Anti Defection Law in India An Analysis

IRJMST Vol 7 Issue 6 [Year 2016] ISSN 2250 – 1959 (0nline) 2348 – 9367 (Print)
ANTI DEFECTION LAW IN INDIA: AN ANALYSIS

ANJU SINDHU
Assistant Professor
C.R. Law College, Hisar
Provisions as to disqualification on ground of defection (Tenth Schedule)
1. Interpretation - In this Schedule, unless the context otherwise requires,-

a) "House" means either House of Parliament or the Legislative Assembly or, as the case may be, either
House of the Legislature of a State;
b) "legislature party", in relation to a member of a House belonging to any political party in accordance
with the provisions of paragraph 2 or paragraph 4, 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;
c) "original political party", in relation to a member of a House, means the political party to which he
belongs for the purposes of subparagraph(1) of paragraph 2;
d) "paragraph" means a paragraph of this Schedule.
Historical Background:
Failure of the political parties in the 1967 to secure absolute majority to enable many of them to form
the government at the Centre as well as in the States gave rise to wide-spread political defections by elected
M.P. and M.L.As. Absence of a strong law on resignation of political parties further accentuated the problem.
Reportedly, some M.L.As. just with the sole motive for monetary gain and for grabbing power, changed
parties three or four times in a day. The evil of political defections became a matter of national concern.
Ultimately, on 8th December, 1967, the Lok Sabha unanimously adopted the following resolution:
“A high-level committee consisting of representation 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 makes
recommendations in this regard.”
Accordingly, a Committee known as the “Committee on Defections” under the Chairmanship of the then
Union Home Minister, Shri Y.B. Chavan was set up to study the problems of political defections and suggest
remedial measures. The Committee in its report dated 7th January, 1969 observed:
“Following the Fourth General Elections, in the short period between March, 1967 and February,
1968, the Indian Political scene was characterised by legislators in 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 the Fourth General Elections, 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 of 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 defection by the same
person or set of persons (Haryana affording a conspicuous example); few resignations of the
membership of the legislature 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.”
According to Shri Subhash C. Kashyap, former Secretary-General of Lok Sabha, between the fourth
and the fifth general elections in 1967 and 1972, there were nearly 2000 cases of defection and counter-
defection, and that the lure of office played a dominant part in this act.1
The committee on Defections recommended, inter alia: “Article 102(1)(e) and 191(1)(e) of
Constitution empower Parliament to make a law providing for disqualification a person for being chosen as,
1
Subhash C. Kashyap: Anti-defection Law and Parliamentary Privileges, N.M. Tripathi.
International Research Journal of Management Science & Technology

http://www.irjmst.com Page 95
and for being, a member of either House of Parliament or of the State Legislative Assembly or Legislative
Council. As standing for election to Parliament or State Legislative is only a statutory as distinguished from a
fundamental right, it is open to Parliament to impose such restrictions or conditions on the exercise and
enjoyment of that right as it considers necessary or reasonable in public interest. On that basis, it is possible to
provide in a special legislation that a legislator who renounces the membership of or repudiates his allegiance
to political party shall be disqualified from continuing as a member of Parliament/State Legislature. He will
nevertheless be free to stand for election again if he so wishes, and to sit as a member in case he gets elected.
Where, however, a legislator defects for a pecuniary advantage or for an office of profit, an element of
aggravation enters into his action which, we feel, has to be visited with greater severity. This may be done by
providing that in addition to being disqualified from continuing from being chosen as a member of
Parliament/State Legislature for particular period. In this context, we consider the term “office of profit” as
used in Art. 102/191 to be inclusive of ministership (as is evident from the explanation contained in Cl. (2) of
that Article); hence, defection for the sake of ministership can, without difficulty, be brought under the
aggravated category.
If any person who has been elected as a member of either House of Parliament or of the Legislative
Assembly or Legislative Council of a State and who was allotted the reserved symbol of any political party in
respect of such election renounces (whether by words, conduct or in any other manner) after the said election
allegiance to, or association with, such political party, he shall upon such renunciation, be disqualified for
being a member of the House of Parliament, Legislative Assembly or Legislative Council to which he was so
elected.”
Meanwhile the Election Commission also in its Report on the Mid-term General Election in India,
1968-69, lamented:
“When the results of the Fourth General Elections of 1967 were declared, it was found that the
Indian National Congress which has till then been the dominant political party throughout India has lost its
majority in a number of State Legislative Assemblies and its majority in the House of the People has also
drastically dwindled. This not only resulted in the formation of non-Congress Governments in a number of
State Assemblies but also made the members of such State Assemblies forget the election-promises and
pledges held out to the electorate at the time of election by and on behalf of the parties by whom they were
sponsored and started defecting in large numbers in quick succession from their respective parties. The
elected representatives forgot that defection and re-defection from one party to another is not paying in the
long-run, and more often than not it acts as boomerang hitting the person by whom it is resorted to. The moral
consequences of defection and floor-crossing are sometimes far-reaching and serious.”
Keeping in view the recommendations of the Committee on Defections, the Constitution (Thirty-Second
Amendment) Bill, 1973 was introduced in the Lok Sabha on 16th May, 1973, seeking to amend Art. 102 and
191 of the constitution and to provide, inter alia, for disqualifying a Member from continuing as a Minister of
either House of Parliament or the State Legislature on his voluntarily giving up of the 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 bill, however, lapsed the dissolution of the House on 18 th
January, 1977.
Shortly after, the Election Commission of India in 1977 made a specific recommendation that
defection of legislators from one political party to another should be prohibited by providing that some other
disqualification culminating into vacation of seat should result from such defection. But at the same time, the
Commission felt that no amendment to the Representation of the People Act, 1951. The contentious matter
was referred to a Committee headed by the then Union Home Minister, Choudhary Charan Singh, and on the
basis of the recommendations of the Choudhary Charan Singh Committee, another Bill viz. the Constitution
(Forty-eight Amendment) Bill, 1978 was introduced in the Lok Sabha on 28th August, 1978. Unlike the earlier
Bill, this Bill sought to specify defection from a Member‟s original political party as disqualification under
Art. 102 or 191, as the case may be, and to insert a new Schedule viz. Tenth Schedule in the Constitution to
deal with various aspects of defection. The 1978-Bill was, however, withdrawn on the same day it was
introduced, on the face of strong opposition from the ruling party members themselves.

