Aaya Ram Gaya Ram: The Politics of Defection
The members of the Legislative Assembly indulged in multiple floor crossings
which earned them the epithet, Aaya Ram Gaya Ram (I have come, I have gone).
Defections have not been something new to the working of the Indian democracy.
The defections have taken place in other democracies too1 and will, probably
continue to take place in all parliamentary democracies. In a sense, these are
integral part of parliamentary democracy. What is new to the Indian defections
is that they have been phenomenal, unprincipled, opportunistic and, at one time,
posed a serious threat to the Indian democracy.
In order to trace down the roots of defections in Indian scenario, it becomes
quintessential to understand the history of the political parties in India.
The modern democracies are essentially party democracies. In our contemporary
society it is inconceivable to separate democracy from political parties. Such
has been the modern growth of democracy that all those countries which claim or
proclaim to be democratic, have more than one political party. One political
party is considered to be the anti-thesis of democracy.
When India became free, democracy was obvious choice, and nobody paused even for
a split-second for any other alternative. In fact, the entire freedom movement
was an experiment in operating democracy. The Congress under whose banner the
most freedom struggles were fought and which ultimately won independence for
India was not a political party. It was the entire spectrum of the national
movement. At that time there was no alternative, viable or otherwise, to the
The Congress was not only the ruling party but it is also the birth
place of almost all the opposition parties. As a result, the first three general
elections, the congress more or less continued to enjoy luxurious majority. Even
in the fourth general elections, the congress was able to retain its majority.
Till the split in the Congress, the Congress was comfortable in the Lok Sabha,
as no serious challenge to it was possible from any quarter. The problem started
from the state level and the ‘politics of defection’ started.
The fourth general assembly elections
In the fourth general elections in sixteen out of the seventeen states8 that
went to the polls, the Congress could secure majority only in half of the states
and that too with depleted majority, and in some only with marginal majority.
However, in the eight states in which the Congress was not in majority, there
was no single political party which could claim absolute majority.
assembly had its quota of independent MLAs.
The opposition parties which failed to forge an alliance before the elections
came together with the sole objective of wielding power; united by the bonds of
Anti-Congressism. The political parties which wide political differences joined
hands. It clearly indicated towards lack of ideological cohesion among the
parties except for congress.
As a result, a series of defections and counter defection followed which
resulted in huge unrest in political scenario. Many states like Haryana, West
Bengal, Jharkhand witnessed a large number of defections and
counter-defections. The state of Bihar witnessed the worst case of political
defection. Following is the table depicting the number of defections that took
place between March 1967 and March 1970:
The number of defections at this point became staggering. Innumerous defections
led to unstable politics in various states. Presidential rule was imposed in the
states of Bihar, Punjab, Haryana, Uttar Pradesh and West Bengal. The Indian
politics was at the epitome of instability as the governments were at the mercy
of independent candidates and party defectors who were bestowed upon with
Framing of anti-defection laws
The increase in the number of defecting legislators between 1967 and 1969
necessitated the framing of an adequate anti-defection law. The mid-sixties
witnessed numerous instances of elected representatives leaving the parties on
whose ticket they were elected, to join the opposition parties. Hence, the need
for an anti-defection law became increasingly urgent.
Based on the recommendations of the Y.B. Chavan Committee, the Constitution
(Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eighth
Amendment) Bill, 1979 were introduced in the Lok Sabha. However, while the
former Bill lapsed due to dissolution of the Lok Sabha, the latter was opposed
at the stage of introduction itself and was withdrawn by the leave of the House.
Finally, after the general elections in December 1984, the Constitution
(Fifty-second Amendment) Bill was introduced in the Lok Sabha in January 1985.
The object of this anti-defection law was to curb the evil of political
defections motivated by the lure of office or other similar considerations that
endanger the foundations of our democracy.
Tenth schedule of the constitution, 1985
Pursuant to the aforementioned ideal, the amendment inserted the Tenth Schedule
into the Constitution in order to curb the evil of political defections. The
52nd Amendment Act, 1985 also amended Articles 101, 102, 190 and 191 of the
Constitution regarding vacation of seats and disqualification from membership of
Parliament and the State Legislatures.
The purpose of the Tenth Schedule is to prevent the breach of faith of the
electorate. Where a constituency returns a candidate to the Legislature, it does
so on considerations based on the ideologies of the political party he
represents and it is only logical that where the candidate, after being elected,
leaves that party or acts contrary to its policies, he should be recalled for
betrayal of the faith of the electorate. Essentially, the provisions in the
Tenth Schedule give recognition to the role of political parties in the
Constitutional validity of the 52nd constitutional amendment
The constitutional validity of the Constitution (Fifty-Second Amendment) Act,
1985 was challenged before the apex court in the case of Shri Kihota Hollohon vs
Mr. Zachilhu And Others
 in so far as it aimed at introducing the Tenth
Schedule is destructive of the basic structure of the Constitution as violative
of the fundamental principles of Parliamentary democracy, a basic feature of the
Indian constitutionalism and is destructive of the freedom of speech, right to
dissent and freedom of conscience.
