Judgement-

The court in a majority decision of 3:2 held that the Constitution Amendment Bill in the
impugned case does not need to be ratified under Article 368 (2). Having regard to the
mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended"
the operation of the proviso should not be extended to constitutional amendments in a bill
which can stand by themselves without such ratification. It was held that under the doctrine
of pith and substance there was no change in the language of the scheme of Article 136, 226
and 227 by the tenth schedule.
Coming to paragraph 7 of the Schedule the court observed that the ouster of jurisdiction of
Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which
was to reduce the practice of defection. The legislature would not have enacted the other
provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid, nor can it be
said that the rest of the provisions of the Tenth schedule cannot hold on their own even if
Paragraph 7 is found to be ultra vires. The provisions of Paragraph 7 are severable from the
rest of the provisions and need not be rendered unconstitutional.
For paragraph 6 of the schedule the court observed that the provision to the extent it seeks to
give finality to the decision of the Speaker is valid. But the concept of statutory finality
contemplated in the provision does not remove the power judicial review under Articles 136,
226 and 227 of the Constitution in so far as infirmities based on violations of constitutional
mandates, male fides, non-compliance with Rules of Natural Justice are concerned. The
Speaker holds a pivotal position in the scheme of Parliamentary democracy and are guardians
of the rights and privileges of the House. He is expected to take far reaching decisions in the
Parliamentary democracy. The finality clause with the word "final" in paragraph 6(1) of the
Tenth schedule does not remove the jurisdiction of the Courts under Articles 136, 226 and
227 of the Constitution. But it does limits the scope of the jurisdiction.
Relying on the judgement of Jyoti Basu & Ors vs Debi Ghosal1, that the right to be elected
stands on a similar footing as the right to elect and is not a fundamental right but rather a
statutory right, and thus is subject to limitations the court observed that Article 105 (2) is not
absolute and is subject to statutory regulations. Based on this reasoning it was further
observed that the tenth schedule was serves the purpose of protecting the sanctity of
democracy by curbing the practice of defection and the Union Government is within its
power in passing the law.
In respect to paragraph 2 the court first observed that political party functions on the strength
of shared beliefs. Any freedom of its members to vote as they please independently of the
political party's declared policies will embarrass its public image and popularity and also
undermine public confidence in its which, is its source of power and survival. Paragraph 2
gives effect to this principle and sentiment by imposing a disqualification on a member who
votes or abstains from voting contrary to "any directions" issued by the political party. But
the provision provides for two exceptions : when the member obtains permission from the

1
Jyoti Basu & Ors vs Debi Ghosal ,1982 AIR 983
party to vote against the motion and when the member is condemned for voting against the
party. This answers the question regarding the infringement of fundamental rights and the
court observed that Paragraph 2 of the Tenth Schedule is valid. Its provisions do not suffer
from the problem of deposing democratic rights of elected MPs. It does not violate their
freedom of speech, freedom of vote and conscience. The provisions are salutary and are
intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled
and unethical political defections.
Dissenting Opinion-
The dissent was delivered by Lalit Mohan and J.S Verma. They held that paragraph 7
excluded the jurisdiction of all courts and excludes the power of judicial review which is a
part of the basic structure. Mainly it excludes the power of judicial scrutiny of the decision of
the speaker as provides under Article 136, 226 and 227 despite the judiciary being the chief
adjudicatory body of India.
For paragraph 6 they provided that the provision makes the speaker the final authority to
decide on the matters of defection and disqualification of members completely blocks any
interference from the courts and prevents such disqualified member from approaching the
judiciary for review. This was considered as ultra vires to the constitutional scheme.
Regarding the ratification the judges were of the opinion that the schedule substantially
changes the provisions of Article 136, 226and 227 and hence the ratification by the state
assemblies as given in Article 368 is required. Since there was no ratification the whole
schedule is violative of the constitution.
The minority judgement was of the opinion that free and fair elections form a part of the
basic structure. Every MP is elected by his electorate and is under an obligation to protect
their rights and interests. These interest some times may not resonate with the stance of the
party. In such a case the MP is under a democratic obligation to vote against the party. Thus
the schedule by making it mandatory to take permission of the party impedes the basic
structure and is unconstitutional.
Lastly it was observed in the dissent although the post of the speaker holds a consecrated
position in our democracy but to assume that he will be unbiased at all times is impossible.
Thus, the speaker cannot be considered as an independent final authority for making
decisions in defection cases.

