The Constitution (Fifty-second Amendment) Act, 1985 popularly known as the anti-defection law came into force w.e.f. 1 March 1985. It amended articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures and added a new schedule i.e. the Tenth Schedule to the Constitution setting out certain provisions as to disqualification on ground of defection. In articles 102/191, a new clause (2) has been inserted which reads as follows:—

“(2) a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.”

The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:

"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance."

Historical Background

On December 8, 1967, the Lok Sabha had passed a unanimous Resolution in terms following:

"a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard."

The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter-alia, observed:

"Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same persons or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature of explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections".

The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.

Keeping in view the recommendations of the committee on Defections, the Constitution (Thirty-Second Amendment) Bill,, 1973 was introduced in the Lok Sabha on May 16, 1973. It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty Second Amendment) Act, 1985.

Constitution (Fifty Second Amendment) Act, 1985.

The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.

Grounds of Defection

Paragraph 2 of Tenth Schedule.

The grounds on which disqualification can be incurred are as under:—

(i) Members belonging to political parties

A member of a House belonging to any political party shall be disqualified for being a member of House—

(a) if the member has voluntarily given up the membership of such political party; or

(b) if the member votes or abstains from voting in such House contrary to any direction issued by the political party to which she/he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

An elected member of a House shall be deemed to belong to the political party, if any, by which she/he was set up as a candidate for elections as such member.

Nominated member of a House shall—

(i) where she/he is a member of any political party on the date of her/his nomination as such member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which she/he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which she/he takes her/his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(ii) Member elected otherwise than as candidate set up by any political party

An elected Member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if she/he joins any political party after such election.

(iii) Nominated Members

Nominated member of a House shall be disqualified for being a member of the House if she/he joins any political party after the expiry of six months from the date on which she/he takes her/his seat after complying with the requirements of article 99 or as the case may be, article 188.

Cases of Merger

Paragraph 4. No member will be disqualified from the membership of the House where her/his original political party merges with another political party and she/he claims that she/he and any other members of her/his original political party have become members of the other political party or of the newly formed political party provided not less than two third of the members of the legislature party concerned have agreed to such merger.

Exemption to persons elected to the office of Speaker/Chairman or Deputy Speaker/Deputy Chairman

Paragraph 5. No disqualification is incurred by a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or of the Legislative Assembly of a State or to the Office of the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State if she/he severes her/his connections with her/his political party after such election. Also, no disqualification is incurred if she/he, having given up by reason of her/his election to such office, her/his membership of the political party to which she/he belonged immediately before such election, rejoins such political party after she/he ceases to hold such office.

Chairman/Speaker to decide questions as to disqualification on ground of defection

Paragraph 6. The question as to whether a member of a House of Parliament or State Legislature has become subject to disqualification will be determined by the Chairman/Speaker of the House and such decision will be final. Where the question is with reference to the Chairman/Speaker herself/himself, it will be decided by a member of the House elected by the House in that behalf and her/his decision will be final.

All proceedings in relation to any question as to disqualification of a member of a House under the Tenth Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122.

Bar on Jurisdiction of Courts

Paragraph 7. of the Tenth Schedule provides that notwithstanding anything contained in the Constitution, no court has any jurisdiction* in respect of any matter connected with the disqualification of a member of a House on ground of defection. The Supreme Court in Kihoto Hollohan case has held that this paragraph is ultra vires of the Constitution. This provision continues to be a part of the Tenth Schedule as the Constitution has not been amended to omit it from the Tenth Schedule.

Power to make Rules

Paragraph 8. The Chairman or the Speaker of a House has been empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules are required to be laid before each House and are subject to modifications/disapproval by the House.

The Chairman or the Speaker of the House may without prejudice to the provision of article 105 or as the case may be, article 194, and to any other power which she/he may have under the Constitution direct that any wilful contravention by any person of the rules made under paragraph 8 of the Tenth Schedule may be dealt with in the same manner as a breach of privilege of the House.

Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985

Paragraph 9. The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985 as framed by the Speaker under the Tenth Schedule were laid on the Table of the House on 16 December, 1985 and came into force with effect from 18 March, 1986.

