Defection and the Tenth Schedule

Detail

1. What is defection?

• Defection means one of two things:
• leaving the party on whose ticket a legislator (an MP or MLA) was elected; or

• voting against the party's direction in the legislature, or staying away from (abstaining in) such a vote.

• Two views of defection (Class 9):

• Opportunism: legislators switch sides for ministerial posts or cash. This is the main view.
• Conscience: a legislator may leave because of real disagreement, or because public expectations have changed. On this view, defection makes legislators respond to the people.

2. History: "Aya Ram, Gaya Ram" and the post-1967 instability

• After the 1967 elections, defections made and broke state governments.

• Congress MLAs broke away and helped install non-Congress governments in Haryana, Madhya Pradesh and Uttar Pradesh (Class 12).

• "Aya Ram, Gaya Ram" (literally "Ram came, Ram went"; slang for a turncoat):

• In 1967, Gaya Lal, an MLA from Haryana, changed parties three times in a fortnight.
• He went from Congress to the United Front, back to Congress, and within nine hours back to the United Front again.

• When he returned to Congress, Rao Birendra Singh presented him to the press with the words "Gaya Ram was now Aya Ram". The phrase stuck.

• Before 1985: a committee on defections chaired by Y.B. Chavan (1967-69) studied the problem. Earlier anti-defection bills failed to become law.

3. The 52nd Amendment, 1985: the anti-defection law

• The 52nd Constitutional Amendment Act, 1985, passed under the Rajiv Gandhi government, added the Tenth Schedule. This Schedule is the anti-defection law: it disqualifies (removes from the House) legislators who defect [2][3].
• It also amended:
• Art. 101 (vacation of seats in Parliament) and Art. 102(2) (disqualification of MPs on the ground of defection);

• Art. 190 (vacation of seats in state legislatures) and Art. 191(2) (disqualification of MLAs on the ground of defection).

• Process: any other member of the House files a petition, and the presiding officer (Speaker or Chairman) decides it [2].

4. Grounds for disqualification (para 2)

Para	Who	Ground for disqualification
2(1)(a)	Member elected on a party ticket	Voluntarily gives up party membership [4]
2(1)(b)	Member elected on a party ticket	Votes or abstains against the party whip without permission, unless the party condones (forgives) it within 15 days
2(2)	Independent member (elected without a party ticket)	Joins any political party after the election [4]
2(3)	Nominated member	Joins a party more than six months after taking the seat (taking the seat means taking the oath under Art. 99 or Art. 188) [4]

• Para 2(1)(a) and conduct:
• Ravi S. Naik (1994): "voluntarily giving up membership" can be judged from conduct. Openly working for another party is enough. No formal resignation is needed.

• Courts have said the phrase has "a wider connotation than resignation". Publicly opposing one's party or attending a rival party's rally can count [2].

• Expelled members: G. Viswanathan (1996) held that a member expelled by the party still belongs to that party for Tenth Schedule purposes. If the expelled member joins another party, that counts as defection.

• Para 2(1)(b) and the whip:
• Party whip: the party's written direction on how its members must vote in the House.
• The rule covers votes inside the House only. So cross-voting in a Rajya Sabha election (MLAs voting for another party's candidate) is not by itself a ground for disqualification.

5. Exceptions

• Merger (para 4): a party may merge with or into another party if at least two-thirds of its legislators agree. Neither the members who merge nor those who stay out are disqualified [2].
• Split (old para 3) deleted: the original law protected a "split" by one-third of a legislature party. The 91st Amendment, 2003 deleted this "split" clause and kept only the two-thirds merger route [3].

• Effect, per Subhash Desai (2023): the defence of "split" is no longer available to members facing disqualification [6].

• Presiding officer's exemption (para 5): a Speaker, Chairman or their deputy may give up party membership for the term of office. They can rejoin the party afterwards without being disqualified. This lets them act neutrally.

6. Who decides: paras 6, 7 and 8

• Para 6: the Speaker (Lok Sabha or Assembly) or the Chairman (Rajya Sabha or Council) decides disqualification questions, and "his decision shall be final" [4].
• Para 7: barred all courts from cases on disqualification under this Schedule [4].
• Kihoto Hollohan v. Zachillhu (1992): upheld the Tenth Schedule as valid, but struck down the bar on judicial review (the power of courts to check whether an action is lawful) [2][3].

• So the Speaker's decision can now be challenged in the High Court and Supreme Court [2].

• Para 8: the presiding officer may make rules to carry out the Schedule.

