiJ if he +otes or abstains from +oting in such -ouse contrary to any direction issued by the
political party to !hich he belongs or by any person or authority authori2ed by it in this
behalf" !ithout obtaining" in either case" the prior permission of such political party" person or
authority and such +oting or abstention has not been condoned by such political party" person
or authority !ithin fifteen days from the date of such +oting or abstentionN and
IbJ from the time of such split" such faction shall be deemed to be the political party to !hich he
belongs for the purposes of sub;paragraph ( of paragraph ) and to be his original political party for the
purposes of this paragraph.

6. E*!%"tion' &ot!ithstanding anything contained in this schedule" a person !ho has
elected to the office of the #pea3er or the Deputy #pea3er of the -ouse of the People or the
Deputy Chairman of the Council of #tates or the Chairman or the Deputy Chairman of the
egislati+e Council of a #tate or the #pea3er or the Deputy #pea3er of the egislati+e
Assembly of a #tate" shall not be disAualified under this #chedule";
IaJ if he" by reason of his election to such office" +oluntarily gi+es up the membership
of the political party to !hich he belonged immediately before such election and does
not" so long as he continues to hold such office thereafter" re*oin that political party or
become a member of another political partyN or
IbJ if he" ha+ing gi+en up by reason of his election to such office his membership of
the political party to !hich he belonged immediately before such election" re*oins
such political party after he ceases to hold such office.
8. #!cision on Nu!stions as to disNuali&ication on round o& d!&!ction.'
I(J If any Auestion arises as to !hether a member of a -ouse has become sub*ect to
disAualification under this schedule" the Auestion shall be referred for the decision of
the Chairman or" as the case may be" the #pea3er of such -ouse and his decision shall
be final.
Pro+ided that !here the Auestion !hich has arisen is as to !hether the
Chairman or the #pea3er of a -ouse has become sub*ect to such disAualification" the
Auestion shall be referred for the decision of such member of the -ouse as the -ouse
may elect in this behalf and his decision shall be final.

I)J All proceedings under sub;paragraph I(J of this paragraph in relation to any
Auestion as to disAualification of a member of a -ouse under this schedule shall be
deemed to be proceedings in Parliament !ithin the meaning of article ()) or" as the
case may be" proceedings in the egislature of a #tate !ithin the meaning of article
)().
>. Bar o& 3urisdiction o& courts.' &ot!ithstanding anything in this Constitution" no court
shall ha+e any *urisdiction in respect of any matter connected !ith the disAualification of a
member of a -ouse under this schedule.
?. Rul!s. /
I(J #ub*ect to the pro+isions of sub;paragraph I)J of this paragraph" the Chairman or
the #pea3er of a -ouse may ma3e rules for gi+ing effect to the pro+isions of this
#chedule" and in particular" and !ithout pre*udice to the generality of the foregoing"
such rules may pro+ide for;
IaJ the maintenance of registers or other records as to the political parties" if
any" to !hich different members of the -ouse belongN
IbJ the report !hich the leader of a legislature party in relation to a member
of a -ouse shall furnish !ith regard to any condonation of the nature referred
to in clause IbJ of sub;paragraph I(J of paragraph ) in respect of such member"
the time !ithin !hich and the authority to !hom such report shall be
furnishedN

IcJ the report" !hich a political party shall furnish !ith regard to admission to
such political party of any members of the -ouse and the officer of the -ouse
to !hom such report shall be furnishedN and
IdJ the procedure for deciding any Auestion referred to in sub;paragraph I(J of
paragraph 1 including the procedure for any inAuiry !hich may be made for
the purpose of deciding such Auestion.
I)J ?he rules made by the Chairman or the #pea3er of a -ouse under sub;paragraph
I(J of this paragraph shall be laid as soon as may be after they are made before the
-ouse for a total period of thirty days !hich may be comprised in one session or in
t!o or more successi+e sessions and shall ta3e effect upon the expiry of the said
period of thirty days unless they are sooner appro+ed !ith or !ithout modifications or
disappro+ed by the -ouse and !here they are so appro+ed" they shall ta3e effect on
such appro+al in the form in !hich they !ere laid or in such modified form" as the
case may be" and !here they are so disappro+ed" they shall be of no effect.
I,J ?he Chairman or the #pea3er of a -ouse may" !ithout pre*udice to the pro+isions
of article (E/or" as the case may be" article (>." and to any other po!er !hich he
may ha+e under this Constitution direct that any !ilful contra+ention by any person of
the rules made under this paragraph may be dealt !ith in the same manner as a breach
of pri+ilege of the -ouse.
6.4 #iscussions on $arious "arara")s o& t)! T!nt) Sc)!dul!:

Int!r"r!tation claus!:
?he definition clause suffers from a serious lacuna in as much as it defines Blegislature partyC
and Boriginal political partyC but fails to define a Bpolitical partyC. ?his !as particularly
important as by the Kifty #econd Amendment the concept of political parties !as finding a
mention in the Constitution of India for the first time. =ith this the political parties !ere
coming to ha+e a constitutional recognition. ?hus far" the Election Commission recognised
political parties but it !as only for the purposes of allocation of electon symbols.
During the eighth o3 #abha follo!ing the cases of expulsionIsJ of members of
Congress" A3ali Dal and A.6.P the #pea3er referred to the Attorney 6eneral for opinion
inter;alia the Auestion !hether it !ould not be desirable to lay do!n the definition of a
political party and specify conditions for its recognition for purposes of the Anti;Defection
a!. ?he Attorney 6eneral agreed that it !ould be desirable to do so in order to put the
position beyond doubt. It !as particularly imperati+e in +ie! of the constitutional pro+ision
of para , of the ?enth #chedule to the effect that the brea3 a!ay faction follo!ing a split
!ould be deemed to be a Bpolitical partyC for purposes of para )I(J.
Direction ()E of the Directions by the #pea3er pro+ides for recognising a
Parliamentary Part or group. ?o be recognised as a party" the minimum number reAuired is
one tenth of the membership and for a group it should be at least thirty. But" after the Anti
Defection a!" e+ery member of the -ouse !ho is not elected as an independent or
nominated" belongs to his party e+en if he be the only member of his party" i.e." irrespecti+e
of the number of its members in the house" e+ery party that is represented in the -ouse comes
to automatically get constitutional recognition as a party. ?hus" there is some contradiction

bet!een the constitutional pro+isions and the #pea3er5s directions. %ne of the t!o !ould
need to be amended. $ntil that is done" in case of a conflict bet!een the t!o" the
constitutional pro+ision !ould naturally pre+ail.
?he (>:> Amendment to the Representation of the People Act sought to define
BPolitical PartyC as an association or a body of indi+idual citi2ens of India registered !ith the
Election Commission as a political party under section )>A. ?his definition is ho!e+er again
for the limited purpose of registration of parties !ith the Election Commission in connection
!ith the elections. It does not apply to Bpolitical partiesC under the Anti Defection a!. It
cannot" for example" co+er cases of 4split5 and 4merger5 !here under the resultant faction or
group or party is to be deemed to be 4political party5 and 4original political party5.
?he other t!o most important term used in the ?enth #chedule are BsplitC and
BmergerC. #urprisingly those ha+e also not been defined in the definition clause or else!here.
0ost of the problems in the proper implementation and interpretation of the ?enth #chedule
ha+e been caused due to the ambiguity of the terms 4political party5" 4splits5 and 4merger5.
Para 2:
$nder Para ) of the ?enth #chedule"
An elected member of Parliament or a #tate egislature" !ho has been elected as a
IiJ
candidate set up by a political party and nominated member of Parliament or a
#tate egislature !ho is a member of a political party at the time he ta3es his seat
!ould be disAualified on the ground of defection if he +oluntarily relinAuishes his

membership of such political party or +otes or abstains from +oting in the house
contrary to any direction of such partyN
IiiJ An independent member of Parliament or a #tate egislature !ill be disAualified
if he *oins any political party after his electionN
IiiiJ A nominated member of Parliament or a #tate egislature !ho is not member of
a political party at the time of his nomination and !ho has not become a member
of any political party before the expiry of six months form the date on !hich he
ta3es his seat shall be disAualified if he *oins any political party after the expiry of
the said period of six monthsN
#ub*ect to the pro+isions of paras ," . and / i.e." except in case of a party split or
Ii+J
merger of parties or in the case of #pea3er or Deputy #pea3er e+ery 4elected
member of a -ouse shall be deemed to belong to the political party" if any" by
!hich he !as set up as a candidate for election as such member5.
?his !ould 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 disAualified. -is
membership can continue !ith a changed party liable only in case of merger or split under
paras , and .. ?here is thus no pro+ision for a party member being labelled as unattached
etc." under any circumstance.
#erious doubts ha+e been expressed !hether this disAualification pro+ision does not
militate against the basic freedoms of association" opinion and expression 9 including the
freedom of changing the association" opinion etc" guaranteed under the Kundamental Rights
chapter of the Constitution. Also the most fundamental pri+ilege of members guaranteed

under Article (E/ and (>. of the Constitution namely that of Kreedom of #peech and
Expression in the -ouses of egislatures stands curtailed. imiting the freedom of choice or
binding the +ote of a legislator may amount to tampering !ith the fundamentals of the
constitution and democratic polity.
Defiance of party direction is not punished by unseating the member concerned in
countries li3e $.7" Canada" Australia and &e! Dealand !here Parliamentary Democracy
similar to India pre+ails. Dissent is not considered defection because a dissenting member or
one !ho does not comply !ith a particular party directi+e has neither changed sides" nor
crossed the floorN he continues to be a member of his party.
A Auestion has been raised" if +otes are allo!ed to be altered by arguments and speeches"
!hat is the use of the forum of ParliamentG Also" if to ensure compliance by the members all
that is to be done is issuance of a =hip" !hat happens to the Auintessence of Parliamentary
Democracy !hich is the continuous and day to day ans!erability of the 6o+ernment
enforced through the doctrine of ministerial responsibilityG
Parliament is reAuired to exercise its po!ers in certain matters !hich are Auasi *udicial in
nature" example under Article 1( Irelating to the impeachment of the President of IndiaJ"
Article ().I.J Irelating to the remo+al of #upreme Court JudgesJ" Article (.:I(J Irelating to
the remo+al of ?he Controller and Auditor 6eneralJ" Article )(8I(JIbJ Irelating to the Judge
of a -igh CourtJ and Article ,).I/J Irelating to the remo+al of the Chief Election
CommissionerJ. ?he proceedings in Parliament of such Auasi *udicial nature may be

influenced by the issue of a party directi+e under para ) of the /) Amendment Act !hich is
nd
against the rule of &atural Justice.
#ub para ) of para ) of the ?enth #chedule deals !ith an independent member !ho has
not been set up by a political party. $nder this sub para" an independent member !ill be
disAualified if he *oins any political party after his election as member of the egislature. But
under sub para , of para ) of the said #chedule" a nominated member is allo!ed to *oin a
political party !ithin six months of his nomination as a member. An independent members5
freedom to *oin a party is fettered although he is a master of himself and o!es his election to
no political party. %n the contrary" the ruling party pic3s and chooses persons for nomination
and in a !ay puts them under obligation. #uch members are therefore" li3ely to *oin the ruling
party. Both these pro+isions are +itiated by an inbuilt irrationality and bias and are therefore
+iolati+e of Article (..
?he #upreme Court has held in 1ihota Bollohon v Iachilh" @
1/
IiJ ?hat paragraph ) of the ?enth #chedule to the Constitution is +alid" its pro+isions
do not suffer from the +ice of sub+erting democratic rights of elected members of
the Parliament and the egislatures of the #tates. It does not +iolate their freedom
of speech" freedom of +ote and conscience as contended.
IiiJ ?he pro+isions of paragraph ) do not +iolate any rights or freedom under Articles
(E/ and (>. of the ConstitutionN
AIR (>>, #C .()
1 /

IiiiJ ?he pro+isions are salutary and are intended to strengthen the fabric of Indian
Parliamentary Democracy by curbing unprincipled and unethical political
defection.
Ii+J ?he contention that the pro+isions of the ?enth #chedule e+en !ith the exclusion
of paragraph 8" +iolate 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 re*ected.
I+J ?he expression 4any direction5 occurring in para )I(JI1J of the ?enth #chedule
reAuires to be construed harmoniously !ith the other pro+isions and appropriately
confined to the ob*ects and purposes of the ?enth #chedule. ?hose ob*ects and
purposes define and limit the contours of its meaning. ?he assignment of a limited
meaning is not to read it do!n to promote its constitutionality but because such
construction is a harmonious construction in the context. ?here is no *ustification
to gi+e the !ords !ider meaning.
?he disAualification imposed by para )I(J IbJ must be so construed as not to
I+iJ
unduly impinge on the freedom of speech of a member. ?his !ould be possible if
para )I(J IbJ is confined in its scope by 3eeping in +ie! the ob*ect underlying the
amendments contained in the ?enth #chedule" namely" to curb the e+il or mischief
of political defection moti+ated by the lure of office or other similar
considerations. Kor this purpose the direction gi+en by the political party
belonging to it" the +iolation of !hich may entail disAualification under para )I(J
IbJ" !ould ha+e to be limited to a +ote on motion of confidence or no confidence
in the 6o+ernment or !here the motion under consideration relates to a matter

!hich !as an internal policy and program of a political party on the basis of
!hich it approached the electorate.
I+iiJ 7eeping in +ie! the conseAuence of the disAualification i.e." termination of the
membership of a -ouse" it !ould be appropriate that the direction or !hip !hich
results in such disAualification under para )I(JIbJ is so !orded as to clearly
indicate that +oting or abstaining from +oting contrary to the said direction !ould
result in incurring the disAualification under para )I(JIbJ of the ?enth #chedule so
that the member concerned has fore;3no!ledge of the conseAuences flo!ing from
his conduct in +oting or abstaining from +oting contrary to such a direction.
Also in (avi , +ai! v 5nion of India the #upreme Court has further held that the
11
expression B+oluntarily gi+en up his membershipC in Para )I(J IaJ does not hold the same
meaning as of BresignationC" it implies a !ider connotation. A membership of a political
party can be gi+en up +oluntarily by any member !ithout e+en tendering a resignation to that
party" an inference about his +oluntarily gi+ing up a membership can be dra!n from the
conduct of that member.
In % @ishwanathan v ,pea!er, Tamil +ad" an expelled member continues to be a
18
member of the party that had set him up as a candidate at the polls.
Para 4:
AIR (>>. #C (//: IPara ((J
1 1
AIR (>>1 #C (E1E
1 8

=hile para ) contains general pro+ision for disAualification on grounds of defection"
para , is in the nature of a pro+isio to para ) in as much as it pro+ides that no disAualification
!ould be incurred !here 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.
%ne interpretation has been that once such a claim is made the only concern of the
#pea3er is to see !hether 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 !ill be sub*ect
to disAualification. $nder this interpretation" it is argued that since the !ord BusedC is only
4claims5 and the spea3er is concerned only !ith the -ouse and the egislature Parties" it is
not his function to enAuire into !hat happens in the political party outside. It is not for him to
pronounce upon !hether or not there has been a +alid split in the party outside.
?he other possible interpretation that has been put for!ard is that in order to pro+ide a
defecting member the protection of Para ," #pea3er !ill also ha+e to determine !hether there
has been a split in the political party outside" and !hether the member belongs to the group
!hich represents the faction arising out of the split. In case this interpretation is accepted" the
most crucial !ords are 4arisen as a result of5. ?hese !ords ma3e 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
a process and cannot be a sudden e+ent ta3ing place at a particular or a precise point of time.
4Arise5 necessarily in+ol+es the concept of gro!ing of ascending gradually.

#plit in a national party itself cannot be in the nature of a guillotine that abruptly falls
and in a moment di+ides the party members all o+er the country into t!o. 0embers are
thin3ing human beings !ho need some time to decide !hich !ay to go. ?here in no mention
in Para , of duration !ithin !hich a faction must arise from the split or !hen the members
representing the faction must ma3e a claim that they constitute a group.
?here is no concept in Para , or else!here in the ?enth #chedule of a split in the
legislature party as such. 4#plit5 in Para , refers to the split in the original political party only.
=hat 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
reAuirement of numbers 9 one third or the li3e 9 brea3ing a!ay or splitting the party.
A Auestion that has often been raised is !hether it !as fair to ma3e a distinction
bet!een defection by indi+iduals and defection by groups merely because the latter might
follo! or might for the sa3e of con+enience be called split of a party or merger of parties
particularly !hen moti+ations behind splits and mergers or group defections may not often be
+ery different from those for indi+idual defectionsG =hether an indi+idual defector should be
punished !hile defectors in a group should go scot free under the garb of a party splitG
Para , recognises the political phenomenon of splits in parties" but it has laid do!n
that disAualification 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. ?here is no nexus bet!een numbers and the fact of a split.

?he split is a complex phenomenon. It may occur because of differences o+er policy and
programs" organisational principles" functioning and alignment of social forces !ithin a
political party etc. Elements of personality and temperamental incompatibility may also not
be !holly absent.
?here is nothing sacrosanct about the figure one third. It has been argued that Para ,
of the ?enth #chedule relating to splits is" therefore" not based on any rationale or intelligible
differentia" +iolates the principles of eAuality and the basic constitutional structure.
?he #upreme Court" has" ho!e+er" held that the meaning to be gi+en to B#plitC must
necessarily be examined in each case in the context of its particular facts.
Para 5:
Para . of the ?enth #chedule is analogues to Para , and the analysis in regard to Para
, applies to Para . also except that Para . deals !ith the merger of an original political party
!ith another and for a merger to be deemed to ha+e ta3en place in the political parties" Bnot
less than t!o thirds of the legislature party concerned must ha+e agreed to such mergerC. In
the case of split" the de+elopment ta3es place entirely outside the -ouse. 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 sub*ect to disAualification depends upon its
representing a faction resulting from the split outside. In case of merger" ho!e+er" under Para
.I)J" it is clear that no merger of a political party in another can be deemed to ha+e ta3en
place unless at least t!o thirds of the members of the legislature party concerned ha+e
already agreed. ?hus" the merger of political party outside becomes dependent on the
agreement of t!o third ma*ority in its legislati+e !ing" for purposes of the ?enth #chedule.

