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Print this Table of Contents • Table of Cases… • Table of Statutes… • Introduction … • Research Methodology … • Basic Grounds of Disqualification … • Defection as a ground of Disqualification … • Conclusion … • Bibliography … 3 4 5 6 8 20 29 30
Table of Cases
• • • • • • • • • • • • • • • • • •
Ansumali v. West Bengal A.I.R. 1952 Cal. 632. Bhagwati Prasad Dixit v. Rajeev Gandhi (1986) 4 SCC 78. Brundaban Nayak v. Election Commission of India A.I.R. 1965 S.C. 1892. D. R. Gurushantappa v. Abdul Khuddus Anwar (1969) 1 SCC 466. Election Commission v. Saka Venkata Subba Rao A.I.R. 1953 S.C. 215. K. Anand Nambiar v. Chief Secretary A.I.R. 1966 S.C. 657. Kihoto Hollohan v. Zachillhu & Ors. 1992 Supp. (2) SCC 651. Madhukar G. E. Pankakar v. Jaswant Chobbildas Rajani and Ors. A.I.R. 1976 S.C. 2283. Mayawati v. Markandeya Chand (1998) 7 SCC 517. Narayanaswamy v. Krishnamurthi A.I.R. 1958 Mad. 343. Prakash Singh Badal v. Union of India A.I.R. 1987 P&H 263. Ravanna Subanna v. G. S. Kaggeerappa A.I.R. 1954 S.C. 653. Ravi S. Naik v. Union of India 1994 Supp. (2) SCC 641. S. S. Inamdar v. A. S. Andanappa (1971) 3 SCC 870. Satrucharla Chandrasekhar Raju v. Vyricheria Pradeep Kumar Dev and Another JT 1992 (5) SC 417. Union of India v. Gopal Chandra Misra A.I.R. 1978 S.C. 694. Union of India v. Jyots Peakas Mitter A.I.R. 1971 S.C. 1093. Union of India v. Sankalchand A.I.R. 1977 S.C. 2328.
Table of Statutes
The Constitution 33rd Amendment Act, 1974. The Constitution 52nd Amendment Act, 1985. • The Constitution of India. • The National Cadet Corps Act,1948. • The Parliament (Prevention of Disqualification) Act, 1959. • The Representation of People’s Act, 1951. • The Reserve and Auxiliary Air Forces Act, 1952. • The Territorial Army Act, 1948. Introduction The legislative powers under the Constitution are distributed between the Union and the States. At the Union level, the Parliament is the legislative body. It is a bicameral legislature. Members of Parliament are elected in the case of the lower house, the Lok Sabha and are nominated in the case of the upper house, the Rajya Sabha. For members to be elected by the citizens of the nation, they have to satisfy certain qualifications which have been laid down in the Constitution. Similarly, the Constitution also provides the situations in which a member can be disqualified from the Parliament. This paper essentially delves into the grounds for the disqualifications of the members of Parliament. In the first part, a few grounds for disqualification have been studied that are provided for in the Constitution. Subsequently, defection as a ground for disqualification has been looked into mainly because it is a very contemporary issue and has been deliberated upon a lot in recent times. Finally, other statutes have also been looked into which provide for the disqualification of the members of Parliament and examined those grounds in relation to the Constitutional provisions.
• SCOPE AND FOCUS : This project essentially seeks to study the provisions and procedure for the disqualification of members of Parliament. The Constitution provides different grounds for such disqualification. The researcher has studied all these in grounds in detail. •
RESEARCH OBJECTIVES : 1. The principal objective of my research is to study what the various grounds for disqualification of members of Parliament are. 2. Another objective of my research is to find out the perspective of other statutes other than the constitution on the same issue and to see what grounds they lay down. • RESEARCH QUESTIONS : 1. What are the grounds for disqualification of members of Parliament under the Constitution?
he must intimate within 10 days from the publication of the election result in which House he desires to serve. It further says that Parliament by law shall make provision for the vacation. The Representation of People’s Act. • • • • • . What are the changes required in the anti-defection law in the Indian context? • METHOD OF ANALYSIS : This project has its basis on the following methods of analysis :- DESCRIPTIVE : The first task is to comprehensively study the provisions and to understand the existing situation in the country and the background in which these provisions were created. 101(1) provides that no person shall be a member of both houses of the Parliament. his seat in Rajya Sabha shall become vacant. Basic Grounds of Disqualification under The Constitution Art. Are the present grounds of defection provided for under the Constitution sufficient? 4. MODE OF CITATION :The researcher has used a uniform mode of citation in this paper. by a person who is chosen a member of both houses. his seat in the Rajya Sabha at the expiry of such period becomes vacant. of his seat in one house or the other. What are the grounds for disqualification of members of Parliament under other statutes? 3. Also primary sources such as cases and statutes were used to understand the evolution in this field of law. In default of such intimation within 10 days.2. The valuable knowledge that is gained from studying the commentaries must be used to understand the evolution of the provisions and the law itself in terms of some cases. • CHAPTERISATION :This project can broadly be divided into the following sections or chapters :Section 1 — Introduction Section 2 — Grounds for Disqualification under the Constitution Section 3 — Defection as a ground of Disqualification Section 4 — Conclusion • SOURCES :This project depends to a great extent on the study of the point of law involved in this case from secondary sources such as books. ANALYTICAL : Further these concepts and observations can be analyzed. 1951 provides that if a person is elected to both houses of Parliament. Is the Tenth Schedule which provides for defection as a ground for disqualification effective? 5. If a person is already a member of the Rajya Sabha and subsequently elected to Lok Sabha.