91st constitutional amendment act-

The 91st constitutional amendment came into force on 7th of July 2004 as it became necessary
because of the disregard of the defection guidelines by the political leaders. The turbulent
political decade of 1990 which saw 5 different governments in power made it necessary to
give teeth to the anti-defection law. The amendment brought forth the following changes-
1. The total number of ministers in the Council of Ministers would not exceed 15% of
the strength of Lok Sabha
 2. Any MP who is disqualified on the grounds of defection shall also be disqualified to
be appointed as minister.
3. The MP who is disqualified on the grounds of defection will also be disqualified from
holding any remunerative political post.
4. The provisions of the tenth schedule related to exemption in case of a split by one-
third of the members was removed. 2
Subsequent Case laws regarding the 10th schedule-
Ravi S. Naik vs. Union of India3 –
In the 1989 Goa Legislative Assembly elections a coalition government was formed. In 1990
2 Congress members resigned their position voluntarily to form a new party. The Speaker of
the Legislative Assembly disqualified them on the grounds of defection. They filed a petition
to the High Court which stayed the proceedings of the Speaker. An appeal was filed to the
Supreme Court. The Supreme Court clarified that an MP or MLA does not need to formally
resign under the to be disqualified under the anti-defection law. Even in the absence of a
formal resignation an inference can be drawn form the conduct of the member that he is
defecting from the party.
Rajendra Singh Rana vs. Swami Prasad Maurya and Others4-
In this case the Governor of UP invited Mulayam Singh to muster support and form
government rather than dissolving the Assembly. On 4.9.2003, BSP leader Swami Prasad
Maurya filed a petition under Article 191 against 13 BSP MLAs who declared support for
Mulayam Singh. The Speaker without making a decision on the petition recognized a split in
BSP and 37 MLA joined the Samajwadi Party. The Supreme Court observed that a letter to
the disregard by the Speaker of the petition is violation of his constitutional duty. It was also
observed that the act of requesting the Governor to invite the opposition to form government
would amount to defection.
SHRIMANTH BALASAHEB PATIL VS HON’BLE SPEAKER KARNATAKA5, 2020 (2)
SCC 595-
In 2019 disqualification petition were presented before the Speaker of the Karnataka
Legislative Assembly against 5 members of the ruling party. While the petitions were
pending, 9 more MLAs tendered their resignation. The Apex court instructed the Speaker to
maintain the status quo on both the resignations and the disqualification petitions. After the
court’s order, disqualification petitions were filed against two more MLAs. A trust vote was
initiated in the Assembly and the Congress-JDU government failed to establish majority in
the vote, prompting the Speaker to reject all resignations and disqualifying the members from
the 15th Legislative Assembly term.
2
Laxmikant, Indian Polity 298 (McGraw Hill 7th ed 2023)
3
Ravi S. Naik vs. Union of India ,1994 AIR 1558
4
Rajendra Singh Rana vs. Swami Prasad Maurya and Others ,AIR 2007
SUPREME COURT 1305
5
Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka,2020 (2) SCC 595
The court upheld the disqualification and opined that even though the members would be
disqualified, they are still allowed to take part in the by-election before the end of the term.
The court further stated that the scope of judicial review of the Speaker’s power to accept or
reject a resignation. Rejection is only allowed if the resignation was “not voluntary or
genuine,”.
Montesquieu’s Theory of Separation of Powers –
The Doctrine of Separation of Power was given by Baron de Montesquieu in his seminal
work The Spirit of Laws. He argued that the independence of the individual is protected when
the power of the government is divided among three independent branches i.e. the legislative,
the executive and the judiciary. Montesquieu insists that the power must be clearly divided
and not concentrated in the hand of a single body or individual as it leads to tyranny whereas
separation creates a system of mutual checks preventing any one branch from abusing its
authority. The key aspects of his theory included-
 Mutual Exclusivity: It means that each branch should be confined to its own function.
The legislature should not enforce or adjudicate on laws, the executive should not
legislate or adjudicate upon law and the judiciary should neither make or enforce law.
If one branch encroaches upon another’s function it endangers liberty and risks
tyranny.
 Checks and Balances: Montesquieu argued for a system of checks and balances
where each branch could check the excess of power by any one branch and have set
mechanisms to curb the branch that is in excess of its power.
 Independent Judiciary: The judiciary must be separate and impartial, free from
influence by the legislative or the executive. The courts ensure a fair administration
of justice and acts as the instrument of checks and balances. 6
The Constitution of India does not explicitly use the term “separation of powers”, though its
established structure and forms part of the basic structure of the constitution. However, the
Kihoto Hollohan case allows the Speaker, a member of the Legislature, to perform the
judicial function of deciding a petition for the disqualification of an MLA on the ground of
defection. This goes against the principle of separation of power. The speaker who is a
legislative officer and often a member of ruling party acts as a judge in defection case. The
dissenting opinion pointed out this danger i.e. the Speaker does not satisfy the requirement of
an independent judicial authority. Having the Speaker as the only deciding authority on
matters of disqualification violates the essential right to an impartial tribunal. Since the
authority of the Speaker is final powers contrary to the separation of power theory. Such law
allows the political party to muffle the independent voice of the people’s representatives if
they go against the party line and thus judicial pronouncement further solidifies this
unchecked power.
However, the court does states that the power of the speaker is not absolute as the courts still
hold the power to review the Speaker’s decision and ensure that the principle of Natural
Justice are followed in such proceedings. This effectively establishes the system of checks
6
O.P. Gauba, An Introduction to Political Theory 102 (Mayur books 5th ed 2021)
and balances between the legislature and the executive as the court acts as a check against the
arbitrary power of the speaker. In practice if a Speaker acts beyond his powers or unfairly the
affected member can approach the High Court or Supreme Court, and the court can invalidate
the Speaker’s ruling. The Parliament can make a law to regulate defections, but it cannot take
away the courts constitutional power to review the Speaker’s decision.
Montesquieu’s theory, as implemented in most democracies, is not about rigid
compartmentalization but about creating a balanced power structure. And this judgement
serves as an example of it there exists a delicate balance to maintain the authority of the
legislature to deal with its own issues and preserving its autonomy and the duty of the
judiciary to dispense a fair judgement when necessary.