In 1982, an alarming picture of political defections was presented by the Jammu and Kashmir High
Court in the case of Mian Bashir Ahmad v. State of Jammu & Kashmir.2 The number of defections as shown
in the judgement was 41 in 1977, 57 in 1978, 69 in 1979, and 74 in 1970. What could be the worse political
indisciplined and betrayal to the democratic ethics than this!
After seven years from the lapse of the second bill, sufficient damage having been caused to the
political morale and ethics in the country by then, the Constitution (Fifty Second Amendment) Bill, 1985 was
introduced and passed in the Parliament on 30th January, 1985 and the Act came into force on and from 1st
March, 1985. In the Statement of Objects and Reasons of the Act, it was stated:
“The evil of political defections has been a matter of national concern. If it not combated, it is likely
to undermine the very foundations 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. The bill is meant for outlawing defection and
fulfilling the above assurance.”
The constitution (Fifty-second Amendment) Act, 1985 this gave the much awaited birth to the anti-
defection law as contained in the Tenth Schedule to the Constitution. However, hardly the illness of political
defections could be cured to the desirable extent, though controlled to a large extent. The tenth schedule
continued to be a subject-matter of controversy- both the judiciary and the legislature. It is said that the Tenth
Schedule has barred individual defections but legalise group defections, that a split in the main political party
whereas it should be otherwise, that the status of legislator expelled by his political party has not been defined,
and the like. In his article viz. “Speaker‟s office-II” published in Statesman dated 14th April, 1998, Shri. C.K.
Jain held on bars to mention:
“Yet another case of controversy surrounding the Speakership is the power of adjudicating on
petitions submitted under the Tenth Schedule of the Constitution, known as the Anti-defection law. Has
other Speaker Rabi Ray in his widely acclaimed decision, possibly the floodgates of unprincipled defections
would not have taken place and the political parties would not have faced with the splits engineered largely
for reasons of personal aggrandizement and brazen pursuit of power. The best course is to repeal the law.
And if that is not done, law should be so amended as to achieve its object to curb the unprincipled defections.”
It is hoped very much that the Constitution Bench of the Hon‟ble Supreme Court, seized with the case
of Mayawati v. Markandeya Chand would ultimately render answers to many such queries and questions.
It may be recalled that the first victim of Anti-Defection law as contained the Tenth Schedule was an
M.P. from Mizoram, which was also the first case of defection before the Hon‟ble Speaker of Lok Sabha in
1988, after the Tenth Schedule has come into force.
Object:
The Statement of Objects and Reasons accompanying the Constitution (Fifty-second Amendment) Act, 1985
makes the object behind introduction of the Tenth Schedule to the Constitution clear as follows:
“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. The Bill is meant for outlawing defection and
fulfilling the above assurance.”
The purpose for enacting the Constitution (Fifty second Amendment) Act, 1985 i.e. incorporation of
the Tenth Schedule and other amendments was not only to stabilise the legally elected Government and to
prevent the political immorality and corruption, but also to make them effective. If the provisions are read
down, the main purpose would be defecated- Parkash Singh Badal v. Union of India.3
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- Kihoto Hollohon v. Zachillhu.4
The objects and purposes of the Tenth Schedule would be achieved if the disqualification incurred on
the ground of voting or abstaining from voting by a member is confined to cases where a change of
Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or
2
AIR 1982 J & K 26.
3
AIR 1987 P & H 263 (FB).
4
AIR 1993 SC 412: 1992 Supp. (2) SCC 651: 1992 AIR SCW 3497; JT 1992 (1) SC 600: 1992 (1) SPJ 565.