all his seats in that House shall become vacant on the expiration of that specified period. no account shall be taken of any period during which the House is prorogued or is adjourned for more then four consecutive days. his seat in Parliament shall become vacant. if a person is elected to more than one seat in either House of the Parliament or in the House he is to choose only one seat in which he wants to serve. Art. a member of a House of Parliament under the following situations :• • • A competent Court has declared him to be of unsound mind. 101(3) provides that a member of a House of Parliament may resign his seat in that House by addressing to the Presiding Officer of the House. a member of either House of Parliament. is. So according to S. If a person is elected to both the Parliament and a House of the Legislature of a State. unless he has resigned his seat in the State Legislature. without. 1950. He is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign state. his seat in Parliament becomes vacant after 14 days.According to the Prohibition of Simultaneous Membership Rules. if a person is elected to both Parliament and Houses of the Legislature of State. Article 101(4) provides that if for a period of 60 days. the member can withdraw his resignation before the Presiding Officer accepts the resignation. A declaration to this effect is necessary otherwise the seat will not become vacant. his resignation. the resignation of a member of a legislature became effective the moment it was rendered. The Constitution 33rd Amendment Act. unless he has resigned his seat in the House of the State Legislature. On his failure to do so.  Also. However. 101(2) provides that no person shall be a member both of Parliament and of a House of the Legislature of State. Under Article 102. in computing the said period of 60 days. On the acceptance of his resignation. 1950. He is an undischarged insolvent. Art. subsequent to the amendment. he is to intimate within 10 days his choice of only one seat in that House. Before the amendment. This precautionary measure appeared to be necessary to avoid members of Parliament of State Legislatures being forced to resign through coercive measures. as a result of this amendment. 1951. the resignation becomes effective only after it has been accepted by the presiding officer of the House concerned who may refuse to accept the same if he is satisfied that the resignation is not voluntary or genuine. the House may declare his seat vacant. his seat in the legislature of such states becomes vacant within 10 days unless he has previously resigned his seat in the legislature of all but one of the states. prescribes a period of 14 days for making a choice of the House. and from being. 1974 amended Article 101(3). 68 of the Representation of People’s Act. permission of the House. absent from all meetings of the House. then he may make a choice of the House he desires to serve within such period as may be specified in the Rules made by the President. if he is elected to more than one seat in a House. However. his seat in that House shall fall vacant. . If a person is elected to the Legislature of more than one state. The Prohibition of Simultaneous Membership Rules. Also. If he fails to intimate within specified period. a person is disqualified from being chosen as.
He holds an office of profit under the Central or the State Government. the holding of an office of profit under a corporate body like a local authority doe not bring about disqualification even if that local authority be under the control of the Government. Art. • Whether Government pays the remuneration. An office of profit under any local or other authority subject to the control of the Government of India or any state Government is not a disqualification applicable to the members of the legislatures. 1985. one need not be in the service of Government and there need not be any relationship of master and servant between them. • Whether the functions performed by the holder of the office are governmental functions or some functions which is merely optional from the point of view of the Government. and for being. no disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under the control of the Governments and not directly under the control of any of the Governments. 106 must be construed harmoniously. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under Government. Article 102(1) (a) of the Constitution while indicating disqualifications for membership of a House of Parliament. • Whether Government has the right to remove or dismiss the holder of an office. On the basis of catena of cases decided by the Supreme Court of India such as Satrucharla Chandrasekhar Raju v. they make it clear that by receiving the salary and allowances as a Member of Parliament one is not rendered disqualified for being elected or continuing as a Member of Parliament. If the Lok Sabha had not been dissolved on the date on which the election was held would not amount to a disqualification in the case of a person who was a member of the Lok Sabha for being a candidate at the next general elections because the membership of the Parliament is not an office of profit as it is not an office under the Government. other then an office declared by Parliament by law not to disqualify its holder. • If he is disqualified under the Tenth Schedule to the Constitution which provides for disqualification on the ground of defection. For holding an office of profit under the Government. The • . the principle tests for deciding whether a person is holding an office of profit could be said to be as follows :• Whether Government makes appointment to the office. provides that a person shall be disqualified for being chosen as. Corresponding provision is contained in Article 191 for membership of the Legislative Assembly or Legislative Council of a State. a member if he holds any office of profit under the Government of India or the Government of any State. However. So construed. This clearly indicates that in the case of eligibility for election as a member of a legislature. • Whether the Government exercises any control over the performance of those functions. The decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. Office of Profit :The Constitution of India disqualifies a person for membership of Houses of Parliament or State Legislature if he holds and ‘office of profit’. Vyricheria Pradeep Kumar Dev and Another. 102 (a) and Art. The Tenth Schedule was inserted by The Constitution 52nd Amendment Act.