Para 6:
Para / is a special pro+ision intended to co+er the Presiding %fficers of the -ouses of
egislatures !ho on their election may li3e to express their firm resol+e to function in a non;
partisan manner by resigning and se+ering their lin3s from their erst!hile political party. ?he
para pro+ides that no disAualification shall be incurred by such Presiding %fficers +oluntarily
gi+ing up their party membership on re*oining their party on ceasing to hold the office of
Presiding %fficer.
Para 8:
?he Auestion as to !hether a 0ember of a -ouse of Parliament or #tate egislature
has become sub*ect to disAualification !ill be determined by the Chairman or the #pea3er of
the respecti+e -ouseN !here the Auestion is !ith reference to the Chairman or the #pea3er
himself it !ill be decided by a 0ember of the concerned -ouse elected by it in that behalf.
All proceedings in relation to any Auestion as to disAualification of a 0ember of a
-ouse under the #chedule !ill be deemed to be proceedings in Parliament !ithin the
meaning of Article ()) or" as the case may be" proceedings in the egislature of a #tate
!ithin the meaning of Article )().
In its *udgment of (: Kebruary (>>) in 1ihota Bollohon v Iachilh" " the #upreme
th 1:
Court held that the #pea3er5s functions under the ?enth #chedule called for a *udicial
determination of issues under the la!. ?he process of determining the Auestion of
AIR (>>, #C .()
1 :

disAualification could not be considered part of the proceedings of the -ouse and as such not
amenable to *udial re+ie!. ?he #upreme Court further held that Para 1I(J of the ?enth
#chedule" to the extent it see3s to impart finality to the decision of the #pea3ers or Chairmen
is +alid. But the concept of statutory finality embodied in para 1I(J does not detract from or
abrogate *udicial re+ie! under Articles (,1" ))1 and ))8 of the Constitution in so far as
infirmities based on +iolation of Constitutional mandates" malafides" non;compliance !ith
rules of &atural Justice and per+ersity" are concerned. ?he deeming pro+ision in para 1I)J of
?enth #chedule attracts an immunity analogous to that in Articles ())I(J and )()I(J of the
Constitution as understood and explained in 1eshav ,ingh8s case to protect the +alidity of
1>
proceedings from mere irregularities of procedure. ?he deeming pro+ision" ha+ing regard to
the !ords Bbe deemed to be proceedings in ParliamentC or Bproceedings in the egislature of
a #tateC confines the scope of the fiction accordingly.
?he #pea3ers or Chairmen !hile exercising po!ers and discharging functions under
the ?enth #chedule act as ?ribunals ad*udicating rights and obligations under the ?enth
#chedule and their decisions in that capacity are amenable to *udicial re+ie!.
-o!e+er" ha+ing regard to the constitutional scheme in the ?enth #chedule" *udicial
re+ie! should not co+er any stage prior to the ma3ing of the decision by the #pea3ers or
Chairmen. -a+ing regard to the constitutional intendment and the status of the repository of
the ad*udicati+e po!er" no G"ia timet actions are permissible" the only exception for any
interlocutory interference being cases of interlocutory disAualifications or suspensions !hich
may ha+e gra+e" immediate and irre+ersible repercussions and conseAuences.
?he ob*ecti+es of entrusting the responsibilities of defection under the ?enth #chedule
to the #pea3er !ere the need for I(J expedition in determination of defection cases I)J
(>1/ I(J #CR .(,
1 >

ensuring impartial" ob*ecti+e and non;partisan decisions. #ome of the cases in the courts of
the #pea3ers ha+e ta3en too long and the ob*ecti+e of ta3ing Auic3 decisions has been
defeated. Also" in present day conditions it !ould be +ery unrealistic to expect a spea3er to
completely esche! party considerations e+en in matters !here Auestions of life and death for
his party or its 6o+ernment or its leadership may be in+ol+ed.
?a3ing decisions on disAualification of members on grounds of defection is not part
of the business of the -ouse !here of course the Presiding %fficer5s authority should be
supreme and unfettered by courts of la! outside. Also" ideally it is not and should ne+er be
part of the duties of the exalted office of the Presiding %fficer to be in+ol+ed in highly
political and contro+ersial cases of conflicts of party interests and healthy and unhealthy
manoeu+rings of po!er politics. It !ould ha+e added to the high prestige of the Presiding
%fficers if they had unanimously resol+ed that it !as !rong for the Anti Defection a! to
put the Presiding %fficers in position !here they !ould become sub*ects of political
contro+ersies. It !as not fair to put them in a situation !here their decisions !ould cause the
fall or enable the continuance of 6o+ernments. ?he Presiding %fficers could ha+e as3ed for
being relie+ed of all duties under the Anti Defection a!. ?hat !ould ha+e raised their
prestige in the esteem of the people at large. ?he la! could then be amended to entrust the
responsibility of determining !ithin a strict time frame all matters of disAualification to a
special bench in the #upreme Court and -igh Courts or an independent body consisting of
*udges.
Para >:
Para 8 had sought to bar the *urisdiction of courts completely from cases of
disAualification on grounds of defection.

?he #upreme Court ho!e+er struc3 do!n para 8 and declared that the pro+isions of
Para 8 of the ?enth #chedule of the Constitution in terms and in effect bring about a change
in the operation and effect of Articles (,1" ))1 and ))8 of the Constitution of India" and"
therefore" the amendment should ha+e been got ratified by #tate egislatures in accordance
!ith the Pro+isio to sub clause I)J of Article ,1: of the Constitution. #ince such ratification
had not been obtained the pro+ision of para 8 !as not +alid.
Para ?:
?he Chairman or the #pea3er of the -ouse !as empo!ered to ma3e the rules for
gi+ing effect to the pro+isions of the #chedule. ?he rules !ere reAuired to be laid before the
-ouse and !ere sub*ect to modification or disappro+al by the -ouse.
?he 0embers of o3 #abha IDisAualification on the ground of defectionJ Rules" (>:/
!ere duly made and laid on the table of the -ouse on (1 December (>:/. o3 #abha ha+ing
th
made no change" these rules came into force !ith effect from (: 0arch (>:1. -ouses of
th
#tate egislatures ha+e made their o!n rules as has the Ra*ya #abha. ?hese are all largely on
the lines of o3 #abha Rules.
$nder the Rules" for a member to be disAualified on the ground of defection" a former
petition in relation to the 0ember has to be instituted before the #pea3er and e+ery such
petition has to be +erified in the manner laid do!n in the Code of Ci+il Procedure (>E:. A
petition against a 0ember reAuired to be instituted is to be addressed to the #pea3er and in
the case of the #pea3er it is to be addressed to the #ecretary 6eneral. Any petition alleging

disAualification by any 0ember has to be for!arded to the concerned 0ember" and if such
petition is not made by the leader thereof" to him for his comments. ?he #pea3er may decide
the case after considering the comments on his o!n" or send it to the Pri+ileges Committee
for a report to be presented before him after a preliminary inAuiry. ?he procedure for
determining the Auestion should be more or less the same as adopted by the Pri+ileges
Committee for determining a breach of pri+ilege of the -ouse by a 0ember. &o 0ember can
be sub*ect to disAualification unless he is gi+en a reasonable opportunity to represent his case
and to be heard in person.
6.5 T)! J)i"s <nd!r Anti #!&!ction La(
In its literal dictionary connotation" the !ord Bthe !hipC means a lash !ith a stic3 or
handle used for punishing a person for an offence or in dri+ing a horse;dri+en carriage for
thrashing or beating the horse to urge it to mo+e for!ard faster. As a +erb 4to !hip5 similarly
means to lash a person or animal or to stri3e by a !hip. ?he !ord is belie+ed to ha+e had its
origin in the terminology de+eloped in hunting !here the hunter5s employee responsible for
managing the hounds and 3eeping them in their places is called the =hippers;in.
In the context of political parties and parliamentary life" the office of the B=hipC is a
+ital lin3 in the relationship bet!een the parties and their members. ?he B!hipC acts as a t!o;
!ay channel for information flo! bet!een party leaders and members. ?he B=hipC is the
officer of the parliamentary party or group responsible for enforcing attendance of the
members" 3eeping them informed of the party line on +arious issues and from time to time
issuing necessary directi+esPor =hipsPfor adhering to party discipline in the matter of
+oting on specific issues coming up on the floor of the -ouse. %n the other hand" the =hip

also collects information about the opinion among members on +arious issues and pro+ides
+aluable feedbac3 to party leaders.
It is belie+ed that the term !as first used in a parliamentary context in the British
-ouse of Commons in the Eighteenth Century by #ir Edmund Bur3e. It !as in (81> that
Edmund Bur3e referred in the -ouse of Commons to intense lobbying o+er a di+ision and
described ho! the 7ing5s 0inisters had made intense efforts to bring their follo!ers together"
ho! they had sent for their members from all directions 4!hipping5 them in. ?he phrase used
by Bur3e caught public fancy and soon became popular in parliamentary usage.
Actually" the gradual e+olution of the concept of !hip in Britain coincided !ith the
e+olution of +oting on party lines. During the year (:,1" for example" the percentage of cases
in !hich +oting in di+isions on the floor !as on party lines !as only )," i.e." on 88 issues out
of (EE there !as cross +oting by members. By (:>:" the percentage of +oting on party lines
had risen to 1>. During (>).;): it touched the >/ percent mar3 and in (>/: further rose to as
much as >: percent.
8E
?he institution of !hip is not confined to the =estminster model of Parliaments. It
exists e+en in countries li3e the $nited #tates !here each party in the -ouse of
Representati+es is ser+ed by a member 3no!n as the =hip. ?he =hips in the $.#. Congress
as at =estminster carryout an essential t!o;!ay communication" con+eying the +ie!s of the
party membership to the leaders and informing the membership of the +ie!s of the
leadership. In the Indian Parliamentary context" the =hip of Parliamentary group is the one
!ho has been designated to ensure that members of the party are present in adeAuate numbers
and +ote according to the line decided by the party on important Auestions. ?he Chief =hip
of the 6o+ernment party in o3 #abha< Ra*ya #abha is the 0inister of Parliamentary Affairs
Jac3son J. Robert"(ebels and #hips " P ." ondon" (>1:.
8 E

and he is directly responsible to the eader of the -ouse. It is a part of his duties to ad+ise the
6o+ernment on parliamentary business. ?he Chief =hip acts as the eyes and ears of the
eader of the Party so far as the members are concerned. During sessions" in his capacity as
ad+iser to the eader" he has to be in constant touch !ith the Prime 0inister. ?he Chief =hip
is assisted by t!o 0inisters of #tate. ?his responsibility of 3eeping e+erybody at his post and
3eeping his party united" strong and !ell;3nit falls on him.
?he =hips of the ruling party and of parties in opposition come into contact !ith each
other to sort out matters of common interest and to understand and accommodate each other
on many crucial occasions. =hips of the ruling party as !ell as those in opposition thus play
a +ery significant role in the smooth and efficient functioning of parliamentary democracy.
%+er the decades" functional uses of the =hips ha+e multiplied and expanded in many
directions. In a parliamentary polity particularly" the institution of =hips plays a +ital role.
Kor" continuance or other!ise of the 6o+ernment may depend on a single crucial +ote on the
floor of the -ouse. ?he 6o+ernment party =hip has Bto ma3e a -ouse and to 3eep a -ouseC
!hich means that it is his responsibility to ensure a Auorum throughout the sitting of the
-ouse by 3eeping the members !ithin the sound and range of the di+ision bells" particularly
!hen some important business is under consideration. -is most important *ob is ensuring the
presence of members and more particularly marshalling of his party forces on important
issues. ?he !hips are the party managers in Parliament and the art of parliamentary party
management may be called =hip Craft.
As a floor manager" the Chief =hip of the Ruling Party has to smoothen differences
and plan the business of the -ouse in consultation !ith the =hips of other parties. -e has to
act as a liason bet!een the -ouses of Parliament" their Presiding %fficers and their
#ecretaries on the one hand and the 0inistries and 0inistries and Departments of the

6o+ernment on the other. In short" the functions of the !hips today encompass those of
management" communication and persuasion. ?hey 3eep their members informed about the
business of the -ouse and the party line on +arious issues and enforce party discipline. -ere"
!e are mainly concerned !ith the limited managerial role or disciplining functions of the
=hips. Besides the office of the !hip" the term 4!hip5 has another connotation. During
sessions" !hips of different parties send to their member5s periodic notices and directi+es
informing them of important debates and di+isions" telling them of the probable hour of
+oting and demanding their presence at that time. #uch notices and<or" directi+es are also
called 4!hips5. #uch 4!hips5 are reported to ha+e been in use in the British -ouse of
Commons as far bac3 as in (1)( !hen notices underlined six times !ere issued to 7ing5s
friends.
In Britain" recei+ing a =hip is regarded as a pri+ilege of party membership and a
member is free to refuse the =hip. In the -ouse of Commons" issue of a =hip is an internal
party matter and the =hip is issued al!ays outside the -ouse. Issue of a =hipPoral or
!rittenPon the floor of the -ouse is inconcei+able. Issuance of such a =hip and !arning a
member not to disobey the =hip" might" in fact" amount to contempt of the -ouse. ?he =hip
only see3s to inform members of the business and ensure their attendance. %ne member
trying to pre+ent another member from spea3ing or as3ing him not to proceed !ith his speech
might amount to molestation of the member. Also" the !hips cannot arrogate the function of
the Chair and a =hip cannot be used for restraining members from challenging a ruling gi+en
by the #pea3er in -ouse. ?here has been no case in the long history of the British -ouse of
Commons !hen a =hip !as issued on the floor of the -ouse or !here the Chief =hip of a
party issued any =hip to only a selected fe! members of the party.

According to Robert Jac3son" the =hips *ob of pre+enting open re+olts in the British
parties is not conducted in the language of threats. But" there is also the other opinion !hich
emphasises the essential role of sections in ensuring adherence to the obligations of party
membership. Kor instance" the abour Party5s code of conduct pro+ides for a number of
disciplinary actions of increasing se+erity. ?he first is a !ritten reprimand from the Chief
=hip. ?he second is a 4suspension5" in effect a period of probation in !hich the member
though excluded from party colloAuies is expected to comply !ith the party =hip. A more
serious sanction is the !ithdra!al of the party =hip !hich Ili3e suspensionJ is decided upon
by the Parliamentary abour Party. ?he effect of the !ithdra!al is that a member no longer
recei+es the !ee3ly circular of guidance from the =hips and is in effect no longer a member
of the parliamentary party. By itself" this !eapon may pro+e a boomerang" in that re!hipped
member can then spea3 and +ote 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
refuse him read option as the party5s candidate in his constituency. In the -ouse of
Commons" ho!e+er" for many years no! the po!er to expel a member from the party has not
been used to punish 0P5s for disobeying the party =hip in the di+ision lobbies.
?he office of the =hip is not mentioned in the Constitution of India or in the Rules of
Procedure of the -ouse. In fact" till recently the political parties also found no such mention
or recognition. =ith the passing of the Constitution IKifty;AmendmentJ Act" (>:/" popularly
3no!n as Anti;Defection a!" the 4=hip5 has assumed a +ery important role in our
parliamentary system of democracy. ?he Amendment" inter alia " pro+ides for disAualification
on ground of defection" as under@
I(J A 0ember of Parliament or #tate egislature belonging to any political party shall be
disAualified for being a member of that -ouseP

IaJ If he has +oluntarily gi+en up his membership of such political partyN or
If he votes or abstains from voting in s"ch Bo"se contrary to any direction
IbJ
iss"ed by the political party to which he belongs or by any person or a"thority
a"thorised by it in this behalf witho"t obtaining in either case, the prior
permission of s"ch political party, person or a"thority and s"ch voting or
abstention has not been condoned by s"ch political party, person or a"thority
within 9/ days from the date of s"ch voting or abstentionJ emphasis suppliedJ
?he 0embers of o3 #abha IDisAualification on 6round of DefectionJ Rules" (>:/
framed by the #pea3er under the pro+isions of the ?enth #chedule to the Constitution inter
alia pro+ide that no reference to any Auestion as to !hether a member has become sub*ect to
disAualification under the ?enth #chedule shall be made except by a petition to the #pea3er.
At the conclusion of the consideration of a petition" the #pea3er may either dismiss the
petition or declare that the member in Auestion has incurred disAualification. IClauses 1 O :J
It is thus ob+ious that after coming into force of the Constitution IKifty;#econd
AmendmentJ Act" (>:/ and the Anti;Defection Rules framed there under" political parties
came to ha+e constitutional recognition and legitimacy and the directi+es issued by party
leadership came to ha+e rele+ance in la!. Disobedience of party directi+es or =hips
thereafter could result in disAualifying a member and losing his membership. It is" ho!e+er"
to be noted that in order to incur disAualification a member had to +ote or abstain from
B+oting in such -ouse contrary to any direction issued by the political partyC. It did not apply
to acts other than +oting" i.e. it did not interfere !ith a member5s right of freedom of speech
in the -ouse. -o!e+er" this analogy of curtailing the +oting right by means of issuing !hips
8(
and countering it by saying that issuance of !hips does not interfere !ith a member5s right of
7ashyap C. #ubhas" Anti;Defection a! and Parliamentary Pri+ileges" Pg@ (EE" Ed@ )" $ni+ersal a!
8 (
Publishing Co. P+t. td. )EE,

freedom of speech in the -ouse is a rationale !hich baffles logic. It is an analogy !hich is
too far;fetched and has no legs to stand. ?his 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
0ember of Parliament to claim this right of representation and help the Constitution to
become a necessary pulley in dra!ing the +ehicle of democracy.
As is already portrayed from the plethora of cases deli+ered by the Custodian of
Justice !ith regard to the importance attached to the Part III of the Constitution of India in
the pre+ious chapter" let us push the same into much !ider !aters to examine the same in
light of democracy. ?he necessity of this exercises are to bring out the +ariances in opinion
!ith regard to =hips. In furtherance of this moti+e the researcher analyses the +arious facets
of !hips and the reasons for the inclusion of Para )I(J IbJ under the ?enth #chedule of the
Constitution.
6.5.0 Aru%!nts &or J)i"s
?he classic !ay of stating the difference bet!een democracy and dictatorship is
exemplified by the arguments that the first is a multi;party system" !hereas the other is a one
party system. ?he difference bet!een a multi;party system and a one;party system can be
stated as follo!s@ by +irtue of its +ery mechanics a multi;party system democrati2es po!er"
!hile a one;party system ma3es it autocratic. Kor !hen many parties exist simultaneously" a
party go+erns only insofar as it ta3es the part of the go+ernedN !hereas a single party go+erns
permanently and has only the internal problem of !ho !ill go+ern the party itself. ?he roles
and the corresponding role perceptions are so different in the t!o contexts that one may !ell
!onder if it is proper to use the term party for both systems.
8)
#artori 6io+anni"Democratic Theory, Pg@ 8." Ed@( " %xford O IB- Publishing Co" (>1/
8 ) st

It is trite thus to obser+e that rights are not di+orced from obligations. #ystem is
interlin3ed. Right of representation being statutory should also be so. Representati+e ha+ing
accepted party pledge and platform can further be said to be obliged to follo! it" !hile he sits
as the member;representati+e. =hen he crosses floor or defies party mandate" he contributes
to disorder and brea3s the initial pledge. =as it" therefore" !ith reference to these and to instil
democratic discipline arising under party;system that the ?enth #chedule !as added to the
ConstitutionG Is it the inherent purpose of the ?enth #chedule to interlin3 the obligation of
party;discipline in the matters of functioning of the elected representati+eG -o! far the
process of this lin3 of obligation !ith rights of freedom could be stretched" so as to control
e+en the +ote of the elected representati+e" and could be +alid" reAuires deeper probe and
scrutiny.
8,
?he second hypothesis !hat the researcher tries to lay do!n is of a logical
conseAuence and it reAuires clear understanding of the +itals of democracy and parliamentary
system in India. At the outset it must be obser+ed that people elect their representati+es !ho
stand from a particular party not only loo3ing at the credentials of the indi+idual but also the
principles and memorandum prepared by the political parties during the time of election. It is
in these election manifestos that the need of the hour !ould be targeted" because the main
ob*ecti+e of these political parties !ill only be to succeed in the elections. ?he people once
satisfied and desirous to fulfil or get entitle o+er the promises made in these election
manifestos +ote for the political party. It may not be out of place to say that in many a times
the indi+idual ha+e !on not on their credentials but based on the party5s manifesto. ?a3ing a
pragmatic approach of the !or3ing of democracy in India" as illustrated abo+e" let us 3no!
consider the effects of !or3ing of such an B indirectly direct democracy C.
0asod3ar B.A."Law (elating to Dlectoral DisG"alification " Pg@ /," Ed@ (" &.0. ?ripati P+t td" (>:1
8 ,

