Chapter-5

Parliamentary Privileges and

Anti Defection Law

In preceding Chapter an attempt has been made to demonstrate a

comparative study on the law prevailing Parliamentary privileges among
England, United States of America, Canada and Australia.315 It emerges that
all these states have enacted relevant statutes relating to Parliamentary
privileges, while in India there is no such statute although the Constitution
of India contains certain provisions.316 However, Indian Parliamentarians
are enjoying privileges like House of Commons. It has been noticed that
Indian Parliamentarians have defected without any restriction for more than
three decades of the working of the Constitution. In Parliamentary political
life, the term 'defection' connotes change of party affiliation or allegiance
by the member of a legislature. Immediately after the general elections held
in December 1984, the president of India said in his Address to both
Houses of Parliament assembled together on 17th January, 1985 that the
Government intended to introduce in that Session a Bill to outlaw
defections. In fulfillment of that assurance, the Government introduced the
Constitution (Fifty-second Amendment) Bill in the Lok Sabha on 24th
January, 1985. The Constitution (Fifty-second Amendment) Act, 1985,

315
See Subhash C. Kashyap, Anti-Defection Law and Parliamentary Privileges, Universal Law
Publishing Co., New Delhi (2011).
316
See A. R. Mukherjea, Parliamentary Procedure in India, Oxford University Press, Calcutta
(1983); M. Hidayatullah, Parliamentary Privileges: Press and the Judiciary, Asia Publishing
House (1969); M.P. Jain, Parliamentary Privileges and the Press, N.M. Tripathi Private,
Bombay (1984).

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amended Articles 101, 102, 190 and 191 of the Constitution regarding
vacation of seats and disqualification for membership of Parliament and the
State legislatures and added a new Schedule i. e. Tenth Schedule to the
condition setting out certain provisions as to disqualification on grounds of
defections.317 This Chapter demonstrates the relation between anti defection
law and Parliamentary privileges.
I. Background of Anti Defection Law in India
A. The Problem

The political defection is one of the root causes of misuse of Parliamentary

privileges. The political defection was experienced in Australia, Canada as
well as in the United States of America. The need of balancing defections
by law or through a constitutional provision was not debated in any western
democracies. But this has been considered necessary to pass anti defection
laws in certain South Asian countries (Sri Lanka enacted anti defection law
in 1978, India in 1985, Pakistan in 1997 and Nepal in 1997).
Defection may be defined as abandonment of loyalty, duty or principle or
of one’s leader or cause. In Parliamentary political life, the term has come
to connote change of party affiliation or allegiance by the Member of the
Legislature. The traditional term for the letter has, however, been floor
crossing which had its origin in the British House of Commons where a
legislator was supposed to have changed his party allegiance when he
crossed the floor and moved from the Government to the opposition or vice
versa. The phenomenon of defection was not something altogether
unknown to the older democracies like Great Britain. Political stalwarts
like William Gladstone, Joseph Chamberlaine, Winston Churchill and
Ramsay McDonald were known to have changed their party allegiance at

317
See Ruma Pal and Samaraditya Pal, M. P. Jain’s Indian Constitutional Law with
Constitutional Documents, LexisNexis, Delhi (2013).

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one time or another – some of them even more than once. Likewise in
Australia, Canada and United States of America, there have been instances
of politicians defecting from one party to another.318
Indian politics had seen defections right from the pre-independence Central
Legislative Assembly and Provincial autonomy days. Year 1967 however
ushered in an unprecedented era of political instability and horse trading
preceding and following the formation of coalition Governments in several
States. The formation of such coalition Governments was most often a
marriage of convenience. They were constituted of heterogeneous elements
– political parties coming to share power often having no ideological
similarity. Several State Governments fell like the proverbial nine pins in
quick succession. The fall was usually brought about by dissatisfied and
disgruntled legislators who it was widely believed could not be
accommodated as Ministers and like or otherwise lucratively recompensed.
They change their party affiliation and were welcomed with open arms by
other political parties which though in minority cherished the dream of
forming of Government of such synthetic majority. This gave rise to a very
unhealthy trend whereby legislators were lured away from their political
parties with a view to toppling the existing Government and forming new
ones with different permutations and combinations.319
Between the fourth and the fifth general elections in 1967 and 1972 from
among the 4000 odd members of the Lok Sabha and the Legislative
Assemblies in the States and the Union Territories there were nearly 2000
cases of defection and counter defection. By the end of March, 1971
approximately 50% of the legislators had changed their party affiliation and

318
Subhas C. Kashyap, The Politics of Power: Defections and State Politics in India, National
Publishing House, New Delhi (1974).
319
See Subhash C. Kashyap, “Anti-Defection Law Does Not Apply”, Times of India, New
Delhi, 7 November, 1990.

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several of them did so more than once. Some of them as many as five
times. One MLA was found to have defected five times to be a Minister for
only 5 days. For some times on an average more than one legislator was
defecting each day and almost one State Government falling each month
due to these changes in party affiliations by members. In the case of State
Assemblies alone as much as 50.5% of the total number of legislators
changed their political affiliations atleast once. The percentage would be
even more alarming if such States were left out where Governments
happened to be more stable and changes of political affiliations or defection
from parties remained very infrequent. That the lure of office played a
dominant part in this ‘political horse trading’ was obvious from the fact that
out of 210 defecting legislators of various States during the first year of
defection politics, 116 were included in the Council of Ministers in the
Government which they helped to form.320
B. Chavan Committee Report and Anti Defection Bills of 1973 and
1978
Concerned over the malaise of political defections in national life, the Lok
Sabha adopted a non-official resolution on 8th December, 1967 urging the
appointment of a high level Committee. In pursuance thereof, a Committee
of constitutional experts and representatives of political parties was set up
in March, 1968 under the then Home Minister, Y. B. Chavan 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 to make
recommendations in that regard. Informing the Lok Sabha of the
appointment of the Committee on 21st March, 1968, the Home Minister
described defections as a ‘national malady’ which was ‘eating into very
high vitals of our democracy. The report of the Committee was laid on the

