The
Constitution (Fifty-second Amendment) Act,
1985 popularly known as the anti-defection law
came into
force w.e.f. 1 March 1985. It amended
articles 101, 102,
190 and 191 of the Constitution regarding
vacation of
seats and disqualification from membership of Parliament
and the State Legislatures and added a new schedule
i.e. the Tenth Schedule to the
Constitution setting
out certain provisions as to disqualification
on ground of defection.
In
articles 102/191, a new clause (2) has been inserted
which reads as follows:
“(2)
a person shall be disqualified for being a member
of either House of Parliament if he is so disqualified
under the Tenth Schedule.”
The
main provisions of the Tenth Schedule are—
Grounds
of Defection
- The grounds on which disqualification can be incurred
are as under:
(i)
Members belonging to political parties
A
member of a House belonging to any political party
shall be disqualified for being a member of House—
(a)
if he has voluntarily given up his membership of
such political party; or
(b)
if he votes or abstains from voting in such House
contrary to any direction issued by the Political
party to which he belongs or by any person
or authority authorised by it in this behalf,
without obtaining, in either case, the prior
permission of such political party, person or
authority and such voting or abstention has not
been condoned by such political party, person
or authority within fifteen days from the date
of such voting or abstention.
An
elected member of a House shall be deemed to belong
to the political party, if any, by which he
was set up as a candidate for elections as
such member.
Nominated
member of a House shall—
(i)
where
he is a member of any political party on
the date of his nomination as such member,
be deemed to belong to such political
party;
(ii)
in
any other case, be deemed to belong to the political
party of which he becomes, or, as the case may
be, first becomes, a member before the
expiry of six months from the date on which
he takes his seat after complying with the
requirements of article 99 or, as the case may
be, article 188.
(ii)
Member
elected otherwise than as candidate
set up by any political party
An
elected Member of a House who has been elected
as such otherwise than as a candidate set up by
any political party shall be disqualified for
being a member
of the House if he joins any political party
after such
election.
(iii)
Nominated
Members
Nominated
member of a House shall be disqualified
for being a member of the House if he joins any
political party after the expiry of six months
from the
date on which he takes his seat after
complying with the
requirements of article 99 or as the case may
be, article
188.
Cases
of split
3.
The Tenth Schedule as added to the Constitution
by the Constitution (Fifty-second Amendment)
Act, 1985 contained a provision (paragraph
3 of the Tenth Schedule) to the effect that no
member will be disqualified from the
membership of
the House where he makes a claim that he and
any other
members of his legislature party constitute a group
representing a faction which has arisen as a result
of a split in his original political party and
such group
consists of not less than one third members of
the legislature party concerned.
This
provision (paragraph 3) has since been omitted
from the Tenth Schedule by the Constitution
(Ninety-first Amendment) Act, 2003, which
came into force with effect from 1 January, 2004.
Consequent upon the omission of Paragraph
3, it is not now permissible to claim a split
in the legislature party.
Cases
of merger
4.
No
member will be disqualified from the membership
of the House where his original political party
merges with another political party and he
claims that he and any other members of his
original political party have become members
of the other political party or of the newly
formed political party provided not less than
two third of the members of the legislature
party concerned
have agreed to such merger.
Exemption
to persons elected to the office of Speaker/Chairman
or Deputy Speaker/Deputy Chairman
5.
No
disqualification is incurred by a person who has
been elected to the office of the Speaker or
the Deputy
Speaker of the House of the People or of the
Legislative
Assembly of a State or to the Office of the Deputy
Chairman of the Council of States or the Chairman
or the Deputy Chairman of the Legislative Council
of a State if he severes his connections with his
political party after such election. Also, no disqualification
is incurred if he, having given up by reason
of his election to such office, his membership
of
the political party to which he belonged
immediately before
such election, rejoins such political party
after he
ceases to hold such office.
Chairman/Speaker
to decide questions as to disqualification on
ground of defection
6.
The question as to whether a member of a House
of Parliament or State Legislature has become subject
to disqualification will be determined by the
Chairman/Speaker of the House and his decision
will be
final. Where the question is with reference to
the Chairman/Speaker
himself it will be decided by a member
of the House elected by the House in that behalf
and his decision will be final.
All
proceedings in relation to any question as to disqualification
of a member of a House under the Tenth
Schedule shall be deemed to be proceedings in Parliament
within the meaning of article 122.
Bar
on Jurisdiction of Courts
7.
Notwithstanding
anything contained in the Constitution,
no court has any jurisdiction* in respect of
any matter connected with the disqualification
of a member of a House on ground of
defection.
Power
to make Rules
8.
The
Chairman or the Speaker of a House has been
empowered to make rules for giving effect to
the provisions
of the Tenth Schedule. The rules are required
to be laid before each House and are subject to
modifications/disapproval by the House.
The
Chairman or the Speaker of the House may without
prejudice to the provision of article 105 or
as the
case may be, article 194, and to any other
power which he may have under the
Constitution direct that any
wilful contravention by any person of the
rules made under paragraph 8 of the
Tenth Schedule may be
dealt with in the same manner as a breach of privilege
of the House.
*
Para 7 of the Tenth Schedule which stipulates
this bar on judicial
review, has been declared invalid by the
Supreme Court
in Kihoto Hollohan vs. Zachilhu
(case)—AIR 1993, SC 412.
This provision, however, still forms part of
the Tenth Schedule as no constitutional
Amendment Bill has been brought
forward by the Government so far for omitting
the same from the Tenth Schedule.