an employee of a municipality. where the several elements. Jaswant Chobbildas Rajani and Ors. Dependence of a large number of members of Parliament on Government patronage would weaken the position of Parliament vis-à-vis the executive. lawyers. Employees of public corporations cannot be regarded as holding offices of profit under the Government. 360 (4) (b) and are therefore holding office under the Union Government. E. in deciding the issue of office of profit. Accordingly. they hold their office in connection with the affairs of the Union vide Art. So an interpretation of ‘office of profit’ to cast the net so wide that all our citizens with specialties and know-how are inhibited from entering elected organs of public administration and offering semi-voluntary services in para-official. engineers. even though not under the control of that Government. An ‘office’ is an office which exists independently of the holder of the office. It is thus designed to protect the democratic fabric of the country from being corrupted by executive patronage. The word ‘profit’ under Art. A Member of Parliament does not hold office under the Government. to cur out the misuse of official position to advance private benefit and avert the likelihood of influencing Government to promote personal advantage … doctors. However. scientists and other experts may have to be invited into local bodies. the idea of pecuniary gain. . An office under a statutory body is not an office under the Government e. as follows :“… what is the legislative intention here in disqualifying holders of ‘offices of profit’ under Government? Obviously. the power to control and give directions as to the manner in which the duties of the office are to be performed.g. Pankakar v. Judges of the Supreme Court and the High Courts are not Government servants in so far as they hold a constitutional office. such members may be tempted to support the Government without considering any problems with an open mind. to avoid conflict between duty and interest. for. statutory or like projects run or directed by Government or Corporations controlled by the State may be detrimental to democracy itself…” This is the rationale behind the constitutional provision which debars a holder of an office of profit under the Government from being elected to a House of Parliament. If there is really a gain. but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor. 102 (1) (a) connotes. which is not decisive of the question. The Supreme Court laid this down very clearly in the case of Madhukar G. legislatures and like political and administrative organs based on election if these vital limbs of representative Government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology. Nevertheless. its quantum or amount would not be material. the courts are required to take a balanced and practical view of Article 102(1) (a) of the Constitution so as to eliminate the possibility of a conflict between duty and interest so that purity of legislature is unaffected. and the power to determine the question of remuneration are all present in a given case then it must be held that the officer in question holds the office under the authority so empowered.
The Territorial Army Act. Decision on questions as to disqualifications of members. it can be reviewed in judicial proceedings before a Court. set up temporarily for the purpose of advising the Government or any authority in respect of any matter of public importance or for the purpose of making an inquiry into. senate. executive committee council or court of a University or any other body connected with a University. If it is found that the decision of the President based on opinion of the Election Commission was based on no evidence whatsoever regarding the alleged disqualification of the member or that the decision was perverse. • The office of Chief Whip.The Parliament (Prevention of Disqualification) Act. whether ex-officio or by name. 1959 (10 of 1959) provides that the following offices in so far as it is an office of profit shall disqualify the holder thereof :Any office held by a Minister. Deputy Chief Whip or Whip in Parliament or Parliamentary Secretary. By the • . but excluding in the office of chairman of any statutory or non-statutory body specified in Part 1 of the Schedule. • The office of a member of any delegation or mission sent outside India by the Government for any special purpose. 1948 or The Reserve and Auxiliary Air Forces Act. the question shall be referred for the decision of the President and his decision shall be final. – (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102. cannot be referred to the President under Article 103(1). • The office of village revenue officer whose function is to collect land revenue but who does to discharge any police functions. Such a question can only be raised in an election petition before the Court. Article 103 reads as follows :103. if the holder of such office is not entitled to any remuneration other than compensatory allowance.  The question whether a member was disqualified for being a Member of Parliament. • The office of Sheriff in the city of Bombay. at the time of election. Minister of State or Deputy Minister for the Union or for any State. director or member of any statutory or non-statutory body other than any body mentioned in the previous point. (2) Before giving any decision on any such question. • The office of member of any force raised or maintained under The National Cadet Corps Act. • The office of chairman or member of the syndicate. • The office of chairman. if the holder of such office is not entitled to any remuneration other then the compensatory allowance. the President shall obtain the opinion of the Election Commission and shall act according to such opinion. Calcutta or Madras. or collecting statistics in respect of. • The office of a member of a Home Guard constituted under any law for the time being in force in any State. • The office of chairman or member of a committee. 1952.1948. and (ii) the office of chairman or secretary of any statutory or non-statutory body specified in Part II of the Schedule. any such matter.
before he makes or subscribes an oath or affirmation on the form set out in 3rd Schedule to the Constitution before the President or some person appointed by him in that behalf. 103 was made clear by the decision in Brundaban Nayak v. on a person in the following cases :If he sits or votes as a member of either House of Parliament before he has complied with the requirements of Article 99 i. Article 104 imposes a penalty of 500 Rupees. manager or secretary of a corporation in which Government has not less than 25 % share. The procedure under Art.42nd Amendment. The amended article expressly conferred power on the Commission to make for that purpose ‘such inquiry as it deems fit’. it cannot be said that the commission could tender its binding opinion before the amendment without the right and duty of making the necessary inquiry.e. viz. If the Constitution envisages that the Commission should have power to make such inquiry as it thinks fit even when its opinion is not binding on the President who is merely required to consult the commission. The penalty of five hundred rupees is imposed in respect of each day on which such a person so sits or votes. that since the commission was charged with the obligation to tender its opinion to the President. where the opinion of the Election Commission (which would be the sole basis of the final decision of the President or the Governor) would be based upon investigation into the matters under Art. to be recovered as a debt due to the union. The Election Commission is empowered to reduce this period. 1951 or conviction for contravening a law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs and sentenced imprisonment for not less than six months. Conviction for an offence resulting in imprisonment for 2 years or more or for an offence under certain provisions of the Indian Penal Code. Election Commission of India.. it had the power to make such an inquiry as it thought fit. Other disqualifications laid down under the Representation of People’s Act are as follows :Corrupt practice at an election. These disqualifications are for a period of six years. • Being a managing agent. Article 103 (2) required the President to consult the Election Commission. or execution of any works undertaken by the Government. Detention of a person under any law pertaining to preventive detention is not a ground for disqualification of membership of Parliament. 102 and it would be carried out solely by the EC and not by the President or the Governor. The 44th amendment has however. • Dismissal from Government service for corruption or disloyalty. or of the Representation of People’s Act. in order to enable it to express its opinion which was binding on the President. • Failure to lodge an account of the election expenses. The implication of the unamended article was also the same. • • • . • Having a subsisting contract for supply of goods to. restored the original article as a whole.