320
S. Agarwal, “Anti Defection Law in India", The Parliamentarian ( 1986).

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table on 20th February, 1969. In drawing up its report and formulating its
recommendations, the Committee placed before itself the following
considerations:
1. There can be no perfect of infallible deterrent for the kind of
political defections that are rooted in political irresponsibility and
opportunism and create instability, besides bringing the functions of
the democratic institutions into disrepute;
2. The task of devising remedy and measures for a complex political
problem has to balance carefully the need for ensuring political
stability with – (i) the natural processes of organic growth of parties;
(ii) the inevitability of a period of a period of transition preliminary
to the forgoing of ideological polarization or clarity, with
uncertainties attendant on the transition; and (iii) the avoidance of
rigidity which would impinge adversely on honest and genuine
dissent or change of convictions or on readjustment of party
alignments, in the form of merger, splits, etc., as part of the process
of reaching ideological polarization or clarity;
3. The best legislative or constitutional devices cannot succeed
without a corresponding recognition on the part of the political
parties of the imperative necessity for a basic political morality and
observance by them of certain properties and decencies of public
life and their obligations mutually to one another and in the last
analysis to the citizens of the country; and
4. The problem requires to be attacked simultaneously on the political,
educational and ethical planes so that by the intensive political
education both of the elite and the masses, a full consciousness of

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 the values of democratic way of life is created.
The main recommendations of the Committee were – (i) the political
parties themselves should arise at the Code of Conduct inter alia providing
against a defector being taken into the fold of another party; (ii) A
representative should be deemed to be bound to the party under whose
aegis he wins the election. This follows from the clear understanding of the
nature and character of representation and the duties of an elected
representative; (iii) No one who was not initially a member of the lower
House should be appointed as Prime Minister or Chief Minister and
necessary constituted amendment in this regard should be given
prospective effect; (iv) Every defector should be debarred from
appointment as a Minister for a prescribed period or until he gets himself
re-elected; (v) There should be a ceiling on the size of Ministers both at the
Centre and the State level; (vi) Provision for recall may not be advisable or
practicable.321
Legislation in pursuance of the recommendations of the Chavan Committee
on defections had a very checkered history. Several attempts proved
abortive. The Government introduced the Constitution Amendment Bill in
the Lok Sabha on 16th May, 1973. The Statement of Objects and Reasons to
the Bill stated:
When the report of the Committee on defections was
considered, it was felt that the recommendations that the
defector should be rendered ineligible for certain offices of
profit for a stipulated period would not provide an adequate
solution and that it would be more appropriate to amend the
Constitution with a view to disqualifying a defector from his
continued membership of legislature.322
The Constitution Amendment Bill was referred to a Joint Committee of two
321
Subhash C. Kashyap, The Politics of Defection, National, New Delhi (1969) pp. 399 - 400.
322
The Constitution (Thirty-second Amendment) Bill, 1973.

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Houses. However, before the Committee could complete its deliberations,
the Lok Sabha was dissolved and the Bill lapsed. Another Bill on the
subject was introduced in the Lok Sabha on 28th August, 1978 but it was
opposed at the stage of introduction itself both by some ruling parties,
members and the opposition as certain features of the Bill did not satisfy
them. After some discussion, the motion for introduction of the Bill was
withdrawn by leave of the House.
C. The Constitution (Fifty-second Amendment) Act, 1985
Immediately after the general elections held in December 1984, the
President of India said in his address to both Houses of Parliament
assembled together on 17th January, 1984 that the Government intended to
introduce in that session a Bill to outlaw defections. In fulfillment of that
assurance the Government introduced the Constitution (Fifty-second
Amendment) Bill in the Lok Sabha on 24th January, 1985. The statement of
objects and reasons appended to the Bill stated:
“1. The evil of political defections has been a matter of national concern. If
it is not combated, it is likely to undermine the every 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 and
anti-defection Bill. This Bill is meant for out-lawing defections and
fulfilling the above assurance.
2. The Bill seeks to amend the Constitution provide that an elected member
of Parliament or State legislature who has been elected as a candidate set
up by a political party and a nominated member of Parliament or a State
Legislature, who is a member of a political party at the time he takes his
seat or who becomes a member of a political party within six months after
he takes his seat would be disqualified on the ground of defection if he

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voluntarily relinquishes his membership of such political party or votes or
abstains from voting in such House contrary to any direction of such party
or is expelled from such party. An independent Member of Parliament or a
State Legislature shall also be disqualified if he joins any political party
after his election. A nominated member of Parliament or of State
Legislature who is not a member of political party at the time of his
nomination and who has not become a member of any political party before
the expiry of six months from the date on which he takes his seat shall be
disqualified if he joins any political party after the expiry of the said period
of six months. The Bill also makes suitable provisions with respect to splits
in and mergers of political parties. A special provision has been included in
the Bill to enable a person who has been included in the Bill to enable a
person who has been elected as a presiding officer of a House to severe his
connection with his political party. The question as to whether a member of
the House of Parliament or State Legislature has become subject to the
proposed disqualification will be determined by the presiding officer of the
House; where question is with reference to the presiding officer himself, it
will be decided by a member of the House elected by the House in that
behalf.
3. The Bill seeks to achieve the above objects.”
In order to bring about a national consensus on the Bill, the Prime Minister
held prolonged consultations with the leaders of Oppositions groups. The
Government acceded to the demand of dropping a controversial clause
from the Bill relating to disqualification of a member on his expulsion from
his political party for his conduct outside the House. Intervening in the
debate, Prime Minister Rajiv Gandhi said that the Bill was only “the first
step towards cleaning up public life” and that the Government would
initiate other reforms in consultation with the opposition.