?he reason for the researcher to use the phrase indirectly direct democracy is because
of the lac3 of certainty in the conduct of democracy in the free nation of the Republic of
India. ?his is so because the term democracy as defined by the 6reat Abraham incoln Bby
the people" of the people and for the peopleC is losing its sanctity due to the emergence of
innumerable political parties in India. ?he increase in the gro!th of number of political
parties is li3e that of !ild mushrooms in the rain forest" the conseAuence of such uncontrolled
gro!th has led people to great confusion in electing their leaders. ?hese days choosing the
right representati+e is li3e loo3ing for a spring in a hot desert" a tedious tas3 to perform. =ith
great difficulty" the people elect their representati+es after ha+ing set their o!n parameters to
*udge a person to represent them. As said before" sometimes the party is graded o+er the
indi+idual and elected" the +ery fact that" party representation" can be claimed to a facet of
democracy Idirect democracyJ" but the system of electing a representati+e not because of the
assurance that he guarantees to his constituency" lea+es the researcher !ith no option than to
coin the phrase indirectly direct democracy .
At this *uncture it is necessary to dissect the purpose of an election manifesto. ?he
underlying ob*ecti+e of an election manifesto basically targets !hat the people need during
the next fe! years and !hat are the problems of the people that needs to be attended to by the
6o+ernment. It is these manifestos that promises or assures people" if the go+ernment is
formed by their party. As an expected outcome" the party !ith better manifestos and
indi+idual credential form the go+ernment after !inning the election.
?he outcome of this indirectly direct democracy is that e+en though the laudable
ob*ecti+e of democracy has not been completely hampered of expressing people5s !ill" to an
extent it has been able to sustain the damage caused. After all these exercise the
representati+e goes and sits in the house to represent people5s !ill or at least an attempt to

represent them. It must not be forgotten that parties come into po!er based on the principles
on !hich the parties !or3" it in furtherance of these accepted principles of parties that the
6o+ernment proposes bills and ma3es la!.
A !hip is issued in cases of general interest of public. A party issues a !hip based on
its party5s principle as promised to the people before the election. If in the discussion o+er a
particular bill or a matter in the -ouse" for !hich a !hip has been issued" and the member;
representati+e of such party goes against the party !hip it is definitely coming in !ay to
express people5s !ill and nation5s interest !ill be put at sta3e. E+en if such a member gi+es
the cloa3 of BrepresentationC" for going against !hips issued" it can be profusely defeated by
adhering to the Bentham5s $tilitarianism Principle +i2 greatest happiness of the greatest
number.
#ometimes" the members due to considerations recei+ed from the opposition party"
may +ote against the bill proposed" e+en though it may be of immense help to his
constituency. In order to a+oid such practices" to ha+e a healthy parliamentary debate o+er the
fate of the nation" to curb and mend people !ho come in the !ay of achie+ing this ultimate
aim" Para ) I(J IbJ !as added to the ?enth #chedule of the Indian Constitution.
6.5.2 Aru%!nts aainst J)i"s
In a democratic system e+ery citi2en is free to act according to the dictates of his
conscience but such freedom is not practised e+en by parliamentarians. ?hey !or3 under the
!hip of the party and their actions are not free from pride and pre*udiceN conscience finds no
room in their practice. ?hey do not stand up in the -ouse to call right as right or !rong as
!rong. -a+ing been confined to their o!n interests they ha+e no hesitation in pulling do!n
6o+ernment !ithout rhyme or reason.
8.
?yagi B.#." A"dicial Activism in India " Pg &o@ (:" (Edition" )EEE" #risti Publishers
8 . st

#ystem of democracy of rights of indi+idual is an integral part of democracy as a
political form adopted for the policy of the country. #ub+ersion of it sub+erts the +ery form
and endangers the democracy. ?he Courts thus stic3 to the premise both in the interest of the
indi+idual" so also the form !e ha+e adopted. E+en in countries ha+ing no !ritten
Constitution but possessing political format of democracy" such rights are treated to be
inalienable. A.'.Dicey asserts about English constitutional principles stating that
fundamental principle of the British Constitution is that of democracy. Kreedom of
association as !ell as freedom of speech is essential to democracy. It !ould be more apposite
to rely on B6rammar of PoliticsC by that erudite" elegant Prof. -arold as3i !ho not only
taught but thought and shaped the premises of la! and politics. ?he learned author
emphasised that the legal theory of rights !ill tell us that in fact !hat the character of a #tate
is@
BAny system of rights" therefore" has three essential aspects from !hich it must be
regarded. ?here is the interest of the indi+idual" al!ays" at least ultimately" finally isolated
from his fello! men. ?here is the interest of the +arious groups in and through !hich his
personality finds channels of expressions. ?here is the interest of the community !hich is the
total result of the !hole pressure of social forces.....%b+iouslyN therefore" rights are not the
creatures of la!" but its condition precedent. ?hey are that !hich la! is see3ing to realise.
Institutions are" then" bad or good in proportion as they fail or succeed in the promotion of the
purpose of rights....Rights in fact" are those conditions of social life !ithout !hich no man
can see3" in general" to be himself at his best. Kor since the #tate exists to ma3e possible that
achie+ement" it is only by maintaining rights that its ends may be secured....?hey are rights
because they are useful to the end the #tate see3s to ser+e....?here is no better historic test of
its adeAuacy than the temper in !hich it confronts the ne! demands.....In any #tate the
demands of each citi2en for the fulfilment of his best self must be ta3en as of eAual !orthN

and the utility of a right is therefore its +alue to all the members of the #tate. ?he rights" for
instance" of freedom of the speech does not mean for those in authority" or for members of
some special class of church. Kreedom of speech is a right either eAually applicable to all
citi2ens !ithout distinction or not applicable at all.....=e ha+e rights to protect and to express
our personality. =e ha+e rights to safeguard our uniAueness in the +ast pressure of social
force. But our rights are not independent of society. =e ha+e them" because !e are members
of the #tate. =e ha+e them by reason of an organisation through !hich" in the !orld as it is"
the contribution of that uniAueness can alone be made. %ur rights are not independent of
society" but inherent in it......Rights" therefore" are correlati+e !ith functions......&either of
them is an unchanging notion. Each has a special perspecti+e !hich relates it to the special
en+ironment of any gi+en time and place.......=hat seems to be permanent essence of
freedom is that the personality of each indi+idual should be so unhampered in its
de+elopment" !hether by authority or custom" that it can ma3e for itself a satisfactory
harmonisation of its impulses. In this perspecti+e" the thing of importance is that
harmonisation should be self;effected. ?he rules laid do!n by the #tate should not bar the
!ay to any indi+idual as distinct from another.......EAuality" in other !ords" seems to mean
the minimisation of the handicaps our present social order imposes.......A political system in
!hich the pi+ot is the right of the citi2en to be articulate about his !ants clearly reAuires to
safeguard his articulateness. ?here must be" that is to say" freedom of speech !ith all that
ma3es freedom of speech effecti+e. =hat is the substance of the right to such a freedomG It
cannot merely mean" either" the protection of a man as an indi+idual" for much of !hat he
says that is most urgent comes from his speech in concert !ith others. Kreedom of speech is a
right that" clearly" needs definition in terms of the function it see3s to ser+e..... the citi2en

must be left unfettered to express either indi+idually" or in concert !ith others" any opinions
he happens to hold.....C.
8/
?he +alue of Prof. as3i5s perspecti+e lies in the realisation that right is not a mere
approbation but a functional capacity. Kreedom of expression inheres !ithin it freedom to
function" according to one5s o!n *udgment. ?he constitutional format of rights is not
different. Kreedom of expression" by reason of election to the legislati+e body" does not
differ" but Aua the position becomes compulsi+e. Correspondingly" the #tate5s po!er is
!ea3ened to curtail it. Impact of democratic form of polity" on the uniAue place of the elected
representati+e" reAuires that he should be free functionally to express and !hen chooses" be
silent.
?he Auestion" thus" !ould al!ays surround the Auestion of liberty and freedom of
indi+idual in a democracy and functional right of the elected representati+e" a democratic
legislator. iberty of the elected representati+e to function should be paramount. It is his
indi+idual *udgment and !ill unimpeded that !ould further the public interest that he is
called upon to represent and !hile doing so not to become unfree by group considerations.
Although" in practice" such indi+idual freedom in collecti+ely operates" the basic
premise of the constitutional structure remains the same. ?here is no group;+oting in
legislature" for to +ote according to one5s mature *udgment and !ill" or to abstain from +oting
are functional facets of freedom. Kreedom and liberty in this regard ha+e seminal essence and
that is the fundamental assurance of dynamic 3ind. %nly because it is abused or misused or
sometimes seems to be corrupted" it does not become any the less basic" fundamental or
essential. 'ote and its process are a modality of expression. Essential it is in people5s
go+ernment. #ystem of +ote is singular and not collecti+e" indi+idual and not group;oriented.
0asod3ar B.A." a! Relating to Electoral DisAualification" Pg@ ./" Ed@ (" &.0. ?ripati P+t td" (>:1N ,ee
8 /
alsoDicey A.'." Law of Constit"tion " Pg@ /.8" Ed@ >" (>,>

Could this then be controlled and rendered fro2en by dictates of some anterior facts" li3e the
one in that such a representati+e !as elected as a candidate of a gi+en party" ruling or
opposing or has formed an opinion in opposition to such group on the issueG Could that
further be authorityG And suppose" indi+idual has not chosen to follo! the dictate of the party
but follo!s his free !ill and *udgment" !ould such a singular dissent be democratic or run
counter to itG All these Auestioned premises beg the Auestion of liberty and freedom. If the
representati+e is sub*ected by reason of penalty and not by choice" then it !ould amount to
logical fallacy of representati+e go+ernment.
Chief Justice 6a*endragad3ar in his treatise emphasised that in democratic !ay of
>=
life freedom of speech and expression !as basic and its significance lay in the assurance to
the citi2ens of a free country" !here;under e+eryone is free to de+elop his personality in the
best manner he chooses. ?his freedom has a dual purpose. Kirstly" it allo!s full scope for the
indi+idual de+elopment of the citi2en and it gi+es ample opportunity to citi2ens to propagate
their +ie!s" their philosophy and their ideology. -e obser+es@
Democratic way of life is not static and it is progressive and it, therefore,
contemplates changes in the socio-economic str"ct"re The parliamentary form of democracy
post"lates the e.istence of two or more parties which believe in different economic
philosophies and political ideologies, and it is implicit in this form of democratic government
that a party which is in power today may be in opposition tomorrow and the party which is in
opposition today wo"ld come to power tomorrow That is why all p"blic iss"es of socio-
economic importance, divergence of opinion, and conflicting views are allowed to be
e.pressed in the press and on the platform in all democratic co"ntries and every view is
given f"ll chance to sec"re the acceptance by the ma$ority of the citi<ens @oltaire8s dict"m
that democracy m"st "phold and s"stain the freedom of e.pression of opinion by all citi<ens,
a!" iberty and #ocial Justice" pp. :>" >E.
8 1

even if the said opinion appears obno.io"s or s"bversive to some of them, symbolises the tr"e
democratic approach in the matter of the freedom of speech and e.pression Tr"th, whether
in social or in economic matters, has many facets and what may appear to be "nso"nd to one
section of the p"blic may appear to be so"nd to another section A free and fearless e.change
of ideas which is the essence of the democratic way of life can thrive only if f"ll freedom of
speech and e.pression is g"aranteed to all the citi<ens It is only when the restrictions co"ld
satisfy the test of sec"rity of the ,tate or overthrow of the ,tate, then the freedom co"ld be
controlled'
?he high fundamental and seminal position of these freedoms so essential to
democratic set;up is similar both in England and the $nited #tates of America. &o doubt" the
Courts had to pronounce often upon the matters of personal freedoms of citi2ens" as citi2ens"
and not as elected representati+es" but in principle that !ould ma3e hardly any difference. It
thus clear that these rights are inalienable from a democratic society.
?he ?enth #chedule" !hich is supposedly meant to stall the process of political
defection" is fraught !ith serious *uridical ramifications" including the curtailment of the
political rights conferred upon the indi+idual citi2ens of the country. As suggested earlier" if
the ob*ect !as to merely stall the defections" the pro+isions !ould ha+e been differently
!orded in a different manner. ?his is not to minimise in any manner the role of political party
and the role of minimum ethics in political affairs. Danger lies some!here else" in that party;
structure is superimposed on the indi+idual !ill and freedom and e+en innocuous as !ell
innocent acts bac3ed by conscious choice of ideals are li3ely to come in conflict !ith the
process of party;discipline. It is not unli3ely that the ma*ority in a gi+en party in such a set;
up" may beha+e !hich could loosely be called unethical" !hile the indi+idual may not be
!illing to a party to such a process and yet he !ould be charged !ith the defection under

?enth #chedule. #e+eral instances can easily be multiplied so as to indicate that
circumstances !ould pro+e and e+ents *ustify that numerical party strength may be totally
!rong on a gi+en issue" !hile the indi+idual dissent !ould be right and also !ould be
necessary in furtherance of public morality. ?he Auestion at heart is !hether the indi+idual
!ill and indi+idual dissent" !hich is the soul of democratic functioning" should be stifled and
silenced by party or numerical" collecti+e" autocracy. Democracy is not merely a rule of or by
numbers. ?here is something al!ays in addition" that unites and harmonises. =hether party;
less or party;full" it is a rule of cherished ideals ha+ing indi+idual in social setting as its
fountain. Democracy" therefore" is the rule of freedom;lo+ing enlightened indi+iduals !ho are
out to establish ci+il society. Party;cracy and its compulsi+e di!tat can e+en affect the ideals
of democracy li3e indi+idual freedom of participation in go+ernment affairs. In the context of
democracy" as adopted in India" party should" is and remains ho!e+er the organisation for
achie+ing goals and ideals" spreading ideas and ideology" philosophy consistent !ith political
aspirations" such as freedom and liberty" eAuity and eAuality in the affairs of men. Party"
ho!e+er" e+en under the ?enth #chedule" is not a person" superimposed. Democracy cannot
be eAuated" therefore" !ith di!tat " but remains consistent !ith free flo! and exchange of
ideas. ?hat eAually supports party;health and party;functioning. Rise of party and its
recognition under the ?enth #chedule for the purpose of finding disAualification is a half;!ay
tra+el. Constitutional preference from indi+idual to party cannot be this !ay. It has to be
more specific" more pronounced and clearly spelt out. ?ill then" the ?enth #chedule may only
add to e+er;complicating !eb of political and *uridical debate.
6.5.4 Su13!ct Bas!d J)i"s:
=e say that elections must be free. ?his is indeed true" but it may not be enoughN for
opinion too must be" in some basic sense" free. Kree elections !ith unfree opinionPexpress

nothing. ?he retort !ill be" that in e+ery society" be it democratic or not" there is al!ays"
ine+itably" a public opinion. ?his ans!er" ho!e+er" calls our attention to the need of
distinguishing bet!een IiJ an opinion that is public merely in the sense that it is disseminated
among the public" and IiiJ an opinion !hich the public to some degree has formed by itself.
In the first sense" !e ha+e an opinion made public but in no !ay produced by the public@
therefore public only in the geographical meaning that it is located in the public. In the
second sense" !e ha+e instead an opinion of the public" meaning that the public is the sub*ect.
In the first sense" any society can be credited !ith a public opinion. In the second sense" no
public opinion exists unless it is based on" or related to" personal and pri+ate opinionN and
therefore a present;day totalitarian mass society has no public opinion" but only #tate;made
opinions enforced upon the public.
88
$ntil a fe! decades ago" there !as no reason to dra! this distinction. $ntil the ad+ent
of mass media and of totalitarian control of the public" to say Bpopular opinionC meant" and
could only mean" B%pinion of the people"C that !hich the sub*ects" not the so+ereign" had in
mind. But no!adays !e can find a popular opinion !hich is in no meaningful sense the
people5s opinion. -ence the distinction is crucial and ambiguity as to the meaning of public
opinion should be carefully a+oided. It is therefore that public opinion only !hen it is
relati+ely free and autonomous opinion" that is" to the extent that it expresses a relati+ely
independent !ill of the people and not !hen it becomes a mere reflection of the !ill of the
#tate.
8:
After discussing the probabilities for inclusion of =hips and criticising the fact for
being included it under the ?enth #chedule" the researcher ta3es a +ault to!ards the
#artori 6io+anni"Democratic Theory, Pg@ 8." Ed@( " %xford O IB- Publishing Co" (>1/
8 8 st
ibid
8 :

alternati+e that can be done in order to achie+e the ob*ecti+e set out in ?enth #chedule for
curbing the e+il of defection in a much more effecti+e manner.
%n a fair perusal of the position of anti;defection la!s in the +arious Common =ealth
nations and also some de+eloped nations li3e the $nited #tates of America and the $nited
7ingdom" the researcher in this research paper tries to dra! parlance !ith that part of the
anti;defection la!s in these nations regarding =hips" !hich ha+e de+iated from the course
adopted by the Indian Parliamentarians in tac3ling the problem of defection" in a much more
effecti+e manner to fight defection.
It is much appreciated by the researcher if a holistic +ie! on the reasons for issuance
of party =hips is considered. %ne of the prime reasons substantiated by party heads for
issuance of !hips being" to regulate parliamentary debates and ha+e a healthy ambience
during discussions of serious concerns. As is already discussed =hips in England are issued
only in case of procuring attendance of a member.
=hereas the position of =hips in Australia and $#A run in parlance" each Political
Party has a =hip in the upper -ouse and in the o!er -ouse. -e arranges the order in !hich
his party5s members !ill spea3 in debate. -e disciplines his +oting. -e ma3es sure that all
members a+ailable are in the particular house !hen an important +ote is about to be ta3en. -e
also arranges a Bpair C.
8>
In the $7 the 6o+ernment Chief =hip and the opposition Chief =hip constitute !hat
are 3no!n as the 4usual channels5 !hereby negotiations are carried on regarding conduct of
public business.
:E
7rishan #ingh Chauhan" B Anti Defection a! in India a Critical AppraisalC 0.D. $ni+ersity" Rhota3" (>>1
8 >
page (,EN also see ane" P.-. BAn Introduction to the Australian ConstitutionC ) Edition (>>8 page :E.
n d
0orrison" B6o+ernment and ParliamentC page (E).
: E

