The Essence of Time
GS Paper 2, Constitution, Polity.


Judicial intervention should strengthen, not weaken, anti-defection legislation. When the Constitution views defection as a significant threat, courts should not intervene to encourage it. It is necessary to safeguard people who have been wrongfully disqualified, but it is also important to hold defectors accountable if their motivations are questionable.

Judicial Review:

Judicial review is the capacity of the court system (judicial branch) to examine court rulings if it believes the executive or legislative branches of government have adopted a law or policy that the judicial system does not believe is reasonable or fair. The goal of judicial review is to achieve a balance of power among the three branches of government described above. The notion of ‘court review’ is also included in the fundamental framework. The notion of ‘court review’ is also included in the fundamental framework.

Judicial Review in India: History and Case Studies:

The Indian Supreme Court has used the judicial review theory several times.

The administration attempted to keep the legislation out of the jurisdiction of judicial scrutiny through the Ninth Schedule. However, in the well-known case of I.R Coelho (2007), the Supreme Court stated that the Ninth Schedule should not be utilised as a blanket to guard against invalid legislation simply by including them in the Schedule. The Court has the authority to apply judicial review to statutes included in the Ninth Schedule.

Here are a few more examples:

  • Mithu vs. the Province of Punjab: Section 303 of the Indian Penal Code was ruled unconstitutional by the Supreme Court.
  • Constitutional Amendment Act No. 99: The Supreme Court deemed the National Judicial Appointment Commission Act, 2014 and its modification illegal and void in a complaint filed by the Supreme Court Advocates on Record Association (SCAORA) and others.
  • Raj Narain vs. Indira Gandhi: The 39th Amendment Act, which stipulated that the election of the President, Vice President, Prime Minister, and Speaker of the Lok Sabha is beyond the examination of Indian courts, was deemed illegal and invalid in this case.

Scope of Judicial Review:

Legislative enactment and Executive order legitimacy can be challenged in the Supreme Court and High Court.

The following are the basis for such challenges:

  • Violation of Fundamental Rights (Part-III)
  •  It is outside the purview of the authority that framed it, and
  • It violates the requirements of the Constitution.

The Value of Judicial Review in India:

Judicial review is part of the fundamental framework, which means it cannot be removed from the Constitution, making it a vital aspect of the Indian constitution. Aside from that, India requires judicial review:

  • To uphold the Constitution’s supreme principles.
  • Maintain a balance between the centre and the state.
  • To safeguard fundamental rights.

The Constitution and Judicial Review:

According to Article 13(2), the Union or the States shall not create any legislation that denies or restricts any of the basic rights, and any law made in violation of the aforementioned mandate shall be null and invalid to the degree of the violation.

1. Judicial review is required to secure and protect fundamental rights established in Part III of the Constitution.

2. The Supreme Court of India has the authority to enforce these rights under Article 32 of the Constitution. This gives citizens the right to go directly to the Supreme Court to seek redress for violations of their fundamental rights.

Classification of Judicial Review:

We can divide judicial review into three types. They are as follows:

1. Legislative Action Reviews: This review implies the authority to check that legislation established by the legislature are consistent with the requirements of the Constitution.

2. Administrative Actions Review: This is a mechanism for establishing constitutional discipline on administrative agencies as they use their powers.

3. Judicial Decision Review: This may be observed in the Golaknath case, the bank nationalisation case, the Minerva Mills case, the privy purse abolition case, and so on.

Judicial Review’s Limitations:

There are several constraints on the judiciary’s ability to exercise its judicial review power. In reality, when the judiciary crosses the line and interferes with the executive’s mission, it is referred to as judicial activism, which, if allowed to continue, can lead to judicial overreach. The following are some of the limitations of judicial review.

1. Judicial Review restricts the government’s ability to function. It is only authorised to determine whether the method for obtaining the judgement was followed appropriately, not the decision itself.

2. Once accepted, the judicial views of the judges become the norm for judging on additional cases.

3. It is restricted to higher courts such as the Supreme Court and the High Courts.

4. Repeated judicial interventions can erode public trust in the government’s honesty, quality, and efficiency.

5. The judiciary should only intervene in political and policy affairs when absolutely essential.

6. Because decisions might be swayed by personal or selfish intentions, judicial review can be detrimental to the public at large.

When it overrides any existing legislation, it breaches the constitutionally mandated restriction on authority.

  • In India, rather of a separation of powers, a separation of functions is used.
  • The notion of separation of powers is not fully adhered to in judicial review. However, a system of checks and balances has been established so that the court has the authority to overturn any unlawful legislation approved by the legislature.

What Is the Anti-Defection Law?