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The Amendment of 1985, inter alia, provides for disqualification on ground
of defection, as under: (1) a Member of Parliament or State Legislature
belonging to any political party shall be disqualified for being a member of
that House -(a) If he has voluntarily given up his membership of such
political party; or (b) 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 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
possibility party, person or authority within 15 days from the date of voting
or abstention.
D. Object and Scope of Anti Defection Law
The object and scope of the Anti defection law incorporated under Tenth
Schedule is to curb the evil of political defections motivated by lure of
office or other similar considerations which endanger the foundations of
democracy. The underlying promise is declaring an individual act as
defection as forbidden is that lure of office or money could be presumed to
have prevailed. Legislature has this presumption on its own perception and
assessment of the extent standards of political properties and morality. The
provisions in Tenth Schedule are salutary and are intended to strengthen the
fabric of Indian parliamentary system by curbing unprincipled or unethical
political defections. The anti defection law seeks to recognize the practical
need to place the properties of political and personal conduct above certain
theoretical assumptions which is reality have fallen into a morass of
personal and political degradation. Court should defer to this legislative
wisdom and perception. In the statement of Objects and Reasons appended
to the Bill which was adopted as the Constitution (52nd Amendment) Act,
1985 says, 'the evil of political defection has been a matter of national

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concern. If it is not combated, it is likely to undermine the very foundation
of our democracy and the principles which sustain it... The Bill is meant for
outlawing defection'323.
Tenth Schedule cannot be read or construed independent of Article 102 and
191 of the Constitution. The whole proceeding under Tenth Schedule is
initiated or gets initiated as a part of disqualification of a member of a
House. That is by way of defection. A proceeding under Tenth Schedule
gets started before the Speaker only on a complaint being made the certain
person belonging to a political party has incurred a disqualification on the
ground of defection. The Speaker has necessarily to decide the question of
disqualification as a Tribunal. To meet the claims so raised, the members
against whom the proceedings are initiated, in addition to a plea that they
have not voluntarily given up their membership of the party or defied the
whip issued to them.
II. Constitutional Scheme of Anti Defection Law
The Constitution (Fifty-second Amendment) Act changed four Articles of
the Constitution, viz., 101(3) (a), 102 (2), 190 (3) (a) and 191 (2) and added
the Tenth Schedule thereto. This amendment is often referred to as the anti
defection law. Under Article 102 (2) a person is disqualified to be a
member of either House of Parliament if he is so disqualified under the
Tenth Schedule. The Tenth Schedule consisting of 8 Paragraphs. The
Paragraph 1 provides certain definitions. The disqualification on the ground
of defection has been elaborated in Paragraph 2 of the Tenth Schedule.
Under Paragraph 2 of the Tenth Schedule, if a member voluntarily gives up
his membership of, or votes or abstains from voting, in the House against
the direction issued by the party on whose symbol he or she was elected
then he or she would be liable to be disqualified from membership. Under
323
See Kihota Hollohan v. Zachillhu, AIR 1993 SC 412.

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Paragraph 2 of the Tenth Schedule, the act of disqualification occurs on a
member voluntarily giving up his membership of a political party or at the
point of defence of the whip issued to him. The date of disqualification is
the date on which the act takes place and not the date on which the Speaker
takes a decision in that regard324.Nevertheless, the founding fathers of
India's Constitution attached supreme importance to two privilege which
they deemed essential for the success of parliamentary democracy and
therefore, they enshrined them specifically in the specifically in the text of
the constitution in Article 105(1) and (2). These privileges of members of
parliament are those of freedom of speech and vote on the floor of the
House and in committees thereof and of full immunity from any
proceedings any court in respect of anything said or any vote given by a
member in a House of Parliament or any Committee thereof .
Sub-paragraph (2) of paragraph 2 of the Tenth Schedule deals with the law
relating to an independent member who has not been set up by a political
party. Under this sub-para, an independent member will be disqualified if
he joins any political party after his election as a member of the legislature.
But under sub- paragraph (3) of paragraph 2 of the said Schedule, a
nominated member is allowed to join a political party within six months of
his nomination as a member. An independent member's freedom to join a
party is fettered although he is master of himself and owes his election to
no political party. On the contrary, the ruling party picks and chooses
persons for nomination and in a way puts them under obligation. Such
members are therefore, likely to join the ruling party. Both these provisions
are vitiated by an inbuilt irrationality and bias and are therefore violative of
Article 14. Paragraph 3 of the Tenth Schedule has been omitted by the

324
Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305.

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Constitution (Ninety-first Amendment) Act, 2003.325 Before the
amendment splitting was considered as not defection. The paragraph 4 of
the Tenth Schedule deals with the concept of merger and provides that
disqualification on ground of defection not to apply in case of merger.
Thus, whenever original political party merges with another political party
the law of defection under Tenth Schedule would not apply. The merger of
the original political party of a member of a House shall be deemed to have
been taken place, and only if, not less than two-thirds of the members of
the legislature party concerned have agreed with such merger. However,
Paragraph 5 provides an exception to the general rule. Thus, according to
Paragraph 5 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. Paragraph 6 of the Tenth Schedule provides that decision on
questions as to disqualification on the ground of defection by the Speaker
of the House is final, while Paragraph 7 bars jurisdiction of Courts. The

325
Before Amendment in 2003 the paragraph 3 dealt with disqualification on ground of
defection not to apply in case of split. Prior to omission of paragraph 3 stood as under – “3.
Disqualification on ground of defection not to apply in case of split.- Where a member of
a House makes a claim that he and any other members of his legislature party constitute the
group representing as faction which has arisen as a result of a split in his original
political party and such group consists of not less than one-third of the members of such
legislature party,- (a) he shall not be disqualified under sub-paragraph (1) of paragraph
2 on the ground- (i) that he has voluntarily given up his membership of his original
political party; or (ii) that he has voted or abstained from voting in such House contrary to
any direction issued by such party or by any person or authority authorised by it in that
behalf without obtaining the prior permission of such party, person or authority and such
voting or abstention has not been condoned by such party, person or authority within
fifteen days from the date of such voting or abstention; and (b) from the time of such
split, such faction 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 paragraph.