Members
of Lok Sabha (Disqualification on Ground of
Defection) Rules, 1985
9.
The
Members of Lok Sabha (Disqualification on Ground
of Defection) Rules, 1985; as framed, by the Speaker
under the Tenth Schedule were laid on the Table
of the House on 16 December, 1985 and came into
force with effect from 18 March, 1986.
The
main provisions of these Rules are given below:
Information
etc. to be furnished by leader of a legislature
party
10.
The
Rules cast a responsibility on the leaders of
legislature parties in the House to furnish to
the Speaker within 30 days after the first
sitting of the Houses
or within 30 days after the formation of such legislature
party as the case may be, a statement containing
the names of members of such legislature party,
a copy of the rules and
regulations/constitution of
the political party concerned and where such legislature
party has a separate set of rules and regulations,
constitution, a copy of such rules and regulations/constitution.
This information is required to be
given in Form-I as prescribed in
Disqualification Rules.
The leader of the legislature party is also required
to inform the Speaker about the changes that take
place in the strength of the party or in its
rules, regulations,
constitution, etc. Duty is also cast on the
leader of the
legislature party or the person authorised by
him in that behalf to communicate to the
Speaker any
instance of a member of the party voting or abstaining
from voting in the House contrary to any direction
issued by such political party without
obtaining the prior permission of such party,
person or authority. Such
communication is required to be furnished in Form-II
as prescribed in the Disqualification Rules.
Where
a Legislature party consists of only one member
such member is also required to furnish a copy
of
the rules and regulations of his political
party to the Speaker within thirty days
after the first sitting of the House
or where he has become a member of the House
after the first sitting, within thirty days
after he has
taken seat in the House or in either case
within such further period as the
Speaker may for sufficient cause allow.
Information
to be furnished by members
11.
Every member is invariably required to individually
furnish to the Speaker a statement giving details
of his party affiliation etc. as on the date
of election/nomination
in Form-III as prescribed in the Disqualification
Rules. In the event of any change in the
information given by the members in their respective
Forms-III, in terms of declaration in their forms,
they are required to immediately intimate the same
to the Speaker.
Petitions
re. Disqualification
12.
No
reference of any question as to whether a
member has become subject to disqualification
shall be made
except by a petition in relation to such
member made in writing to the Speaker
by any other member.
Every
petition is required to contain a concise statement
of the material facts and to be accompanied by
copies of documentary evidence, if any, on
which the
petitioner relies. Every petition is required
to be signed
by the petitioner and verified in the manner
laid down
in the Code of Civil Procedure, 1908, for the verification
of pleadings. Every annexure to the petition is
required to be signed by the petitioner and
verified in the same manner.
Procedure
13.
On
receipt of a petition, the Speaker shall consider
whether the petition complies with the requirements
of the Rules. If the petition does not comply
with the requirements, the Speaker shall dismiss
the petition and intimate the petitioner accordingly.
If the petition complies with the requirements,
copies of the petition are forwarded to the
member in relation to whom the petition has
been made
and if the member belongs to any legislature party,
and such petition has not been made by the
leader
thereof, also to such leader, for furnishing
their comments in writing to the
Speaker on the petition.
After
considering the comments, the Speaker may either
proceed to determine the question or, if he is
satisfied,
having regard to the nature and circumstances
of the case that it is necessary or expedient
so to do refer the petition to the Committee of
Privileges for making a preliminary inquiry
and submitting
a report to him.
The
procedure which shall be followed by the Speaker
for determining the question of
disqualification and
the procedure which shall be followed by the Committee
of Privileges for making preliminary inquiry* shall,
so far as may be, the same as the procedure
for making
inquiry and determination by the Committee of any
question of breach of privilege of the House.
*
The Committee of Privileges (14th L.S.) while
considering some
petitions filed under the Tenth Schedule to
the Constitution
and the rules made thereunder referred to the Committee
by the Speaker gave a very careful thought to the
true import of the term “preliminary
inquiry”. The Committee
came to a conclusion that in such matters, the
Committee
are required only to give their findings on
the facts
of the case and it isn’t the Committee’s
remit to decide questions
of law and arrive at conclusions on the merits
of the case and make recommendations.
If
the Speaker makes a reference to the Committee
of
Privileges, he shall proceed to determine the question
as soon as may be after receipt of the report from
the Committee.
Neither
the Speaker nor the Committee come to any
finding that a member has become subject to disqualification,
without affording a reasonable opportunity
to such member to represent his case and to be
heard in person.
After
the conclusion of the consideration of the petition,
the Speaker may by order in writing dismiss the
petition or declare that the member in
relation to whom
the petition has been made has become subject to
disqualification under the Tenth Schedule and
cause copies
of the order to be delivered or forwarded to
the petitioner,
the member in relation to whom the petition has
been made and to the leader of the legislature
party, if any, concerned. The order of the
Speaker disqualifying
the member is reproduced in Bulletin Part-II
and is also notified in Gazette of India, Extraordinary,
Part-II, Section 3 (ii).
Where
the Speaker declares that a member has become
subject to disqualification under the Tenth Schedule,
he shall cease to be member of the House with
effect from the date of the order by the
Speaker.
The
Speaker has power to issue such directions as
he may consider necessary in regard to the
detailed working
of the Members of Lok Sabha (Disqualification on
Ground of Defection) Rules, 1985.
[Articles
101, 102, 190 and 191 of the Constitution, Tenth
Schedule to the Constitution and Members of
Lok Sabha (Disqualification on Ground of Defection)
Rules, 1985.]