The main provisions of these Rules are given below:

Information etc. to be furnished by leader of a legislature party

Rule 10. The Rules cast a responsibility on the leaders of legislature parties in the House to furnish to the Speaker within 30 days after the first sitting of the Houses or within 30 days after the formation of such legislature party as the case may be, a statement containing the names of members of such legislature party, a copy of the rules and regulations/constitution of the political party concerned and where such legislature party has a separate set of rules and regulations, constitution, a copy of such rules and regulations/constitution. This information is required to be given in Form-I as prescribed in Disqualification Rules. The leader of the legislature party is also required to inform the Speaker about the changes that take place in the strength of the party or in its rules, regulations, constitution, etc. Duty is also cast on the leader of the legislature party or the person authorized by the leader in that behalf to communicate to the Speaker any instance of a member of the party voting or abstaining from voting in the House contrary to any direction issued by such political party without obtaining the prior permission of such party, person or authority. Such communication is required to be furnished in Form-II as prescribed in the Disqualification Rules.

Where a Legislature party consists of only one member, such member is also required to furnish a copy of the rules and regulations of her/his political party to the Speaker within thirty days after the first sitting of the House or where one has become a member of the House after the first sitting, within thirty days after she/he has taken seat in the House or in either case within such further period as the Speaker may for sufficient cause allow.

Information to be furnished by members

Rule 11. Every member is invariably required to individually furnish to the Speaker a statement giving details of her/his party affiliation etc. as on the date of election/nomination in Form-III as prescribed in the Disqualification Rules. In the event of any change in the information given by the members in their respective Form-III, in terms of declaration in their forms, they are required to immediately intimate the same to the Speaker.

Petitions re. Disqualification

Rule 12. Rule 6 of the Rules provides that no reference of any question as to whether a member has become subject to disqualification shall be made except by a petition in relation to such member made in writing to the Speaker by any other member. The Supreme Court in its judgement dated 17 January, 2013 in Civil Appeal No. 469 of 2013 titled Speaker, Orissa Legislative Assembly Vs. Utkal Keshari Parida has held that any citizen can make a petition with regard to disqualification incurred by a member; the Supreme Court has held that

“...we are not inclined to accept the contention that a member of a Legislative Assembly can alone file the petition... Therefore, we hold that the disqualification petitions filed by the petitioner, who is the President of NCP, are maintainable under Rule 6 of the Rules.”(President of NCP was not a member of Orissa Legislative Assembly.)

Every petition is required to contain a concise statement of the material facts and to be accompanied by copies of documentary evidence, if any, on which the petitioner relies. Every petition is required to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. Every annexure to the petition is required to be signed by the petitioner and verified in the same manner.

Procedure

Rule 13. On receipt of a petition, the Speaker shall consider whether the petition complies with the requirements of the Rules. If the petition does not comply with the requirements, the Speaker shall dismiss the petition and intimate the petitioner accordingly. If the petition complies with the requirements, copies of the petition are forwarded to the member in relation to whom the petition has been made and if the member belongs to any legislature party, and such petition has not been made by the leader thereof, also to such leader, for furnishing their comments in writing to the Speaker on the petition.

After considering the comments, the Speaker may either proceed to determine the question or, if the Speaker is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do refer the petition to the Committee of Privileges for making a preliminary inquiry and submitting a report to the Speaker.

The procedure which shall be followed by the Speaker for determining the question of disqualification and the procedure which shall be followed by the Committee of Privileges for making preliminary inquiry shall, so far as may be, the same as the procedure for making inquiry and determination by the Committee of any question of breach of privilege of the House. The Committee of Privileges (14th L.S.) while considering some petitions filed under the Tenth Schedule to the Constitution and the rules made thereunder referred to the Committee by the Speaker gave a very careful thought to the true import of the term “preliminary inquiry”. The Committee came to a conclusion that in such matters, the Committee are required only to give their findings on the facts of the case and it isn’t the Committee’s remit to decide questions of law and arrive at conclusions on the merits of the case and make recommendations.

If the Speaker makes a reference to the Committee of Privileges, the Speaker shall proceed to determine the question as soon as may be after receipt of the report from the Committee.

Neither the Speaker nor the Committee shall come to any finding that a member has become subject to disqualification, without affording a reasonable opportunity to such member to represent her/his case and to be heard in person.

After the conclusion of the consideration of the petition, the Speaker may by order in writing dismiss the petition or declare that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule and cause copies of the order to be delivered or forwarded to the petitioner, the member in relation to whom the petition has been made and to the leader of the legislature party, if any, concerned. The order of the Speaker disqualifying the member is reproduced in Bulletin- Part II and is also notified in Gazette of India, Extraordinary, Part-II, Section 3 (ii).

Where the Speaker declares that a member has become subject to disqualification under the Tenth Schedule, she/he shall cease to be member of the House with effect from the date of the order by the Speaker.

The Speaker has power to issue such directions as the Speaker may consider necessary in regard to the detailed working of the Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985.