103 was amended to confer this power on the President. The question whether a person is disqualified at the time of election can be decided by the Courts. The Tenth Schedule was inserted by The Constitution 52nd Amendment Act. The Allahabad High Court held Mrs. 1951. principle. The question whether a member should be subjected to disqualification on account of corrupt practices at the election was for the court to decide under the Act of 1951. The 44th Amendment subsequently restored the earlier Art. Y. there was a fertile ground for a phenomenon such as defection to gain predominance. Until then. it has been held in the case of Mayawati v. To meet such an eventuality. 103. or falling away from one’s religion or duty or the crossing of the floor of a Legislature by a member.The question whether a candidate has the necessary qualifications or has any disqualification at the time of standing for election is decided by the Courts under the Representation of People’s Act. 103. This was particularly important because for the first time. ‘Floor Crossing’ is defined as changing one’s allegiance from one party to another. The definition clause of the Tenth Schedule suffers from a serious lacuna inasmuch as it defines ‘legislature party’ and ‘Original Political Party’ but fails to define ‘political party’. a Constitution Amendment Bill was introduced in the Lok Sabha by the Government. Chavan. 103. Art. Indira Gandhi guilty of corrupt practices in the 1971 election. it was only the Election Commission which had recognised political parties. 102 (1) should be referred to the President. Art. political parties were being given constitutional recognition. In pursuance of the recommendations of the committee. In this kind of situation. Para 2 of the Tenth Schedule specifies the following grounds of defection :- . However. B. the Bill did not succeed because the Lok Sabha was dissolved and the Bill lapsed.  The principle of unprecedented defections began only after the Fourth General Elections held in 1967 which did not provide the requisite majority for nay political party. 1985. The Bill intended to render defectors ineligible for certain offices of profit for a certain period of time. any disqualification incurred subsequent to the election is decided by the President under Art. This would have led to her being disqualified by the Court to stand for future elections over a specified period of time. However. Other disqualifications mentioned in Art. Markandeya Chand that the expression ‘political party’ refers to the original political party and not the legislature party. Defection as a ground of Disqualification The word ‘defection’ is defined as an abandonment of duty. Parliament’s concern for the need to curb the malady of defection led to the setting up of a Committee under the chairmanship of the then Home Minister. Disqualification for corrupt practice has been placed outside the scope of Art. the Constitution 42nd Amendment of 1976 was enacted which provided that the Courts shall not have this power. loyalty. 103 does not deal with the disqualifications which arise at the time of the election.
Thus. provided 2/3rd of the members of the legislature party have agreed to such merger.If he voluntarily gives up membership of the political party on whose ticket he is elected to the House. Para 3 of the Schedule lays down that if there has been a split in the party and the portion that has separated from the main party consists of not less than 1/3rd of the members of that party in the House. • If a member goes out of his party as a result of a merger of his original political party with another political party. • If a member after being elected as the Presiding Officer of the House gives up the membership of the party to which he belongs. person. One is to redraft Para 3 to make more explicit the requirement of a prior split openly arrived at in the ‘original political party’. • If he votes or abstains from voting in the House against any direction issued by such political party or by any person or party. The above disqualifications however. provided such group consists of not less than 1/3rd of the total membership of that party in that House. Under Para 4. or does not rejoin that party. there is no real rational and intelligible basis for Para 3 or Para 4. do not apply in the following cases :If a member of the House goes out of his party as a result of a split in the original party. There is also nothing sacrosanct about the figures 1/3rd and 2/3rd. These provisions rule out the possibility of any elected Member of Parliament of being anything but a member of his party. members are protected from disqualification if not less than 2/3 rd s of the legislature party merges with another political party. the Supreme Court has held that Para 2 is not violative of the fundamental rights granted under the Constitution and that they are merely intended to strengthen the fabric of the Indian democracy. However. There have been doubts expressed about this provision for the reason that it infringes on the basic rights of association. person. or authority and such voting or abstention has not been condoned by such party. or authority within 15 days of the date of such voting or abstention. The problem can be resolved by introducing two changes. This can be done by a proviso :- • • . • If any nominated member joins any political party after the expiry of six months from the date on which he takes his seat in the House. A question that has been raised time and again is whether it is fair that individual defections are punished while mass defections in the form of splits and mergers are not considered defection because of the protection provided under Para 3 and 4 of the Schedule. There is nothing to guarantee that the intentions behind such mass defections are always genuine. opinion and expression which are granted in our very Constitution. then such members cannot be disqualified on the basis of defection under Para 2 of the Schedule. There is no relation between the number of people and the intention behind the act. They may as well be guided by greed for power. or becomes a member of another party. authorised by it in this behalf without obtaining the prior permission of such party.