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rule making power has been given under Paragraph 8 of the Tenth
Schedule.
Thus if a member of Parliament falls within the concept of ‘disqualification
on the ground of defection’ under Paragraph 2 of the Tenth Schedule he
loses his privileges in Parliament as soon as he is losing his membership in
the Parliament. For his speech and action in Parliament, a member is thus
subject only to the provisions of the Constitution and the Rules and
discipline of the House. Absolute privilege has been given to him in
respect of anything said or any vote given in Parliament or a Committee
thereof. Members may speak and vote freely, without any fear or favour or
apprehension of adverse consequences of any kind of speaking out their
minds and expressing their views and voting as they liked. To what extent
can this freedom be legitimately curtailed by the existence of the party
system and the institution of party whips? The question arose in 1973
when the Lok Sabha Speaker, Dr. G.S. Dhillon, while disallowing a
question of privilege regarding on alleged directive by a parliamentary
party to its members of other parties, made inter alia the following
observations :
...They have a right to discuss everything in their party
meetings, in their party executive committee meetings and
they have the right to issue directions to their party men.
If any of their party man resents it and comes to me and
says: this is not a more direction, it is an obstruction in the
performance of my duties as a member, then I shall
consider it...326
III. Kihota Hollohan Trend
Tenth Schedule recognizes the importance of political parties in our
democratic set up specially in dealing with members of Parliament and

326
L.S. Deb, 1 August1973, cc.4514-29

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Legislative Assemblies or Council. Being a member of political party on
whose ticket he has been elected as a member, in the first place, he is
generally expected to follow the direction of the party, which is one of the
basic units in our democracy327. The Tenth Schedule sets out the
circumstances when a member of Legislature would be deemed to have
defected from the political party as a member of which he had been elected
to the Legislature. Upon such defection he could be disqualified to remain a
member of the Legislature and would lose his seat according to the
decision of the Speaker or Chairman of the House to which he belonged. In
Kihota Hollohan v. Zachillhu328, the Supreme Court adopted a restrictive
view of the 'direction' issued by a party 'the violation of which may entail
disqualification'. Such directions should pertain to two matters, viz., (a) a
vote on motion of confidence or no confidence in the Government; (b)
where the motion under consideration relates to a matter which is an
integral policy and programme of the political party on the basis of which
he approached the electorate. This has been done with a view to maintain
freedom of speech of the members in the House guaranteed by Article 105
(1) and 194 (1) of the Constitution.
While rejecting the contention that the entire Tenth Schedule, even after the
exclusion of para 7, would be violative of the basic structure of the
Constitution in so far as the provisions in the Schedule affect the
democratic rights of the elected members of the Legislatures and, therefore
of the principles of parliamentary democracy, the majority judges have
ruled that the Speaker/Chairman acts as a Tribunal adjudicating upon rights
and obligations and his decisions in a defection case would thus be open to
judicial review under Article 136, 226 and 227, and that the finality clause
327
See Kihoto Hollohan v. Zacillhu, AIR 1993 SC 412 – followed in Kuldip Nayar v. Union of
India, AIR 2006 SC 3127.
328
AIR 1993 SC 412.

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in para 6 of the Schedule does not exclude the jurisdiction of the Courts
under these Articles of the Constitution. However, judicial review would
not cover any stage prior to the making of the decision by the
Speaker/Chairman. The only exception for any interlocutory interference in
cases of disqualifications or suspensions which may have grave, immediate
and irreversible repercussions and consequences.
The majority has affirmed that the Speaker's order would be open to
judicial review on the grounds of jurisdictional errors based on violation of
Constitutional mandate mala-fides, non-compliance with rules of natural
justice and perversity. The Judges have also rejected the contention that the
investiture of adjudicatory functions in the Speaker/Chairman is itself
invalid on the ground of political bias and lack of impartiality. The majority
view on this point is329 : “The Chairman or Speakers hold a pivotal position
in the scheme of parliamentary democracy and are guardians of the rights
and privileges of the House. They are expected to and do take far reaching
decisions in the functioning of parliamentary democracy. Vesture of power
to adjudicate questions under the Tenth Schedule in such Constitutional
functionaries should not be considered exceptionable”. Venkatachalliah, J.,
observed in this connection:
“It would, indeed be unfair to the high traditions of that
great office to say that the investiture in it of this
jurisdiction would be vitiated for violation of a basic
feature of democracy. It is inappropriate to express
distrust in the high office of the Speaker, merely because
of the Speakers are alleged or even found to have
discharged their functions not in keeping with the great
traditions of the high office...”

329
AIR 1993 SC 419, at 453.

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The minority view, on the other hand, was that the assent of the President
to the 52nd Amendment was non est, null and void as the Bill needed to be
ratified by half the States and that has not been done. The Bill ought to
have been presented to the President only after such ratification. As the
Constitution has not been amended in accordance with Article 368 (2), the
doctrine of severability could not apply to the 52nd Amendment. Further,
the Speaker cannot be given the role of the sole arbiter in the defection
cases as it would be against the basic structure of the Constitution. The
Speaker depends continuously on the support of the majority party in the
House, and so he cannot be regarded as an independent adjudicatory
authority. On this aspect, the minority Judges have observed330 :
“Democracy is a part of the basic structure of the Constitution and free and
fair elections with provision for resolution of disputes relating to the same
as also for adjudication of those relating to subsequent disqualification by
an independent body outside the House are essential features of the
democratic system in our Constitution. Accordingly, an independent
adjudicatory machinery for resolving disputes relating to the competence of
members of the House as envisaged as an attribute to this basic feature”.
Therefore, according to the minority judgment, all the decisions rendered
by the several Speakers hitherto must also be declared a nullity and liable
to be ignored.
An outstanding feature of the majority decision is to introduce judicial
review of a Speaker's decision in a defection matter under Tenth Schedule.
But this also opens the way for Legislature-Court confrontation which
breaks out from time to time between the Courts and State Legislatures on
the question of legislative privileges.
IV. Post Kihota Hollohon Trends in the Anti Defection Law
330
AIR 1993 SC 419, at p. 457.