  • Individual MPs/MLAs who desert from one party to another are penalised under the anti-defection statute. It enables a group of MPs/MLAs to join (i.e., combine with) another political party without incurring the defection penalty.
  • Furthermore, political parties are not penalised for soliciting or tolerating defecting legislators. In 1985, Parliament incorporated it to the Constitution as the Tenth Schedule.
  • Its goal was to keep governments stable by deterring MPs from switching parties. It was a reaction to the overthrow of various state administrations by party-hopping MLAs following the 1967 federal elections.

Various Recommendations for Overcoming the Legal Challenges:

Dinesh Goswami’s Electoral Reforms Committee:

Disqualification should be restricted to the following situations:

  • A member willingly resigns from his political party membership.
  • A member abstains from voting or votes against the party whip in a motion of confidence or no-confidence. Only when the government was in peril did political parties issue whips.

(170th Report of the Law Commission):

  • Provisions exempting splits and mergers from disqualification will be removed.
  • Pre-election electoral fronts should be considered as political parties for anti-defection purposes.
  • Political parties should confine the use of whips to situations in which the government is under jeopardy.

The Commission on Elections:

The President/Governor should make decisions under the Tenth Schedule based on the Election Commission’s binding advice.

Recommendations to enhance the law:

Some commentators have said that the law has failed and that it should be repealed. Former Vice President Hamid Ansari has proposed that it only be used to save administrations from no-confidence votes. The Election Commission has proposed that it be the determining authority in situations of defection. Others have suggested that defection petitions should be heard by the President and Governors. Last year, the Supreme Court ruled that Parliament should establish an independent tribunal led by a retired judge of the higher judiciary to decide defection cases in a timely and unbiased manner.

10th Schedule Provisions: Grounds for Defection-

The following are the grounds for disqualification of any member:

  • If an elected official willingly withdraws from a political party.
  • If a member of the party votes or abstains from voting in the House against the wishes of his political party.
  • If any independently elected member joins another political party
  • If any nominated person joins a political party after the conclusion of the 6-month period
  • Disqualification questions based on defection are addressed to the Speaker or the Chairman of the House, whose decision is final.
  • Disqualification procedures under the 10th Schedule are considered proceedings in Parliament or the Legislature of a state, depending on the circumstances.

In specific conditions, legislators may shift parties without fear of disqualification:

1. The legislation permits a party to combine with or into another party if at least two-thirds of its legislators support the merger.

2. In this case, neither the members who opt to combine nor those who remain with the original party will be disqualified.

What are the problems with the Anti-Defection Law?

Undermining Representative and Legislative Democracy:

o Following the implementation of the Anti-defection law, the MP or MLA must blindly follow the party’s instructions and has no flexibility to vote in their judgement.

o The Anti-Defection Act has broken the chain of responsibility by holding MPs mainly accountable to their political party.

Speaker’s Controversial Role:

o There is no clarity in the legislation about the timetable for the House Chairperson or Speaker to act in anti-defection matters.

• Some instances take six months, while others take three years. Some cases are disposed of after the period has ended.

No Split Recognition:

o The anti-defection legislation was amended by the 91st amendment to include an exemption for anti-defection verdicts.

o However, the amendment does not acknowledge a’split’ in a legislature party, but rather a’merger.’

Electoral Mandates Subversion:

o Defection is the subversion of electoral mandates by lawmakers who are elected on one party’s platform but then find it more convenient to switch to another due to the lure of cabinet berths or financial benefits.

Affects the Normal Operation of Government:

o The notorious “Aaya Ram, Gaya Ram” slogan was coined in the 1960s against the backdrop of repeated lawmaker defections.

o The defection causes instability in the government and has an impact on the administration.

Encourage Horse Trading:

o Defection also encourages legislator horse-trading, which obviously contradicts the purpose of a democratic structure.

Only allows for wholesale defection:

o It permits wholesale defection but not retail defection. To close the gaps, amendments are necessary.

o He expressed worry that if a politician leaves a party, he or she should not be offered a position in the new party.

What are Some Suggestions Regarding the Anti-defection Law?

The Election Commission has proposed that it be the determining authority in situations of defection.

Others have suggested that defection petitions should be heard by the President and Governors.

The Supreme Court has proposed that Parliament establish an independent panel led by a retired judge from the higher court to hear defection cases quickly and impartially.

Some pundits have stated that the law has failed and that it should be repealed.

The Way Forward:

The issue stems from an attempt to find a legal solution to what is fundamentally a political matter.

If government stability is a concern as a result of people defecting from their parties, the solution is for parties to enhance their internal structures.

In India, there is an urgent need for law that oversees political parties. A bill of this type would subject political parties to the Right to Information (RTI), promote intra-party democracy, and so forth.

To mitigate the negative impact of the anti-defection legislation on representative democracy, the law’s scope might be limited to only those laws where failure of government can lead to loss of trust.


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