The 52nd amendment to the Constitution added the Tenth Schedule, which laid down the process by which legislators may be disqualified on grounds of defection. A Member of Parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party’s whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.
The law also made a few exceptions. Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been outlawed.
Provisions of the Act
Grounds of Defection
The grounds on which disqualification can be incurred are as under:
- Members belonging to political parties
A member of a House belonging to any political party shall be disqualified for being a member of House—
- If he has voluntarily given up his membership of such political party.
- If 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, without obtaining the prior permission of such political party and such voting or abstention has not been condoned by such political party within fifteen days from the date of such voting or abstention.
- An elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for elections as such member.
- A nominated member of a House shall:
- Where he is a member of any political party on the date of his nomination as such member, be deemed to belong to that political party.
- In any other case, be deemed to belong to the political party of which he becomes, or, 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 Article 188.
- Member elected otherwise than as candidate set up by any political party
- An elected Member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.
- Nominated Members
- 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.
- Cases of split
- The Tenth Schedule as added to the Constitution by the Constitution (Fifty-second Amendment) Act, 1985 contained a provision (paragraph 3 of the Tenth Schedule) that no member will be disqualified from the membership of the House where he makes a claim that he and any other members of his legislature party constitute a group representing a faction which has arisen as a result of a split in his original political party and this group consists of not less than one third members of the legislature party concerned.
- This provision has since been omitted from the Tenth Schedule by the Constitution (Ninety-first Amendment) Act, 2003. Consequently, it is not now permissible to claim a split in the legislature party.
- Cases of merger
- No member will be disqualified from the membership of the House where his original political party merges with another political party and he claims that he and any other members of his original political party have become members of the other political party or of the newly formed political party provided not less than two third of the members of the legislature party concerned have agreed to such merger.
- Exemption to persons elected to the office of Speaker/Chairman or Deputy Speaker/Deputy Chairman
No disqualification is incurred by a person who has been elected to the office of the Speaker or the Deputy Speaker if he severs his connections with his political party after such election.
Also, no disqualification is incurred if he, having given up by reason of his election to such office, his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.
The question as to whether a member of a House of Parliament or State Legislature has become subject to disqualification will be determined by the Chairman/Speaker of the House and his decision will be final.
Where the question is with reference to the Chairman/Speaker himself it will be decided by a member of the House elected by the House in that behalf and his decision will be final.
All proceedings in relation to any question as to disqualification of a member of a House under the Tenth Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122.
The Chairman or the Speaker of a House has been empowered to make rules for giving effect to the provisions of the Tenth Schedule. The rules are required to be laid before each House and are subject to modifications/disapproval by the House.
The Chairman or the Speaker of the House may without prejudice to the provision of article 105 or as the case may be, article 194, and to any other power which he may have under the Constitution direct that any wilful contravention by any person of the rules made under paragraph 8 of the Tenth Schedule may be dealt with in the same manner as a breach of privilege of the House.