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The law relating to anti defection in connection with parliamentary
privileges has been examined by the Supreme Court and the High Courts in
a number of occasions during post Kihota Hollohon period (since 1993 till
date) on the issues like, Speaker’s decision, jurisdiction, disqualification for
membership in Parliament, when speaker decision is final, question of
defection etc. These issues need detail deliberation.
A. Speaker’s Decision
As stated above, the Schedule X was introduced into the Constitution of
India by the Constitution fifty-second amendment Act in 1985 with the
object of putting an end to unprincipled defections either on grounds of
money power or other considerations. However, splits in political parties
were permitted if one-third or more decide to break away from their party
and form a new entity. The Speaker is given the power to decide questions
arising out of disqualifications under the Tenth Schedule. However, in the
general elections held in Uttar Pradesh Legislative Assembly in 1997 the
Bharatiya Janata Party (BJP) emerged as the single largest party. After
some high drama in the State, the Governor Ramesh Bhandari asked the
BJP and Bahujan Samaj Party (BSP) to form coalition Government. Under
an agreement reached between the partners, the office of the Chief Minister
was to be rotated amongst the coalition partners every six months.
Mayawati, leader of BSP became the Chief Minister in the first instance.
After completing her term, as per the agreement, she had to step down,
making way for the BJP leader Kalyan Singh to take over as the Chief
Minister. Relations between the coalition partners became strained leading
to the BSP announcing withdrawal of support to the Government. The
Governor then asked the Chief Minister Kalyan Singh to prove its majority
on the floor of the House.
Twelve members of BSP crossed floor of the House and voted in favour of

208
the motion of confidence moved in favour of Kalyan Singh's ministry.
Thereupon Mayawati complained to the Speaker and asked him to
disqualify them for violating the provisions of the Tenth Schedule. The
Speaker held that there was a split in BSP within the meaning of Tenth
Schedule and these twelve members did not attract disqualification from
membership of the House. Aggrieved by this order of the Speaker, the
leader of BSP Legislature party, Mayawati, moved the Supreme Court
praying for setting aside the ruling of the Speaker in Mayawati v.
Markandeya Chand.331 She contended that the decision of the Speaker that
there was a split in the BSP party comprising more than 23 MLAs was
vitiated by perversity of facts. It was argued that a split could be recognized
by the Speaker only if it was followed by the steps prescribed in Rule 3 of
the disqualification Rules. Under these rules the leader of the split faction
should have furnished to the Speaker within 30 days from the date of the
formation of the faction, the particulars of the split. Any non-compliance
with the rules would lead into the inevitable consequence of
disqualification and it could be said to be a split as envisaged in para 3 of
the Tenth Schedule.
Relying on Ravi S. Naik v. Union of India,332 wherein the High Court had
observed that “disqualification rules are procedural in nature and any
violation of the same would only amount to an irregularity in procedure
which is immune from judicial scrutiny”, the respondents, on the other
hand, contended that the rules were procedural in nature and they could not
claim the status of Constitutional provisions nor could be equated with
them.
The Court, agreeing with the above contention held that the disqualification

331
AIR 1998 SC 3340.
332
1994 Suppl. (2) SCC 641.

209
rules were procedural in nature and any violation of the same would
amount to an irregularity which was immune from judicial scrutiny.
Reliance was placed on Kihoto Hollohan v. Zachillhui.333The Court further
held that the order of the Speaker was a well structured one. The findings
of the facts recorded by him were based on evidence on record. The order
neither suffered from any perversity nor was it vitiated by violation of
constitutional mandate or principles of natural justice. Even if the order
was set aside, the matter had to go back to the Speaker for a fresh decision
in accordance with the judgment of the Court. In view of such findings
based on record, the Court held that the discretionary jurisdiction of the
Court under Article 136 of the Constitution should not be exercised in
favour of the appellant.
B.
Speaker’s Jurisdiction
According to Paragraph 6 of the Tenth Schedule of the Constitution of
India, if any 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. Paradoxically
Paragraph 7 of the Tenth Schedule bars the jurisdiction of the Court. The
Paragraph 7 provides that, “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. Now
question arises whether the jurisdiction of the office of the Speaker is
unlimited?
In Rajendra Singh Rana v. Swami Prasad Maurya,334 a five Judge
Constitution Bench of the Supreme Court held that an order of the Speaker

333
AIR 1993 SC 412.
334
(2007) 4 SCC 270.

210
of an Assembly under Tenth Schedule of the Constitution is open to
challenge in the High Court under Article 226 and 227 of the Constitution
if a Speaker without exercising the jurisdiction of deciding the issue of
defection under the Schedule on a disqualification application pending
before him, decides a subsequent application by several MLAs including
those whom the pending application alleges have defected, of a split in the
party. The claim in an application before the Speaker of a split under
Paragraph 3 of the Schedule (as the Paragraph existed before its deletion)
or of a merger under Paragraph 4 of the Schedule, is really an answer to a
prayer for disqualification of a member(s) from the legislature on the
ground of defection. Hence the Speaker's jurisdiction to decide the issue of
a split or a merger arises only after he is seized of the issue of
disqualification and so the Speaker cannot decide an application of split or
merger independently of the application for disqualification by simply
postponing a decision on the disqualification application pending before
him. Such jurisdictional illegality in violative of the entire constitutional
scheme of adjudication contemplated under Tenth Schedule read in the
context of Article 102 and 191 of the Constitution. It also goes against the
Rules and the procedure which a Speaker is expected to follow. Thus, such
a decision of the Speaker is liable to be set aside in exercise of the power of
judicial review. Further, there is no snowballing theory of defections
recognized by the Schedule, the purpose of which was to discourage
defections which have assumed menacing proportions undermining the
very basis of democracy. This purpose would be defeated if the Schedule is
interpreted to mean that the date of disqualification of an alleged defector
against whom an application has been moved before the Speaker, would be
the date if and when the Speaker chooses to decide the application. The
application for disqualification must be decided with reference to the date