The court clearly held that Freedom to speech and expression is not an absolute
right but is subjected to reasonable restrictions. A political party
functions on the strength of shared beliefs. Its own political stability and
social utility depends on such shared beliefs and concerted action of its
Members in furtherance of those commonly held principles. Any freedom of its
Members to vote as they please independently of the political party s declared
policies will not only embarrass its public image and popularity but also
undermine public confidence in it which is source of its very survival. The
restriction thereby are reasonable.
Further, the court relied upon the decision given in Jyoti Basu and Ors. v. Debi
Ghosal and Ors
 and held that the right to elect is neither a fundamental
right nor a Common Law Right. It is pure and simple, a statutory right. So is
the right to be elected. So is the right to dispute an election. Outside of
statute, there is no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they arc, and therefore, subject to
Moreover, the court held that the amendment is non-violative of Art. 105 and
194. The court held that the provisions of the Tenth Schedule do not purport to
make a Member of a House liable in any Court for anything said or any vote
given by him in Parliament.
It is difficult to conceive how Article 105(2) is a
source of immunity from the consequences of unprincipled floor-crossing.
Further, it was held that Art. 105(2) cannot be elevated to the status of
Fundamental Rights and therefore even if there is a violation of the same, the
schedule cannot be struck down.
In Kihota Hollohon Case
, the issue was whether paragraph 7 of the Schedule
barring the jurisdiction of courts in cases of disqualification is
constitutional. The Court said: The paragraph seeks to change the operation and
effect of Articles 136, 226 and 227 of the Constitution which give the High
Courts and Supreme Court jurisdiction in such cases. Any such provision is
required to be ratified by state legislatures as per Article 368(2).
paragraph was therefore held invalid as it had not been ratified. The thrust of
the point is that paragraph 7 brings about a change in the provisions of Chapter
IV of Part V and Chapter V of Part VI of the Constitution and that, therefore,
the amending Bill falls within proviso to article 368(2).
In the present cases, though the amendment does not bring in any change directly
in the language of articles 136, 226 and 227 of the Constitution, however, in
effect paragraph 7 curtails the operation of those articles respecting matters
falling under the Tenth Schedule. There is a change in the effect in articles
136, 226 and 227 within the meaning of clause (b) of the proviso to article
368(2). Paragraph 7, therefore, attracts the proviso and ratification was
For aforementioned reasons, the Supreme Court held :
That having regard to the background and evolution of the principles underlying
the Constitution (52nd Amendment) Act, 1985, insofar as it seeks to introduce
the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7
of the Tenth Schedule of the Constitution in terms and in effect bring about a
change in the operation and effect of articles 136, 226 and 227 of the
Constitution of India and, therefore, the amendment would require to be ratified
in accordance with the proviso to sub-article (2) of article 368 of the
Constitution of India.
The court reinstated the judgement in Kesvananda Bharati v. Union of
 and regarded Judicial review as an integral part of the Basic
structure of the constitution. Judiciary has the role to keep a check if
miscarriage of justice has taken place and remove the arbitrariness.
Raja Ram Pal v The Hon’ble speaker, Lok Sabha
The facts of Raja Ram Pal arose over nationally televised events. A
T.V channel had conducted a sting operation on 12th December 2005 allegedly
showing certain members of Parliament accepting bribes in order to the asking of
questions in Parliament, an event that was quickly dubbed the ‘cash for queries’
scam. In response Parliament then expelled the said members on the ground that
the conduct of the members was unethical and unbecoming of a Member of
Parliament. The expelled MP’s challenged the constitutional validity of the
expulsion before the Supreme Court.
The circumstances that led to the decision in the Sub Committee on Judicial
Accountability arose earlier, in 1991. In February of that year, 108 members of
the Lok Sabha petitioned the speaker for an address to the President for the
removal of Justice Ramaswamy, pursuant to which the Speaker constituted a
Committee under the section 3 of the Judges Inquiry Act 1991 to investigate
grounds on which the removal was prayed for. The Ninth Lok Sabha was
subsequently dissolved and it was contended that the motion had on that account
The courts therefore had to decide as to whether they could pronounce on
whether the motion had lapsed or not, and as a corollary whether they had the
authority to inquire into matters occurring within the four walls of Parliament.
The judiciary can scrutinize the validity of legislative action where
transgression of Fundamental Rights is concerned.