abstinence or when such voting or abstinence is on a matter which was a major policy and programme on
which the political party to which the matter belongs went to the polls.- Kihoto Hollohon v. Zachillhu.5
The object is to preserve democratic structure of the Legislature and safeguard political morality in
legislators.- Banja K Phom v. Thenucho.6
The objects and reasons for enacting the Constitution (Fifty-second Amendment) Act, 1985 and the
Maharashtra Local Authority Member‟s Disqualification Act, 1986 are clear. The same seeks to prevent
defection. The same further prevents independent members from losing their character as such and prohibits
them from joining a political party or front.- Pandurang Dugadu Parte v. Ramchandra Baburao Hirve.7
Constitutional Validity:
The contention that the provisions of the Tenth Schedule, even with the exclusion of paragraph 7,
violate the basic structure of the Constitution in that they affect the democratic rights of elected members and
of the principles of Parliamentary democracy is held unsound and liable to be rejected.- Kihoto Hollonhon v.
Zachillhu.8
The vesting of adjudicatory functions in the Speakers/Chairpersons under the Tenth Schedule would
not by itself vitiate the provision on the ground of likelihood of political bias.9
The tenth schedule does not in providing for an additional ground for disqualification and for
adjudication of disputed disqualifications, seek to create a non-justiciable Constitutional area.- Kihoto
Hollonhon v. Zachillhu.10
Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in
the Constitution. So it the need to protect and sustain the purity of the electoral process. From that it does not
necessarily follow that the rights and immunities under Art. 105 (2) of the Constitution are elevated into
fundamental rights and that the Tenth Schedule should be struck down for its inconsistency with Art. 105 (2)-
Kihoto Hollohon v. Zachillhu.11
Scope:
The provisions of Tenth Schedule are salutary and are intended to strengthen the fabric of Indian
Parliamentary democracy by curbing unprincipled and unethical political defections.12
The anti-defection law seeks to recognise the practical need to place the proprieties of political and
personal conduct, whose awkward erosion and grotesque manifestations have been the base of the times,
above certain theoretical assumptions which in reality have fallen into a morass of personal and political
degradation.13
Although originally the Constitution had not expressly referred to the existence of political parties, by
the amendments made to it by the Constitution (Fifty-Second Amendment) Act, 1985, there is now a clear
recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution, which is added
by the above Amending Act acknowledges the existence of political parties and sets out the circumstances
when a member of Parliament or of the State Legislature would be deemed to have defected from the political
party and would thereby be disqualified for being a member of the House concerned- Kanhiya Lal Omar v.
R.K. Trivedi.14
The question of disqualification of a Member on the ground of defection and the Speaker‟s order
thereon rendered under the Tenth Schedule are not based on the result of an election. Which can be challenged
only by an election-petition in accordance with the provisions of the People Act, 1951.- Dr. Kashinath G.
Jalmi v. The Speaker, Legislative Assembly of Goa.15
Tenth Schedule & Art. 102 (2):
5
6
(1992) 1 Gau, LR 356 (372).
7
AIR 1997 Bom. 387. 1997 (2) Mah. LR 578; 1997 (3) Bom. CR 161.
8
AIR 1993 SC 412; 1992 Supp. (2) SCC 651.
9
10
11
12
Ibid.
13
Ibid.
14
AIR 1986 SC 111: (1985) 4 SCC 628: (1985) Supp. (3) SCR 1: 1985 UJ 969: (1985) 2 Scale 1370.
15
AIR 1993 SC 1873: (1993) 2 SCC 703: JT 1993 (3) SC 594: 1993 (2) UJ (SC) 113: 1993 AIR SCW 1578.

Art. 105 (2) cannot be said to be a source of immunity from the consequences of unprincipled floor-
crossing- Kihoto Hollonhon v. Zachillhu.16
The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the
Tenth Schedule do not purport to make a Member of a House liable in any „court‟ for anything said or any
vote given by him in Parliament or State Assembly, as the case may be.- Kihoto Hollonhom v. Zachillhu.17
Judicial review- Scope of:
Power of judicial review in respect of the order passed by the Speaker/Chairman of the House acting
as Tribunal under 10th Schedule of the Constitution adjudicating any matter is limited and this power cannot
be exercised in case of apprehended or threatened action.- Keshab Gogoi v. Speaker, Assam Legislative
Assembly.18
It is not every violation of every rule, which call upon or require the court to strike down the order of
a Tribunal like that of Speaker. Whether the order is to be struck down on the ground of violation of a Rule
would depend on a host of circumstances, such as the nature and significance of the Rule, the conduct of the
writ-petitioners, prejudice caused to them etc.- Zachilhu Khusantho v. State of Nagaland.19
The judicial review is not available at a stage prior to the making of decision by the
Speaker/Chairman, nor would it be available for interfering against any interlocutory order. However, there
are exceptions in respect of cases where disqualification or suspension is imposed during the pendency of the
proceeding or where such disqualification or suspension is likely to have grave, immediate and irreversible
repercussion and consequences.- Keshab Gogoi v. Speaker.20
Paragraph 1 (b)- Scope of:
Paragraph 1(b) cannot be read in isolation. It has to be read along with paragraph 2, 3 and 4.- G.
Viswanathan v. The Hon‟ble Speaker, T.N. Legislative Assembly.21
Paragraph 1(b) in referring to the Legislative Party in relation to a member of a House belonging to
any political party refers to the provisions of Paragraphs 2, 3 and 4, as the case may be, to mean the group
consisting of all members of that House for the time being belonging to that political party in accordance with
the said provisions, namely, paragraphs 2, 3 and 4, as the case may be.-G. Vishwanathan v. The Hon‟ble
Speaker, T.N. Legislative Assembly.22
‗Legislative Party‘ in Para 1 (b) – Meaning of:
The expression „Legislative Party‟ as defined in accordance with paragraph 3, and applies, inter alia,
to the faction formed as envisaged in paragraph3.- Mayawati v. Markandeya Chand.23
‗Original Political Party‘ as in Para 1(c) and ‗Political Party‘ as in para 2(1)(b):
„Political Party‟ in clause (b) of sub-para (1) of para 2 is none other than „original political party‟
mentioned in para 3.- Mayawati v. Markandeya Chand.24
The argument that the context in para 2(1)(b) requires to equate „political party‟ with „legislative
party‟ even though the definition clause in para 1 reads differently is not acceptable. A reading of sub-para (b)
and the Explanation in para 2(1) places the matter beyond doubt that the „political party‟ in sub-para (b) refers
to the „original political party‟ only and not to the Legislative party.- Mayawati v. Markandeya Chand.25
‗Political Party‘- Meaning of:
Generally speaking, a political party is an unincorporated voluntary association of a number of
persons, more or less numerous, sponsoring ideas of government or maintaining certain political principles or
16
1992 Supp. (2) SCC 651: AIR 1993 SC 412: 1992 Supp. (2) SCC 651: 1992 AIR SCW 3497; JT 1992 (1) SC 600:
1992 (1) SPJ 565.
17
Ibid
18
(1995) 1 Gau. LR 53.
19
(1993) Supp. (1) Gau LR 359 (378).
20
Assam Legislative Assembly, (1995) 1 Gau. LR 53.
21
AIR 1996 SC 1060: 1996 AIR SCW 556: 1996 (2) SCC 353: 1996 (1) UJ (SC) 325: 1996 (1) 607.
22
Ibid
23
AIR 1998 SC 3340: 1998 (7) SCC 517; 1998 AIR SCW 3241: 1998 (7) JT 36: 1998 (8) Supreme 16: 1998 (5) Scale
517.
24
517: 1998 All. LJ 2550.
25
Ibid