211
of quitting of the original party by the alleged defector. The irresistible
inference arises of voluntarily quitting the party on whose ticket the alleged
defector has been elected, and no further enquiry or evidence is necessary
of the defection, when MLAs of the ruling party met the Governor along
with the general secretary of the opposition party to request by letters that
the leader of the opposition party be called to form the Government in the
teeth of the cabinet decision of the ruling party recommending to the
Governor the dissolution of the Legislature. An MLA or MLAs putting up
the defence of a split under the Tenth Schedule in answer to an application
for his or their disqualification from the House on the ground of defection
or voluntarily giving up the membership of the original political party must
support the claim of a split in the original party with some prima facie
evidence of the same in addition to the evidence that one-third of the MLAs
of the original party in the Legislature have separated from each. Paragraph
3 of the Tenth Schedule requires both conditions to be fulfilled. As a
protector of the Constitution and of its basic features, namely, democracy,
the Supreme Court rejected the normal route of remitting the case to the
Speaker for deciding the issues of defection and split when the term of the
Assembly is nearing an end and the question is one of the legality of the
continuance as MLAs and Ministers of those who had defected from the
membership of the ruling party. Accordingly, the Supreme Court decided
the case and held that there was defection on the part of the thirteen MLAs
of Bahujan Samaj Party (BSP) who had gone to the Governor and given
him letters to call the opposition leader to form the Government in Uttar
Pradesh, in the presence of the general-secretary of the opposition party in
the teeth of the BSP's recommendation to the Governor for dissolution of
the Assembly and nothing had been shown that there had been a split by a
faction in the BSP itself. Hence the thirteen MLAs stood disqualified with

212
effect from 28.08.2003, the date when they met the Governor, in terms of
Article 191 (2) read with Paragraph 2 of the Tenth Schedule of the
Constitution.
C. Disqualification for Membership in Parliament/State Assembly:
Holds any Office of Profit
Articles 102 and 191 of the Constitution lay down the circumstances as to
when a person shall be disqualified for being chosen as, and for being, a
member of either House of Parliament or of the Legislative Assembly or
Legislative Council of a State. One of the disqualifications prescribed is, if
the person concerned holds “any office of profit” under the Government of
India or the Government of any State other than an office declared by
Parliament or the legislature of the State, as the case may be, by law not to
disqualify its holder. Parliament has enacted the Parliament (Prevention of
Disqualification) Act, 1959 declaring that certain office of profit mentioned
in Section 3 read with the Schedule to the Act under the Government of
India or the Government of any State shall not disqualify the holders
thereof for being chosen as, or for being members of Parliament. Likewise
the State Legislatures have also passed respective legislations declaring that
the holders of certain offices shall not be disqualified for being chosen as,
or being members of the Legislative Assembly or the Legislative Council.
Although the law is well settled since 1954335 as to what constitutes an
office of profit to attract the disqualification, a large number of cases have
come up before Courts time and again involving the same question
primarily due to the factual backgrounds involved in such cases.
In Jaya Bacchan v. Union of India,336 the petitioner challenged the order
dated 16.03.2006 passed by the President of India under Article 103 (1) of
the Constitution after obtaining the opinion of the Election Commission
335
Ravanna Subanna v. G.S. Kaggeerappa, AIR 1954 SC 653.
336
(2006) 5 SCC 266.

213
holding that the petitioner was disqualified for being a member of the
Rajya Sabha on and from 14.07.2004 on her appointment by the
Government of Uttar Pradesh as Chairperson of the U.P. Film Development
Council. The Government of Uttar Pradesh had appointed the petitioner to
the said post by virtue of which she not only got the benefits of the rank of
cabinet minister but also became entitled to several benefits such as
honorarium of Rs. 5,000/- per month; daily allowances and a monthly
entertainment expenditure of rs. 10,000/- per month staff car with driver,
telephones, private secretary and personal assistant and two class IV
employees, body guard and night escort, free accommodation and free
medical treatment facilities and free accommodation in Government circuit
houses/guest houses and hospitality while on tour. The Election
Commission expressed its opinion that the office of the Chairperson of the
Council was an “office of profit” within the meaning of Article 102 (1) (a)
of the Constitution and since section 3 of the 1959 Act did not exempt the
said office from disqualification, the petitioner became disqualified to be a
member of the Rajya Sabha. The petitioner contended that conferment of
the rank of cabinet minister was only “decorative” and that she neither
received any remuneration nor any monetary benefit from the State
Government nor did she seek any residential accommodation not used the
telephone, etc. Her case was that she accepted the chairmanship of the
Council honorarily and did not use any of the facilities mentioned in the
office memorandum pertaining to her appointment and hence she could not
be said to hold any office of profit under the State Government. Her
disqualification therefore was invalid.337 The expression “office of profit”
has neither been defined in the Constitution nor in the Representation of the
People Act, 1951. The expression, however, has been a subject matter of
337
Ibid at. 269.

