http://www.lawteacher.net/constitutional-law/essays/constitutional-design-of-disqualification-ofmembers.

php

Critically Analyze The Constitutional Design Of Disqualification Of Members Introduction
The Constitution of India lays down certain fundamental disqualifications which militate against an individual entering the Houses of Parliament. In light of the rapidly changing political, economic and social circumstances, the Constitution left any additional disqualification conditions to the collective wisdom of the Parliament. The basic disqualifications which the Constitution enumerates are contained in Article 102 and 191. These basic disqualifications are the same in both the Articles. They are: 1. Holding an office of profit under the government of India or the government of any state 2. Being of unsound mind 3. Being an undischarged insolvent 4. Not being a citizen of India or voluntarily acquiring the citizenship of a foreign state or being under the acknowledgement of the allegiance or adherence to a foreign state. 5. if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State The Parliament, too, has supplemented these basic disqualifications by prescribing some further disqualifications in chapter III of part II of the 1951 Representation of People Act. This law states several circumstances which renders the membership of a person disqualified. These disqualifications are:

1. Disqualification on conviction for certain offences (Section 8) Disqualification on ground of commission of corrupt practices (Section 8A) 2. Disqualification for dismissal from government service for corruption and disloyalty (Section 9) 3. Disqualification for contract with „appropriate government' (Section 9A) 4. Disqualification for failure to lodge account of election expenses (Section 10A)

The object of enacting Articles 102 and 191 is that a person who is elected to Parliament or a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. Opposition leaders expounded the proposal that Anti-Defective Legislative measures were imperative in putting an end to this quandary. the issues pertaining to the Tenth Schedule tend to have a greater significance in the constitutional literature. The Constitution also introduced a clause (2) to both the aforementioned Articles under the Constitution (Fifty-Second Amendment) Act 1985 and added a new Schedule (Tenth Schedule) to the Constitution. aims to specifically analyse the provisions contained in the Tenth Schedule of the Constitution.voter. This. Schedule X: Anti Defection Law “Democracy and Free and Fair Election are inseparable twins. There have been splits and formations of breakaway groups from time to time. it was under the government of Rajiv Gandhi that the promulgation of the Tenth Schedule introduced by the Constitution (Fifty-Second . The purpose is to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing the Government to promote personal advantage. His freedom to elect a candidate of his choice is the foundation of a free and fair election. This essay. in turn. The introduction of this jargon was heralded by a certain Haryana state legislator Gaya Lal. led to discourse amongst different political groups and parties in order to prevent this undesirable trend in politics. But after getting elected. In the mid-sixties. During this period. witnessed many changes of allegiance. right from the time of the enactment of the amending Act. Hence. but also pollutes the pure stream of democracy. defections and „dal badal' as it is colloquially known. Owing to the fact that the Supreme Court has been faced with challenges to the constitutional vires of the amendment. there were rampant defections by members of India's parliament and state assemblies in order to save or bring down governments. the country saw the introduction of a new jargon of “Aaya Ram Gaya Ram” in political parlance.” The Indian Parliament and its various State Assemblies have. in the past 38 years. However. if the elected candidate deviates from the course of fairness and purity and becomes a “Purchasable Commodity” he not only betrays the electorate. The provisions therein laid down the constitutional framework for disqualification of members on the grounds of defection. this essay shall focus on the Tenth Schedule and the cases pertaining to the same. who changed parties three times in the course of one day. has overwhelming importance and cannot be hijacked from the course of free and fair elections. There is almost an inseparable umbilical cord joining them. In a democracy the little man .