ideologies or beliefs in public politics of the government, having a political organisation.- W.K. Singh v.
Speaker, Manipur Legislative Assembly.26
2. Disqualification on ground of defection.—(1) Subject to theprovisions of paragraphs 4 and 5, a member
of a House belonging to anypolitical party shall be disqualified for being a member of the House—
a) if he has voluntarily given up his membership of such politicalparty; or
b) if he votes or abstains from voting in such House contrary toany direction issued by the political party
to which he belongs or by anyperson or authority authorised by it in this behalf, without obtaining,
ineither case, the prior permission of such political party, person orauthority and such voting or
abstention has not been condoned by suchpolitical party, person or authority within fifteen days from
the date ofsuch voting or abstention.
Explanation.—For the purposes of this sub-paragraph,—
a) an elected member of a House shall be deemed to belong tothe political party, if any, by which he was
set up as a candidate forelection as such member;
b) a nominated member of a House shall,—
(i) where he is a member of any political party on the dateof his nomination as such member, be
deemed to belong to suchpolitical party;
(ii) in any other case, be deemed to belong to the politicalparty of which he becomes, or, as the case
may be, first becomes,a member before the expiry of six months from the date on whichhe takes
his seat after complying with the requirements of article99 or, as the case may be, article 188.
(2) An elected member of a House who has been elected as such otherwisethan as a candidate set up by any
political party shall be disqualified for being amember of the House if he joins any political party after such
election.
(3) A nominated member of a House shall be disqualified for being amember of the House if he joins any
political party after the expiry of sixmonths from the date on which he takes his seat after complying with
therequirements of article 99 or, as the case may be, article 188.
(4) Notwithstanding anything contained in the foregoing provisions ofthis paragraph, a person who, on the
commencement of the Constitution (FiftysecondAmendment) Act, 1985, is a member of a House (whether
elected ornominated as such) shall,—
i. where he was a member of political party immediately beforesuch commencement, be deemed, for the
purposes of sub-paragraph (1)of this paragraph, to have been elected as a member of such House as
acandidate set up by such political party;
ii. in any other case, be deemed to be an elected member of theHouse who has been elected as such
otherwise than as a candidate set upby any political party for the purposes of sub-paragraph (2) of
thisparagraph or, as the case may be, be deemed to be a nominated memberof the House for the
purposes of sub-paragraph (3) of this paragraph.
Para 2- Scope of:

The deeming fiction in explanation (a) in para 2(1) of Schedule 10 must be given full effect, for,
otherwise the expelled member would escape the rigour of law which was intended to curb the evil of
defections.- G. Vishwanathan v. The Hon‟ble Speaker, T.N. Legislative Assembly.27
Paragraph 2(1) read with the Explanation clearly points out that in elected member shall continue to
belong to that political party by which he was set up as a candidate for election as such member. This is so,
nothwithstanding that he was thrown out or expelled from that party.- G. Vishwanathan v. The Hon‟ble
The action of a political party qua its member has no significance and cannot impinge on the fiction of
law under the Tenth Schedule.- G. Vishwanathan v. The Hon‟ble Speaker, T.N. Legislative Assembly.29
Two conditions are sine qua non for avoiding the disqualification when any member of the House
voluntarily gives up membership of his original political party. First is that the member concerned should have
made a claim that the split in the original political party has arisen resulting in the constitution of a group in its
26
(1986) 2 Gau. LR 91 (98).
27
AIR 1996 SC 1060: 1996 AIR SCW 556: 1996 (2) SCC 353: 1996 (1) UJ (SC) 325: 1996(1) JT 607.
28
Ibid
29
Ibid