-Y.K. Sabharwal, CJI
Powers of speaker/chairman as a deciding authority
The Speaker is looked upon as the true guardian of the traditions of
parliamentary democracy. His unique position is illustrated by the fact that he
is placed very high in the Warrant of Precedence in our country, standing next
only to the President, the Vice-President and the Prime Minister.
Speaker decides the question of disqualification as a tribunal. The power
conferred on the Speaker or Chairman to decide whether a member of either House
of Parliament has incurred any disqualification does not make him a competent
authority to remove such a member. The power exercised by the Speaker is of a
judicial nature. Therefore, it is not appropriate for him to claim that the
determinative jurisdiction under tenth Schedule is not a judicial power and
comes within the non-justiciable legislative area. In the light of Art. 102 and
191 of the Constitution and the tenth Schedule, the Speaker acts in the tenth
Schedule only when there is a claim of disqualification made before him under
It is held by the Supreme Court that the decision of the Speaker impugned is
liable to be set aside in exercise of the power of judicial review.
Notwithstanding the finality clause in para 6(1) or the non obstante clause in
para 7, the decision of the Speaker under para 6 of tenth Schedule is subject to
judicial review by the Supreme Court under article 136, but this is only on
ground of jurisdictional errors.
With respect to the duty of the court in
such delicate situations, the Supreme Court has stated that it is most true,
that this Court will not take jurisdiction if it should not: but it is equally
true that it must take jurisdiction if it should.  The field of judicial
review in respect of the orders passed by the Speaker under paragraph 6(1) is
confined to breaches of the constitutional mandates, mala fides, non-compliance
with rules of natural justice, colorable exercise of power based on extraneous
and irrelevant considerations and no evidence.
Speaker: Partial or impartial?
Recently, many questions have been raised regarding partiality and impartiality
of the speaker while implementing anti-defection due to the fact that he/she
belongs to a particular party. The same was brought up in the Karnataka crisis
earlier in 2019 where it was suggested that the anti-defection law should be
implemented by an authority like Election Commission.
The majority in Kihoto Holohan case rejected this argument on the high
office principle i.e. it is expected that persons holding such high office,
being vested with the power of adjudication, would act fairly and judiciously.
The impartiality of the speaker while deciding the matters has to be presumed.
In some cases, like Rajendra Singh Rana, Balachandra Jharkoli and D
Sudhakar indicates that, they have largely been swayed by their party
considerations while adjudicating upon the questions of disqualification of
members in their respective Houses. However, it is essential to note that the
finality to the orders that rests with the speaker is subjected to Judicial
Review by the High Court and Supreme Court.
Further, the argument that the Election Commission would be impartial is another
assumption, probably a reasonable one. Nonetheless, looking for another
institution to decide on this process is to look for a bureaucratic solution to
what is essentially a political problem.
Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a
Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The
anti-defection law sought to prevent such political defections which may be due
to reward of office or other similar considerations.
The Tenth Schedule was inserted in the Constitution in 1985. It lays down the
process by which legislators may be disqualified on grounds of defection by the
Presiding Officer of a legislature based on a petition by any other member of
the House. A legislator is deemed to have defected if he either voluntarily
gives up the membership of his party or disobeys the directives of the party
leadership on a vote. This implies that a legislator defying (abstaining or
voting against) the party whip on any issue can lose his membership of the
The law applies to both Parliament and state assemblies. Kashyap worded the
circumstances in following words:
Politics of power was pursued here with a unique single-minded devotion with
almost all the actors in the drama acting most shamelessly. Bihar politics had
always been crazy, cynical and murky but after the split it became grotesque and
sordid. According to a newspaper editorial, nowhere was the record of politician so obnoxious as in Bihar . They behaved like children clamoring for lollipop.
Intent at the time of making the law
The Y.B. Chavan committee submitted its report on 7 January 1969.
The committee prefaced its report with the words:
There can be no perfect or infallible deterrent for the kind of political
defections that are rooted in political irresponsibility and opportunism and
create instability, besides bringing the functioning of the democratic
institutions in disrepute . It is hence clear the problem of defection cannot be
dealt with legislative measures alone. The problem needs to be attacked on
political, ethical and constitutional levels as well.
Principle of Inner democracy
In its 170th report in 1999, the Law Commission of India underscored the
importance of intra-party democracy by arguing that a political party cannot be
a dictatorship internally and democratic in its functioning outside . The
parties should listen to the opinions of their members and have discussions on
the same. This would make the parties democratic and at the same time would give
the freedom of speech and expression to its members in real sense.
The distinction between ‘split’ and ‘defection
The Constitution (Forty-eighth Amendment) Bill also contained a novel provision.