The court. votes or abstains from voting in the 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. person or authority within 15 days from the date of such voting or. leads to the restraint of party debate and dissent. If it is not combated. in countries such as U. person. The very right to vote is implicit in this and if these votes cannot be altered by dispute or dissent. It does not violate their conscience. or authority and such voting or abstention has not been condoned by such political party. it is likely to undermine the very foundations of our democracy and the principles which sustain it. Dissent is not considered a defection because a dissenting member or one who does not comply with a particular party directive has neither changed sides. or 2. went on to add “The provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections” However. in either case.” The Tenth Schedule provides in paragraph 2 (1) that a Member of Parliament or state legislature belonging to any political party shall be disqualified for continuing as such member if he 1. The supreme court was faced with a challenge to the legislation in the case of Kihota Hollohan v. The Supreme Court. then the forum of the Parliament lies fallow. nor crossed the floor and continues to be a member of his party. Following in the spirit of the aforementioned argument.. without obtaining. The opponents of this legislative move argued along the lines that the fundamental feature of an open and democratic society lies in the basic freedoms of association. Canada. was of the view that the provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. has voluntarily given up his membership of such political party. however. It was argued that limiting the freedom of choice or binding the vote of a legislature may amount to tampering with the fundamentals of the Constitution and democratic polity.Amendment) Act 1985 occurred which made provisions as to the disqualification of members on the grounds of defection. wherein one of the central issues pertained to whether the Tenth Schedule curtails the most fundamental privilege of members guaranteed under Articles 105 and 194 of the Constitution. Then provisions do not violate any right or freedom under Articles 105 and 194 of the Constitution. the prior permission of such political party. The amendment echoed the abysmal political development in its Statement of Objects and Reasons stating: “The evil of political defections has been a matter of national concern. an assurance was given in the address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection Bill. defiance of party direction is not punished by unseating the member under consideration. Australia and New Zealand wherein a Parliamentary democracy similar to India prevails. Markandeya Chand. Zallichu And Ors. in Mayawati v. With this object. . This Bill is meant for outlawing defection and fulfilling the above assurance.K. opinion and expression.

Where smaller parties were concerned. In some instances. in the original Schedule. As a consequence. The provisions of the Tenth Schedule empower the Speaker or Chairman of the concerned House to decide on the question of disqualification of a member who defects. leading to an amendment by the Constitution (Ninety First Amendment) Act 2003 to omit paragraph 3 altogether from the Tenth Schedule. Every such association has bodies according to its Constitution such as Working Committee/ general house etc. form a separate group and give up membership of such party. breaking away with the support of one-third of the members of the party was not difficult and defections remained unchecked. in fact. A split occurs when a member or group of members of a party which are not less than one-third of the total members of such party in the lower House split. Otherwise it would be considered to be a splinter group coming out of the Party. It further suggests that a few fugitives of the party without effecting their ranks and file from top to bottom could not be deemed to be a separate party.Paragraph 3. Minhas. The working process under the Tenth Schedule is. In a case such as this. This relegates to the question of whether the Speaker should. Control of the legislature is a matter of the House and nobody outside the House should be able to interfere. in relation to the constitutional scheme. demands were made from various quarters for strengthening the anti-defection law so as to achieve the desired result. Speaker expressed that “In my opinion. these splits became synonymous with the notion of personal ambitions. after all. the disqualification from the membership of the House vide paragraph 2 (1) does not apply. Even independent members invite disqualification if they join a political party. an extension of Parliamentary proceedings which should. some argued that it is not and should never be part of the duties of the exalted office of the presiding officer to be involved in highly political and controversial cases of conflicts of party interests and unhealthy manoeuvrings of power politics. Essentially the intended effect of paragraph 3 became . This provision was also criticised on the ground that it allowed bulk defections while declaring individual defections as illegal. According to article 105. Conversely. be an internal matter and not an advisory or legislative one. leave in rows. be the final deciding authority. the ruling party had marginal majority and other parties hoped to form government if their number swells through defection.don't leave in single files. the presumption is that it is caused by dissent which is to be valued while the defection is motivated by personal gain which is an evil to be prevented. holding that in case of split in a party.The Supreme Court clarified this stance. all activity in the House is seen as privileged.” However. They occurred more because members in languishing parties wanted Ministership or new parties. The case of Ravi Naik v Union of India drives a classic example of defection in a smaller party. the word „split' connotes a vertical split in the party. The Supreme Court justified the legislature's position. or if they anticipated lack of support in the next election. holding that while an affirmative decision for disqualification on the part of the Chairman or Speaker may . The Political Party essentially is a voluntary association of electors. in the event of a split schism must run through the entire fabric from one end to the other. Surjit Singh. The defector also invites disqualification if he or she voluntarily gives up membership of his party or abstains from voting in violation of any direction that has been issued by the party. made an exception in the case of defection of members on the ground of split in the party to which they belonged. in truth.