Legislative Party representing a fiction thereof. Second is that such group should consist of not less than one-
third of the members of such Legislative Party.- Mayawati v. Markandeya Chand.30
Constitutional validity of Para 2:
The provisions of paragraph 2 of the Tenth Schedule do not violate any rights or freedom of elected
members of Parliament or State Legislative under Art. Or Art. 194 of the Constitution, and is thus
constitutionally valid.- Kihoto Hollonhon v. Zachillhu.31
Para 2 and Role of the Leader of Legislature Party:
There can be no doubt that leader of a Legislative Party occupies an important position in the
legislative scheme of things. He has an important role to play under the Rules. He has to convey relevant and
necessary information to the Speaker. He has a right to receive copies of the petition with annexures submitted
by any member to the Speaker, seeking disqualification of any other member and to furnish written comments
thereon to the Speaker. In a case of disqualification under paragraph 2(1)(b) of Tenth Schedule, the
involvement of the leader assumes importance inasmuch as condemnation of violation of whips arises for
consideration. In case which attracts paragraph 2(1)(a) or Paragraph 3 of the Tenth Schedule, his role does not
assume such crucial significance- Zachilhu Khusantho v. State of Nagaland.32
Status of member being ‗unattached‘- Whether can save from disqualification:
Being treated as unattached is a matter of convenience outside the Tenth Schedule and does not alter
the fact to be assumed under the Explanation to paragraph 2(1) of the Schedule. Such an arrangement and
lebelling would be of no legal consequence, as the same is not recognised in the constitutional scheme
underlying the Tenth Schedule- G. Vishwanathan v. The Hon‟ble Speaker, T.N. Legislative Assembly.33
Voluntarily giving up membership of Political Party under clause (a) of para 2(1) and scope of:
Where an individual member voluntarily gives up the membership of his political party, he is subject
to disqualification under paragraph 2(1)(a). on the other hand, where a group of members of the Legislative
Party, they are not entitled to protection under paragraph 3 and they are subject to disqualification under
paragraph 2(1)(a) and 3 of the X-th Schedule- Banjak Phom v. Thenucho.34
A member can voluntarily give up his membership in a variety of ways. He may formally tender his
resignation in writing to his political party or he may so conduct himself that the necessary inference from the
conduct is that he has voluntarily given up his membership of the party to which he belonged.- Zachilhu
Khusantho v. State of Nagaland.35
No provision in the Tenth Schedule requires that the act of voluntarily giving up membership of the
party must be expressed or performed in any particular manner formal or otherwise. To require such a
formality in the act of voluntarily giving up membership of party would amount to adding a non-existent
qualification or condition in paragraph 2(1)(a).- Zachilhu Khusantho v. State of Nagaland.36
Whether a member has voluntarily given up membership of his political party is a matter of
interference from admitted or proved circumstances.- Zachilhu Khusantho v. State of Nagaland.37
―Voluntarily given up his membership‖-Interference of:
Even in the presence of a formal resignation from membership an inference can be drawn from the
conduct of a member that he has voluntarily given up his membership of the political party to which he
belonged.-Ravi S. Naik v. Union of India.38
If a person belonging to a political party that had set him up as a candidate, gets elected to the House
and thereafter joins another political party for whatever reasons, either because of his expulsion from the
30
517: 1998 All. LJ 2550.
31
1992 (1) SPJ 565.
32
(1993) Supp. (1) Gau LR 359 (370-371).
33
Ibid
34
(1992) 1 Gau. LR 356 (376).
35
(1993) Supp. (1) Gau LR 359.
36
(1993) Supp. (1) Gau LR 359.
37
(1993) Supp. (1) Gau LR 359.
38
1994 Supp. (2) 641: AIR 1994 SC 1558 : 1994 AIR SCW 1214: (1994) 2 SCJ 21.

political party and incurs disqualification under Art. 191(2) of the Constitution.- G. Vishwanathan v. The
Hon‟ble Speaker, T.N. Legislative Assembly.39
Word ‗Join‘ – Meaning of:
The term „Join‟ has a wider connotation and the same would include constitution of a group by
various individuals getting together for the purpose of forming an „Aghadi‟ or front- Pandurang Dugadu Parte
v. Ramchandra Baburao Hirve.40
Whether resignation wipes out the stain of disqualification:
The contention that as the appellant, after the filling of a petition alleging his disqualification, had
demitted office of the Speaker, so the enquiry into the alleged disqualification could not be proceeded with, is
held to be have no substance. The disqualification, if incurred any, is from the membership of the House and
the subsequent resignation from the office of the Speaker does not bestow immunity from the liability for
disqualification.- Luis Proto Barbosa v. Union of India.41
The words “voluntarily given up his membership” occurring in Paragraph 2(1)(a) of the Tenth
Schedule are not synonymous with “resignation” and have a wider connotation inasmuch as a person may
voluntarily give up his membership of a political party even though he has not tendered his resignation from
the membership of that party.- Ravi S. Naik v. Union of India.42
Para 2(1)(b)- Constitutional Validity of:
It cannot be said that the provisions of para 2(1)(b) would be destructive of the democratic set up, the
basic feature of the Constitution. Unless read down.- Parkash Singh Badal v. Union of India.43
So far as the right of member under Art. 105 is concerned, it is not an absolute one and has been made
subject to the provisions of the Constitution and the rules and Standing Orders regulating the procedure of
Parliament. The right of freedom of speech conferred on a member of the Parliament can be regulated or
curtailed by making any constitutional provision, such as the Fifty Second Amendment Act. Therefore, the
provisions of para 2(1)(b) cannot be termed as violative of the provisions of Art. 105 of the Constitution.-
Parkash Singh Badal v. Union of India.44
Para 2(1)(b)- Scope of:
The disqualification imposed by paragraph 2(1)(b) must be construed as not unduly imping on the
freedom of speech of member, which would be possible if the paragraph is confined is confined in its scope
by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb
the evil or mischief of political defections.- Kihoto Hollonhon v. Zachillhu.45
Words ―any direction‖- Meaning of:

Reversing the decision in AIR 1987 P.&H. 263 that the expression should be given wider meaning, it
is held that the words “any direction” occurring in paragraph 2(1)(a) would require to be construed
harmoniously with the other provisions, so as not to be given wider meaning opposed to the objects and
purpose of the Tenth Schedule.- Kihoto Hollonhon v. Zachillhu.46
Expression ―any direction‖ – Scope of:
A direction given by a political party to its members, violation of which may entail disqualification
under paragraph 2(1)(b) should be limited to a vote of motion of confidence or no confidence in the Govt. or
where the motion under consideration relates to a matter which was an integral policy and programme of the
39
Supra note
40
AIR 1997 Bom. 387: 1997(2) Mah. L.J. 759. 1997 (3) All Mah. L.R. 578.
41
AIR 1992 SC 1812 : 1992 Supp. (2) SCC 651: 1992 AIR SCW3497.
42
1994 Supp. (2) SCC 641: air 1994 SC 1558: 1994 AIR SCW 1214: (1994) 2 SCJ 21.
43
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
44
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
45
1992 (1) SPJ 565.
46
1992 (1) SPJ 565.