If twenty-five per cent or more members of a political party in a House
resign en masse or disobey the party whip and form a new political party, or a
separate group, they would not be dubbed as defectors. Thus, the distinction was
being made between defection and split in a political party. The dissension by
twenty-five per cent or more is not defection but split, and, therefore, was not
to be caught by the penal provisions stipulated to be inserted in the
Constitution. But dissension by twenty-four per cent was considered to be
defection. It seems that so far as the electors- the people of India- are
concerned both the proposals for meeting the menace of defection would be
acceptable to them.
Many have questioned the rationale behind the fraction 1/3 as a line between
defection and split. The court in Shri Kihota Hollohon vs Mr. Zachilhu And
held that the courts have nothing else to go by except the
legislative wisdom and, again, as Justice Holmes said, the Court has no
practical criterion to go by except what the crowd wanted . We find no
substance in the attack on the statutory distinction between defection and
Is the tenth schedule violative of Art 19(1)(a) and 19(1)(b)?
The principal legal argument that was advanced was that the proposed law was
violative of the fundamental right of freedom of speech and association
guaranteed to every citizen by clauses (a) and (b) of article 19(1) of the
Constitution. As under the Indian Constitution every individual is guaranteed to
hold and express any view and to form or join any association or party in the
advancement of the same. The freedom to hold and express views also includes the
freedom to change one s view, and if one changes his views, he has also the
freedom to join the association, party or group which helps one in the
advancement of one’s views. There is no, and there cannot be rigidity in one s
views. There are cases of eminent men changing their ideology radically.
There is nothing immoral, much less illegal, in it. It has happened that from
extreme right one has moved to extreme left and vice versa. And, if this can
happen with an individual, this can also happen with a legislator. If it is so,
should it make any difference if a legislator changes his views or ideology, and
joins a party or group which he feels would be more conductive to his new
ideology? Should his freedom be stifled just because he happens to be a
The important question is: Have the defections in our legislature been, by and
large, on account of convictions, on account of one s ideology undergoing
genuine change on account of disillusionment, disenchantment or revelation, or
the reasons are different? The core of the matter is that these unprincipled and
opportunistic defections have taken place for anything but conviction or change
in ideology. They are based either on sheer opportunism or pecuniary or power
gains. This is why Aya Ram and Gaya Ram is the epithet applied by the people
with contempt and disdain to the political defectors.
- Diwan, P. (1979). AYA RAM GAYA RAM: THE POLITICS OF DEFECTION. Journal
of the Indian Law Institute, 21(3), 291-312.
- Visweswaraiah, S. (1997). DEPLORABLE DEFECTIONS: IN SEARCH OF A PANACEA.
Journal of the Indian Law Institute, 39(1), 47-66.
- The Election Commission of India (1968), Statistical Report on General
Elections, 1967 to the Fourth Lok Sabha (PDF file). Retrieved from https://ceo.gujarat.gov.in/StatisticalInformationAll/LoksabhaElection/LE1967.pdf
- Hartman, Political Parties in India, Chapter I.
- Eldersveld, S. (1970). The 1967 Indian Election: Patterns of Party
Regularity and Defection. Asian Survey, 10(11).
- Subhash C. Kashyap, PARLIAMENTARY PROCEDURE: LAW, PRIVILEGES, PRACTICE
AND PRECEDENTS 779 (3rd edn., 2014).
- Shri Kihota Hollohon vs Mr. Zachilhu And Others, AIR 1993 SC 412.
- Bennett Coleman & Co. & Ors vs Union of India, 1973 AIR 106.
- Griffith and Ryle on Parliament, Functions, Practice & Procedure (1989
Edn. page 119).
- Jyoti Basu and Ors. v. Debi Ghosal and Ors, 1982 AIR 983.
- Shekhawat, V. (1994). JUDICIAL REVIEW IN INDIA: MAXIMS AND LIMITATIONS.
The Indian Journal of Political Science, 55(2), 177-182.
- Relied upon: Sankari Prasad Singh Deo V. Union of India, (1952) I SCR 89
and Sajjan Singh V. State of Rajasthan, (1965) SCR 933.
- Kesvananda Bharati v. Union of India, AIR 1973 SC 146.
- Raja Ram Pal v The Hon’ble speaker, Lok Sabha, (2007) 3 SCC 184
- V. Shyam Kishore (2007) Parliamentary Privileges and the Judiciary – A
Search for the Common Ground, Commonwealth Law Bulletin, 33:3, 443-460.
- Supra 7.
- Jagjit Singh v. State of Haryana, (2006) 11 SCC 1.
- Supra 7.
- (2007) 4 SCC 270.
- 2011 (6) SCALE 172.
- 2012 (1) SCALE 704