• Speaker as a Tribunal: when deciding under para 6, the Speaker acts as a Tribunal (a body that decides disputes like a court), not as an officer of the House. So Articles 122 and 212, which shield the House's internal proceedings from courts, do not protect these decisions [5].
• Time limit:
• The Tenth Schedule itself sets no deadline for the Speaker's decision [2].
• Keisham Meghachandra Singh v. Speaker, Manipur (2020): the Speaker must decide within a reasonable period. Unless there are exceptional reasons, three months from the filing of the petition is the outer limit [5].
• Subhash Desai (2023): the Supreme Court cannot ordinarily decide disqualification petitions itself at the first stage. The Speaker must decide within a reasonable period [6].

7. Legislature party vs political party

• Legislature party: the party's members in the House (MPs or MLAs).
• Political party (the "original political party"): the party organisation outside the House.
• Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), a 5-judge bench decision on the Shiv Sena dispute, held:
• the political party, not the legislature party, appoints the whip and the party leader in the House [6];
• the direction to vote or abstain is issued by the political party [6];
• the Speaker must recognise the whip and leader authorised under the party constitution. When rival factions both claim to be the party, the Speaker decides prima facie (on a first look) which faction is the party [6];
• the Speaker (under the Tenth Schedule) and the ECI (under para 15 of the Symbols Order) can decide their own cases at the same time [6];

• the correctness of Nabam Rebia (2016), which barred a Speaker facing a removal notice from deciding disqualification cases, was referred to a 7-judge bench [6][5].

• An MLA facing a disqualification petition can still take part in House proceedings while the petition is pending [6].

8. Effects of the law

• Defections have fallen.
• Dissent has become harder:
• The whip binds members on almost every vote.
• An MP or MLA who defies it loses the seat.

• So legislators "have to accept whatever the party leaders decide" (Class 10).

• Weak points:

• Presiding officers are party members. They have sometimes delayed decisions or not disqualified members, which makes people doubt their neutrality [2].
• Group switching moved to the two-thirds merger route.

9. Reform proposals

Body (year)	Proposal
Dinesh Goswami Committee (1990)	Limit the whip to confidence motions; the President (for MPs) or Governor (for MLAs) should decide disqualification on the advice of the Election Commission [2][3]
Law Commission, 170th Report (1999)	Enforce the whip only on votes that decide whether the government survives, such as budgets and no-confidence motions [2][3]
National Commission to Review the Working of the Constitution (2002)	President or Governor decides, on ECI's advice [2]
Supreme Court, Keisham Meghachandra (2020)	Parliament should consider replacing the Speaker with a permanent Tribunal headed by a retired Supreme Court judge or a retired High Court Chief Justice, or another independent body [5]

Prelims Hooks

• 52nd Amendment, 1985 added the Tenth Schedule. The 91st Amendment, 2003 deleted the one-third "split" exception (para 3) and kept only the two-thirds merger exception (para 4) [3].
• The 52nd Amendment amended Arts. 101, 102(2), 190 and 191(2).
• Para 2(1)(b): the party can condone a vote against the whip within 15 days. Cross-voting in a Rajya Sabha election is not by itself a ground for disqualification.
• Nominated member: may join a party within six months of taking the seat. An independent is disqualified for joining any party at any time [4].
• Ravi S. Naik (1994): voluntarily giving up membership can be judged from conduct. G. Viswanathan (1996): an expelled member still belongs to the party.
• Kihoto Hollohan (1992): Tenth Schedule valid, but the para 7 bar on courts struck down. The Speaker's decision is open to judicial review [2].
• Keisham Meghachandra (2020): the Speaker acts as a Tribunal. Three months is the outer limit for deciding petitions [5].
• Subhash Desai (2023): the political party, not the legislature party, appoints the whip [6].
• Trap: the Speaker or Chairman decides disqualification, not the ECI or the President. Shifting the decision to the President or Governor on ECI's advice is only a proposal (Goswami 1990, NCRWC 2002) [2].
• "Aya Ram, Gaya Ram": Gaya Lal, Haryana, 1967, changed parties three times in a fortnight.

Mains Points

• Stability vs free voting (GS-II): the law reduced the post-1967 kind of defections, but it binds legislators to the whip on almost every vote. This weakens debate in the legislature and makes the executive less accountable to it. Limiting the whip to confidence and money votes (Goswami 1990; Law Commission 170th, 1999) would keep governments stable and free MPs and MLAs on other votes [2][3].
• Neutrality of the arbiter: the Speaker is a party member who decides cases about colleagues and rivals. Delays and partisan decisions are common [2]. Possible fixes: a three-month limit (Keisham, 2020), an independent tribunal [5], or the President or Governor deciding on ECI's advice [2].
• Loopholes: the two-thirds merger route lets groups switch sides together. Mass resignations and long delays also get around the law. The 2003 removal of the "split" defence fixed only part of the problem [3][6].
• History (GS-I): the "Aya Ram, Gaya Ram" period after 1967 showed how defections helped end Congress dominance in the states. This instability is the main reason the 1985 law was passed.