political party on the basis of which was an integral policy and programme of the political party on the basis
of which it approached the electorate.- Kihoto Hollonhon v. Zachillhu.47
‗Political Party‘ in Para 2: Meaning of:
„Political Party‟ in clause (b) of sub-para (1) of Para 2 is none other than „original political party‟
mentioned in Para 3 and defined in Para 1 (c).- Mayawati v. Markandeya Chand.48
A reading of sub-para (b) and explanation in Para 2(1) places the matter beyond doubt that the
„Political Party‟ in sub-para (b) refers to the „Original Political Party‟ only and not to the Legislative Party.-
Mayawati v. Markandeya Chand.49
Direction or whip- Need for proper wording of:
Keeping in view the consequences of the disqualification i.e. termination of the membership of a
House, it would be appropriate that the direction or whip which results in such disqualification under Para
2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction
would result in incurring the disqualification under Para 2(1)(b) of the Tenth Schedule, so that the member
concerned has the fore-knowledge of the consequences flowing from his conduct in voting or abstaining from
voting contrary to such direction.- Kihoto Hollonhon v. Zachillhu.50
Whip-Whether valid:
Whip issued by a political party to vote in favour of a candidate not belonging to it in the Rajya Sabha
election is not valid and effective as it is not a matter relating to proceeding of the House, and the member
violating such whip cannot be identified because of secrecy of votes cast in the election. Therefore, any
alleged defiance of the whip cannot attract the rigour of defection as contemplated in para 2(1) of the Tenth
Schedule; nor any fraud can be held to have been committed by the accused member on such ground.- Ananya
Udaya Singh Deo v. Ranga Nath Mishra.51
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 a 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.
Scope:
The concept of split as contempted in Paragraph 3 relates to an original political party and not to be its
legislature party at the first instance. Questions obviously arise: How such a split can be reckoned, when and
by whom? Any split in a recognised/registered political party needs to be reported to and accepted by the
Election Commission first, as it gives rise to a new political party. Unless it is done, can there be any scope for
its legislature party wing to claim any benefit of such split in the legislature? Most important aspects of a split
are the time, reflection of and authority to recognise such split.
Where a group of members belonging to a political party but whose strength is less than one-third of
the members of the Legislative Party concerned, voluntarily give up the membership of their political party,
47
1992 (1) SPJ 565.
48
517: 1998 All. LJ 2550.
49
517: 1998 All. LJ 2550.
50
1992 (1) SPJ 565.
51
AIR 2001 Orissa 24.

they are not entitled to protection under parahgraph 3 and they are subject to disqualification under paragraph
2(1)(a). This is the logical interpretation of paragraph 2(1)(a) and 3 of the Tenth Schedule.- Banjak Phom v.
Thenucho.52
Split- Various aspects of:
A group of members cannot create a split while containing to retain membership of the Party.-
Zachilhu Khusantho v. State of Nagaland.53
A split can be caused only by some members voluntarily giving up membership of the party. A
member who agrees to cause a split in party along with certain other members and is prepared to affirm the
same in written cannot turn round and say that it was only in the realm of intention or preparation and that he
has not effectuated the intention.- Zachilhu Khusantho v. State of Nagaland.54
Where twelve MLAs of Nagaland People‟s Council (NPC) decided to split and form a new party, and
to request the Speaker to recognise the split and allot separate seats to them, but before receipt of the aforesaid
letter, the Speaker received a letter from the Party-President of the NPC expelling two MLAs of the splinter
group from the Party and a request to treat them unattached, and the Speaker passed an order declaring the
two MLAs “unattached”, it was held that since the two out of the 12 MLAs has been expelled before they split
the NPC and formed a separate political party within the knowledge of the speaker or before they could
inform the Speaker in writing about the new formation, they cannot be reckoned for the purpose of deciding
whether the splinter group constituted one-third or more of the strength of the Legislature Party.- Banjak
Phom v. Thenucho.55
A declaration signed by some of MLAs belonging to a party declaring that they had formed a separate
group, and produced during the course of hearing before the Speaker, was held to have established the split
and formation of the group.- Ravi S. Naik v. Union of India.56
Before a claim is made by a member of the House under Paragraph 3 of the Xth Schedule, a split in
the political party should have arisen, such a split must have caused its reaction in the Legislature Party also
by formation of a group consisting of not less than one-third of the members of the Legislature Party.-
Any claim by the leader of the splinter or breakaway group that he has been elected leader of such
group can be disposed of by the Speaker, only after the question of disqualification of the members of that
group has been settled and their defence under para 3 has been upheld.- Parkash Singh Badal v. Union of
India.58
Split & Burden of Proof:
The burden of prove the requirements of Paragraph 2 is on the person who claims that a member has
incurred the disqualification and the burden to prove the requirements of Paragraph 3 is on the member who
claims that there has been a split in his original political party and by virtue of the said split the
disqualification under Paragraph 2 is not attracted.- Ravi S. Naik v. Union of India.59
Legislature Party after a split:
The faction consisting of not less than one-third members of the parent legislature party which was
constituted as a sequel to the split arisen therefrom is also deemed to be a legislature party.- Mayawati v.
Markandeya Chand.60
Original Political Party-Meaning of:
Political party in clause(b) of sub-paragraph (1) of Paragraph 2 is none other than the „Original
Political Party‟ mentioned in Paragraph 3 and defined Paragraph 1(c).-Mayawati v. Markandeya Chand.61
52
(1992) 1 Gau. LR 356 (376).
53
(1993) Supp. (1) Gau LR 359 (370-370).
54
(1993) Supp. (1) Gau LR 359 (370-370).
55
(1992) 1 Gau. LR 356 (382).
56
57
517: 1998 All. LJ 2550.
58
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
59
60
517: 1998 All. LJ 2550.