?he 6o+ernment control o+er its ma*ority is substantial. ?o +ote against the
6o+ernment is to +ote against the party. ?o rebel against te 6o+ernment is to lea+e the
:(
party. ?o lea+e the party is to lose party support at the next election since the a+erage elector
+otes for the party label" this means" probably" that the member !ill not be re;elected.
0embership of the -ouse and accession to office ali3e depend on party ser+ice and party
support.
?he -ouse of Commons consist of parties. ?he 6o+ernment as a party authority" has
control o+er one or more of them. It appoints 4=hips5 and pays many of them out of public
funds. It is their function to see that members of the Party attend the -ouse and support the
6o+ernment. If the 6o+ernment has a ma*ority and so long as that ma*ority holds together"
the -ouse does not control the 6o+ernment but the 6o+ernment controls the -ouse.
:)
?he Parliamentary #ecretary to the treasury and the ords of the ?reasury ha+e some
departmental duties in the ?reasury. ?hey ha+e to sign ?reasury =arrants" but their main
function is to control the proceedings of the -ouse of Commons and 3eep the ma*ority
together" as 6o+ernment =hips under the direction of the Prime 0inister or the leader of the
-ouse. ?hey are about thirty other Parliamentary #ecretaries or other persons ran3ing as
assistant 0inisters. In addition" there are fi+e appointments in the Royal -ousehold !hich are
regarded as Political %ffices. ?he holders of these offices" too are =hips if they are in the
-ouse of Commons" and assist in 6o+ernment Business in the house of ords if they are
peers.
If !e loo3 at the positions of the !hips in other countries and the nature of the
e+olution of !hips as is pre+iously discussed" it is clear that the plenary ob*ect of issuing
ibid
: (
7rishan #ingh Chauhan" BAnti Defection a! in India a Critical AppraisalC 0.D. $ni+ersity" Rhota3" (>>1
: )
page (,EN also see as3i" -arold J. BParliamentary 6o+ernment in EnglandCN Kiner -erman B?he ?heory and
Practice of 0odern 6o+ernmentC . Edition.
th

!hips being to procure the attendance of members to the -ouse in order to ha+e debates on
3ey proceedings of the -ouse. In short the !hips perform an Bexemplary *udicious dutyC. #o
!hat is applauded by the researcher in this research paper is that the !eapon of !hips must
be used in such a manner as to enable the !hips to perform its Bexemplary *udicious dutyC in
a much more effecti+e manner" resulting in utilisation of !hips rather than issuing them !hen
they are totally uncalled for" thus bringing a hurdle to the spirit of democracy.
In order to achie+e this laudable ob*ecti+e" !ith the pre+ailing circumstance in the
Indian polity" it is much feasible for the operation of !hips in its domain effecti+ely" if the
di+erging ob*ect of issuing party !hips in ?enth #chedule be constrained to matters of prime
importance. =hat is suggested is that !hips issued for cases !here the party5s mandate is
bound to the members" !here it relates to a Bill for an Amendment to the Constitution"
0oney bill" and the li3e because these bills are of national importance and dissent by a fe!
biased indi+iduals and their concern cannot be adhered to in +ie! of the Bentham5s principle.
=hereas party !hips for +oting on a much less important bill !here the member tries to
reflect his people5s +ie! and bills !hich apprehend suffering to his constituent people"
sufficient space must be pro+ided to these representati+es in order to fulfil the ob*ecti+es of
democracy.
Krom the abo+e discussion it is clear that the !hips" in our process of conduct of
Parliamentary proceedings must be Subject Based i.e. !hips !hich control the exercising
of right to +ote of a member !ithin the precincts of the -ouse must be guided by the sub*ect;
matter or the nature of the bill that is to be discussed. If this is done a right balance can be
struc3 bet!een the rights of the representati+es and the unflinching party affiliation by the
members to!ards their respecti+e parties and their policies. By considering the abo+e
suggestion it can be asserted that the goals of democracy is celebrated in a much more

glorifying manner so as to enable our C onstitution to reach a step ahead in contributing to the
process of de+elopment of this great nation.
6.6 Anal+sis o& t)! Po(!rs o& S"!ak!r und!r t)! T!nt) Sc)!dul!
A complete harmony bet!een *udicial re+ie! and parliamentary supremacy is an
outstanding achie+ement by the architects of the Indian Constitution. ?he doctrine of an
absolute balance of po!ers bet!een the different !ings of the 6o+ernment is not feasible.
Practically" someone must be empo!ered !ith ha+ing the final say in the matter of disputes.
?his is the reason that the system of separation of po!ers in the Constitution of America has
failed in real practice. ?he *udiciary in America has its dominance o+er other organs of the
6o+ernment under the po!er of interpretation of the Constitution. Due to this domineering
tendency" it is 3no!n as 4safety +al+e5 or the 4balance !heel5 of the Constitution. Chief
Justice -ughes has aptly remar3ed" B?he Constitution of the $#A is !hat the #upreme Court
says it isC. It has po!er to declare a la! null and +oid passed by the legislature e+en on the
ground that it is not consistent !ith the general principles of the Constitution. ?hus" the
American *udiciary can po3e its nose into the legislati+e policy li3e a third chamber or super;
chamber of the legislature.
:,
In England" Parliament is supreme. It is free to do !hat it pleases. E+ery !ing of the
6o+ernment has to heed !hat parliament says or does. Blac3stone has rightly described the
might and ma*esty of the British Parliament" Bit can do e+erything that is not naturally
impossibleC. ?hat is !hy the British *udges refuse ha+ing any po!er Bto sit as a court of
appeal against Parliament.C
:.
=ith a +ie! to a+oiding either extreme" the Indian Constitution has adopted a golden
mean bet!een supremacy of American *udiciary and the supremacy of British parliament. If
?yagi B.#." A"dicial Activism in India " Pg &o@ .O/" (Edition" )EEE" #risti Publishers
: , st
ibid
: .

the *udiciary rides the high horse and beha+es arrogantly" the Parliament can bring an
amendment in the Constitution. Pandit &ehru has rightly described this uniAue feature of the
Indian Constitution" B&o #upreme Court" no *udiciary" can stand in *udgment o+er the sole
!ill of Parliament" representing the !ill of the entire community. It can pull up that so+ereign
!ill if it goes !rong" but" in the ultimate analysis" !hen the future of the community is
concerned" no *udiciary can come in the !ay......$ltimately" the fact remains that the
legislature must be supreme and must not be interfered !ith by the Court of a! in such
measures as social reforms.C
:/
0oreo+er" the Indian *udiciary has stood by the people through thic3 and thin. It has
e+er paid due regard to the B#o+ereign !illC of the people but during emergency its !ings
!ere clipped and left it in trauma through .) Amendment but after!ards in the regime of
nd
the Janta 6o+ernment it !as restored to the pre;(>81 position to a great extent. &o!" it has
gained ground by declaring itself that *udicial re+ie! is a basic feature of the Constitution. It
has helped the court to co+er a !ide range of *udicial acti+ities to do Bcomplete *usticeC. As
#.B. Jai #inghani says" Bunder Art (.) of the Constitution" the Apex Court !as gi+en an
extraordinary po!er of the !idest amplitude to pass any decree or ma3e any order as !as
considered necessary for doing complete *ustice in any cause or matter pending before itPno
matter !hether the ordinary la! of the land pro+ided for such a measure.C
:1
If most of the countries in the !orld ha+e adopted democracy" it is not because it is a
perfect system or the best !ay to lead a contended life but because it is a better system. ?he
term 4democracy5 has been discussed from Plato to the present day by thin3ers !ho tend to
thin3 of a better and *ust society. -ence" !e ha+e a !ide +ariety of its connotationsN yet it is
to be interpreted !ith the tint of contemporary experience. As democracy aims at establishing
DD Basu" Introduction to the Constitution of IndiaN Prentice -all of India P. Itd.J also Delhi" (>>." Pg@ ,>
: /
Article in the India Express@ Dec )," (>>1
: 1

a *ust society" the *udiciary is logically and ine+itably associated !ith it. Both are
complementary to each other. If democracy prepares the ground to reali2e lofty ideals of life"
the court acts as a sentinel on the 4Aui +i+e5. -o! *udicial re+ie! is a !atch !ord !hen
democracy especially in IndiaPa land of religion and philosophy" aims at pro+iding people
all good conditions !hich ma3e life !orth;li+ing.
:8
6.6.0 Aru%!nts &or Para 8 O Para > o& t)! T!nt) Sc)!dul! o& t)!
Constitution:
?he drafters of the Constitution after considering the !or3ing of Constitution around
the globe" !ith deliberations left the idea of including the doctrine of separation of po!er out
rightly in Constitutional pro+isions and the same is designed in such a manner so to ha+e its
effect on all the three organs of the 6o+ernment. ?hough the 0ontisAue5s theory has been
critici2ed se+erally for its failure in its paradigm modes" it is much appreciated !hen certain
modulations are adhered to in its application. ?he Indian Constitution has profusely used this
changed application of the 0ontisAue5s separation doctrine to a+oid !ater;tight
compartmentali2ation of the po!ers of the three organs of the 6o+ernment and instead used
the formula of Chec3s and Balance in the !or3ing of our 0agna Carta" thus glorifying the
ob*ects of democracy.
&o! coming to Para 1 and 8 of the ?enth #chedule" it is one of the examples for the
!or3ing of the separation of po!ers in its !idest amplitude. ?he battle for establishing
supremacy o+er each other +i2 legislature o+er *udiciary and *udiciary o+er legislature" has
been a trademar3 for the #eparation doctrine in our Constitution. 0any *urists ha+e put forth
saying that legislature someho! finds a place abo+e *udiciary" eAual is the number of *urists
!ho are the strong protagonists of supremacy of *udiciary. -o!e+er it *udicious to stri3e
?yagi B.#." A"dicial Activism in India " Pg &o@ (1" (Edition" )EEE" #risti Publishers
: 8 st

balances so as to create harmony bet!een these t!o organs" the parameters being the +arious
pro+isions of the Constitution.
-arnessing the doctrine of separation of po!er in the light of para 1 O 8 of the ?enth
#chedule" !hich deals !ith finality of the decision of the #pea3er and the bar of *urisdiction
of Courts respecti+ely demands an o+erall +ie! of the position of #pea3er and cra!l to the
rationale behind the insertion of para 8 of the ?enth #chedule.
A #pea3er of the -ouse" before assuming the %ffice gi+es up his party affiliation and
then leads the -ouse. ?he reason for the #pea3er to gi+e up his party is Auite ob+ious. ?he
#pea3er is the authority !ithin the precincts of the -ouse !hich he presides. ?he %ffice of a
#pea3er is +ery high and is entrusted upon a person !ith utmost faith and regard. #uch
positions cannot be dubbed !ith far;fetched logics of continuing party affiliation. -o!e+er
this can be further substantiated by thro!ing light on the fact that a no;confidence motion can
be see3ed against the #pea3er" !hich further rushes to clear all doubts.
Anti; defection la! under the Indian Constitution is included !ithin the precincts of
the -ouse because the ?enth #chedule has been annexed in the Constitution in furtherance of
the amendment brought to Arts. (E) O (>( of the Constitution" and under Art (E, O (>) the
decision of disAualification under Art (E) and Art (>( is entrusted !ith the #pea3er and his
decision is final" so para 1 of ?enth #chedule is +ery much constitutional and no Auestion
arises as regards its legality.
&o! targeting para 8 of the ?enth #chedule !hich creates a bar on the *urisdiction of
the Courts !ith respect to decision of the #pea3er on matters of disAualification of members
is +ery much appreciated" the reason being upholding the independence of legislature and
creating a scope for the application of doctrine of separation of po!er. If *urisdiction of
courts is extended to the decisions of the #pea3er" it amounts to o+erlapping of po!ers and

disturbs the separation doctrine. Also" the #pea3er acts as a *udge in the -ouse" this -ouse is
constituted by the representati+e of the people" if re+ie! is extended to such People5s Court it
amounts to insult of the -ouse.
Kurther" if an argument is raised against the credibility of the #pea3er in ma3ing
decision !hile discharging his duty as a Judge" by some lame logics of party affiliation and
that is the reason as to !hy *udicial re+ie! must be had on the decision of the #pea3er has no
legs to stand because similar allegations may find place against the Judges !ho are in+ol+ed
in the re+ie!ing exercise. As a matter of con+ention" faith is al!ays had in persons !ho sit as
a Judge to uphold *ustice. Also" the #pea3er !ould ha+e assumed the %ffice only after t!o;
thirds ma*ority in the -ouse" so no doubt must exist as to his credibility and capability. ?hus
it can be concluded that anti;defection la! is a piece of legislation independent of *udiciary to
protect the pri+ilege of the -ouse.
6.6.2 Aru%!nts aainst Para 8 O Para > o& t)! T!nt) Sc)!dul! o& t)!
Constitution:
?he 0ontisAue5s Doctrine of #eparation of Po!er allo!s for three independent
organs of a 6o+ernment to function independently" ho!e+er as discussed in the pre+ious
Chapter" in the Indian context there has been slight +ariation in the adoption of this
doctrine for our 6o+ernance. ?hough there is no un!arranted interference among the three
organs of the #tate" pro+isions are carefully incorporated in the Constitution so has to
ensure that none of the organs of the #tate !ill become #upreme in the $nion.
At this *uncture it is important to note that the Constitution has laid do!n pro+isions
to enable" the legislature" the executi+e and the *udiciary become the three pillars of our
democratic set up. ?he underlying ob*ect to ma3e 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. %ne of the organs tries to establish supremacy o+er either of the t!o
remaining organ results in the collapse of that organ !hich is sub*ect to suppression"
resulting in collapse of that pillar and the infrastructure of democracy. #o the framers of
the Constitution ha+e repeatedly made sure that the three organs are +ested !ith such
po!ers so that the other organ<s cannot single handed or together dominate o+er it and
thus facilitate in harmonious existence of all the three organs.
Confining our discussion !ith respect to the existence and functioning of legislature
and *udiciary" it is +ery much rele+ant to discuss the role played by the same t!o organs in
3eeping a chec3 o+er each other in the past. At this *uncture it is pertinent to note that the
term B*udicial re+ie!C has no express mention in the text of the Indian Constitution. ?his
doctrine !as e+ol+ed by the -onourable #upreme Court in 0iner+a 0ill5s case !herein the
#C held that *udicial re+ie! is a part of the basic structure of the Constitution and cannot be
amended. Krom then on the #C by using its po!er of *udicial re+ie! has al!ays acted as the
6uardian against the atrocities of the legislature in so far as trying to usurp the po!er gi+en
to them under the Constitution !ith a malafides moti+e of destroying the democratic polity
and trying to slit the fine fabric of balance bet!een the po!ers as enshrined in the
Constitution.
?he #C has used this concept of *udicial re+ie! and has al!ays acted as the guardian
of the Constitution !hich can be obser+ed in the recent decision !ith respect to the &inth
#chedule" !here the legislations !ere 3ept out from the ambit of *udicial scrutiny" but the #C
usurped the po!er of *udicial re+ie! and made a path;brea3ing e+ent in the Indian history
thus time and again reiterating the fact that the courts are still the custodians of *ustice and no
fraud can be played by any person on the Constitution.

?he real challenge is mainly on the ground that Paragraph 8 of the ?enth #chedule" in
terms and in effect sought to ma3e a change in chapter I' of Part ' and Chapter ' of Part 'I
of the Constitution as it ta3es a!ay the *urisdiction of the #upreme court under Article (,1
and that of the -igh Court under Articles ))1 and ))8 of the Constitution" and" therefore" the
Bill before presentation to the President for assent !ould reAuire to be ratified by the
legislatures of not less than one;half of the #tates by resolution to that effect as en+isaged by
the pro+iso to Article ,1:I)JN that in the absence of such a ratification the !hole Amendment
Bill !as an aborti+e attempt to bring about the amendment indicated thereinN that e+en
assuming that the amendment does not attract the pro+iso to Article ,1:I)J" Paragraph 8 of
the #chedule is liable to be struc3 do!n as it ta3es a!ay the po!er of *udicial re+ie!N that the
+ery concept of disAualification for defection is +iolati+e of the fundamental +alues and
principles under;lying parliamentary democracy and +iolates an electi+e representati+e5s
freedom of speech" right to dissent and freedom of conscience and is destructi+e of a basic
feature of the ConstitutionN that the in+estiture of po!er to ad*udicate disputed defections in
the Chairmen<#pea3ers" !ho being nominees of political parties are not obliged to resign
their party affiliations" does not stand the test of an independent and impartial ad*udicatory
machinery and is" therefore" +iolati+e of the basic feature of the Constitution.
::
6.8 Conclusion:
?he anti;defection la! has played a pi+otal role in curtailing the defections in the
democratic polity consisting of a huge number of political parties. ?he la! being passed in as
bac3 as in the year(>:/ has sho!n a ne! dimension and has created a ne! path in securing
the dream of ha+ing a stable go+ernment 3eeping in mind the aspirations of the crores of
people !ho ha+e been stri+ing hard to ma3e our democratic polity !or3 by exercising their
right to +ote and to reassure the faith in the single largest democracy of the !orld.
7ihota -ollohon +. Dachillhu" AIR (>>, #C .()
: :

It is !ell agreed that this portion of the Constitution of India is enacted in order to
protect the pri+ileges of the -ouse" ho!e+er as e+ery other la! is not static and reAuire
changes" the ?enth #chedule in the !a3e of securing the pri+ileges of -ouse 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 li+ing the
dreams of our Constitution drafters and the deciders of the faith of this great nation.