The office of the speaker is one of great honour and it should not be eroded by vesting in the speaker the power which may ultimately just succeed in putting his integrity and fairness in question. the question shall be referred to the Presiding Officer of the House. However. the Punjab and Haryana High Court has held that the word ‘final’ does not override the power of judicial review of the High Court or the Supreme Court under Article 226 or Article 136 respectively. In this manner. Further. impartiality can be assured. Union of India Para 7 of the Schedule intended to bar the jurisdiction of Courts completely from cases of disqualification. the Court held that the Speakers/Chairmen while exercising . Para 7 of the Tenth Schedule declared that the decision of the Presiding Officer in this regard would not be called for in question in any Court of Law. from public office for a year. Para 6 of the Tenth Schedule provides that the Presiding Officers of the legislature is the sole and final authority to determine the issue of a member’s disqualification on the grounds of defection. However. This was further confirmed by the Supreme Court in the case of Kihoto Hollohan v. Honest dissenters will not lose his seat and should not mind the sacrifice of public office. Similarly. This was further affirmed in the case of Ravi S. this power can also be vested in the Election Commission or a provision can be made for mandatory consultation of the EC by the Speaker.“… Provided that the split in the legislature party shall have arisen as a result of a prior split in the original political party owing to irreconcilable and publicly expressed differences of opinion …” The other solution is to bar all who split. It was held that the amendment made to the Constitution to introduce this provision was invalid as it had not been ratified by at least half of the State Legislatures as required by the Proviso to Art. a member who has been disqualified on the grounds of defection would find it very difficult to accept and view the decision of the speaker as impartial.. On the other hand. whose decision shall be final. it is submitted that this power should instead be vested in a committee which could consist of people belonging to the different political parties. in the case ofKihoto Hollohan v. Naik v. the Supreme Court has struck down Para 7 as invalid insofar as it affects the jurisdiction of the Supreme Court and High Courts. However. Zachillhu & Ors. The Supreme Court examined the constitutionality of the Tenth Schedule in the context of the basic structure of the Constitution subsequent to which it held that only Para 7 is violative of the basic structure inasmuch as it gives rise to a bar on judicial review. However. 368 (2). Zachillhu & Ors. the Supreme Court has struck down the provision. Para 5 is designed to give protection to the Presiding Officers of the House who may want to give up their allegiance to a particular political party or may want to rejoin the party subsequent to election to which he belonged earlier. However. the validity of the Tenth Schedule minus Para 7 was upheld in this case on the basis of ‘Doctrine of Severability’. If any question arises as to whether a member has become subject to any of the disqualifications under the 10th Schedule. It is highly possible that the political party which the speaker belongs to may be pressurizing him to either disqualify a member or otherwise depending on their needs. lawfully or not.
defection takes place with the sole objective of grabbing power. before the feeling of indebtedness wears off. An elected member of the house on a party ticket should remain in . Falling a prey to that blandishment lowers the prestige of the individual. many of the evils of the system will disappear. It was more unfortunate that the majority at that point of time guided by their own vested interests hurriedly piloted this legislation through both the houses of the Parliament. If political parties also function like companies. Union of India. Thus. A member who has been elected Speaker. the Punjab and Haryana High Court has made it clear that standing for election of Parliament is only a statutory right and not a fundamental right.powers and discharging functions under the Tenth Schedule and making decisions are still amenable to judicial review. the Parliament has the right to restrict this right by the imposition of certain restrictions in the form of suitable legislations which are in public interest. To say that an extra schedule to the Constitution has an extra schedule has succeeded in achieving the professed objective will be self-deception. It may be advisable to accept political parties as a part of the constitutional scheme and legislate to provide their basic framework. The rules are required to be laid down before the House and are subject to modification or the disapproval of the House. For example. free from party predilections. The invitation denigrates that office of honour. it was unfortunate that the remedial measure was not taken after a free and graceful exchange of vies. by implication. As regards the constitutionality of the law. the Tenth Schedule has not been totally effective. cooperative societies or other registered associations. of that party to which he belonged or if he rejoins such political party after he ceases to hold such office. It has resulted in a fraud on the public. More often than not. an element of aggravation enters into his action which has to be dealt with severely which is why it is imperative that provisions for disqualifications on the basis of defection are a must. Even at the inception of the tenth schedule. Deputy Speaker of Lok Sabha or Deputy Chairman of Rajya Sabha or the Chairman/Deputy Chairman of Legislative Council of a State of the Speaker/Deputy Speaker of Legislative Assembly of a State shall not be disqualified if her. However. it was further laid down that when a legislator defects for a pecuniary advantage or for office of profit. Recommendations of the Law Commission :The Law Commission recommends that the existing provision of the Anti-defection law (Tenth Schedule) that allows splits and mergers of more then 1/3rd of a party are involved in it should be removed. However. by reason of his election to such office. merger simpliciter itself is a defection. The unrestricted freedom in the matter of voting in the House has resulted in the politics of confusion and instability. it is still permitted under the Tenth Schedule. the provision giving the nominated member six months time to join any party of his choice is. Para 8 empowers the Chairman or the Speaker of the House to make rules for giving effect to the provisions of the Schedule. In the case of Prakash Singh Badal v. The frequent defection has made a mockery of democracy and has seriously damaged the image of the politicians and Indian polity. an invitation to join the ruling party. Also. gives up membership.
