Anti Defection Law the 52nd Amendment Act 1985 - Critical Evaluation

The 52nd Constitutional Amendment Act of 1985 provided for the disqualification of the
(both elected and nominated) members of Parliament and the state legislatures on the
ground of defection (jumping)from one political party to another. The 52nd Constitutional
Amendment Act of 1985(1) made changes in four Articles of the Constitution and(2) added a
new Schedule (the Tenth Schedule) to the Constitution. This 52nd Constitutional Amendment
Act of 1985 is often referred to as the ‘antidefection law.

Defections mean jumping from one political party to the other after getting elected. In
Parliament and State Legislatures there are three categories of members present.

Grounds for disqualification under the Anti-Defection Law:

 a) If an elected member voluntarily gives up his membership of a political party;

 b) If he votes or abstains from voting in such House contrary to any direction issued
by his political party or anyone authorised to do so, without obtaining prior
permission.

Main Features of the Anti-Defection Law

 Anti defection provisions under the Tenth schedule of 52nd Amendment:

The Fifty-second Constitutional amendment brought about changes in the articles 101,
102, 190 and 191 of the Indian Constitution and stated the provision under which
legislators could be rendered disqualified on the basis of defection.

a) If a member of a house belonging to a political party:

- Voluntarily gives up the membership of his political party, or

- Votes, or does not vote in the legislature, contrary to the directions of his political
party.

b) If an independent candidate joins a political party after the election.

c) If a nominated member joins a party six months after he becomes a member of the
legislature.

1. Power to Disqualify:
 a. The Chairman or the Speaker of the House takes the decision to disqualify a member.”

b. Court’s Intervention

All proceedings in relation to any question on disqualification of a member of a House under

“Loopholes of the defection machinery in India

The rivalry among the members in a party can arise due to many reasons, it can be due to the
inner dissent against the opinions of senior leaders or the struggle for power and because of
these reasons many elected members along with other elected members leave the party to join
the opposition.2 This can devastate the democratic spirit of our nation because a stable
government is inherent for a democracy. The frequent government crisis can lead to distrust
among the people and can cause a menace. The defection machinery in India has a number of
lacunas within it which can be proved by the recent case of Madhya Pradesh Government
crisis where Jyotiraditya scindia along with 22 MLAs left the party, this lead to the fall of
Kamal Nath Government and the Kerala legislative assembly case in 2019. 

Judicial development on the tenth schedule

KihotoHollohan v Zachillhu3

The scope of this anti-defection law was examined in this case. Court that also analyzed
various other aspects of this legislation also. Here, the court, speaking about the necessity of
an anti-defection legislation, said, “The object is to curb the evil of political defections
motivated by lure of office or other similar considerations which endanger the foundations of
our democracy. The remedy proposed to disqualify the members of either House of
Parliament or of the State Legislature who is found to have defected from continuing as a
Member of the House. The grounds of disqualification are specified in rule 2 of the Tenth
Schedule.”

1
Anti-Defection Law, Thomas, K. T, NUALS Law Journal, Vol. 3, pp. 1,Hein online.
2
Anti-Defection Law: Welcome Reforms,B. Venkatesh Kumar, Vol. 38, No. 19 (May 10-16, 2003), pp. 1839-
jstor.
3
AIR 1993 SC 412
Brief Facts-In this case matters relating to disqualification of some members of the Nagaland
Assembly on the ground of defection under the Tenth Schedule of the Constitution came up
for consideration. Matters relating to several legislative assemblies including those of
Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa were also heard along with since all
of them involved decisions of certain constitutional questions relating to the constitutional
validity of paragraph 7 of the Tenth Schedule and of the 52nd Amendment.

Decision-The Supreme Court found that there were legal infirmities in the passage. of the
Anti-Defection Law in as much as the Constitution Amendment Bill had not been ratified by
the requisite number of State assemblies before being presented for the President’s assent.
Also, the Speaker’s functions under the Tenth Schedule called for a judicial determination of
issues under the Law. The process of determining the question of disqualification could not
be considered part of the proceedings of the house and as such not amendable to Judicial
Review. The Supreme Court struck down para 7 of the Schedule barring the jurisdiction of
Courts and declared that while operating under the Anti-Defection Law, the Speaker was in
the position of the Tribunal and therefore, his decisions like those of all tribunes were subject
to judicial review.”

“In regard to the various contentions raised and urged at the hearing, the Supreme Court held
as follows:

1. That at the rule 2 of the Tenth Schedule to the Constitution is valid, its provisions do not
suffer from the vice of subverting democratic rights of elected members of Parliament and the
Legislatures of the States. It does not violate their

freedom of speech, freedom of vote and conscience as contended. The provision of Paragraph
2 does not violate any right or freedom under Articles 105 and 194 of the Constitution.

2. That having regard to the background and evolution of the principles underlying the
constitution(52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth
Schedule in the Constitution of India, the provision of paragraph 7 of the Tenth Schedule in
the Constitution in terms and in effect bring about the change in the operation and effect of
Article 136, 226, 227 of the Constitution of India, and, therefore, the amendment would
require to be ratified in accordance with the proviso to clause 2 of article 368 of the
Constitution of India.
3. The para 7 of the Tenth Schedule contains a provision which is independent of, and stands
apart from, the main provisions of the Tenth Schedule which are intended to provide a
remedy for the evil of unprincipled and unethical political defections and therefore is a
severable part.

4. The para 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision
of the Speakers/Chairmen is valid. But the concept of Statutory finality embodied in rule 6(1)
does not detract from or abrogate judicial review under article 136,226 and 227 in so far as
infirmities based on violations of constitutional mandates, mala fides, non compliance with
the Rules of Natural Justice an perversity, are concerned.”

5. “It would be unfair to the high traditions of that great office to say that the investiture in it
of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is
inappropriate to express distrust in the High office of the Speaker, merely because some of
the speakers are alleged, or even found to have discharged their functions not in keeping with
that great tradition of that High office.

6. The expression ‘any direction’ occurring in rule 2(1) (6) of the Tenth Schedule requires to
be construed harmoniously with the other provisions and appropriately confined to the
objects and purpose of the Tenth Schedule.

7. The meaning to be given to ‘split’ must necessarily be examined in a case in which the
question arises in the context of its particular facts. No hypothetical predications can or need
be made.