CHAPTER: VI
.udicial d!$!lo"%!nt on t)! T!nt) Sc)!dul!
Introduction:
1.(
It is !ell 3no!n that the egislature ma3es la!" the Executi+e executes the la!s made
by the egislature and the Judiciary interprets and applies the la! as the circumstance
demands. After considering the Constitutional De+elopment on the position of la! !ith
regard to Anti;Defection under the ?enth #chedule" let us loo3 into the *udicial interpretation
of the same by the Indian Judiciary.
?he Auestion regarding the existence of discrepancy and the interpretation of the
pro+isions of the ?enth #chedule !as considered for the first time before the Apex Court in
the case of 1ihota Bollohon v Iachillh" . ?he *udicial examination of the ?enth #chedule
:>
!as made after 1 years after" from the date of its inception in the Indian Constitution and till
date it stands as a reference point or a landmar3 decision in the aspect of Auestions that are
considered under ?enth #chedule especially !ith respect to para )I(J IbJ" para 1 and para 8 of
the same.
In this decision" the #upreme Court ans!ered some of the path brea3ing constitutional
Aueries and ga+e light to certain prime rules of interpretation of the pro+isions of the
Constitution and also the application of +arious doctrines !ill interpreting Constitution"
!hich play such pi+otal role in understanding the ma2e of our Constitution.
=hile ans!ering the Auestion !ith respect to the constitutional +alidity of the para )
I(J IbJ it !as held by the learned Judges of this case that the para ) I(J IbJ is unconstitutional
and abridges the fundamental right of the 0embers of the Parliament or the #tate egislature.
AIR (>>, #C .()
: >

?he right to dissent is uneAui+ocally co+ered under the right to speech and expression. Para )
I(J IbJ by the +irtue of use of the !ord Bany orderC expands the hori2ons of the orders that
can be passed and any dissent by any member of such orders passed results in remo+al of the
member by the #pea3er of the -ouse" thus curtailing the freedom of speech and expression
by the 0embers of the -ouse.
=hen the finality clause under para 1 of the ?enth #chedule !as considered" !hich
specifically deals !ith the decision of the #pea3er being final and under para 8 !here the
pro+ision puts a bar on the *urisdiction of the Courts" the Apex Court held that para 8 forms
the crux of the ?enth #chedule and the doctrine of se+erability finds no application and
cannot be se+ered from the main text of the ?enth #chedule. =hen the authenticity of the
authority of the #pea3er to act as independent ad*udicatory machinery in the process of
decision ma3ing for the remo+al of the 0ember !as considered by the Custodian of Justice"
it !ell thought;out that #pea3er5s decision must be sub*ect to *udicial re+ie!.
Krom the abo+e obser+ations of the #upreme Court it is clear that due to the non;
se+erable character of para )I(J IbJ and para 8 of the ?enth #chedule" the entire /)
nd
Amendment Bill is rendered unconstitutional. If the modus operandi of para ) I(J IbJ and
para 8 is +aried" so as to ensure freedom of speech and expression to the members and also
sub*ect the decision of the #pea3er under para 1 to *udicial re+ie! in furtherance to change
the dimension of para 8" the goals of democracy !ill be cherished.
8.2 T)! Su"r!%! Court in =i)ota Hollo)on;s Cas! :
?he case of 1ihota Bollohon v Iachillh" " is the landmar3 decision in this regard.
>E
?he Constitutional Bench headed by Justice
'E&7A?AC-AIA-" 0.&. ga+e an
elaborate" lucid and dynamic *udgment. ?he constitutional Auestions considered"
ibid
> E

the principles propounded and the interpretation of the +arious pro+ision of the
Constitution of India" the extracts of the same from the *udgment are produced
belo!.
By the Constitution IKifty;#econd AmendmentJ Act" (>:/ Ipopularly 3no!n as the
Anti; defection la!J the ?enth #chedule !as inserted in the constitution of India pro+iding for
disAualification of a 0ember of either -ouse of Parliament or of a #tate egislature found to
ha+e defected from continuing as a 0ember of the -ouse. Paragraph ) of the ?enth #chedule
states that a 0ember of a -ouse !ould incur disAualification if he +oluntarily gi+es up his
membership of the party by !hich he !as set up as a candidate at the election" or if he
!ithout obtaining prior permission of the political party to !hich he belongs +otes or abstains
from +oting in the -ouse contrary to Rany directionR issued by such political party and such
+oting or abstention has not been condoned by such political party !ithin (/ days from the
date of such +oting or abstentionN or if a 0ember elected other!ise than as a candidate set up
by any political party *oins a political party after the electionN or" if a nominated 0ember
*oins any political party after expiry of six months from the date he too3 his seat. Paragraph
1I(J states that the Auestion of disAualification shall be referred for decision of the
Chairmen<#pea3er of the -ouse and his decision shall be final. It further pro+ides that such
Auestion in respect of Chairman<#pea3er shall be referred for decision of such 0ember of the
-ouse as the -ouse may elect in this behalf. According to Paragraph 1I)J all proceedings
under para 1I(J shall be deemed to be proceedings in Parliament<egislature of a -ouse
!ithin the meaning of Article ())<)(). Paragraph 8 states that no court shall ha+e *urisdiction
in respect of any matter connected !ith the disAualification of a 0ember of a -ouse.
A large number of petitions !ere filed before +arious -igh Courts as !ell as this
Court challenging the constitutionality of the Amendment. ?his Court transferred to itself the

petitions pending before the -igh Courts and heard all the matters together. ?he challenge
!as mainly on the grounds that Paragraph 8 of the ?enth #chedule" in terms and ineffect
sought to ma3e a change in chapter I' of Part ' and Chapter ' of Part 'I of the Constitution
as it ta3es a!ay the *urisdiction of the #upreme court under Article (,1 and that of the -igh
Court under Articles ))1 and ))8 of the Constitution" and" therefore" the Bill before
presentation to the President for assent !ould reAuire to be ratified by the legislatures of not
less than one;half of the #tates by resolution to that effect as en+isaged by the pro+iso to
Article ,1:I)JN that in the absence of such a ratification the !hole Amendment Bill !as an
aborti+e attempt to bring about the amendment indicated thereinN that e+en assuming that the
amendment does not attract the pro+iso to Article ,1:I)J" Paragraph 8 of the #chedule is
liable to be struc3 do!n as it ta3es a!ay the po!er of *udicial re+ie!N that the +ery concept
of disAualification for defection is +iolati+e of the fundamental +alues and principles under;
lying parliamentary democracy and +iolates an electi+e representati+e5s freedom of speech"
right to dissent and freedom of conscience and is destructi+e of a basic feature of the
ConstitutionN that the in+estiture of po!er to ad*udicate disputed defections in the
Chairmen<#pea3ers" !ho being nominees of political parties are not obliged to resign their
party affiliations" does not stand the test of an independent and impartial ad*udicatory
machinery and is" therefore" +iolati+e of the basic feature of the constitution. It !as also
contended that the expression Rany directionR in Paragraph )I(JIbJ of the #chedule might be
unduly restricti+e of the freedom of speech" and the right of dissent !hich may itself be
obnoxious to and +iolati+e of constitutional ideals and +alues. ?he respondents contended
that the ?enth #chedule created a non;*usticiable constitutional area dealing !ith certain
complex political issues !hich ha+e no strict ad*udicatory disposition and the exclusion of
this area is constitutionally preser+ed by imparting a finality to the decision of the
#pea3ers<Chairmen by deeming !hole proceedings as those !ithin Parliament<-ouse of

legislature en+isaged in Articles ()) and )() and further excluding the Court5s Jurisdiction
under Paragraph 8N that no Auestion of ouster of *udicial re+ie! !ould at all arise inasmuch as
the #pea3er<chairman exercising po!er under Paragraph 1I(J of the ?enth #chedule function
not as a statutory tribunal but as a part of state5s egislati+e departmentN and that ha+ing
regard to the political issues" the sub*ect matter is itself not amenable to *udicial po!er but
pertains to the constitution of the -ouse and the legislature is entitled to deal !ith it
exclusi+ely.
?he Court on ().((.(>>( ga+e its operati+e conclusions" indicating reasons to follo!
and by its *udgment dated (:.).(>>) ga+e the reasons. %n the Auestions !hether@
I(J ?he ?enth #chedule to the constitution inserted by the Constitution IKifty;#econd
AmendmentJ Act" (>:/" see3ing to penalise and disAualify elected representati+es is +iolati+e
of the fundamental principles of Parliamentary democracy and is" therefore" destructi+e of the
basic feature of the ConstitutionN
I)J Paragraph 8 of the ?enth #chedule in terms and in effect brings about a change in
operation and effect of Articles (,1"))1 and ))8 of the Constitution and" therefore" the Bill
introducing the amendment !ould reAuire ratification as en+isaged by the pro+iso to Article
,1:I)JN
I,J ?he noncompliance !ith the pro+iso to Article ,1:I)J !ould render the entire Bill +itiated
and an aborti+e attempt to bring about a +alid amendment or !ould Paragraph 8 alone be
in+alidated !ith the application of the doctrine of se+erabilityN
I.J ?he ?enth #chedule created a ne! and non;*usticiable constitutional area not amenable to
curial ad*udicati+e processN and !hether Paragraph 1I(J in imparting a constitutional
4finality5 to the decisions of Chairmen<#pea3ers" and paragraph 1I)J in the e+ent of attracting
immunity under Articles ()) and )()" bar *udicial re+ie!N

I/J ?he Chairmen<#pea3ers satisfy the reAuirements of independent ad*udicatory machinery
or !hether the in+estiture of the determinati+e and ad*udicati+e *urisdiction in them under the
?enth #chedule !ould +itiate the pro+ision on the ground of reasonable li3elihood of bias.
HEL#:
Paragraph 8 of the ?enth #chedule to the Constitution in terms and in effect
IiJ
excludes the *urisdiction of all Courts including the #upreme Court and -igh courts"
and brings about a change in the operation and effect of Articles (,1" ))1 and ))8 of
the Constitution of India" and therefore" the amendment !ould reAuire ratification in
accordance !ith the pro+iso to Articles ,1:I)J of the Constitution of India.
?he finality clause in Para 1I(J of the ?enth #chedule to the Constitution is not
IiiJ
decisi+e. #uch finality" being for the statute alone" does not exclude extraordinary
*urisdiction of the #upreme Court under Article (,1 and of the -igh Courts under
Articles ))1 and ))8 of the Constitution.
?he legal fiction in para 1I)J of the ?enth #chedule brings a proceeding under
IiiiJ
para 1I(J !ithin the ambit of clause I(J of Article ())<)() of the Constitution" and"
therefore" ma3es it *usticiable on the ground of illegality or per+ersity inspite of the
immunity it en*oys to a challenge on the ground of Rirregularity of procedureC.
.<#G7ENT:
As "!r .ustic!
VEN=ATACHALLIAHB 7.N
IiJ Paragraph 8 of the ?enth #chedule contains a pro+ision !hich is independent of" and
stands apart from" the main pro+isions of the ?enth #chedule !hich are intended to
pro+ide a remedy for the e+il of unprincipled and unethical political defection and"
therefore" is a se+erable part. ?he remaining pro+isions of the ?enth #chedule can and
do stand independently of Paragraph 8 and are complete in themsel+es !or3able and
are not truncated by the excision of Paragraph 8.

IiiJ ?here is nothing in the pro+iso to Article ,1:I)J !hich detracts from the se+erability of
a pro+ision on account of the inclusion of !hich the Bill containing the amendment
reAuires ratification from the rest of the pro+isions of such Bill !hich do not attract and
reAuire such ratification. -a+ing regard to the mandatory language of Article ,1:I)J
that Rthereupon the Constitution shall stand amendedR the operation of the pro+iso
should not be extended to constitutional amendments in a bill !hich can stand by
themsel+es !ithout such ratification.
IiiiJ ?he Constitution IKifty;#econd AmendmentJ Act" (>:/ in so far as it see3s to introduce
the ?enth #chedule in the Constitution of India" to the extent of its pro+ision !hich are
amenable to the legal;so+ereign of the amending process of the $nion Parliament
cannot be o+er borne by the pro+iso to Article ,1:I)J !hich cannot operate in that area.
Paragraph ) of the ?enth schedule to the constitution is +alid. Its pro+isions do not
Ii+J
suffer from the +ice of sub+erting democratic rights of elected 0embers of Parliament
and the legislatures of the #tates. It does not +iolate their freedom of speech" freedom of
+ote and conscienceN nor does it +iolate any rights or freedom under Article (E/ and
(>. of the Constitution. ?he pro+isions are salutory and are intended to strengthen the
fabric of Indian Parliamentary democracy by curbing unprincipled and unethical
political defections.
?he ?enth #chedule does not" in pro+iding for an additional ground for disAualification
I+J
and for ad*udication of disputed disAualifications" see3 to create a non;*usticiable
constitutional area.
?he #pea3ers<Chairmen !hile functioning under the ?enth #chedule exercise *udicial
I+iJ
po!er and act as ?ribunal ad*udicating rights and obligations under the ?enth schedule"
and their decisions in that capacity are amenable to *udicial re+ie!.

Paragraph 1I(J of the ?enth #chedule" to the extent it see3s to impart finality to the
I+iiJ
decision of the #pea3ers<Chairman is +alid. But the concept of statutory finality
embodied therein does not detract from or abrogate *udicial re+ie! under Articles (,1"
))1 and ))8 of the Constitution in so far as infirmities based on +iolations of
constitutional mandates" male fides" non;compliance !ith Rules of &atural Justice and
per+ersity are concerned.
?he deeming pro+ision in Paragraph 1I)J of the ?enth #chedule attracts immunity
I+iiiJ
analogous to that in Article ())I(J and )()I(J of the constitution to protect the +alidity
of proceedings from mere irregularities of procedure and confines the scope of the
fiction accordingly.
>(
-a+ing regard to the constitutional scheme in the ?enth #chedule" *udicial re+ie!
IixJ
should not co+er any stage prior to the ma3ing of a decision by the #pea3ers<ChairmenN
and no Auia timet actions are permissible" the only exception for any interlocutory
interference being cases of interlocutory disAualifications or suspensions !hich may
ha+e gra+e" immediate and irre+ersible repercussions and conseAuence.
?he #pea3ers<Chairmen hold a pi+otal position in the scheme of Parliamentary
IxJ
democracy and are guardians of the rights and pri+ileges of the -ouse. ?hey are
expected to and do ta3e far reaching decisions in the Parliamentary democracy.
'estiture of po!er to ad*udicate Auestions under the ?enth #chedule in them should not
be considered exceptionable.
A constitutional document outlines only broad and general principles meant to endure
IxiJ
and be capable of flexible application to changing circumstances;a distinction !hich
differentiates a statute from a Charter under !hich all statutes are made. In
>)
considering the +alidity of a constitutional amendment the changing and the changed
#pl.Ref. &o.( of (>1. I7esha+ #ingh5s caseJ T(>1/V ( #CR .(,
> (
Cooley on RConstitutional imitationR :th Edn. 'ol.I p.()>
> )

circumstances that compelled the amendment are important criteria. ?he ?enth
>,
#chedule is a part of the Constitution and attracts the same canons of construction as
are applicable to the expounding of the fundamental la!. %ne constitutional po!er is
necessarily conditioned by the other as the Constitution is one Rcoherent documentR. In
expounding the process of the fundamental la! the Constitution must be treated as a
logical;!hole.
?he distinction bet!een !hat is constitutionally permissible and !hat is outside it is
IxiiJ
mar3ed by a 4ha2y;gray line5 and it is the Court5s duty to identify" Rdar3en and deepenR
the demarcating line of constitutionality ; a tas3 in !hich some element of Judges5 o!n
perceptions of the constitutional ideals ine+itably participate. ?here is no single litmus
test of constitutionality. Any suggested sure decisi+e test" might after all furnish a
Rtransitory delusion of certitudeR !here the Rcomplexities of the strands in the !eb of
constitutionality !hich the Judge must alone disentangleR do not lend themsel+es to
easy and sure formulations one !ay or the other. It is here that it becomes difficult to
refute the ine+itable legislati+e element in all constitutional ad*udications.
>.
A political party functions on the strength of shared beliefs. Any freedom of its
IxiiiJ
0embers to +ote as they please independently of the political party5s declared policies
!ill not only embarrass its public image and popularity but also undermine public
confidence in it !hich" in the ultimate analysis" is its source of sustenance;may" indeed"
its +ery sur+i+al. Paragraph )I(JIbJ of the ?enth #chedule gi+es effect to this principle
and sentiment by imposing a disAualification on a 0ember !ho +otes or abstains from
+oting contrary to Rany directionsR issued by the political party. ?he pro+ision"
ho!e+er" recognising t!o exceptions@ one !hen the 0ember obtains from the political
$.#. #upreme Court in 0ax!ell +. Do! .. a!yer5s Edition />8 at p. 1E/
> ,
R?heory of ?ortsR American a! Re+ie! 8N Justice %li+er =endel -olmes;Kree #peech and the i+ing
> .
Constitution by -.. Pohlman (>>( Edn. p.)), also see Amalgamated #ociety of Rail!ay #er+ants +. %sborne"
(>(E A.C. :8

party prior permission to +ote or abstain from +oting and the other !hen the 0ember
has +oted !ithout obtaining such permission...his action has been condoned by the
political party. ?his pro+ision itself accommodates the possibility that there may be
occasions !hen a 0ember may +ote or abstain from +oting contrary to the direction of
the party to !hich he belongs.
>/
In a sense anti;defection la! is a statutory +ariant of its moral principle and *ustification
Ixi+J
underlying the po!er of recall. =hat might *ustify a pro+ision for recall !ould *ustify a
pro+ision for disAualification for defection. $nprincipled defection is a political and
social e+il. It is percei+ed as such by the legislature. ?he anti;defection la! see3s to
recognise the practical need to place the proprieties of political and personal conduct
!hose a!3!ard erosion and grotesAue manifestations ha+e been the bane of the times;
abo+e certain theoretical assumptions !hich in reality ha+e fallen into a morass of
personal and political degradation. ?his legislati+e !isdom and perception should be
deferred to. ?he choices in constitutional ad*udications Auite clearly indicate the need
for such deference.
>1
?he ?enth #chedule does not impinge upon the rights or immunities under Article
Ix+J
(E/I)J of the Constitution. ?he freedom of speech of a 0ember is not an 4absolute
freedom. ?hat apart" the pro+isions of the ?enth #chedule do not purport to ma3e a
0ember of a -ouse liable in any RCourtR for anything said or any +ote gi+en by him in
Parliament. A pro+ision !hich see3s to exclude the *urisdiction of Courts is strictly
>8
construed.
>:
6riffith and Ryle on RParliament" Kunctions" Practice O ProcedureR (>:> Edn. page ((>
> /
4Constitutional Reform" ; Reshaping the British Political #ystem" by Rodney Bra2ier. (>>( Edn.pp..:;/,
>1
Jyoti Basu O %rs. +.Debi 6hosal O %rs." T(>:)V , #CR ,(:
> 8
-.-. 0ahara*adhira*a 0adha+ Rao Ji!a*i Rao #cindia Bahadur O %rs. +. $nion of India" T(>8(V ( ##C :/"
> :
referred to. 0as3 O Co.+.#ecretary of #tate" AIR (>.E P.C. (E/" referred to.

