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.
Articles 102 (2) and 191 (2) read as follows
“(2) a person shall be disqualified for being a member of either House of Parliament if he is sodisqualified under the Tenth Schedule.”
The main provisions of Tenth Schedule are as follow :
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 thePolitical party to which he belongs or by any person or authority authorised by it in thisbehalf, without obtaining, in either case, the prior permission of such political party, personor 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 suchmember, 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 onwhich he takes his seat after complying with the requirements of article 99 or, as the casemay 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.
Disqualification on ground of defection not to apply in case 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.
* 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.
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.
Articles 102 (2) and 191 (2) read as follows
“(2) a person shall be disqualified for being a member of either House of Parliament if he is sodisqualified under the Tenth Schedule.”
The main provisions of Tenth Schedule are as follow :
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 thePolitical party to which he belongs or by any person or authority authorised by it in thisbehalf, without obtaining, in either case, the prior permission of such political party, personor 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 suchmember, 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 onwhich he takes his seat after complying with the requirements of article 99 or, as the casemay 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.
Disqualification on ground of defection not to apply in case 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.
* 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.
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.
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