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    Parliament Indian Law

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    alae AMISH ABDULLAH, ASST. PROF SYMBIOSIS LAW SCHOOL, Constitution of Parliament. Article.79 e -There shall be a Parliament for the Union - which shall consist of the President and - two Houses to be - known respectively as the Council of States and the House of the People. +84President is not a member of either house of parliament. Unlike British parliamentary system Indian Parliament is not supreme and derive its power from the Constitution. ABDULLAH, ASST. PROF, SYMBIOSIS LAW Composition of the Council of States.. Article.80 © (1) The Council of States shall consist of — (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty-eight representatives of the States and of the Union territories. © (2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. © (3) The members to be nominated by the President under (1)(a) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, nam ely:—. Literature, art , science and social service. (**LASS) AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. Article.80 (4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. © (5) The representatives of the Union territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. Proportional representation as to allocation of seats under Schedule four. {FOURTH SCHEDULE TAntctes 4(1) and 8029] Allocation of seats i the Council of States To each State oF Union territory specified in the first column of the following table, there shall be ‘second column thereof opposite to that State or that Union TABLE 1 ‘Anea Pradesh “un "2. Telangana 1 ‘Ba ‘Assam 7 “41 Biba ~ so 16) “TIS] Jharkhand 7 a *PTI61 Goa a °C Gujarat ny “CTTS] Haryana 31 AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. Proportional representation as to allocation of seats RL Kereta none ° "P1001 Madhya Pradesh 1 SEPT] Chhatisgath none 5 SET2] Tait Nadu os) PET] Mabarabe 1» META] Kamotaka o n TST, Wt) is 10 "PU6] — Panjeb “m1 PUT] Rajasthan 2 0 °PU8] —UnarPradesh “an 1) Uitarakhand . a 1PI20] West Bengal : 16 PIL] amma and Kashi on $ MPP (22] Nagaland ey AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. Proportional representation as to allocation of seats- Calculation Example- Total no. of seats : 10 Total no. of states : 3 (A, B, C) Population of states = A: 20, B:16,C: 14 ---------- Total : 50 (A+B+C) Representation for A: Population % of A : (20/50) * 100 = 40% Allocation : 40% of 10 = 4 seats for A AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. SINGLE TRANSFERABLE VOTE : Example- ° Three parties A, B and C are contesting. © A got 10,000 first preference votes, B got 10,500 votes and C got 1000 votes. © Out of these three, the party that got least votes is C. ¢ Then C is removed from the list, and for those whoever voted for C, their second preference vote is taken into consideration. © Let's say, out of the 1000 votes that C got, if there are 800 second preference yotes to A and 200 second preference votes to B, then the count after removing C would be, A 10,800 and B 10,700. * Since, there is no other party, A would be declared winner. ° In the First past the post system, B would be declared winner. (in case of normal voting) ISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW OOL, Composition of the Council of States.. Article.89 Chairman and Deputy Chairman of the Council of States- ¢ (1) The Vice- President of India shall be ex officio Chairman of the Council of States. * 2) - The Council of States shall, as soon as may be, choose a member of the Council to be Deputy Chairman thereof - and, so often as the office of Deputy Chairman becomes vacant, the Council shall choose another member to be Deputy Chairman thereof. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. Article.91 Power of the Deputy Chairman or other person to perform the duties of the office, or to act as, Chairman.— * (dy While the office of Chairman is vacant, or during any period when the Vice-President is acting as, or discharging the functions of, President, the duties of the office shall be performed by the Deputy Chairman, or, if the office of Deputy Chairman is also vacant, by such member of the Council of States as the President may appoint for the purpose. © (2) During the absence of the Chairman from any sitting of the Council of States the Deputy Chairman, or, ifhe is also absent, such person as may be determined by the rules of procedure of the Council, or, if no such person is present, such other person as may be determined by the Council, shall act as Chairman. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the Council of States.. Position in other countries ENGLAND- © In England'The Upper house is known as the house of Lords like our Rajya Sabha it is also permanent house not subject to dissolution © but it differs from house of Lords in the sense that while House Of Lords consists of mostly of hereditary Lords created by the Crown; the Rajya Sabha is an elected body though the election is indirect. ® Secondly the membership of the house of Lords is for life; but membership of Rajya Sabha is for 6 years only. USA- © The Upper house is known as Senate. © Each state send its Senate irrespective of its size population, wealth, importance. © Its membership is hundred. © ‘Terms of senators is 6 year but one third of its member retire after every 2 years. © Originally the senators were elected by the state legislature, But this method was ended by constitution 17th amendment in 1913 which now provides for direct election of members of the Senate from the people. But in Rajya Sabha the members are elected on Population basis. © Like Indian Rajya Sabha it is a continuing body and one third of its members retire after every two years AMISH ABDULLA SST. PROF, SYMBIOSIS LAW SCHOOL Position of Rajya Sabha The Rajya Sabha is a permanent body but in respect of powers it enjoys inferior position as compared to Lok Sabha A money bill can only be introduced in the Lok Sabha. The Rajya Sabha has no powers in respect of a money bill. A vote of no confidence cannot be passed against the government by the Rajya Sabha. Even in case of ordinary bill ifa deadlock is created between the two houses and the joint session is held then by virtue of the numerical strength the Lok Sabha will also to pass that bill. In view of the week position of the Upper house constitutional jurist question the wisdom of having the Second Chamber and they plead for its evaluation. On the other hand It is said that in a federal constitution a Second Chamber is a necessity and it plays an important role in the matters of legislation and therefore it should be retained. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Position of Rajya Sabha ‘The Rajya Sabha is desirable because it fulfills the following purposes. 1 it is considered useful because senior politicians and statesman might get an easy access in it without undergoing the ordeal of general election necessary for the members of Lok Sabha so that experience and talent is not lost to the country and they may discuss questions of public interest. Secondly the Rajya Sabha acts as a revising house over the Lok Sabha which being a popular house may be tempted to act rather hastily keeping in view of public opinion. The existence of Rajya Sabha stop the drastic changes in the law of the country made in the heat of momentary passion and affords opportunity for its reconsideration by delaying its adoption for a limited period The Rajya Sabha is a house where the states are represented keeping with the federal principles, providing for the state representation. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Composition of the House of People. Article.81 Composition of the House of the People- “Q) Subject to the provisions of article 331, the House of the People shall consist of— (a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and- (b) not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide. 331. Representation of the Anglo-Indian Comnmmity in the House of the People — Novwithstanding anything in article 81, the President may, she sof opinion thatthe Anglo-Indion community in the House of the People, nominate not more than two members of that community to the eas of the People. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Composition of the House of People. Article.81 Composition of the House of the People- © (2) For the purposes of sub-clause (1)(a),— (a) there shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States; and (b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State: Provided that the provisions of sub-clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed six millions. ILLAH, ASST; PROF, SYMBIOSIS LAW Composition of the House of People. EXAMPLE OF TERRITORIAL CONSTITUENCIES - GUJRAT STATE 5 Patan 4 5 Mabesana Sobarkantha : Aid oO pL RR er irr eae pe Gree a ELECTION PHASES-2019 Phase [PollDate _[NofPG AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Composition of the House of People. Article.81 Composition of the House of the People- © (3) In this article, the expression “population” means the population as ascertained at the Jast preceding census of which the relevant figures have been published: Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed, — (for the purposes of sub-clause (2)(a) and the proviso to that clause, as a reference to the 1971 census; and-—--------(sate seats) (ii) Gi) for the purposes of sub-clause (2)(b) as a reference to the 2001 census.-- 4 (territorial constituencies) ISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the House of People. Article.82 Readjustment after each census.— Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine: Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House: Provided further that such readjustment shall take effect from such date as the President may, by order, specify and such readjustment takes effect, any election to the House may be held on the of the territorial constituencies existing before such readjustment: Provided also that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust— (i) _ the allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and (ii) _ the division of each State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this article. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Tenure of the Houses of Parliament. Article.83- Duration of Houses of Parliament.