Ix+iJ As regards Paragraph 8 to the ?enth #chedule" both on its language and ha+ing regard
to the legislati+e e+olution of the pro+ision" the legislati+e intent is plain and manifest.
?he !ords Rno Courts shall ha+e any *urisdiction in respect of any matter connected
!ith the disAualification of a memberR are of !ide import and lea+e no constructional
options. ?his is reinforced by the legislati+e history of the anti;defection la!. ?he
Constitution IKifty; #econd AmendmentJ Bill for the first time en+isaged the in+estitute
of the po!er to decide disputes on the #pea3ers or the Chairmen !hereas the t!o
similar Constitution I,)nd and .:th amendmentJ Bills" I!hich had lapsedJ did not
contain any clause ousting the *urisdiction of the Courts. ?he purpose of the enactment
of Paragraph 8" as the debates in the -ouse indicate" !as to bar the *urisdiction of the
Courts under Articles (,1" ))1 and ))8 of the Constitution.
?he changes in Chapter I' of Part ' and Chapter ' of the Part 'I of the constitution
Ix+iiJ
en+isaged by the pro+iso to Article ,1:I)J need not be direct. ?he change could be
either Rin terms of or in effectR. It is not necessary to change the language of Articles
(,1 and ))1 of the Constitution to attract the pro+iso. If in effect these Articles are
rendered ineffecti+e and made inapplicable !here these articles could other!ise ha+e
been in+o3ed or !ould" but for Paragraph 8" ha+e operated there is 4in effect5 change in
those pro+isions attracting the pro+iso.
?hough the Amendment does not bring in any change directly in the language of
Ix+iiiJ
Articles (,1"))1 and ))8 of the constitution"" ho!e+er" in effect Paragraph 8 curtails
the operation of those Articles respecting matter falling under the ?enth #chedule.
?here is a change in the effect in Articles (,1" ))1 and ))8 !ithin the meaning of
clause IbJ of the pro+iso to Article ,1: I)J. Paragraph 8" therefore" attracts the pro+iso
and ratification !as necessary.
>>
#ri #an3ari Prasad #ingh Deo +. $nion of India O #tate of Bihar" T(>/)V #CR :> #a**an #ingh +. #tate of
> >
Ra*asthan" T(>1/V ( #CR >,,

?he criterion for determining the constitutional +alidity of a la! is the competence of
IxixJ
the la! ma3ing authority I!hich !ould depend on the ambit of the egislati+e po!er
and the limitations imposed thereon as also on mode of exercise of the po!erJ. =hile
examining the constitutional +alidity of la!s the doctrine of se+erability is applied
!hich en+isages that if it is possible to construe a statute so that its +alidity can be
sustained against a constitutional attac3 it should be so construed and that !hen part of
a statute is +alid and part is +oid" the +alid part must be separated from the in+alid
part.
(EE
IxxJ ?hough the amending po!er in a constitution is in the nature of a constituent po!er and
differs in content from the egislati+e po!er" the limitations imposed on the constituent
po!er may be substanti+e as !ell as procedural. #ubstanti+e limitations are those
!hich restrict the field of exercise of the amending po!er and exclude some areas from
its ambit. Procedural limitations are those !hich impose restrictions !ith regard to the
mode of exercise of the amending po!er" e.g. the limitation reAuiring a special ma*ority
under Article ,1:I)J of the constitution is a procedural one. Both these limitations"
ho!e+er" touch and affect the constituent po!er itself" and impose a fetter on the
competence of Parliament to amend the Constitution and any amendment made in
disregard of these limitations !ould go beyond the amending po!er and !ould
in+alidate its exercise.
IxxiJ Although there is no specific enumerated substanti+e limitation on the po!er in Article
,1:" but as arising from +ery limitation in the !ord 4amend5" a substanti+e limitation is
inherent on the amending po!er so that the amendment does not alter the basic
structure or destroy the basic features of the Constitution.
Cooley5s constitutional imitationsN :th Edn. 'ol. (" p. ,/>;,1E" referred to. Also see R.0.D.
( E E
Chamarbaugh!alla +. $nion of India" T(>/8V #CR >,EN #hri 7esa+ananda Bharti #ripadagala+aru +. #tate of
7erala" T(>8,V #upp. ( #CRN 0iner+a 0ills td. O %rs. +. $nion of India O %rs." T(>:(V ( #CR )E1 and
#ambhamurthy O %rs. etc.+. #tate of Andhra Pradesh O Anr." T(>:8V ( #CR :8>" referred to.

?he pro+iso to Article ,1:I)J !as introduced !ith a +ie! to gi+ing effect to the federal
IxxiiJ
principle. Its scope is confined to the limits prescribed therein and is not construed so as
to ta3e a!ay the po!er in the main part of Article ,1:I)J. An amendment !hich
(E(
other!ise fulfils the reAuirements of Article ,1:I)J and is outside the specifiedW cases
!hich reAuire ratification cannot be denied legitimacy on the ground alone of the
company it 3eeps.
IxxiiiJ ?he !ords Rthe amendment shall also reAuire to be ratified by the legislatureR occurring
in the pro+iso to Article ,1:I)J indicate that !hat is reAuired to be ratified by the
legislatures of the #tates is the amendment see3ing to ma3e the change in the
pro+isions referred to in clauses IaJ to IeJ of the pro+iso. ?he need for and the
reAuirement of the ratification is confined to that particular amendment alone and not in
respect of amendments outside the ambit of the pro+iso. ?he pro+iso can ha+e"
therefore" no bearing on the +alidity of the amendments !hich do not fall !ithin its
ambit.
A composite amendment !hich ma3es alterations in the Kirst and Kourth schedules as
Ixxi+J
!ell as in other pro+isions of the Constitution reAuiring special ma*ority under Article
,1:I)J" e+en though passed by the simple ma*ority and not by special ma*ority" may be
upheld in respect of the amendments made in the Kirst and Kourth schedules. ?here
(E)
is really no difference in principle bet!een the condition reAuiring passing of the Bill
by a special ma*ority before its presentation to the President for assent contained in
Article ,1:I)J and the condition for ratification of the amendment by the legislatures of
not less than one;half of the #tates before the Bill is presented to the President for
assent contained in the pro+iso.
0adras O #outhern 0ahratta rail!ay company +. Ba2!ada 0unicipality" I(>..J 8( I.A. ((, and
( E (
Commissioner of Income ?ax" 0ysore +. Indo; 0ercantile Ban3 td.I(>/>J" #upp. ) #CR )/1
Bribery Commissioner +. Pedric3 Ranasinghe" (>1/A.C.(8)
( E )

Ixx+J ?he principle of se+erability can be eAually applied to a composite amendment !hich
contains amendment in pro+isions !hich do not reAuire ratification by #tates as !ell as
amendment in pro+isions !hich reAuire such ratification and by application of the
doctrine of se+erability" the amendment can be upheld in respect of the amendments
!hich do not reAuire ratification and !hich are !ithin the competence of Parliament
alone. %nly these amendments in pro+isions !hich reAuire ratification under the
pro+iso need to be struc3 do!n or declared in+alid.
Ixx+iJ ?he test of se+erability reAuires the Court to ascertain !hether the legislature !ould at
all ha+e enacted the la! if the se+ered part !as not the part of the la! and !hether after
se+erance !hat sur+i+es can stand independently and is !or3able.
?he main purpose underlying the Constitutional IKifty;#econd AmendmentJ Act and
Ixx+iiJ
introduction of the ?enth #chedule is to curb the e+il of defection !hich !as causing
immense mischief in our body;politic. ?he ouster of *urisdiction of Courts under
Paragraph 8 !as incidental to and to lend strength to the main purpose !hich !as to
curb the e+il of defection. It cannot be said that the constituent body !ould not ha+e
enacted the other pro+isions in the ?enth #chedule if it had 3no!n that Paragraph 8 !as
not +alid" nor can it be said that the rest of the pro+isions of the ?enth schedule cannot
stand on their o!n e+en if Paragraph 8 is found to be unconstitutional. ?he pro+isions
of Paragraph 8 are therefore" se+erable from the rest of the pro+isions.
Democracy is a basic feature of the Constitution. =hether any particular brand or
Ixx+iiiJ
system of 6o+ernment by itself has this attribute of a basic feature" as long as the
essential characteristics that entitle a system of go+ernment to be called democratic are
other!ise satisfied is not necessary to be gone into. Election conducted at regular"
prescribed inter+als is essential to the democratic system en+isaged in the Constitution.
#o is the need to protect and sustain the purity of the electoral process. ?hat may ta3e

!ithin it the Auality" efficacy and adeAuacy of the machinery for resolution of electoral
disputes.
In the Indian constitutional dispensation the po!er to decide a disputed disAualification
IxxixJ
of an elected 0ember of the -ouse is not treated as a matter of pri+ilege and the po!er
to resol+e such electoral dispute is clearly *udicial and not legislati+e in nature. ?he
po!er to decide disputed disAualification under Paragraph 1I(J is pre;eminently of a
*udicial complexion.
(E,
?he !ord RCourtsR is used to designate those ?ribunals !hich are set up in an
IxxxJ
organised #tate for the administration of *ustice. By Administration of Justice is meant
the exercise of *udicial po!er of the #tate to maintain and uphold rights and to punish
R!rongsR. =hene+er there is an infringement of a right or an in*ury" the Courts are
there to restore the +inculum *uris" !hich is disturbed. =here there is a lis an
affirmation by one party and denial by another; and the dispute necessarily in+ol+es 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 *udicial po!er. ?hat authority is called a ?ribunal" if
it does not ha+e all the trappings of a court. ?hus" the #pea3er or the Chairman" acting
under Paragraph 1I(J of the ?enth #chedule is a ?ribunal. A finality clause is not a
(E.
legislati+e magical incantation !hich has the effect of telling off Judicial Re+ie!.
#tatutory finality of a decision presupposes and is sub*ect to its consonance !ith the
statute. ?he principle that is applied by the courts is that in spite of a finality clause it is
open to the court to examine !hether the action of the authority under challenge is ultra
+ires the po!ers conferred on the said authority. An action can be ultra +ires for the
Indira &ehru 6andhi +. Ra* &arain" T(>81V ) #CR ,.8N #pecial Reference 8EE &o. ( of (>1." T(>1/V ( #CR
( E ,
.(, O Express &e!spaper td. +. $nion of India" AIR (>/: #C /8:"" referred to. Australian Boot ?rade
Employees Kederation +. =hybro! O Co." (>(E (E CR )11
Associated Cement companies td. +. P.&. #harma and Anr." T(>1/V ) #CR ,11 and -arinagar #ugar 0ills
(E.
td. +.#hyam #under Jhun*hun!ala O %rs." T(>1)V ) #CR ,,>

reason that it is in contra+ention of a mandatory pro+ision of the la! conferring on the
authority the po!er to ta3e such an action. It !ill also be ultra +ires the po!ers
conferred on the authority if it is +itiated by mala fides or is colourable exercise of
po!er based on extraneous and irrele+ant considerations.
(E/
?he finality clause !ith the !ord RfinalR in paragraph 1I(J of the ?enth schedule does
IxxxiJ
not completely exclude the *urisdiction of the Courts under Articles (,1" ))1 and ))8
of the Constitution. But it does ha+e the effect of limiting the scope of the *urisdiction.
If the intendment is to exclude the *urisdiction of the superior Courts" the language
!ould Auite ob+iously ha+e been different.
(E1
An ouster clause confines *udicial re+ie! in respect of actions falling outside the
IxxxiiJ
*urisdiction of the authority ta3ing such action but precludes challenge to such action on
the ground of an error committed in the exercise of *urisdiction +ested in the authority
because such an action cannot be said to be an action !ithout *urisdiction. ?he fiction
(E8
in Paragraph 1I)J attracts immunity from mere irregularities of procedures. ?he +ery
deeming pro+ision implies that the proceedings of disAualification are" in fact" not
before the -ouseN but only before the #pea3er a specially designated authority. ?he
decision under Paragraph 1I(J is not the decision of the -ouse" nor is it sub*ect to the
appro+al by the -ouse. ?he decision operates independently of the -ouse. A deeming
pro+ision cannot by its creation transcend its o!n po!er. ?here is" therefore" no
immunity under Articles ()) and )() from *udicial scrutiny of the decision of the
#pea3er or Chairman exercising po!er under Paragraph 1I(J of the ?enth #chedule.
4Administrati+e a!5 1th Edn. at p. 8)E O Constitutional Kundamentals" the -armlyn ectures" (>:> Edn."
( E /
p.::
Brundaban &aya3 +. Election Commission of India O Anr." T(>1/V , #CR /,N $nion of India +. Jyoti
( E 1
Pra3ash 0itter" T(>8(V , #CR .:,N Durga. #han3ar 0ehra +. Reghura* #ingh" AIR (>/. #C /)E and $nion of
India O Anr. +. ?ulsiram Patel O %rs." T(>:/V #upp. ) #CR (,(
Anisminic td. +.Koreign commission" T(>1>V ) AC (.8N #.E. Asia Kire Bric3s +. &on;0etallic Products"
( E 8
(>:( A.C. ,1,

?he scope of *udicial re+ie! under Articles (,1" ))1 and ))8 of the Constitution in
IxxxiiiJ
respect of an order passed by the #pea3er<Chairman under Paragraph 1 !ould be
confined to *urisdictional errors only" +i2." infirmities based on +iolation of
constitutional mandate" mala fides" non;compliance !ith rules of natural *ustice and
per+ersity. But *udicial re+ie! cannot be a+ailable at a stage prior to the ma3ing of a
decision by the #pea3er<Chairman and a Auiatimet action !ould not be permissible. &or
!ould interference be permissible at an interlocutory stage of the proceedings.
Exceptions !ill" ho!e+er"" ha+e to be made in respect of cases !here disAualification
of suspension is imposed during the pendency of the proceedings and such
disAualification or suspension is li3ely to ha+e gra+e" immediate and irre+ersible
repercussions and conseAuence.
(E:
?he office of the #pea3er is held in the highest respect and esteem in Parliamentary
Ixxxi+J
traditions. ?he e+olution of the institution of Parliamentary democracy has as its pi+ot
the institution of the #pea3er. -e is said to be the +ery embodiment of propriety and
impartiality. -e performs !ide ranging functions including the performance of
important functions of a *udicial character. It !ould" indeed be unfair to the high
traditions of that great office to say that the in+estiture in it of this *urisdiction !ould be
+itiated for +iolation of a basic feature of democracy. It is inappropriate to express
distrust in the high office of the spea3er" merely because some of the spea3ers are
alleged" or e+en found" to ha+e discharged their functions not in 3eeping !ith the great
traditions of that high office. ?he Robes of the #pea3er do change and ele+ate the man
inside.
(E>
0a3han #ingh +. #tate of Pun*ab" T(>1.V . #CR 8>8N#tate of Ra*asthan +.$nion of India" T(>8:V ( #CR (N
( E :
$nion of India +. Jyoti Pra3ash 0itter" IsupraJ and $nion of India O Anr. +. ?ulsiram Patel O %rs." T(>:/V
#upp. ) #CR (,(
6.'. 0a+alan3ar N ?he %ffice of #pea3er" Journal of Parliamentary Information" April (>/1" 'ol. ). &o. (
( E >
p.,,N -%P" Deb. 'ol.IQ I(>/.J" CC ,..8;.: also see" Ers3ine 0ay; Parliamentary Practice ;)Eth edition p. ),.

?he !ords Rany directionR occurring in Paragraph )I(JIbJ of the ?enth #chedule reAuire
Ixxx+J
to be construed harmoniously !ith the other pro+isions and appropriately confined to
the ob*ects and purposes of the #chedule. ?hose ob*ects and purposes define and limit
the contours of its meaning. ?he assignment of a limited meaning is not to read it do!n
to promote its constitutionality but because such a construction is a harmonious
construction in the context. ?here is no *ustification to gi+e the !ords the !ider
meaning.
((E
Ixxx+iJ =hile construing Paragraph )I(JIbJ it cannot be ignored that under the Constitution
members of Parliament as !ell as of the #tate egislature en*oy freedom of speech in
the -ouse though this freedom is sub*ect to the pro+isions of the Constitution and the
rules and standing orders regulating the Procedure of the -ouse. ?he disAualification
imposed by Paragraph )I(JIbJ must be so construed as not to unduly impinge on the
said freedom of speech of a member. ?his !ould be possible if Paragraph )I(JIbJ is
confined in its scope by 3eeping in +ie! the ob*ect underlying the amendments
contained in the ?enth #chedule namely" to curb the e+il or mischief of political
defections moti+ated by the lure of office or other similar considerations. In +ie! of the
conseAuences of the disAualification" i.e." termination of the membership of a -ouse" it
!ould be appropriate that the direction or !hip !hich results in such disAualification
under Paragraph )I(JIbJ of the ?enth #chedule is so !orded as to clearly indicate that
+oting or abstaining from +oting contrary to the said direction !ould result in incurring
the disAualification under Paragraph )I(JIbJ" so that the member concerned has fore;
3no!ledge of the conseAuences flo!ing from his conduct in +oting or abstaining from
+oting contrary to such a direction.
and 0.&. 7aul and #.. #ha3dher in 4Practice and Procedure of Parliament5 .th Edition
Par3ash #ingh Badal O %rs. +. $nion of India O %rs." AIR (>:8 Pun*ab O -aryana )1,
((E

?he purpose of interlocutory orders is to preser+e in status;Auo the rights of the parties"
Ixxx+iiJ
so that" the proceedings do not become infructuous by any unilateral o+ert acts by one
side or the other during its pendency. ?he interlocutory orders in the instant case !ere
necessarily *ustified so that" no land;slide changes !ere allo!ed to occur rendering the
proceedings ineffecti+e and infructuous.
As P!r VER7AB ..:
$nder the Constitution of India !hich delineates the spheres of *urisdiction of the
IiJ
legislature and the *udiciary" the po!er to construe the meaning of the pro+isions in the
Constitution and the la!s is entrusted to the *udiciary !ith finality attached to the
decision of this Court inter alia by Article (.( about the true meaning of any enacted
pro+ision" and Article (.. obliges all authorities in the country to act in aid of this
Court. It is" therefore" not permissible in our constitutional scheme for any other
authority to claim that po!er in exclusi+ity" or in supersession of this Court5s +erdict.
=hate+er be the contro+ersy prior to this Court entertaining such a matter" it must end
!hen the Court is sei2ed of the matter for pronouncing its +erdict and it is the
constitutional obligation of e+ery person and authority to accept its binding effect !hen
the decision is rendered by this Court.
(((
?he finality clause in Para 1I(J of the ?enth #chedule to the Constitution !hich says
IiiJ
that the decision of the Chairman or as the case may be" the spea3er of the -ouse shall
be final is not decisi+e. #uch a finality clause in a statute by itself is not sufficient to
exclude the *urisdiction of the -igh courts under Articles ))1 and ))8 and the #upreme
Court under Article (,1 of the Constitution" the finality being for the statute alone. ?his
is apart from the decision being +ulnerable on the ground of nullity. #ub;paragraph I(J
Cohens +. 'irginia" 1 =heat )1." .E." / .Ed. )/8" )>( I(:)(J also see #tate of madras +. '.6. Ro!" T(>/)V
( ( (
#CR />8" referred to.

alone is" therefore" insufficient to exclude the extra;ordinary *urisdiction of the -igh
Courts and the plenary *urisdiction of this Court.
?he ambit of a legal fiction must be confined to the limitation implicit in the !ords
IiiiJ
used for creating the fiction and it cannot be gi+en an extended meaning to include
therein something in addition. In construing the fiction it is not to be extended beyond
the language of the #ection by !hich it is created and its meaning must be restricted by
the plain !ords used. It cannot also be extended by importing another fiction. ?he legal
fiction in sub;paragraph I)J of para 1 of the ?enth #chedule ser+es a limited purpose
and brings the proceedings under sub;paragraph I(J thereof !ithin the ambit of clause
I(J of Article ()) or Clause I(J of Article )()" and" therefore" there is no occasion to
enlarge its scope by reading into it !ords !hich are not there and extending it also to
clause I)J of these Articles.
(()
Ii+J A matter falling !ithin the ambit of clause I(J of either of the t!o Article ()) or )() is
*usticiable on the ground of illegality or per+ersity in spite of the immunity it en*oys to
a challenge on the ground of Rirregularity of procedureR.
?he decision relating to disAualification of a member does not relate to regulating
I+J
procedure or the conduct of business of the -ouse pro+ided for in clause I)J of Articles
()) and )() and ta3ing that +ie! !ould amount to extending the fiction beyond its
language and importing another fiction for this purpose !hich is not permissible. ?hat
being so" the matter falls !ithin the ambit of clause I(J only of Article ()) and )() as a
result of !hich it !ould be +ulnerable on the ground of illegality and per+ersity and
therefore" *usticiable to that extent.
((,
Commissioner of Income;tax +. A*ax Products td." T(>1/V ( #CR 8EE
( ( )
#pl. Ref. &o. ( of (>1. I7esha+ #ingh5s caseJ T(>1/V ( #CR .(,"
((,