R.L. In the same way. The Journal of Parliamentary Information 1992 XXXVIII 31. Further. the provision providing for disqualification on the basis of corruption provided for in The Representation of People’s Act. Defection Legalised. . the Law Commission proposes amendment of the Representation of the People’s Act. Conclusion The Constitutional provisions for the disqualifications of members of Parliament have undergone a lot of change over the years since the inception of the Constitution. Thus. Anti-Defection Law – An Introspection.I. A. which. BIBLIOGRAPHY Articles :• • • C.I. 1987 Journal 149. Achutha Menon. as it now stands. Significantly. Also. Justice Gulab Gupta. Several new provisions and conditions have been added. 19916 (IX) C. This was added to provide for defection as a ground for disqualification. it has proved largely inefficient and several lacunae have been identified in the Schedule time and again.that party until the dissolution of the House or till end of his membership and should not be allowed to change his party at any circumstances. However. Anti-Defection Law and Judicial Review. 1951 should ideally be incorporated into the Tenth Schedule. N. They decide the issue of disqualification on the opinion of the Election Commission. It is proposed that even if charges are framed by the court under any of these offences. provides for disqualification on he grounds of conviction for certain named offences. it is suggested that a pre-election alliance should be treated like a party for the purposes of the anti-defection law. The Election Commission has also proposed that the legal issue of disqualification arising under the Tenth Schedule of the Constitution should be left to the President or the Governor like the cases of other post-election disqualification of sitting MPs and MLAs. the provision vesting the power of decision regarding disqualification in the hands of the Speaker is arbitrary and needs to be modified to allow an impartial authority such as a committee consisting of representatives from all parties or the Speaker in consultation with the Election Commission. The report is silent on what should be done to eliminate the tyranny of the party bosses over the process of selection of candidates within the party and that of the biggest party in the case alliances are treated as parties. Singh. 1951. there is a serious need to amend the Tenth Schedule especially to solve the issue of approval of mass defections under the Schedule. it would be sufficient to attract the disqualification. the identity of political party shall not undergo any change during the life of the house and any merger of the political parties to be permitted only when the house is dissolved. One of the biggest additions has been the Tenth Schedule. 127.Q. Further. K.
Oxford University Press. Eastern Law House. The Constitution of India : Select Issues & Perceptions. 1997.. Central Law Agency. Constitutional Questions in India: The President. Central Law Agency. 1982. Pioneer Publications....Q. 2000 (XIII) C. S..J. 96.. Madras. Delhi. Constitutional and Parliamentary Dictionary. Kashyap. Madras Law Journal Office. 1985. H K Saharay. Fear of Defection and Coalition Government – Suggestions for Reforming the Anti-defection Law. Vol. 2000. Lucknow. Ltd.  Id. 12th ed. T K Tope.”  J N Pandey. Taxmann Publications Pvt. Lucknow. Constitutional Law of India. Ltd. 9th ed. 4th ed.C. Subbiah Chetty & Co. Allahabad. Wadhwa & Co. p. Durga Das Basu. Bombay. Prentice Hall of India.  Article 101 (2) reads as follows :“Vacation of seats. Kashyap et al. Indian Constitutional Law. N M Tripathi Pvt.  Article 101 (1) reads as follows :“Vacation of seats... 2000. p. Eastern Book Co. Madras. Delhi. 1991.. P M Bakshi. 1990. 286. Reviewing the Constitution?. 6th ed.. The Constitution of India. I. Subhash C. 1990. Subhash C Jain. 2002. Parliament and the States.. Books :• • • • • • • • • • • • • • • A. Subhash C. Ltd. Narender Kumar. Constitutional Law of India. 3rd ed. C. V N Shukla & Mahendra P Singh. – (2) No person shall be a member both of Parliament and of a House of the Legislature of a State and if a person is chosen a member both of Parliament and of a . 2000. Indian Constitutional Law. The Constitution of India: An Analytical Approach. New Delhi.• • Kailash Rai.. 34th ed. H K Saharay. Saurabh Malhotra. New Delhi. (1997) 3 S. – (1) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. 1999. 1989. 34th ed. Prof. Shorter Constitution of India. Pioneer Publications. 1997.I. Anti-Defection Law and Parliamentary Privileges. M P Jain. G C V Subba Rao.L. Constitutional Law of India. 1994. 473. Lok Sabha Secretariat. 1999. Narender Kumar. Nagpur. The Constitution of India. C. Constitutional Law of India. Sarkar & Sons Pvt. 1993. Delhi. G. 1989. Eastern Book Co. Calcutta. New Delhi.. J N Pandey.. New Delhi. Dictionary of Constitutional and Parliamentary Terms. Allahabad.  Prof. Constitutional Law of India.. 356. Shipra Publications. Failure of Anti-Defection Law. Noorani. Calcutta.
his seat shall thereupon become vacant: Provided that in the case of any resignation referred to in sub-clause (b). Shorter Constitution of India. p.”  M P Jain. that person’s seat in Parliament shall become vacant. c.R. as the as may be. 1994. Lucknow.f. 1978 S. 357.. the House may declare his seat vacant: Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days. 1982.”  K. if from information received or otherwise and after making such inquiry as he thinks fit. 1966 S. Pioneer Publications.I. Wadhwa & Co. (c) If he is an undischarged insolvent. 1990.House of the Legislature of a State. Durga Das Basu. 907.”  T K Tope. Nagpur.  Union of India v. 346.f... then. p. Constitutional Law of India. Chief Secretary A. 329.. the chairman or the Speaker. Constitutional Law of India. New Delhi.  Article 101(3) reads as follows :“Vacation of seats. Pioneer Publications. Narender Kumar. unless he has previously resigned his seat in the Legislature of the State. and for being.C.. 4th ed..C. or (b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker.  Article 101(4) reads as follows :“Vacation of seats.  Article 102 reads as follows :“Disqualification’s for membership.R. is satisfied that such resignation is not voluntary or genuine. as the case may be. at the expiration of such period as may be specified in rules made by the President. Gopal Chandra Misra A. – (4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof.. Constitutional Law of India. p. (b) If he is of unsound mind and stands so declared by a competent court. Anand Nambiar v.. 694. Delhi. c. p. 1997.(1) A person shall be disqualified for being chosen as. Prentice Hall of India. Prof. p. a member of either House of Parliament(a) If he holds any office of profit under the Government of India or the Government of any State. 1997.I. other than an office declared by Parliament by law not to disqualify its holder. 356. Narender Kumar. and his resignation is accepted by the chairman or the Speaker.  Prof. Eastern Book Co. he shall not accept such resignation. .. Delhi. – (3) If a member of either House of Parliament(a) becomes subject to any of the disqualification’s mentioned in clause (1) or clause (2) of Article 102. Indian Constitutional Law. as the case may be. 657. 12th ed.