Leader of Legislature Party- Role of:

In a case of disqualification under Paragraph 2(1)(b) of Tenth Schedule, the involvement of the leader
assumes importance in as much as condonation of violation of whips arises for consideration. In a case which
attracts Paragraph 2(1)(a) or Paragraph 3 of the Tenth Schedule, his role does not assume such crucial
significance.- Zachilhu Khusantho v. State of Nagaland.62
Paragraph 3 and Scope of Art. 226:
Questions as to when a split can be said to have taken place, whether it is a one time transaction
occurring at a fixed point of time or whether the expression can take within its ambit a series of connected or
correlated events depend on the fact situation of each case, and can be well examined by the High Court under
Art. 226 of Constitution.-Laxman Jaidev Satpathy v. Union of India.63
Interim stay against the Speaker‘s Order of Disqualification- Effect of:

The effect of the stay of operation of the order of disqualification dated December 13, 1990 in respect
of two MLAs of M.G Party viz. Bandekar and Chopdekar was that with effect from December 14, 1990 the
declaration that they were disqualified from being the members of Goa Legislative Assembly under the
Speaker‟s order dated December 13, 1990 was not operative, and on 24th December, 1990 i.e. on the date of
the alleged split, it could not be said that they were not members of Goa Legislative Assembly.- Ravi S. Naik
v. Union of India.64
The action of the Speaker in ignoring the stay-order passed by the High Court, while passing his order
dated 15th February, 1991 cannot be condoned on the view that in the absence of decision of the Supreme
Court declaring Paragraph 7 as invalid, it was open for the Speaker to proceed on his own interpretation of
paragraphs 6 and 7 of the Tenth Schedule and ignore the stay-order passed by the High Court.- Ravi S. Naik v.
Union of India.65
The Speaker was bound by the stay-order passed by the High Court on 14th December, 1990 and any
action taken by him in disregard of the said stay order would be a nullity. In the instant case, the Speaker‟s
order dated 15th February, 1991 treating Bandekar and Chopdekar as disqualified members in total disregard
of the High Court‟s stay order dated 14th December, 1990 was, therefore, held to be null and void.-Ravi S.
Naik v. Union of India.66
4. Disqualification on ground of defection not to apply in case of merger.
1. A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original
political party merges with another political party and he claims that he and any other members of his
original political party,
a) have become members of such other political party or, as the case may be, of a new political party
formed by such merger; or
b) have not accepted the merger and opted to function as a separate group,
and from the time of such merger, such other political party or new political party or group, as the case may
be, shall be deemed to be the political party to which he belongs for the purposes of subparagraph (1) of
paragraph 2and to be his original political party for the purposes of this subparagraph.
2. For the purposes of subparagraph (1) of this paragraph, the merger of the original political party of a
member of a House shall be deemed to have taken place if, and only if, not less than two thirds of the
members of the legislature party concerned have agreed to such merger.
The expression „merger has not been defined in this paragraph not in Paragraph 1. Paragraph 4, like
Paragraph 3, qualifies Paragraph 2 and may be read as a Proviso to the Paragraph 2. Though the expression
„merger‟ has not been defined in express terms, still the Paragraph prescribes the occasion when merger of
two original political parties can take place. A situation appears to have been contemplated where a decision
61
517: 1998 All. LJ 2550.
62
(1993) Supp. (1) Gau LR 359 (376).
63
1992 Supp. (2) SCC 744.
64
1994 Supp. (2) SCC 641: air 1994SC 1558: 1994 AIR SCW 1214: (1994) 2 SCJ 21.
65
66

of two-third members of the Legislature Party i.e. Legislative wing of a political party to merge with another
political party, even though original political parties themselves might not have agreed outside the House. It is
not clear whether two-thirds of MPs/MLAs of both political parties should agree or what will happen when
two-thirds of a Legislature Party already agreed to merge with another Legislature Party inside the House, but
the Political Parties outside the House could not formalise or required time or one of them did not ultimately
agree. Such a confusion is going to be manifest more and more in near future.
Scope:
Paragraph 4 does not expressly provide for any direct nexus between the original political party and
the Speaker. In so far as the Legislative Assembly is concerned, the corresponding legislature party represents
the original political party and hence the requirement of agreement of two-thirds of the members.- WK Singh
v. Speaker, Manipur Legislative Assembly.67
There may be different eventualities in respect of merger of a party. If the political party decided to
merge with another political party, and the legislature party also abided by the decision and the members of
the legislature party claimed to have become members of the political party into which their party merged,
there would be no difficulty in holding the merger to have taken place under sub-para (1) of para 4 of the
Schedule. If the political party took a decision to merge but the legislative-party or at least more than one-
thirds of the MLAs of the party did not agree to such merger, the political party cannot be deemed to have
merged. But what will happen when the political party itself claims to have taken no decision for merger, but
the legislative party or not less than two-thirds of its members agree to merge?- WK Singh v. Speaker,
Manipur Legislative Assembly.68
When not less than two-thirds of members of a legislature party have agreed to a merger, the question
whether their original political party should also be deemed to have so merged may be pertinent. In the instant
case, if the merger is held to have taken place, the four MLAs will not be visited with any disqualification;
otherwise, they may be so visited.- WK Singh v. Speaker, Manipur Legislative Assembly.69
Paragraph 1(b) in referring to the Legislative Party in relation to a member of a House belonging to
any political party refers to the provisions of paragraphs 2, 3 and 4, as the case may be, to mean the group
consisting of all members of that House for the time being belonging to that political party in accordance with
the said provisions, namely, paragraphs 2, 3 and 4, as the case may be.- G. Viswanathan v. The Hon‟ble
Expression- ―having agreed to such merger‖- Import of:
The expression “having agreed to such merger” occurring in paragraph 4(2) implies that the merger if
to take place first at the party-level to which two-thirds of the members of the legislature party concerned are
also required to agree, for such merger to be effective insofar as they are concerned.- WK Singh v. Speaker,
Manipur Legislative Assembly.71
5. Exemption. Notwithstanding anything contained in this Schedule, a person who has been elected to the
office of the Speaker or the Deputy
Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the
Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the
Legislative Assembly of a State, shall not be disqualified under this Schedule,
a) if he, by reason of his election to such office, voluntarily gives up the membership of the political
party to which he belonged immediately before such election and does not, so long as he continues
to hold such office thereafter, re-join that political party or become a member of a another political
party; or
b) if he, having given up by reason of his election to such office hismembership of the political party to
which he belonged immediately beforesuch election, re-joins such political party after he ceases to
hold such office.
67
(1986) 2 Gau. LR 91 (99).
68
(1986) 2 Gau. LR 91 (99).
69
(1986) 2 Gau. LR 91 (99).
70
AIR 1996 SC 1060: 1996 AIR SCW 556: 1996 (2) SCC 353: 1996 (1) UJ (SC) 325: 1996 (1) 607.
71
1986 2 Gauhati LR 91 (99).