I+iJ ?he !ords in Paragraph 8 of the ?enth #chedule !ith its non;obstante clause
4not!ithstanding anything in this Constitution5 follo!ed by expression 4no court shall
ha+e any *urisdiction5" are +ery !ide and ordinarily mean that this pro+ision supersedes
any other pro+ision in the Constitution" and lea+e no doubt that the bar of ; *urisdiction
of Courts is complete excluding also the *urisdiction of the supreme court and the -igh
courts under Articles (,1" ))1 and ))8 of the Constitution respecti+ely. Kurther" the
expression 4in respect of any matter connected !ith the disAualification of a 0ember of
a -ouse under this #chedule5 is !ide enough to include not merely the intermediate
stage of the proceedings relating to disAualification but also the final order on the
Auestion of disAualification made under paragraph 1. ?his conclusion is reinforced by
the finality clause and deeming pro+ision in para 1 of the ?enth #chedule and by the
legislati+e history of the absence of such a pro+ision excluding the Court5s *urisdiction
in the earlier t!o Bills !hich had lapsed. Para 8 of the ?enth #chedule is" therefore"
unconstitutional and to that extent at least the Constitution does not stand amended in
accordance !ith the Bill see3ing to ma3e the constitutional amendment.
Distinction has to be dra!n bet!een the abridgment or extinction of a right and
I+iiJ
restriction of the remedy for enforcement of the right. If there is an abridgment of
extinction of the right !hich results in the disappearance of the cause of action !hich
enables in+o3ing the remedy and in the absence of !hich there is no occasion to ma3e a
grie+ance and in+o3e the subsisting remedy" then the change brought about is in the
right and not the remedy. %n the other hand" if the right remains untouched so that a
grie+ance based thereon can arise and" therefore" the cause of action subsists" but the
remedy is curtailed or extinguished so that cause of action cannot be enforced for !ant

of that remedy" then the change made is in the remedy and not in the subsisting
rights.
((.
I+iiiJ ?he instant case in uneAui+ocal terms" is that of destroying the remedy by enacting para
8 of the ?enth #chedule ma3ing a total exclusion of *udicial re+ie! including that by
the #upreme Court under Article (,1 and the -igh Courts under Articles ))1 and ))8
of the Constitution. But for para 8 !hich deals !ith the remedy and not the right" the
*urisdiction of the #upreme Court under Article (,1 and that of the -igh Courts under
Article ))1 and ))8 !ould remain unimpaired to challenge the decision under para 1"
as in the case of decisions relating to other disAualification specified in clause I(J of
Articles (E) and (>(" !hich remedy continues to subsist.
?he extinction of the remedy alone !ithout curtailing the right" since the Auestion of
IixJ
disAualification of a member on the ground of defection under the ?enth #chedule does
reAuire ad*udication on enacted principles" results in ma3ing a change in Article (,1 in
Chapter I' in Part ' and Articles ))1 and ))8 in Chapter ' in Part 'I of the
Constitution. ?he Constitution IKifty;#econd AmendmentJ Bill" therefore" attracted the
pro+iso to Article ,1:I)J reAuiring ratification by the specified number of #tate
legislatures before its presentation to the President for his assent.
IxJ ?he pro+iso to Article ,1:I)J of the Constitution contains a constitutional limitation on
the amending po!erN and prescribes as a part of the special procedure" prior assent of
the #tate egislatures before presentation of the Bill to the President for his assent in
the case of the rele+ant Bills. ?his is a condition interposed by the pro+iso in bet!een
the passing of the Bill by the reAuisite ma*ority in each -ouse and presentation of the
Bill to the President for the assent" !hich assent results in the Constitution
automatically standing amended in accordance !ith the terms of the Bill. ?he Bills
#ri san3ari Prasad #ingh Deo +. $nion of India O #tate of Bihar" T(>/)V #CR :> and #a**an #ingh +. #tate of
( ( .
Ra*asthan" T(>1/V ( #CR >,," explained

go+erned by the pro+iso" therefore" cannot be presented to the President for his assent
!ithout the prior ratification by the specified number of #tate legislatures.
?he conseAuence of the Constitution standing amended in accordance !ith the terms of
IxiJ
the Bill on assent by the President" !hich is the substanti+e part of Article ,1:" results
only !hen the Bill has been presented to the President for his assent in conformity !ith
the special procedure after performance of the conditions precedent" namely" passing of
the Bill by each -ouse by the reAuisite ma*ority in the case of all BillsN and in the case
of B ills go+erned by the pro+iso" after the Bill has been passed by the reAuisite ma*ority
in each -ouse and it has also been ratified by the legislature by not less than one;half of
the #tates. &on;compliance of the special procedure prescribed in Article ,1:I)J cannot
bring about the result of the Constitution standing amended in accordance !ith the
terms of the Bill. 1esavananda &harati v ,tate of 1erala, T(>8,V #upp.( #CR" relied
on.
IxiiJ ?he ordinary role of a pro+iso is to car+e out an exception from the general rule in the
main enacting part. A Bill falling !ithin the ambit of the pro+iso to cl.I)J of Article ,1:
is car+ed out of the main enactment in clause I)J as an exception on account of !hich it
cannot result in amendment of the constitution on the President5s assent !ithout prior
ratification by the specified number of #tate legislature.
IxiiiJ ?he entire ?enth #chedule is enacted in exercise of the constituent po!er under Article
,1:" not merely para 8 therein" and this has been done !ithout follo!ing the mandatory
special procedure prescribed. It is" therefore" the entire Constitution IKifty #econdJ
Amendment Bill and not merely para 8 of the ?enth #chedule !hich reAuired prior
ratification by the #tate of legislatures before its presentation to the President for his
assent" it being a *oint exercise by the parliament and the #tate egislatures. ?he stage
of presentation of the Bill to the President for his assent not ha+ing reached" the

President5s assent !as non est and it could not result in amendment of the Constitution
in accordance !ith the terms of the Bill. It is not a case of se+ering the in+alid
constituent part from the remaining ordinary legislation.
?he doctrine of se+erability applies in a case !here an other!ise +alidly enacted
Ixi+J
legislation contains a pro+ision suffering from a defect of lac3 of legislati+e
competence and the in+alid pro+ision is se+erable lea+ing the remaining +alid
pro+isions a +iable !hole. ?his doctrine has no application !here the legislation is not
+alidly enacted due to non;compliance of the mandatory legislati+e procedure such as
the mandatory special procedure prescribed for exercise of the constituent po!er. ?he
doctrine does not apply to a still born legislation. It is not possible to infuse life in a still
born by any miracle and deft surgery e+en though it may be possible to continue life by
remo+ing a congenitally defecti+e part by surgical s3ill.
((/
Ix+J #e+erance of para 8 of the ?enth #chedule could not be made for the purpose of
ratification or the President5s assent and" therefore" not such se+erance can be made
e+en for the ensuing result. If the President5s assent cannot +alidate para 8 in the
absence of prior ratification" the same assent cannot be accepted to bring about a
different result !ith regard to the remaining part of the Bill.
?he test !hether the enactment !ould ha+e been made !ithout para 8 indicates that the
Ix+iJ
legislati+e intent !as to ma3e the enactment only !ith para 8 therein and not !ithout it"
other!ise the enactment did not reAuire the discipline of Article ,1:and exercise of the
constituent po!er and mode of ordinary legislation could ha+e been resorted to in
accordance !ith sub;clause IeJ of clause I(J of Article (E) and (>(" !hich !ould
render the decision on the Auestion of disAualification on the ground of defection also
?he Bribery Commissioner +. Pedric3 Ranasinghe" T(>1/V AC (8)
( ( /

amenable to *udicial re+ie! as in the case of decision on Auestions relating to other
disAualification.
((1
Ix+iiJ Democracy is a part of the basic structure of our Constitution" and rule of la!N and free
and fair elections are basic features of democracy" %ne of the postulates of free and fair
elections is pro+ision for resolution of election disputes as also ad*udication of disputes
relating to subseAuent disAualifications by an independent authority. It is only by a fair
ad*udication of such disputes relating to +alidity of elections and subseAuent
disAualifications of members that true reflection of the electoral mandate and
go+ernance by rule of la! essential for democracy can be ensured.
In the democratic pattern adopted by our Constitution" not only the resolution of
Ix+iiiJ
election dispute is entrusted to a *udicial tribunal" but e+en the decision on Auestions as
to disAualification of members under Articles (E, and (>) is contemplated by an
independent authority outside the house" namely" President<6o+ernor in accordance
!ith the opinion of the Election commission"" all of !hom are high constitutional
functionaries !ith security of tenure" independent of the !ill of the -ouse.
IxixJ #ub;clause IeJ of clause I(J in Articles (E) and (>( !hich pro+ide for enactment of any
la! by the Parliament to prescribe any disAualification other than those prescribed in
the earlier sub;clauses of clause I(J" clearly indicates that all disAualifications of
0embers !ere contemplated !ithin the scope of Articles (E) and (>(. All
disAualification including disAualification on the ground of defection" in our
constitutional scheme" are" therefore" different species of the same genus" namely"
disAualification" and the constitutional scheme does not contemplate any difference in
their basic traits and treatmentN and !ere meant to be decided by an independent
authority outside the -ouse such as the President<6o+ernor" in accordance !ith the
opinion of another similar independent constitutional functionary" the Election
R.0.D. Chamarbaugh!alla +. ?he $nion of India" T(>/8V #CR >,E" relied on.
( ( 1

commission of India" !ho en*oys the security of tenure of a #upreme Court Judge !ith
the same terms and conditions of office. ?he #pea3er5s office is undoubtedly high and
has considerable aura !ith the attribute of impartiality. ?his aura of the office !as e+en
greater !hen the Constitution !as framed and yet the framed and yet the farmers of the
Constitution did not choose to +est the authority of ad*udicating disputes as to
disAualification of 0embers to the #pea3erN and pro+ision !as made in Article (E, and
(>) for decision of disputes by the President<6o+ernor in accordance !ith the opinion
of the Election commission. In the ?enth #chedule" the #pea3er is made not only the
sole but the final arbiter of such dispute !ith no pro+ision for any appeal or re+ision
against the #pea3er5s decision to any independent outside authority. ?his departure in
the ?enth #chedule is a re+erse trend and +iolates a basic feature of the Constitution.
?he #pea3er being an authority !ithin the -ouse and his tenure being dependent on the
IxxJ
!ill of ma*ority therein" li3elihood of suspicion of bias could not be ruled out. ?he
Auestion as to disAualification of a member has ad*udicatory disposition and" therefore"
reAuires the decision to be rendered in consonance !ith the scheme for ad*udication of
disputes Rule of la! has in it firmly entrenched natural *ustice" of !hich" Rule against
Bias is a necessary concomitantN and basic postulates of Rule against Bias are @ &emo
*udex in cause sua ; 4A Judge is disAualified from determining any case in !hich he
may be" or may fairly be suspected to be" biased5N and 4it is of fundamental importance
that *ustice should not only be done but should manifestly and undoubtedly be seen to
be done5.
It is the 'ice;President of India !ho is ex;officio Chairman of the Ra*ya #abha and his
IxxiJ
position being a3in to that of the President of India" is different from that of the
#pea3er. ?he obser+ations relating to the office of the spea3er do not apply to the
chairman of the Ra*ya #abha that is the 'ice;President of India.

IxxiiJ #ince the conferment of authority is on the #pea3er and the pro+ision being un!or3able
for the o3 sabha and the #tate egislatures" cannot be sustained" e+en !ithout para 8"
the entire ?enth #chedule is rendered in+alid in the absence of any +alid authority for
decision of the dispute not!ithstanding the fact that this defect !ould not apply to the
Ra*ya sabha alone !hose Chairman is the 'ice;President of India. ?he statutory
exception of doctrine of necessity has no application since designation of authority in
the ?enth #chedule is made by choice !hile enacting the legislation instead of adopting
the other a+ailable options.
Krom the obser+ations made by the Custodian of Justice !ith respect to the position of la!
!ith regard to the la! concerning 4defection5" it is clear that para ) I(J IbJ of the ?enth
#chedule is unconstitutional and para 8 of the ?enth #chedule !hich ousts the *urisdiction of
courts is held in+alid. ?he present nature of la! is that the decision of the #pea3er is sub*ect
to the *urisdiction of Courts and thus ensuring *udicial re+ie! and in+alidating para 1 of the
?enth #chedule.
8.5 #!$!lo"%!nts su1s!Nu!nt to =i)ota Hollo)on;s Cas!:
?he rule of precedence is !ell incorporated in the Indian legal system" according to
Art (.. of the Indian Constitution" the *udgment of the #upreme Court are binding on the
lo!er Courts. ?he researcher tries to analy2e this application of Art (.. of the Indian
Constitution in the case of *udgment deli+ered in the 7ihota -ollhon5s case. In this exercise"
the researcher examines the +arious *udicial interpretations" in the !a3e of 7ihota -ollohon5s
decision.
In *anilal ,ingh v Dr B &orobab" ,ingh Bthe respondent" #pea3er of a -ouse !as
11!
charged !ith contempt proceedings. It !as obser+ed that in spite of the clear decision of this
Court that an order made under the ?enth #chedule by the #pea3er relating to the
AIR (>>. #C /E/
( ( 8

disAualification of a 0ember of the egislati+e Assembly is sub*ect to *udicial re+ie! and
the #pea3er !hile ma3ing an order under the ?enth #chedule acts merely as a statutory
authority amenable to the courtFs *urisdiction in that capacity" the contemner continued to
resist the implementation of such orders made by this Court.
Kurther the #upreme Court held that it is the constitutional duty !hich reAuires us to ma3e
this order" to uphold the ma*esty of la! and *ustify the confidence of the people" that no one
in this country abo+e the la! and go+ernance is not of men but of the Frule of la!F. It is
unfortunate that this action has to be ta3en against a person !ho happens to be the #pea3er
of a egislati+e Assembly" but that does not permit us to apply the la! differently to him
!hen he has !ilfully and contumaciously dri+en the Court to this course. =e must remind
oursel+es that the Frule of la!F permits no one to claim to be abo+e the la! and it means Fbe
you e+er so high the la! is abo+e youF. It !as said long bac3@ Fto see3 to be !iser than the
la!s" is forbidden by the la!F.
?he #upreme Court !hile reiterating the principle as laid do!n in 7ihota -ollohon5s case
obser+ed@
the ,pea!er while deciding the G"estion of disG"alification of a *ember of
the Legislative Assembly "nder the Tenth ,ched"le to the Constit"tion acts as a
stat"tory a"thority, in which capacity the ,pea!erKs decision is s"b$ect to
$"dicial review by the Bigh Co"rt and this Co"rt' .
Again" in the year (>>:" the #upreme Court !hile deciding the matter bet!een
*ayawati v *ar!andeya chand " it !as obser+ed by this Court that Paragraph 1 of the Q
993
#chedule renders the decision of the #pea3er final. ?he Constitution Bench considered its
+alidity in 7ihoto -ollohan case. In the ma*ority *udgment@ it !as held that the finality clause
AIR (>>: #C ,,.E
( ( :

in Paragraph 1 does not completely exclude the *urisdiction of the court under Articles
(,1"))1 and ))8 of the Constitution. -o!e+er" the Bench held that the scope of *udicial
scrutiny is limited to ascertain !hether the decision of the #pea3er is +itiated by *urisdictional
errors +i2. Rinfirmities based on +iolation of constitutional mandate malafides" non;
compliance !ith rules of natural *ustice and per+ersity.R
?he suggestion that if the conclusion reached by the #pea3er is a possible conclusion
it stands insulated from any outside interference including by *udicial exercise may lead to
the situation that" no matter" ho!e+er illegal the order may be" it cannot be touched if its
author is the #pea3er. #uch immunity cannot be conceded to any constitutional functionary to
be abo+e la! or to ha+e unfettered *urisdiction to pass unreasonable orders !ith immunity.
?he test cannot be !hether it is possible for the #pea3er to record such a conclusion" because
the +ery fact that the #pea3er passed an order itself is the instance to sho! that it is possible.
?he test is !hether the conclusion or the finding made by the #pea3er is so unreasonable or
so unconscionable that no tribunal could ha+e arri+ed at it on the gi+en materials. Parameters
for scrutinising !hat is unreasonable are" of course" nebulous. =hat appears to be reasonable
to one man may be unreasonable to another and +ice +ersa. -o!e+er" the test of per+ersity
has no! bogged do!n to this @ &o conclusion can be dubbed as per+erse unless the
unreasonable is of such a dimension that no authority +ested !ith the *urisdiction !ould ha+e
come to such a conclusion.
?he po!er the *udicial re+ie! +i2 a +i2 the order of the #pea3er under Paragraph 1I(J
of the Qth #chedule is confined to *urisdictional errors only based on +iolation of
constitutional mandate" mala fides" non compliance of rules of natural *ustice and per+ersity.
It is not necessary to consider the Auestion !hether this Court should decide the entire
matter here in the e+ent of setting aside the order of the #pea3er or remand the matter for

fresh disposal by the #pea3er in accordance !ith the *udgment of this Court. -o!e+er" for
the sa3e of completion" it is necessary to express opinion on that Auestion too. It is not the
function of this Court to substitute itself in place of the #pea3er and decide the Auestions
!hich ha+e arisen in the case. =hen the Qth #chedule has expressly constituted the #pea3er
or the Chairman as the case may be to decide the Auestion of disAualification and attach
finality thereto. It is not for this Court to consider the facts and decide the said Auestion by
substituting itself in the place of the #pea3er. If the order of the #pea3er is set aside on any of
the grounds mentioned in H-ollohanF case by exercising the po!er of limited *udicial re+ie!"
the conseAuential course to be adopted is to lea+e the matter to the #pea3er to decide afresh
in accordance !ith la!.
In Jag*it #ingh +. #tate of -aryana " the #upreme Court relying on the decision and
((>
principles laid do!n in 7ihota -ollohon5s case as obser+ed as follo!s@
?he #pea3er" !hile exercising po!er to disAualify members acts as a ?ribunal and
though +alidity of the orders" thus" passed can be Auestioned in the !rit *urisdiction of this
Court or -igh Courts" the scope of *udicial re+ie! is limited. ?he orders can be challenged on
the ground of ultra +ires or malafides or ha+ing been made in colourable exercise of po!er
based on extraneous and irrele+ant considerations. ?he order !ould be a nullity if rules of
natural *ustice are +iolated.
?he Auestion !hether reasonable opportunity has been pro+ided or not cannot be put
in a strait;*ac3et and !ould depend on the fact situation of each case. =hile considering the
plea of +iolation of principles of natural *ustice" it is necessary to bear in mind that the
proceedings" under the ?enth #chedule" are not comparable to either a trial in a court of la!
or departmental proceedings for disciplinary action against an employee. But the
AIR )EE8 #C />E
( ( >

proceedings here are against an elected representati+e of the people and the *udge holds the
independent high office of a #pea3er. ?he scope of *udicial re+ie! in respect of proceedings
before such ?ribunal is limited. -o!soe+er limited may be the field of *udicial re+ie!" the
principles of natural *ustice ha+e to be complied !ith and in their absence" the orders !ould
stand +itiated. ?he yardstic3 to *udge the grie+ance that reasonable opportunity has not been
afforded !ould" ho!e+er" be different. Kurther" if the +ie! ta3en by the ?ribunal is a
reasonable one" the Court !ould decline to stri3e do!n an order on the ground that another
+ie! is more reasonable. ?he ?ribunal can dra! an inference from the conduct of a member"
of course" depending upon the facts of the case and totality of the circumstances.
?he pattern that can be obser+ed is though the prepositions of the 7ihota -ollohon5s
is +ery !ell applied in the subseAuent case" the Custodian of Justice tries to loo3 into the
critical appraisals of its o!n *udgmentN +i2 in one of the case it obser+es that e+en though
*udicial re+ie! is see3ed in cases of per+ersity" the parameters of determine the per+ersity is
not highlighted. #o it is applauded that a holistic +ie! is ta3en on the scenario and the
decisions of the #pea3ers must be made sub*ect to *udicial re+ie!.
8.6 Conclusion:
Instead of adhering to some semantic confusion that exists in the text of the ?enth
#chedule" it is !ise to clinch to the interpretation gi+en in the 7ihota -ollohon5s case by the
Indian Judiciary. ?hough no attempt is made by the egislature to change the la! go+erning
defection e+en after years of pronouncement of the decision !hich aborts the constitutional
+alidity of the ?enth #chedule" only para 8 has been gi+en the effecti+e to by bringing the
decision of the #pea3er to *udicial re+ie! as per Art (.( of the Indian Constitution.
-o!e+er !ith regard to para ) I(J IbJ" the modus operandi of the pro+ision still exists
as it stood before the deli+ery of the decision in 7ihota -ollohon. E+en till date political

parties are exercising dominance o+er the members for +iolation of any order passed by it"
!hich e+en though is considered unconstitutional" Art (.( of the Constitution is also
rendered futile. It is thus commended that ?enth #chedule must be rigorously amended so as
to fulfil the need of the hour.