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interpretation in several cases and the legal position stood settled for over
half a century. Referring to the earlier decisions the Court held that an
“office of profit” is an office which is capable of yielding a profit or
pecuniary gain. Holding of an office under the State or the Central
Government to which some pay, salary, emoluments, remuneration or non-
compensatory allowances is attached in “holding an office of profit”. The
test for determining the question is, whether the office is capable of
yielding a profit or pecuniary gain and not whether the person actually
obtained any monetary gain. It was held that if the office carries with it or
entitles the holder to any pecuniary gain other than reimbursement of out of
pocket/actual expenses, then the office will be an “office of profit” for the
purpose of Article 102 (1) (a). The Court, therefore, upheld the order
passed by the President.
In Shrikant v. Vasant Rao,338 the question that arose for consideration was
whether the appellant who had entered into a contract with the State
Government but stood transferred to a Corporation established under the
Maharashtra Godawari Marathwada Irrigation Development Corporation
Act, 1998 (for short MGMIDC) and two other contracts with Maharashtra
Jeevan Pradhikaran (for short MJP), an authority constituted under the
Maharashtra Jeevan Authority Act, 1976 (for short MJA), stood
disqualified by reason of Section 9 (A) of the Representation of the People
Act. Section 9 (A) provides that a person shall be disqualified if there
subsists a contract entered into by him in the course of his trade or business
with the appropriate Government for the supply of goods to, or for the
execution of any works undertaken by that Government. Section 7 of the
Act defines “appropriate Government” in relation to any disqualification
for being chosen as or for being a member of the Legislative Assembly or
338
(2006) 2 SCC 682.

215
Council of a State, the State Government. The expression “State
Government” is neither defined in the Constitution nor in the
Representation of the people Act, 1951. Section 2 (j) of the Representation
of the People Act, 1950 defines the expression “State Government”, in
relation to a Union territory means the administrator thereof. Section 2 (60)
of the General Clauses Act, 1897, provided that the term “State
Government” in relation to a Union territory, means the administrator
thereof. Section 2 (60) of the General Clauses Act, 1897 provided that the
term “State Government” as respects anything done, or to be done shall
mean in a State, the Governor. The appellant was declared elected to the
Maharashtra Legislative Council from the Aurangabad Division Graduates'
Constituency. The respondent who was one of the rival candidates filed an
election petition in the High Court of Bombay challenging the election of
the appellant, inter alia, on the ground that he was disqualified by reason of
the subsisting contracts with the Government in terms of the provisions
contained in Section 9 (A) of the Representation of the People Act, 1951.
The High Court allowed the election petition and declared the election of
the appellant as void since the Corporation set up under MGMIDC and
MJP were statutory Corporations wholly controlled by the State
Government and hence fell within the expression “State” under Article 12
of the Constitution. Since the said Corporations were wholly controlled by
the State Government they are same as the “State Government”. The two
Corporations therefore, could be termed as appropriate Government within
the meaning of Section 9 of the Act. The following three questions arose
for consideration of the Court:339
XI. Whether a statutory body or authority which answers the

339
Ibid., pp. 687-88.

216
 definition of State under Article 12, for the purposes of Part III
and IV of the Constitution, is an “appropriate Government” for
the purposes of Section 9 (A) of the Act, and whether GMIDC
and MPJ can be termed as “appropriate Government” (that is
State Government having regard to definition under Section 7
of the Act) for the purposes of Section 9 (A) of the Act.
XII. Whether the contract dated 19.05.1996 entered into by the
appellant with the State Government continued to be a contract
with the State Government, after its transfer to GMIDC with
effect from 01.10.1998.
XIII. whether the appellant incurred any disqualification under
Section 9 (A) of the Act on account of its contract dated
19.05.1996, 31.12.1998 and 12.04.1999?
While answering the first question, the Court held, that there is a clear
distinction between “instrumentalities of the State” and the “State
Government” though both may answer the definition of “State” under
Article 12 for the limited purpose of Part III of the Constitution.
Raveendran J. speaking for the Court held, that while the term 'State' may
include a State Government and also statutory or other authorities for the
purposes of Part III (or part IV) of the Constitution and that the term “State
Government” in its ordinary sense does not encompass in its fold neither a
local or statutory authority. It follows, therefore, that though GMIDC and
MPJ fall within the scope of 'State' for the purposes of Part III of the
Constitution, they are not 'State Government' for the purposes of Section 9
(A) (read with Section 7) of the Act.340
Answering the second question it was held that Section 9 of the Act would

340
Ibid. pp. 694-95.

217
be attracted if the contractor has some obligation to perform towards the
State Government on the relevant date. The Court found that from the
appointed day, i.e., 01.10.1998 the Tawarja Project with all rights, liabilities
and obligations of the State Government stood vested in and transferred to
the Corporation (GMIDC) and hence as a consequence all rights, liabilities
and obligations under the contract in question stood statutorily vested in
and transferred to GMIDC. The contract thus ceased to be a contract with
the State Government from 01.10.1998.341 Since on the date of filing of
nomination by the appellant and scrutiny of the nomination the contract in
question was no longer a contract with the appropriate Government but
only with the Corporation (GMIDC) the provisions of Section 9 (A) were
not attracted. Answering the last question it was held that since the
contracts in question on the relevant date were only with the respective
corporations and not with the “appropriate Government”, the appellant did
not incur any disqualification under Section 9 (A) of the Act.
D. When Speaker’s Decision is Final
Quite apart from the aforesaid developments, few notable judicial trends
are worth nothing. The question whether a member of the House has
incurred disqualification under Tenth Schedule of the Constitution cannot
be a subject matter for consideration in an election petition filed under the
Peoples Representation Act, 1951. In an election appeal filed by a defeated
candidate in G.S. Iqbal v. K.M. Khader,342 it was argued before the
Supreme Court that the respondent elected candidate continued to be
member of two political parties, viz., DMK and TNIUML even after his
election and consequently he incurred disqualification under the Tenth
Schedule. Under the scheme of the Constitution, the power to declare
341
Ibid. pp. 698-99.
342
(2009) 11 SCC 198; for an elaborate discussion on the law of disqualification under Tenth
Schedule of the Constitution see, Kihoto Hollohan v. Zachillu, 1992 Supl. (2) SCC 651.