Mayavati alleged that the twelve MLAs who defected had incurred disqualification for membership of the Assembly and that the Speaker of the Assembly. Twelve MLAs of the Bahujan Samaj Party crossed floor of the House in the Legislative Assembly of the State of Uttar Pradesh. The result of the whole exercise is the consequence of application of constitutional provisions. the exercise of power and jurisdiction by the Presiding Officer of any House should not be subjected to such scrutiny. The leader of the BSP. there has been a lot of trouble brewing wherein even the . Markandeya Chand wherein the court was faced with a challenge to the decision of the Speaker of the UP Legislative Assembly. 1985. these very twelve MLAs were made Ministers in the State Cabinet which was headed by erstwhile C. To put into present context. was beset. it will be fit and proper and indeed.Need for Review'. the Speaker of the Lok Sabha gave an Address at the Symposium on „Anti-Defection Law . that the jurisdiction and authority to deal with matters of defection as provided in the Tenth Schedule need not continue to be exercised by the Presiding Officers and the power should be conferred on some other authority like a special Tribunal comprised of people well versed in law or on an authority like the Election Commission. the court relied on Kihota Hollohan. The Supreme Court while deciding the case.M. The situation was such. While the members maintained that the finding being a finding of fact is not amenable to challenge as it was rendered by the Speaker of the Assembly on whom alone the jurisdiction is conferred to determine such disputed fact. avoidable tension between the two constitutional authorities. the Supreme Court has held that it would be subject to judicial review. whose jurisdiction cannot be denied.result in such member ceasing to be a member. and voted in favour of a motion of confidence moved by the Chief Minister of the State. thrashed out in the case of Mayawati v. The issue was. until in Kihota Hollohan the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act. In the North-eastern states. and not of the decision of the Speaker or political preference. Kalyan Singh. once again. Soon thereafter. it would not mean that the Chairman is the competent authority to remove the member. in my opinion. had absolved these MLAs from the disqualification conditions laid down in the Tenth Schedule. desirable that the Presiding Officers do not continue to be under such judicial scrutiny which in many cases has given rise to. to my mind. during the Conference of Presiding Officers of Legislative Bodies in India in Chandigarh on 23 September 2008 wherein he stated: “It is my considered view that it is desirable and indeed necessary.” Although paragraph 6 says that the decision of the Speaker or Chairman “shall be final”. by the impugned order. which considerably affects the status and the position of the Presiding Officers. and dismissed the appeal. To my mind. With all respect to the Judiciary. The facts of the case are as follows. held that the Speaker while exercising powers and discharging functions under the Tenth Schedule acts as Tribunal adjudicating rights and obligations under the Tenth Schedule and his decisions in that capacity are amenable to judicial review.

It may be called a defective manual. The final provision in this legislation gives the Speakers of the House to make rules for giving effect to any provision contained in the Schedule. after the severance of Paragraph 7. on the ground that it affected the powers of the Supreme Court and High Courts of judicial review under articles 136. 226 and 227 of the Constitution. The subsequent issue that came up was whether the effect of non-compliance invalidates Paragraph 7 alone and the other provisions which. Hence. Luxury r esorts are hired. in so far as there are certain infirmities or drawbacks based on constitutional violations. however. The concept of party loyalty has weakened and „real politics' has become a spate of splits and defections in pursuit of selfish gains. It was following this decision that. The anti defection law renders a key pillar of our version of democracy futile . or dissent in full and split away to avoid the risk of being disqualified. mala fides intentions. by a majority decision in that case upheld the validity of the other paragraphs holding them to be severable from the provisions of para 7 and also holding that the same did not require ratification by the states under article 368.Executive has not honoured the Speaker's decision as final in a case of defection. or non-compliance with rules of natural justice. It has ceased to matter what an MP as an individual thinks. Karnataka and others and also the Houses of the Parliament. Maharashtra. nobody holds press conferences or parades. Gujarat. the states of Goa. MPs are paid off and affidavits are signed. This has had several implications including disintegration of parties due to reluctance towards involvement in a deeper discourse and the lack of tolerance to coexistence with dissent. become truncated and cannot stand independently. It was argued that the other provisions.one must either buy the whole package offered by a political leader. Today. In pursuance of this power. the party leadership's requirements are of prime concern during a vote. the Supreme Court rejected the argument that judicial review can be ousted and struck down this paragraph as unconstitutional in the Kihoti Hollohon case under the rules of basic structure. Bihar. in a tightly balanced legislature like ours their support is crucial. Paragraph 7 of the Tenth Schedule of the Constitution was held to be ultra vires the Constitution. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core. The Supreme Court. The concept of „resort politics' has arisen. Kerala. by themselves. Most political activity that takes place in India today transpires within the Tenth Schedule. the jurisdiction of courts was sought to be barred completely from cases of disqualification by paragraph 7. implicit in the art of compliance. It is ironic that an individual . This has rendered the independents as the only legislators who can afford to vote without the threat of disqualification. both the Rajya Sabha and Lok Sabha have made rules in this regard. do not attract the proviso do not become invalid. Conclusion The role of politics under the constitutional set up in India has undergone many chapters. Haryana. However. These Houses would be bound by the rules contained in the Schedules as also the ones that have been enacted specially for them. In the original Schedule.