CHAPTER VII
CONCL<SION
?he /) Amendment to the Indian Constitution !ith regard to anti;defection la! has
nd
been hailed as a bold step to clean public life in India" but" in course of time" certain defects
therein ha+e become apparent !hich ha+e +ery much compromised the effecti+eness of the
la! to achie+e its ob*ecti+es. Defections and splits in parties ha+e al!ays been a feature of
Indian Politics.
It is possible" ho!e+er" to suggest from !hat is enacted in the ?enth #chedule that the
party structure is no! being pre;empted and treated as basic and fundamental" for upon
breach of the party mandate in the matters of +ote or abstaining from +oting or resignation"
the representati+e loses his seat itself. Party supremacy" thus" is accepted as a principle
throughout" in the ?enth #chedule" !hich has !ide ranging ramifications !hich do not appear
to ha+e been 3ept in +ie! !hile enacting amendment to the Constitution. ?he possible merit
or principle appears to be to instil discipline to erect and fortify party;system and stabilise it
and a+oid and discourage unethical conduct of cross;+oting or floor;crossing for +arious
inducements and consideration. =ith all these laudable ob*ects" !hich are not +ery much
explicitly in the text of the #chedule" inherently the scheme is in conflict !ith the initial
scheme of our C onstitution pattern that relies upon indi+idual representati+e and confers
unimpeded freedom upon him.
Curtailment of liberty and shift in the point of reference is li3ely to raise not only
intricate debates but direct and indirect Auestions of our basic philosophy. #imilarly"
institutions may undergo long range changes and e+en the democratic set;up may suffer
erosion by emergence of autocratic apparatus of party machine. ?his is more so for penalty

follo!s by reason of incurring disAualification on the ground of !hat is called BdefectionC
that cuts at the root of free dissent and independent *udgment of an elected representati+e.
?hat also puts Parliament under the shado! of party and its members echoing party +ie!s
li3e p"ppets . egislati+e discussion and its results may become farcical and counter;
producti+e. Inherently" the good of liberty and freedom !ould al!ays be at sta3e. ?his may
foreshado! a rise of autocracy in the garb of democracy and loss of representation of people.
-o!e+er the anti;defection la! has played a pi+otal role in curtailing the defections
in the democratic polity consisting of a huge number of political parties. ?he la! being
passed in as bac3 as in the year (>:/ has sho!n a ne! dimension and has created a ne! path
in securing the dream of ha+ing a stable go+ernment 3eeping in mind the aspirations of the
crores of people !ho ha+e been stri+ing hard to ma3e our democratic polity !or3 by
exercising their right to +ote and to reassure the faith in the single largest democracy of the
!orld.
It is !ell agreed that this portion of the Constitution of India is enacted in order to
protect the pri+ileges of the -ouse" ho!e+er as e+ery other la! is not static and reAuire
changes" the ?enth #chedule in the !a3e of securing the pri+ileges of -ouse 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 li+ing the
dreams of our Constitution drafters and the deciders of the faith of this great nation.
:
>.0 G<I#ELINES
In Para )I(J IbJ under the ?enth #chedule" the !ords Bany orderC must be remo+ed so
(J
as to ma3e this pro+ision in concurrence to the principles of democracy. ?hus helping
in glorifying the meaning of the term Brepresentati+e go+ernmentC. Instead clear
indication must be gi+en as to !hen a party can issue =hips.

)J ?he term Bsub*ect based !hipsC must confine itself to issuing party mandates for
discussion in the -ouse !ith respect to important matters li3e Constitutional
Amendment Bill" Kinance Bill etc. Enough room must be pro+ided for the 0embers
to express their !ill in other matters other than those mentioned under the class of
Bsub*ect based !hipsC.
,J ?he =hips so issued by the political parties must exist !ith respect to see3ing
attendance of the 0embers to the -ouse !here the !hips is not classified under
sub*ect based !hips.
In order to effectuate the ratio in 7ihota -ollohon5s case !ith regard to the *udicial
.J
re+ie! of the #pea3er5s decision" a time limit must be prescribed for the #pea3er to
deli+er his decision.
:
>.2 S<GGESTIONS
Instead of the !ords Bany orderC it may be replaced !ith Bsub*ect based !hipsC" so
(J
that the ob*ecti+e of the ?enth i.e." to maintain healthy Parliamentary debate and
concern of the 6o+erning party can be better highlighted !ithout pre*udicing the
freedom of speech and expression of the 0embers. In doing so the pro+ision is
rendered constitutional +alidity.
E+en though the #pea3er5s decision is brought under the !atch glass of Judiciary after
)J
pronouncement of the 7ihota -ollohon5s case" it is suggested that a time limit must
be prescribed for the #pea3er to gi+e his decision. If no time period is prescribed for
the #pea3er to gi+e his decision" then the decision in the 7ihota -ollohon5s case is
BIBLIOGRAPHP
BOO=S REFERRE#:
Austin 0itchell"
The #hig in Cpposition'
(:(/;(:,E I(>18J
(J
Basu D.D" B
Introd"ction to the Constit"tion of India'
N Prentice -all of India P.
)J
Itd.J" (>>.
De. D. J."
The Constit"tion of India'
" Asia a! -ouse" )
Edition" )EE/
,J
nd
Dicey A.'."
Law of Constit"tion
" Ed@ >" (>,>
.J
Di!an Paras"
Aya (am %aya (am) The Politics of Defection'
" I(>8>J )( JII )>(
/J
6ilbert 0artin"
The #ilderness Hears'
" -oughton 0ifflin Co" (>:)
1J
Jac3son J. Robert"
(ebels and #hips
" ondon" (>1:
8J
Jain 0.P."
Indian Constit"tional Law,
Ed@ /
" )EE1" =adh!a Publications" &agpur
:J
th
7ashyap #ubhas C."
The Politics of Power'
" (>8.
>J
7ashyap #ubhash C."
Anti-Defection Law and Parliamentary Privileges,
Ed@
(EJ
)
" $ni+ersal a! Publishing Co. P+t. td." )EE,
nd
7rishan #ingh Chauhan"
Anti Defection Law in India a Critical Appraisal',
((J
0.D. $ni+ersity" Rhota3" (>>1
ane" P.-. B
An Introd"ction to the A"stralian Constit"tion
C" )
Edition" (>>8
()J
nd
as3i" -arold J.
Parliamentary %overnment in Dngland'
N Kiner -erman
(,J
The Theory and Practice of *odern %overnment',
.
Edition" %xford Publication
th

rendered futile. ?his is so because the #pea3er !ill be under no obligation to gi+e his
decision and the scope of *udicial re+ie! is again narro!ed do!n.
,J After ha+ing an insight into the position of la! !ith respect to anti;defection la! in
other Common =ealth countries" it is suggested that the ?enth #chedule should be
amended in such a !ay to ma3e it less complicated and 3eeping at bay all the
ambiguities that exists in the current la! on defection.
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..R Indian a! Report
J.I..I Journal of Indian a! Institute
td." imited
#.C.C #upreme Court Cases
#C #upreme Court
#ec #ection
$.%.I $nion of India
$.#.A $nited &ations of America
'ol. 'olume

eoni Bruno"
0reedom and the Law,
D. 'an &ostrand Company Inc.
(.J
Princeton" &e! Jersey" (>1(
0alhotra 6.C"
Anti Defection Law in India and the Commonwealth,
o3
(/J
#abha #ecretariat" ((
Edition" )EE/" 0etropolitan Boo3 Co. P+t. td.
th
0asod3ar B.A."
Law (elating to Dlectoral DisG"alification
" (
Edition" &.0.
(1J
st
?ripati P+t td" (>:1
#artori 6io+anni"
Democratic Theory,
(
Edition" %xford O IB- Publishing
(8J
st
Co" (>1/
#harma 0ool Chand"
Politics of Defections and Democracy',
I(>8>J (,
(:J
J.C.P.#. ,):
#eer+ai -.0." B
Constit"tional Law of India'
" .
Edition" $ni+ersal Boo3
(>J
th
?raders" (>>>
#ingh 6.P."
Principles of ,tat"tory Interpretation',
>
Edition" =adh!a and
)EJ
th
Co. &agpur" )EE.
#udershan Aggar!al"
The Anti Defection Law in India'
" Parliamentarian"
)(J
January (>:1" Q'II &o. (
?yagi B.#."
A"dicial Activism in India
" (
Edition" )EEE" #risti Publishers
))J
st
INTERNET SO<RCE:
http@<<!!!.indiala!info.com
ast +isited on@ )><(<)E(E
(J
http@<<!!!.manupatra.com
ast +isited on@ (</<)E(E
)J
http@<<!!!.supremecourtonline.com
ast +isited on@ ,</<)E(E
,J

http@<<
!!!.chr.up.ac.2a<hrXdocs<constitutions<docs<Dimbab!e
ast +isited on@
.J
(,<E)<)E(E
http@<<!!!.priu.go+.l3<Cons<(>8:Constitution<html ast +isited on (.<E)<)E(E
/J
http@<<!!!.info.go+.2a<documents<constitution<(>>1<>1cons1.htmY(E1
ast +isited
1J
on (,<(E<)E(E
http@<<!!!.paclii.org<pg<legis<consolXact<olotioppac)EE,/.)<
ast +isited on
8J
(1<E)<)E(E
http@<<statutes.agc.go+.sg
ast +isited on@ (1<E)<)E(E
:J
http@<<!!!.sierra;leone.org<a!s<constitution(>>( ast +isited on (/<E)<)E(E
>J
http@<<!!!.nigeria;la!.org<Constitution%f?heKederalRepublic%f&igeria.html
(EJ
ast +isited on (/<E)<)E(E
http@<<!!!.legislation.go+t.n2
ast +isited on@ (:<E)<)E(E
((J
http@<<!!!.sdnp.org.m!<constitut<dtlindx.html
" ast +isited on@ (1<E)<)E(E
()J
(,J http@<<!!!.ghana!eb.com<6hana-omePage<republic<constitution" ast +isited on@
(1<E)<)E(E
ARTICLES REFERRE#:
#ripada Rao D." RAnti;Defection a!;#plit in PartiesR" Journal of Parliamentary
(.
Information" (>>>
#orab*ee #oli J." BKirst '.0. ?ar3unde 0emorial ecture on
Indian Democracy
).
(eality or *ythF-,
(>>8

#ICTIONARIES REFFERE#:
Catherine #oanes"
C.ford Paperbac! Dictionary Thesa"r"s and #ord Power
(.
%"ide',
%xford $ni+ersity Press
-enry Campbell Blac3 0.A." B
&lac!8s Law Dictionary',
=est Publishing Co" (>:,
).
Ramanatha Aiyer. P" B
The Law Le.icon',
=adh!a &agpur" )EE1
,.
REPORTSA7AN<ALS REFERRE#:
(. AIR 0A&$A
). #$PRE0E C%$R? CA#E#
,. 0A&$PA?RA

LIST
OF CASES
(.
A1 %opalan v ,tate of *adras,
AIR (>/E #C )8
).
Anisminic Ltd v 0oreign Commission,
T(>1>V ) AC (.8
,.
Associated Cement companies Ltd v P+ ,harma and Anr,
T(>1/V ) #CR ,11
..
A"stralian &oot Trade Dmployees 0ederation v #hybrow L Co,
(>(E (E CR )11
/.
&ab"lal v ,tate of *aharastra,
AIR (>1( #C ::.
1.
&r"ndaban +aya! v Dlection Commission of India L Anr,
T(>1/V , #CR /,
8.
Chintaman (ao v ,tate of *P,
AIR (>/( #C ((:
:.
Commissioner of Income Ta., *ysore v Indo- *ercantile &an! Ltd
I(>/>J" #upp. )
#CR )/1
>.
Commissioner of Income-ta. v A$a. Prod"cts Ltd,
T(>1/V ( #CR 8EE
(E.
D"rga ,han!ar *ehra v (egh"ra$ ,ingh,
AIR (>/. #C /)E
((.
Dwara!a Prasad v ,tate of 5P,
AIR (>/. #C )).
().
D.press +ewspaper Ltd v 5nion of India,
AIR (>/: #C /8:
(,.
% @ishwanathan v ,pea!er, Tamil +ad"
AIR (>>1 #C (E1E
(..
BB *ahara$adhira$a *adhav (ao Aiwa$i (ao ,cindia &ahad"r L Crs v
5nion of India,
T(>8(V ( ##C :/
(/.
Bari 1hem" v Dy Commissioner of Police,
AIR (>/1 Bom //>
(1.
Barinagar ,"gar *ills Ltd v,hyam ,"nder Ah"n$h"nwala L Crs,
T(>1)V )
#CR ,,>
(8.
Indira +ehr" %andhi v (a$ +arain,
T(>81V ) #CR ,.8
(:.
Aaghir Ahmed v ,tate of 5P,
AIR (>/. #C 8):
(>.
Aag$it ,ingh v ,tate of Baryana L ors?
AIR )EE8 #C />E
)E.
Aan *ohammad v ,tate of %"$arat,
AIR (>11 #C ,:/
)(.
Ayoti &as" L Crs v Debi %hosal L Crs,
T(>:)V , #CR ,(:

)).
11 1och"ni v ,tate,
AIR (>1E #C (E:E
),.
1ameshwar Prasad v ,tate of &ihar,
AIR (>1) #C ((11
)..
1esavananda &harati v ,tate of 1erala,
T(>8,V #upp.( #CR"
)/.
1eshav ,ingh8s Case,
(>1/ I(J #CR .(,
)1.
1ihota Bollohon v Iachillh"
AIR (>>, #C .()
)8.
*adras L ,o"thern *ahratta railway company v &a<wada *"nicipality,
I(>..J 8( I.A. ((,
):.
*a!han ,ingh v ,tate of P"n$ab,
T(>1.V . #CR 8>8
)>.
*anilal ,ingh v Dr B &orobab" ,ingh,
AIR (>>. #C /E/
,E.
*as! L Co v ,ecretary of ,tate,
AIR (>.E P.C. (E/
,(.
*ayawati v *ar!andeya Chand L ors
" AIR (>>: #C ,,.E
,).
*C@, Ar"nchaala +adar v 5nion of India,
AIR (>/> #C ,EE
,,.
*inerva *ills Ltd L Crs v 5nion of India L Crs,
T(>:(V ( #CR )E1
,..
+& 1hare v ,tate of Delhi,
AIR (>/E #C (()
,/.
+arendra 1"mar v 5nion of India,
AIR (>1E #C .,E
,1.
C1 %hosh v DE Aoseph,
AIR (>1, #C :()
,8.
Par!ash ,ingh &adal L Crs v 5nion of India L Crs,
AIR (>:8 Pun*ab O
-aryana )1,
,:.
(*D Chamarba"ghw alla v The 5nion of India,
T(>/8V #CR >,E
,>.
(*D Chamarba"ghw alla v 5nion of India,
T(>/8V #CR >,E
.E.
(an$it D 5deshi v ,tate,
AIR (>1/ #C ::(
.(.
(avi , +ai! v 5nion of India,
AIR (>>. #C (//:"
.).
,D Asia 0ire &ric!s v +on-*etallic Prod"cts,
(>:( A.C. ,1,
.,.
,a$$an ,ingh v ,tate of (a$asthan,
T(>1/V ( #CR >,,
...
,ambham"rthy L Crs v ,tate of Andhra Pradesh L Anr,
T(>:8V ( #CR :8>

./.
,hri 1esavananda &harti ,ripadagalavar" v ,tate of 1erala,
T(>8,V #upp. (
#CR
.1.
,ri ,an!ari Prasad ,ingh Deo v 5nion of India L ,tate of &ihar,
T(>/)V #CR
:>
.8.
,tate of *adras v ,mt Champa!am,
AIR (>/( #C ))1
.:.
,tate of *adras v @% (ao,
AIR (>/) #C (>1
.>.
,tate of *adras v @% (ow,
T(>/)V #CR />8
/E.
,tate of (a$asthan v 5nion of India,
T(>8:V ( #CR (
/(.
,"perintendent Central Prison, 0ategarh v Dr (am *anohar Lohia,
AIR
(>1E #C 1,,
/).
The &ribery Commissioner v Pedric! (anasinghe,
T(>1/V AC (8)
/,.
5 + (ao v Indira %andi,
AIR (>8( #C (EE)
/..
5nion of India L Anr v T"lsiram Patel L Crs,
T(>:/V #upp. ) #CR (,(
//.
5nion of India v Ayoti Pra!ash *itter,
T(>8(V , #CR .:,
.

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