218
'disqualified' under Tenth Schedule vests in the Speaker. The power of the
Speaker is subject to judicial review. The Court refused to entertain the
issue because no order passed by the Speaker was impugned before it. The
Court ruled that the Speaker of the House is, accordingly, a competent
authority to decide the question as to whether the member of a House has
become subject to disqualification under the Tenth Schedule. Therefore the
question relating to disqualification under the Tent Schedule has to be
decided by the Speaker and none else. The decision of the Speaker in this
regard is final subject to judicial review on the permissible grounds. But
such an issue cannot be raised in an election appeal.
E. Question of Defection
Impeccable functioning is expected from constitutional functionaries
holding high public offices. When an order is passed by a high
constitutional functionary prima facie it is in the bonafide zone. However,
if the Court comes to the conclusion that the power has not been exercised
honestly and fairly then there would be no alternative with the Court but to
interfere with the order passed. The role of Speaker of Karnataka
Legislative Assembly was examined by the Supreme Court in Balchandra
L. Jarkiholi v. B. S. Yedyurappa,343 with regard to an order of
disqualification of some members of the Karnataka Legislative Assembly
passed under Karnataka Legislative Assembly (Disqualification of
Members on Ground of Defection) Rules, 1986. Thirteen members of the
Assembly wrote identical letters to the Governor indicating that as
members of BJP they had become disillusioned with the functioning of
Government headed by the Chief Minister. They alleged that there was
widespread corruption, nepotism, favouritism, abuse of power and misuse
of Government machinery in the functioning of the Government and that a
343
(2011) 7 SCC 1.

219
situation had arisen when the Governance of the State could not be carried
on in accordance with the provisions of the Constitution. Accordingly, they
were withdrawing support from the Government with a request to the
Governor to intervene and to institute the constitutional process as the
constitutional head of the State. Two MLAs retracted the withdrawal of
support. On the application of the Chief Minister the Speaker passed an
order disqualifying the members on the ground of defection excepting two
MLAs who had later retracted their statement. The Speaker passed an order
of disqualification under Paragraph 2 (1) (a) of the Tenth Schedule to the
Constitution on the ground that withdrawing support and acting against the
leader of the party under which they had been elected, amounts to violation
of the object of the Tenth Schedule. On facts the Court found, (1) Speaker
allowed State President of the BJP, who was not even a party to the
proceedings, to file affidavit adverse to the appellants; (2) the appellant-
MLAs were not served with notices directly, but the same were posted on
the outer doors of their quarters in the MLA complex; (3) copies of
documents and annexures relied on in support of the disqualification order
were not served on the appellants; (4) only three days' time was granted to
file the reply while the Rule 7 (3) of the disqualification Rules required
seven days' period; (5) appellants were treated discriminatory as against
two MLAs who had later retracted their statement; (6) relied on media
report against the appellants. Setting aside the order of the Speaker, Court
ruled that extraneous considerations are writ large on the face of the order
of the Speaker.344 Not only the Speaker's order amount to denial of the
principles of natural justice to the appellants, but it also reveals a partisan
train in his approach in disposing of the application of disqualification filed

344
Ibid., p. 44.

220
by the Chief Minister.345 The procedure adopted by the Speaker seems to
indicate that he was trying to meet the time schedule set by the Governor
for the trial of strength in the Assembly and to ensure that the appellants
and the other independent MLAs stood disqualified prior to the date on
which the floor test was to be held.346 The Court ruled that the conclusion
arrived at by the Speaker does not fund support from the contents of the
letter of the MLAs so as to empower the Speaker to take such a drastic step
as to remove the appellants from the membership of the House.347 The
Court emphasized that the subject of paragraph 5 of the Tenth Schedule is
to ensure that the Speaker, while holding office, acts absolutely impartially,
without any leaning towards any party, including the party from which he
was elected to the House.348
It emerges from the above discussion that The object of Tenth Schedule is
to curtail the evil of political defection motivated by tempt of of office or
other similar considerations which jeopardise the foundations of
democracy. The provisions in Tenth Schedule are salutary and are intended
to strengthen the fabric of Indian Parliamentary System by curbing
unprincipled and unethical political defections349. A political party
functions on the strength of shared beliefs. Its own political stability and
social utility depend on such shared beliefs and concerted action of its
members in furtherance of those commonly held principles. Any freedom
of its members to vote as they please independently of the political party's
declared policies will not only embarrass its public image and popularity,
but also undermine public confidence in it which, in the ultimate analysis,

345
Ibid., p. 37.
346
Ibid., p. 42.
347
Ibid., p. 36.
348
Ibid., p. 44.
349
Durga Das Basu, Commentary on the Constitution of India, Wadwa, New Delhi (2008).

221
is its source of sustenance and survival.
Tenth Schedule cannot be read or construed independent of Articles 102
and 191 of the Constitution. The whole proceeding under Tenth Schedule is
initiated or gets initiated as a part of disqualification of a member of a
House, i.e., by way of defection. A proceeding under Tenth Schedule gets
started before the Speaker only on a complaint being made that certain
person belonging to a political party has incurred a disqualification on the
ground of defection. The Speaker has to necessarily decide the question of
disqualification as a tribunal. To meet the claim so raised the members
against whom the proceedings are initiated, in addition to a plea that they
have not voluntarily given up their membership of the party or defied the
whip issued to them.
Tenth Schedule recognizes the importance of political parties in our
democratic set up especially in dealing with members of Parliament and
legislative assemblies or Council. Being a member of political party on
whose ticket he has been elected as a member, in the first place, he is
generally expected to follow the direction of the party, which is one of the
basic units in our democracy350.

350
See Kuldip Nayar v. Union of India, AIR 2006 SC 3127.

222