— (Rajya Sabha & Lok Sabha) (1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by lav: (2) The House of the People, unless sooner dissolved, shall continue for *five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, for “six years” (w.e f. 20-6-1979) AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Composition of the House of People. Position of lower house in other countries- © The Lok Sabha in India is composed of an almost similar lines as the lower house in England, America Canada and Australia, England- © In England the house of commons like the Lok Sabha is elected directly by people for five years on adult suffrage. © It can be dissolved by the Crown when earlier. ° The house of representatives in USA like our Lok Sabha is elected directly by the people. © It's tenure is fixed for 2 years. © The house of representatives differs from our Lok Sabha in one respect that it is not subject to dissolution before the expiry of its normal period of 2 years. The Lok Sabha in India may be dissolved even before the expiry of its normal period of 5 years. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Qualifications for membership Article.84, Qualification for membership of Parliament.— A person shall not be qualified to be chosen to fill a seat in Parliament unless he— () isa citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and (©) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament— (a) ifhe holds any office of profit under the Government of India or the Government of any State, other than an olfice declared by Parliament by law not to disqualify its holder; (>) ifhe is of unsound mind and stands so declared by a competent court; (©) if he is an undischarged insolvent; (2) ifhe is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (©) ihe is so disqualified by or under any law made by Parliament. .—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. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. AMISH ABDULLAH, ASST, PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Office of Profit- ¢ Not been defined in the constitution or in the RPA 1951 but courts have however laid down certain test to determine as to which office is an office of profit. © Objec To secure the Independence of the member of parliament from the benefits of the executive which may be under influence and there may be conflict between duty and self interest among the members of parliament. The law intends to eliminate any conflict of interest — hence enforces the principle of separation of powers between the legislature and the executive. © The word office of profit necessarily implies that there be an existence of office apart from the person who holds it OR there must be an office which exist independently of the holder of the office. © The office of profit means an office to which some benefit is derived or might reasonably express to be made by the holder of the office. (~opportunity) * The actual making of profit is not necessary, Profit means that pecuniary gain or any material gain. The amount of such profit is immaterial, but the amount of monetary benefit maybe a material deciding factor whether the office which holds any profit. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Office of Profit- Abdul shaquur v. Rishal Chandra. (AIR1958 SC52) The office of profit must be under the central or any state governments and for deciding this there are five test— First, whether government has power of appointment. Second, whether government has the right to remove order dismiss the holder of office. ‘Third, whether the government pays the remuneration, Fourth, whether the functions which the holder performs are for government. Whether the government exercises control over the performance of those functions. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Office of Profit- UC Raman vs PT Rahim (AIR2014 SC 3477). © Haj committee was in question as to an office of profit under state govt. © The office holder was in receipt of onlyTA and DA which were compensatory allowance which was invested out of the pocket of the petitioner. © He was neither in receipt of any pay salary, emoluments, remuneration or Commission nor anything of such nature was payable to him. ¢ The office of chairperson of a Haj Committee was held to be not an office of profit under the state government as the allowance provided was only compensatory allowance which can not be deemed to pecuniary profit or profit in kind but only as a compensation which was spent by the petitioner for the expenses to meet the needs of office. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Jaya Bachchan vy. Union of India (AIR 2006 SC 2119) © Jaya Bachchan a member of Rajya Sabha was appointed as a chairperson of the film Development Council. © The parliament (prevention of disqualification) act did not exempt the said office of profit from the disqualification under article 102 of the constitution. © The office carried with — the monthly honorarium of rupees 5000, - entitlement expenditure of 10000, - staff car with driver telephones at office and residence, free accommodation and medical treatment to self and family members apart from other allowances. 4% Parliament has enacted The parliament (prevention of disqualification) act 1959 which exempts certain offices as not to disqualify their holders for membership of parliament AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Jaya Bachchan y. Union of India (AIR 2006 SC 2119) © The petitioners membership on this ground was challenged and after obtaining the opinion of the election commission as required by article 103 she was disqualified as a member of Rajya Sabha. © The petitioner challenged the validity of a disqualification order in the supreme court. she claimed that the benefits and facilities given by the state government was not received by her © The supreme court held that the petitioners disqualification from the membership of Rajya Sabha was valid. © The court held that an office of profit is an office which is capable of yielding a profit or pecuniary gain. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Jaya Bachchan y. Union of India (AIR 2006 SC 2119) © Nature of the payment must be considered as a matter of substance rather than of form; nomenclature is not important. ¢ In fact mere use of honorarium cannot take payment out of purview of profit if there is pecuniary gain for the recipient payment of honorarium in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and driver driven car at State expense are clearly in the nature of remuneration and the source of pecuniary Gain and hence constitute profit. © If the pecuniary gain is receivable in connection with the office then it becomes an office of profit irrespective of whether such pecuniary gain is actually received or not. However, it exempt reimbursement of out of pocket or actual expenses from gains. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Other conditions for disqualification in representation of people act (1951). © He must not have been found guilty of certain election offences and corrupt practices. © He must not have been convicted for any offence that results in imprisonment for two or more years. However, detention under preventive detention law is not disqualification. © He must not have failed to lodge an account of election expenses within stipulated time. © He must not have any interest or share in government contracts, works and services. * He must not be a director or managing personnel in a company / organization in which government has at least 25% share. © He must not have been dismissed from government service due to corruption or disloyalty to state. © He must not have been convicted for promoting enmity between groups. © He must not have been punished for supporting social crimes such as untouchability, sat, dowry etc. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Other conditions fc (1951). © As per Section 8 (3) of R. B. Act, 1951, x disqualification in representation of people act if'a person is convicted of any offence and sentenced to an imprisonment of 2 years or more, this will be disqualification to contest elections. Even if isa person is on bail, after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election. Publick Foundati Union of India - 2018 Supreme Court recently sefused to disqualify politicians against whom criminal charges are pending from contesting elections stating that it was not within its powers to disquali politicians facing criminal cases from contesting elections. SST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Other conditions for disqualification in representation of people act (1951). Public Interest Foundation inion of India - 2018 ¢ Under section 8 of RP act, only candidates, conyicted of offence are barred from contesting elections. SC in this case has issued directions — Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain: Criminal cases pending against the candidate. Inform the party about the criminal cases pending against him/her. The concerned political party shall be obligated to put up on its website ~The candidate as well as the concerned political party shall issue a declaration at least thrice in the widely circulated newspapers in the locality about the cases of the candidate and also give wide publicity in the electronic media. The Supreme Court also suggested to the Parliament to soon enact a legislation to ensure that persons facing serious criminal charges do not enter into the political stream, AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. Other conditions for QUALIFICATION in representation of people act (1951). (Section 3 & 4~ RS & LS) © Only an elector can be elected. Thus, the candidate must be registered as a voter in a parliamentary constituency and must be eligible to vote. If due to any reason the person loses eligibility to vote, he would lose eligibility to contest also. For example if a person is jailed or in lawful detention at the time of elections, he shall not be eligible for voting. However, if'a person is in preventive custody, he can vote. These define if'a person is able to contest for election of MP or not. © It is not necessary that a person should be registered as a voter in the same constituency. This is applicable for both Lok Sabha and Rajya Sabha. © A person from reserved category only can contest election if the Lok Sabha seat is reserved for these categories. However, an SC/ST person can contest election on an unreserved seat also. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW ° DEPECTION- “to abandon a position or association, often to join an opposing group" which essentially describes a situation when a member of a particular party abandons his loyalty towards that party and provide his support (in the form of his vote or otherwise) to another party. © Initially, the Constitution of India carried no reference to political parties and their existence. Since multi-party democracy had not evolved in 1950s and early 1960s, the heat of defections and their implications were not felt. © Things however, changed after the 1967 elections. The 1967 elections are thus called a watershed moment in India’s democracy. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. ANTI-DEFECTION LAW (SCHEDULE-X) 1967 elections- © In 1967, some sixteen states had gone to polls. The Congress lost majority in them and was able to form government only in one state. This was the beginning of coalition era in India. This election also set off a large scale defections. Between 1967 to 1971, some 142 MPs and over 1900 MLAs migrated their political parties. © Governments of many states, beginning from Haryana, collapsed. © The defectors were awarded with plum ministries in the governments, including Chief Ministership in Haryana. In Haryana, one legislator “Gaya Lal’ changed party for three times and thus, all defectors used to be called “Aaya Ram-Gaya Ram”. © However, the issue was not addressed immediately. It took further 17 years to pass the anti-defection law in 1985. The 52th amendment of the Constitution in 1985 inserted 10th schedule in the constitution with Provisions as to disqualification on ground of defection. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Pai qualification on ground of defection.— @) 0) (1) (grounds of disqualification) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House— if he has voluntarily given up his membership of such political party; or Ir- 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, (conditions-) 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. AMISH ABDUL ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTLDEFECTION LAW Para.2. Disqual. ion on ground of defection- (1) (grounds of disqualification) EXPLANATION— For the purposes of this sub-paragraph,— (to which party he/she belongs?) (0) 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 election as such member; (b) anominated member of a House shall,— () where he isa member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (i) 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. w+ 99,188. Oath or affirmation by members: 99- LS/RS:188-LA/LC AMISH ABDUL SST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Para.2. Disqualification on ground of defection.— (grounds of disqualification) Q) 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. 8) A 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. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Paraw — Disqualification on ground of defection not to apply in case of merger.— (Exceptions -) (1)(Merger) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph (2) 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 such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) (2/3 of members) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger: AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Paraw — Disqualification on ground of defection not to apply in case of merger.— (Exceptions -) (1)(Merger) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph (2) 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 such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) (2/3 of members) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger: AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Para.5._ — Exemption.— (presiding officers voluntarily giving up membership.) (Exceptions -) (1) Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule, — (a) If he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and — - does not, so long as HE CONTINUESTO HOLD SUCH OFFICE thereafter, rejoin that political party or become a member of another political party; or (b) Ihe, 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 CEASESTO HOLD SUCH OFFICE. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Para.3. — Exemption.— (Party split — 1/3 of the members) OMITTED (Exceptions -) If one third of the party members are splitting from the party then this will not amount to disqualification under para 2 of the schedule. Omitted by 91° amendment of 2003. 91% amendment added new clause 1B to article 75 and 164- period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, til] the date on which he is declared elected. oA rorh AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Para.6. — D (Deciding authority) jon on questions as to disqualification on ground of defection. — (1) Ifany question arises as to whether a member of'a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: PROVIDED- that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212 AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article.102. (SCHEDULE-X) ANTI-DEFECTION LAW Para.7._ — Bar of jurisdiction of courts.— (rendered invalid by SC) Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule (Rendered invalid by SC in Kihota Hollohon vs. Zachilhu.) AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article. 102. (SCHEDULE-X) ANTI-DEFECTION LAW Kihota Hollohon vs. Zachilhu and Others (1992 )1 SCC 309 © Question was raised that whether the right to freedom of speech and expression is curtailed by the Tenth Schedule, the Apex Court held that “The provisions do not subvert the democratic rights of elected members in Parliament and state legislatures. © Itdoes not violate their conscience. The provisions do not violate any 105 and 194 of the Constitution, * In the present case few more issues were raised that whether Para 6 & 7 of the X schedule are constitutional or not? © The Supreme Court held that to the extend that the provisions grant finality to the orders of the Speaker, the provision is valid. (para 6) © However, the High Courts and the Supreme Court can exercise judicial review under the Constitution. © But Judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. © Para 7 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 and Any such provision is required to be ratified by state legislatures as per Article 368(2) The paragraph was therefore held mvalid as it 1ot been ratified AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article. 