Taxmann Publications Pvt. Subhash C Jain. 2283. T K Tope. Eastern Book Co. Andanappa (1971) 3 SCC 870. The Constitution of India : Select Issues & Perceptions. 1982. 2328.f. p. A. Subhash C Jain. 662... Lucknow.C. 1990.. p.. Madras. 1991. S.. 9th ed. 4th ed. 1958 Mad.f. Constitutional and Parliamentary Dictionary. 3rd ed. The Constitution of India : Select Issues & Perceptions.  Bhagwati Prasad Dixit v.I. Madras Law Journal Office. Madras. 9th ed. p. Ltd.. I. 57. Krishnamurthi A. p. Indian Constitutional Law. New Delhi. S.. 1991. c. Eastern Book Co. 82. Taxmann Publications Pvt. 329. 22.  Union of India v. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. 2000. V N Shukla & Mahendra P Singh. Wadhwa & Co. Sarkar & Sons Pvt.. 375.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 Constitution of India. Ltd. Rajeev Gandhi (1986) 4 SCC 78. p. . p.R.C.. R. Wadhwa & Co. The Constitution of India : Select Issues & Perceptions. 4th ed.  M P Jain.I. Explanation. 1954 S. 12th ed.”  M P Jain.. Also see Shibhu Soren v. The Constitution of India. 1990... Gurushantappa v. New Delhi. Ltd. Kaggeerappa A. V N Shukla & Mahendra P Singh. 662. Prentice Hall of India. Shorter Constitution of India. Eastern Law House. 334. Lucknow. 1985. New Delhi. 2000.. G. p. (2001) 7 SCC 425. Ltd.  P M Bakshi.R. Eastern Book Co. The Constitution of India : Select Issues & Perceptions. 2002. Inamdar v.I. Indian Constitutional Law.. Sankalchand A.  Ravanna Subanna v. The Constitution of India. c.. 1994.. H K Saharay. Nagpur. 1977 S. Durga Das Basu..C. New Delhi. 80. p.  Narayanaswamy v.. c. Taxmann Publications Pvt. 348..R. The Constitution of India. Taxmann Publications Pvt.I..  H K Saharay.  D. S.. Nagpur.. 2000. Lucknow. c.  This has been dealt with in detail in the next chapter..  Subhash C Jain. 375. Madras Law Journal Office. c. p.f. 1990.f. 80.f.  A.. or has voluntarily acquired the citizenship of a foreign State.  Subhash C Jain. Calcutta.  The Constitution of India. p. p. 2000. c. Vol. (e) If he is so disqualified by or under any law made by Parliament. Constitutional Law of India. 83. 343..  S. New Delhi.. 1994.  P M Bakshi. I.f. 1976 S. C. p.f. 22. Vol.  JT 1992 (5) SC 417.. p... or is under any acknowledgement of allegiance or adherence to a foreign State. Calcutta. S. Dayanand Sahay & Ors. c. The Constitution of India: An Analytical Approach.R. p. 653. Ltd. Abdul Khuddus Anwar (1969) 1 SCC 466.(d) If he is not a citizen of India..