The Speakers. while a group of defectors get away under the pretext of a party split.htm Anti-Defection Law .nic. it will be fit and proper and indeed. The adage is that what happens in the House stays in the House. without the risk of disqualification from the his or her party. It is essential that whoever may be the authority to determine the question of disqualification. 1985 Reference Material Anand Oinam. 1950 THE REPRESENTATION OF THE PEOPLE ACT.defector should be penalised. Only then can a citizen of a democracy such as India vote for who he truly wants to hold accountable. The Speaker has the power to use tensions in House and keep members on the party's side by not deciding on the issues. leaving the Speaker to hold centre stage.in/Speech/SpeechDetails. Judicial decisions are not taken. There are many Speakers who are in favour of an independent tribunal.Need for Review'. Bibliography PRIMARY SOURCES THE CONSTITUTION OF INDIA. in my opinion. an appeal must be provided to the Supreme Court. January 2004. Too often. Amendment in the Anti Defection Law. Speakers regard themselves as spokespersons or hatchet men of the political party and the various orders of the Speakers which have been challenged before courts reveal absence of fairness and objectivity. have for most part failed to live up to their high offices. Conference of Presiding Officers of Legislative Bodies in India in Chandigarh on 23 September 2008. Available online at http://speakerloksabha. Herein lies the main reason why the Tenth Schedule has not lived up to its intended assurance.asp?SpeechId=278 . which considerably affects the status and the position of the Presiding Officers. Available online at http://www. avoidable tension between the two constitutional authorities” The most crucial aspect that needs to be elevated in the Tenth Schedule is the right of an individual Member of Parliament to vote freely. betray a high degree of partisanship and a lack of understanding over the purpose of the Tenth Schedule. 1951 THE CONSTITUTION (FIFTY-SECOND AMENDMENT) ACT.manipuronline. With all respect to the Judiciary. who have the responsibility of discharging the vital judicial function of discerning whether a member has incurred disqualification. whose jurisdiction cannot be denied.com/Features/January2004/antidefection11_3. to my mind. the exercise of power and jurisdiction by the Presiding Officer of any House should not be subjected to such scrutiny. desirable that the Presiding Officers do not continue to be under such judicial scrutiny which in many cases has given rise to. Another concern is that the courts usually refuse to give mandamus orders to disqualify or set time limits. “To my mind.

com/volume3/issue_1/article_by_jenna. 1993 U. Concept Publishing Company. Dissent isn't Defection.G. LexisNexis Butterworths. 1997 Shubhadeep Choudhary. Subramaniam Vincent. Gupta.html Prititosh Roy.. Kashyap. 2008 Jenna Narayan. Deogaonkar. 2003 V.org/2005/apr/edt-dissent. Gaya Ram” In Haryana. Practice and Procedure. Anti-Defection Law and Parliamentary Procedures. India Together.net/constitutional-law/essays/constitutional-designof-disqualification-of-members. Parliamentary Government in India. 1999 Durga Das Basu. 8th ed. Delhi. B. Vol IV.S. Parliamentary Privilege in India.indiatogether. Volume I.K. Calcutta.tribuneindia.php#ixzz2iNc18uAL Follow us: @lawteachernet on Twitter | LawTeacherNet on Facebook . June 25.“Aya Ram. Tribune News Service.P. “Defect-Shun”: Understanding Schedule X to the Constitution of India. Chandigarh. Tripathi Ltd. How India Votes : Election Laws.R. Publishing Corporation. Atlantic Publishers and Distributors. Indian Parliamentary Democracy.. Parliamentary System in India. Oxford University Press. New Delhi.M.indialawjournal.Ashwin Mahesh. New Delhi. New Delhi. Mendiratta .lawteacher. Available online at http://www. Pandya. LexisNexis Butterworths Wadhwa Nagpur.htm Subhash C. 2005. 1991 S. Second ed. Available online at http://www. India Law Journal. Available online at http://www. 2006 Read more: Constitutional design of disqualification of members | Law Teacher http://www. Commentary on the Constitution of India. Rama Devi and S. N.htm B. Bombay. April.N.com/2004/20040626/haryana.

Sign up to vote on this title
UsefulNot useful