102. (SCHEDULE-X) ANTI-DEFECTION LAW Kihota Hollohon vs. Zachilhu and Others (1992 )1 SCC 309 136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave t0 appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause (1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces Article 226, empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandanms, prohibition, quo warranto, certiorari or any of them. Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces). AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL, Disqualifications for membership Article. 102. (SCHEDULE-X) ANTI-DEFECTION LAW Ravi S Nayak yy. Union of India 1994 AIR 1558: 994 SCR (1) 754 © Two issues were raised that- whether the Speaker of a legislature is bound by the directions of a Court and , Whether judicial review by courts extends to rules framed under the Tenth Schedule, © Itwas held by the Hon’ble Apex Court that : immune from judicial scrutiny.” AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article. 102. (SCHEDULE-X) ANTI-DEFECTION LAW Shri Rajeev Ranjan Singh “Lalan” vs. Dr. P! Soya, JD(U), (January 9, 2009). * Dr. Koya defied a party whip requiring him to be present in the House and vote against the Motion of Confidence for the government. © He claimed he was too ill to be present in the House. The Speaker concluded that Dr. Koya abstained from voting by remaining absent, and the evidence of the ‘illness’ is not sufficient to conclude that he was so ill that he could not be present in the House. Shri Prabhunath Singh vs. Shri Ram Swaroop Prasad, JD(U), (October 3, 2008). © Shri Prasad defied a party whip requiring him to be present in the House. © Inhis defence, he denied that any whip was issued or served. The Speaker held that in view of the fact that there is evidence to show that the whip had been delivered to Shri Prasad’s house, and had been duly received, it cannot be said that Shri Prasad had no knowledge of the whip. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Disqualifications for membership Article. 102. (SCHEDULE-X) ANTI-DEFECTION LAW Shri Rajesh Verma vs. Shri Mohammad Shahid Akhlaque, BSP, (January 27, 2008). © It was alleged that Shri Akhlaque joined the Samajwadi Party in a public meeting. © It was alleged that at this meeting, Shri Akhlaque had said that at heart, he had always been a member of the SP.The Speaker reasoned that there is no reason why news clippings and stories in the media would be untruthful. The Speaker therefore held Shri Akhlaque disqualified for having voluntarily given up membership of the BSP. Karnataka State Legislature case © One recent case relating to anti-defection is from the Karnataka State Legislature where B..P.is the ruling party and 14 members of B.J.P. and 5 independent members sent a letter of discontent against the Chief Minister. A complaint was made against them and speaker disqualified them from their membership. The case is pending in the S.C. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges AVTOS: Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof (1), Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) Nomember of Parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and the members and the committee of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, [shall be those of that House and of its members and commnittees immediately before the coming into force of Section 15 of the Constitution (44th Amendment) Act, 1978] *** () The provi Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to the members of Parliament. jon of clauses (1), (2), and (3) shall apply in relation to persons who by virtue of this *+*+Before the amendment this clause (3) has provided that until Parlament legislaves the privileges of each House and sts members shall be such as those of the House of Commons in England at the time of commencement of the Constitution. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges A.105. (Rationale) © Article 105 defines parliamentary privileges of both Houses of Parliament and of their members and committees. ¢ Article 194, which is an exact corollary of Article 105, deals with the State Legislatures and their members and committees. ¢ Toenable Parliament to discharge functions properly the Constitution confers on each member of the Houses certain rights and immunities and also certain rights and immunities and powers on each house collectively. © The distinctive mark of a privilege is its ancillary character a necessary means to fulfillment of functions. Individual members enjoy privileges because the House cannot perform its function without unimpeded use of the services of its members and by each House for the protection of its members and the vindication of its own authority and dignity. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges Freedom of speech ® Article 105, clause (1), expressly safeguards freedom of speech in parliament. It says: “there shall be freedom of speech in parliament’. Clause (2) further provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in parliament or any committee thereof, © No action, civil or criminal, will therefore lie against a member for defamation or the like in respect of things said in parliament or its committees. © The immunity is not limited to mere spoken words; it extends to votes, as clause (2) specifically declares, viz. any vote given by him in parliament or any committee thereof. © Though not expressly stated, the freedom of speech would extend to other acts also done in connection with the proceedings of each House, such as, for notices of motions, questions, reports of the committee, or the resolutions. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges Freedom of speech - subjection © Clause (1) of Article 105 is made Subject to the provisions of this constitution and to the rules and standing orders regulating the procedures of Parliament. © The words regulating the procedures of Parliament occurring in clause (1) should be read as covering both the provisions of the Constitution and the rules and standing orders. © So read, freedom of speech in Parliament becomes subject to the provisions of Constitution relating to the procedures of Parliament, i.e., subject to the articles relating to procedures in Part V including Articles 107 and 121. for example- Freedom of speech in Parliament would not permit a member to discuss the conduct of any judge of the Supreme Court or of a High Court. Likewise, the freedom of speech is subject to the rules of procedures of a House, such as use of unparliamentary language or unparliamentary conduct. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges Freedom of speech — difference. © The freedom of speech guaranteed under clause (1) is different from that which a citizen enjoys as a fundamental right under Article 19 (1) (a). The freedom of speech as a fundamental right does not protect an individual absolutely for what he says. The right is subject to reasonable restrictions under clause (2) of Article 19. The term ‘freedom of speech’ as used in this article means that- “no member of Parliament shall be liable to any proceedings, civil and criminal, in any court f i in the Parli Commi r The freedom of speech conferred under this article cannot therefore be restricted under Article 19 (2) . Clauses (1) and (2) of Article 105 protect what is said within the house and not what a member of Parliament may say outside. For example- If'a member publishes his speech outside Parliament, he will be held liable if the speech is defamatory . Besides, the freedom of speech to which Article 105 (1) and (2) refer, would be available to a member of Parliament when he attends the session of Parliament AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOO! Parliamentary Privileges PV Narsimha Rao v. State CBI AIR 1998 SC2120 A five judge bench of the supreme court by 3:2 majority ( as per SP Bharacha, $ Rajendre Babu and G N Ray) has held that the scope of protection of immunity available to members of parliament is quite wide and is not confined only against judicial proceedings but is available to them against all civil action and criminal proceedings for anything said or any vote given by them in the house of parliament. The object of the protection is to enable members to speak their mind in Parliament freely and Fearlessly. The court held that the MPs who had taken bribe and voted in Parliament against no confidence motion brought against the government were entitled to the protection of article 105 (2) and we're not answerable in Court of law for alleged conspiracy and agreement. But the MPs who had given bribe and MPs who took bribe but not voted on the no confidence motion were not entitled to the protection of article 105(2) and an action could be initiated against them under the relevant law. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges PV Narsimha Rao v. State CBI AIR 1998 SC2120 It was held that the privilege of immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner in Parliament. ‘The majority (3 judges) did not agree with the minority (2 judges) that- words in reg of 0. sing out of 01 ot cove conduct antecedent to speech or voting in Parliament. The court was however unanimous that the members of Parliament who gave bribes, or who took bribes but did not participate in the voting could not claim immunity from court proceeding’s under Article 105 (2). AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL, Parliamentary Privileges Right of Publication of proceedings ® Clause (2) of Article 105 expressly declares that no person shall be liable in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings. * In Wason v. Walter , Cockburn, C.J. observed that- Jt was of paramount public and national importance that parliamentary proceedings should be communicated to public, which has the deepest interest in knowing what passes in Parliament, But a partial report or a report of detached part of proceedings published with intent to injure individuals will be disentitled to protection * InIndia The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no person shall be liable to any proceedings, civil or criminal, in a court in respect of the publication of a substantially true report of the proceedings in either House of the Parliament, unless it is proved that the publication is made with malice, AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges Right of Publication of proceedings Pandit M.S.M Sharma vy. Shri Krishna Sinha air 1959 sc 395 (Searchlight Case) ® In proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. ¢ The editor in a writ petition under A. 32 contended that previously House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took place in the House or of that part of the proceedings which had been directed to be expunged. © The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgment, observed that the House of Commons had at the commencement of our Constitution che power or privilege o took place within the House. wetBefore the 44" Amendment Act 1978, 105(3) provided that until Parliament legislates the privileges of each House and its members shall be such as those of the House of Commons in England at the time of commencement of the Constitution AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges Right of Publication of proceedings Pandit M.S.M Sharma vy. Shri Krishna Sinha _ AIR 1959 sc 395 (Searchlight Case) © Accordingly , The parliamentary proceedings (protection of a Publication) Act 1956 was passed which provided that no person shall be liable to any proceeding civil or criminal in any court in respect of the publication of substantially true report of the proceedings of either House of Parliament unless it is proved that publication of such proceeding expressly ordered to be expunged by the speaker. © And hence the contention made doesn’t have any rigid ground to survive and is invalid. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOO! Parliamentary Privileges Right of Publication of proceedings — Article. 361-A ¢ There is an institution of Article 361-A inserted by the 44th Amendment with effect from June 20, 1979 provides that- MN en 5 fo 5 aio use of ora St s is prove with malice. - This immunity will also apply to the broadcast by means of wireless emission. - ovisi fi Ei p i a P ij Prior to the amendment of 1978, this immunity to publication of proceedings was regulated by parliamentary law but after the insertion of Article 361-A by the amendment the immunity now acquires a solid footing as it is now protected by the constitution. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL, Parliamentary Privileges Other privileges.- © Original article 105(3) provided that the privileges of the houses or Parliament and its members were to be those which were enjoyed by the members of the house of the commons in England on January 26 ,1950 until Defined by Parliament by law. © The 44th Amendment Act 1978 has amended this article and has omitted completely any reference to the house of commons in future. © For this purpose the amendment substitutes the worlds" ase 9 2 its members and communities immediately before the coming into force of the Constitution 44th Amendment Act of 1978” for the words * Shall be those of the house of commons of the ; F the United Kis fis ae ; f this constitution” in 105(3). AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOOL Parliamentary Privileges Other privileges. Freedom from arrest. — * Member of Parliament cannot be arrested or imprisoned on a civil proceeding within a period of 40 days before and 40 days after the session of parliament. © This privileges available only against civil arrest and does not extend to arrest or imprisonment on a criminal charge for contempt of court or to preventive detention. © Ifa member of a house commits a crime he will be arrested like an ordinary person K Anandan Nambiar v. chief secretary, Government of Madras. AIR1966 $C657 © In this case the petitioners who are members of parliament were detained under defence of India rules 1962. © They challenge the order of detention on the ground that a legislator could not be detained so as to prevent him from exercising the constitutional rights as legislator while the legislative chamber to which he belonged was in session. © The court held that if'a person was detained under a valid detention order he could claim no special status higher than that of an ordinary citizen and that he was as much liable to be arrested and detained under it as any other citizen. * Ifan order of detention Validly prevents a member from attending a session of parliament no occasion would arise for the exercise by him of the right of freedom of speech. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOO! Parliamentary Privileges Other privileges.- Right to exclude strangers from its proceedings and hold secret sessions. © The house of parliament in India enjoy this power as house of commons in England which says that secret sessions can be held in exceptional occasions and not normally because the yoters must be kept informed of what their representatives are doing in the Legislature. Right to prohibit publication of its reports and proceedings. In the famous Search Light case the Supreme court held that the publication of expunged portion of speech constituted a breach of the privilege of the house. © The effect of law of the order of the speaker to expunge the portion of the speech of a member may be as if that portion has not been spoken and in India the House of Parliament have definitely the power to prohibit the publication of proceedings. AMISH ABDULLAH, ASST. PROF, SYMBIOSIS LAW SCHOO! Parliamentary Privileges Other privileges.- Right to regulate internal proceedings. © The house has an

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