Prof. Indian Constitutional Law. c. p.— . 207. New Delhi..  The definition clause. 1990.  Subhash C.  G C V Subba Rao.. Allahabad. 4th ed.  V N Shukla & Mahendra P Singh.R.R.If a person sits or votes as a member of either House of Parliament before he has complied with the requirements of Article 99.R. 1093.. 215.f. N. p.. Lok Sabha Secretariat.I. 22. 1990. p. V N Shukla & Mahendra P Singh.C.  Saurabh Malhotra. 1953 S.  Election Commission v... Saka Venkata Rao A. Anti-Defection Law and Parliamentary Privileges. or that he is prohibited from so doing by the provisions of any law made by Parliament. Nagpur. 1997. c. Lok Sabha Secretariat.C. 380.  Webster. 215. Narender Kumar. 3.f. Indian Constitutional Law.R.I. 1971 S. p. Saka Venkata Subba Rao A.  Election Commission v.Constitutional Law of India.f. Subbiah Chetty & Co. Wadhwa & Co.. The Journal of Parliamentary Information XXXVIII 1992 31. Dictionary of Constitutional and Parliamentary Terms. The Constitution of India. C.Q. Delhi. p. p.  Oxford (Learner). 228. 9th ed..f. Pioneer Publications. 1999. Union of India v.L....f. Saka Venkata Subba Rao A.. Constitutional Law of India.f.  Chambers.  Election Commission v.I.. Saka Venkata Subba Rao A. Subbiah Chetty & Co.. Indian Constitutional Law. 138... Prof.f. Constitutional Law of India. Nagpur. J N Pandey. Lucknow.. p. 1965 S. 1982. Narender Kumar.C. Failure of Anti-Defection Law.I.R. 1989. 357.”  M P Jain. 1989.C. 9th ed. p. 6th ed. Madras. c.. C.I. p. he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union. p.C. p.  T K Tope. 1952 Cal. 380. 1989.. c. c. 632.  Ansumali v.  Article 104 reads as follows :“Penalty for sitting and voting before making oath or affirmation under Article 99 or when not qualified or when disqualified. 357. M P Jain. Lucknow. 215. 199.  K. Eastern Book Co. 2000 (XIII) C. p. 473. Eastern Book Co. Jyots Peakas Mitter A. New Delhi. Singh. Lok Sabha Secretariat.R. p. 199. Para 1 of the Tenth Schedule reads as follows :“Interpretation. Eastern Book Co.f. c. unless the context otherwise requires.. Delhi. 6th ed. West Bengal A. Indian Constitutional Law.—In this Schedule. 1993. 1997. Lucknow.. Constitutional Law of India.. The Constitution of India. Dictionary of Constitutional and Parliamentary Terms.. p.. Anti-Defection Law and Judicial Review. 1892. N M Tripathi Pvt... G C V Subba Rao. c.I. 1994. 215. Ltd. 384. 1953 S. p. 22.I. p. 370. Madras... 138.. 1994. Dictionary of Constitutional and Parliamentary Terms. 34th ed. c. 4th ed. 332.  A. Pioneer Publications. Kashyap.. Wadhwa & Co.. New Delhi. Central Law Agency.. p. 1953 S..R.  Election Commission v.f..C. 287. 1953 S. Bombay. c. 1989.I. 1989. or when he knows that he is not qualified or that he is disqualified for membership thereof.
(1997) 3 S. Fear of Defection and Coalition Government – Suggestions for Reforming the Anti-defection Law. Constitutional Questions in India: The President. 93.  Prof. G.  1994 Supp. in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 3 or. rejoin that political party or become a member of another political party. means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2. rejoins such political party after he ceases to hold such office. p. in relation to a member of a House.”  Id. Parliament and the States. Oxford University Press.  Id. (2) SCC 641.  (1998) 7 SCC 517. New Delhi. Narender Kumar.I. Pioneer Publications. Constitutional Law of India. or (b) if he.  Id. 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.  Kailash Rai. (b) ‘Legislature party’. 1993. 2000.R. by reason of his election to such office. paragraph 4.(a) ‘House’ means either House of Parliament or the Legislative Assembly or.  Para 5 reads as follows :“Exemption. J. as the case may be.  In the case of Prakash Singh Badal v. 1997.  A.  1992 Supp. (d) ‘Paragraph’ means a paragraph of this Schedule. 96 (101).).  Para 7 read as follows :- . Kashyap.. so long as he continues to hold such office thereafter. N M Tripathi Pvt. Ltd. Noorani.—Notwithstanding anything contained in this Schedule.”  Subhash C. 355. shall not be disqualified under this Schedule.J. (c) ‘Original political party’. means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions. Bombay. (2) SCC 651. 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. Anti-Defection Law and Parliamentary Privileges.C. Delhi. p. either House of the Legislature of a State. 181.— (a) if he. p. 1987 P&H 263. ( As per Srinivasan. voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not. as the case may be. Union of India A.
R. A. Fear of Defection and Coalition Government – Suggestions for Reforming the Anti-defection Law.  Subhash C. (1997) 3 S. p. N M Tripathi Pvt. Kashyap.L. Anti-Defection Law and Parliamentary Privileges.—(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule. Kashyap. Anti-Defection Law and Parliamentary Privileges. Delhi. 305. p.I.  Id.. 19916 (IX) C. share . 60. Our Parliament: An Introduction to the Parliament of India. National Book Trust. 1987 Journal 149.  Subhash C. (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. Reviewing the Constitution?... as the case may be. Bombay.J. Anti-Defection Law – An Introspection. 1992. Subhash C.  Justice Gulab Gupta.. p.I. p.L.C. the question shall be referred for the decision of the Chairman or.  Justice Gulab Gupta. 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. Achutha Menon. Shipra Publications. 113. 127 (143).f. c. 308.  C. Kashyap et al. 2nd ed. 2000.  Election Commission Documents.R. Reviewing the Constitution?. 96 (97).. 2000. Ltd.  Subhash C. Delhi.  Prakash Singh Badal v. (1997) 3 S.  Subhash C.—Notwithstanding anything in this Constitution.Q.”  Para 6 of the Tenth Schedule which reads as follows :“Decision on questions as to disqualification on ground of defection. (2) SCC 651..C.Q. Agenda and Notes for meeting with Recognised National and State Political Parties. 19916 (IX) C. 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.f. Shipra Publications. proceedings in the Legislature of a State within the meaning of article 212. Ltd.I. 1993.. Defection Legalised.I.  Kailash Rai. Kashyap et al.J. Kailash Rai. as the case may be. 96. Kashyap.. 1987 P&H 263. 127 (132). New Delhi. Fear of Defection and Coalition Government – Suggestions for Reforming the Anti-defection Law. p. Union of India A. Bombay.. c. N M Tripathi Pvt. no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.”  1992 Supp. 29th April 2000. 117.“Bar of jurisdiction of courts. 1993.  Id. Anti-Defection Law – An Introspection.
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