Exemption under Para 5-Scope of:

The exemption under paragraph 5 would be available where the Speaker in view of the high office of
the Speaker on a question of propriety and to sustain the image of impartiality of that office, resigns from the
membership of the political party to which he might have belonged prior to his election as Speaker. The
circumstances in this case are such that appellant cannot avail of that exemption.- Luis Proto Barbosa v. Union
of India.72
Position of the Speaker under Tenth Schedule:
It is inappropriate to express distrust in the high office of the Speaker, merely because some of the
Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions
of that high office.- Kihoto Hollonhon v. Zachillhu.73
6. Decision on questions as to disqualification on ground of defection.
1) 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:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a
House has become subject to such disqualification, the question shall be referred for the decision of such
member of the House as the House may elect in this behalf and his decision shall be final.
2) All proceedings under subparagraph (1) of this paragraph in relation to any question as to
disqualification of a member of a House under this Schedule shall be deemed to be proceedings in
Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of
a State within the meaning of article 212.
Constitutional Validity:
The provisions of Para 6(1) of the Tenth Schedule do not have the effect of excluding the jurisdiction
of the High Court under Art. 226 or not the Supreme Court under Art. 136 of the Constitution, and, therefore,
the paragraph did not require ratification under proviso to Art. 368 (2) of the Constitution.- Parkash Singh
Badal v. Union of India.74
Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the
Speaker/Chairman is valid.- Kihoto Hollonhon v. Zachillhu.75
The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Art.
136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction.-
Kihoto Hollonhon v. Zachillhu.76
The contention that vesting of adjudicatory functions in the Speaker would violate the provision on
the ground of likelihood of political bias is not tenable.- Mayawati v. Markandeya Chand.77
Scope:
A decision under paragraph 6(1) is not a decision of the House, nor is subject to the approval by the
House. Therefore, a proceeding under para 6(1) before the Speaker or the Chairperson cannot be constructed
as a proceeding in the Parliament or the Legislature of a State.- Kihoto Hollonhon v. Zachillhu.78
Order dt. 8/5/1986 passed by the Speaker of the Punjab Legislative Assembly, on an application field
by a splinter or breakway group of the Shiromoni Akali Dal Legislature Party, recognising it as a separated
party is not an order made under Para 6 of the Tenth Schedule.- Parkash Singh Badal v. Union of India.79
72
AIR 1992 SC 1812 : 1992 Supp. (2) SCC 651: 1992 AIR SCW 3497: (1992) 2 SCC 703.
73
1992 (1) SPJ 565.
74
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
75
1992 (1) SPJ 565.
76
1992 (1) SPJ 565.
77
517: 1998 All. LJ 2550.
78
1992 (1) SPJ 565.
79
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.

The power to resolve any dispute relating to disqualification, as vested in the Speaker or Chairman
under the Tenth Schedule is a judicial power.- Kihoto Hollonhon v. Zachillhu.80
The Speakers and Chairpersons, while exercised powers and discharging functions under the Tenth
Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in
that capacity are subjected to judicial review by the High Court and Supreme Court .- Kihoto Hollonhon v.
Zachillhu.81
The use of the word “final” qua any order passed by any authority under a provision of the
Constitution or other statutes has always been understood to imply that no appeal, revision or review lies
against that order and not that it overrides the power of judicial review, either of the High Court or of the
Supreme Court under Art. 226 or Art. 136 of the Constitution, as the case may be.- Union of India v. Jyoti
Parkas.82
The concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate
judicial review under Art. 136, 226 and 227 of the Constitution insofar as infirmities based on violations of
Constitutional mandates, malafides, non-compliance with Rules of Natural Justice and perversity are
concerned.- Kihoto Hollonhon v. Zachillhu.83
The Speaker of Legislative Assembly has no power of review under the Tenth Schedule, and an order
of disqualification made by him under Para 6 is subject to correction only by judicial review.- Dr. Kashinath
G. Jalmi v. The Speaker, Legislative Assembly of Goa.84
Disqualification Proceeding – Whether can be initiated suo motu by the Speaker:

Paragraph 6 is worded in such a manner as to comprehend also suo motu exercise of jurisdiction by
the Speaker in initiating a disqualification proceeding.- Banjak Phom v. Thenucho.85
Question of disqualification-Whether can be decided suo motu by the Speaker:

There is nothing in paragraph 6 or any of the other provisions in the Tenth Schedule to limit the
jurisdiction of the Speaker to decide a question of disqualification only on a petition filed by a member of the
House. There is nothing in these provisions to indicate that Speaker cannot act suo motu if the conditions
requisite for disqualification come to his notice by some process or the other.- Banjak Phom v. Thenucho.86
Position of Speaker:
The Speakers/Chairpersons hold a pivotal position in the Scheme of Parliamentary democracy and are
guardians of the rights and privileges of the House. It would indeed be unfair to the high tradition of that great
office to say that the investiture in it of determination jurisdiction under the Tenth Schedule would be vitiated
for violation of a basic feature of democracy.- Kihoto Hollonhon v. Zachillhu.87
Speaker‘s Order- Validity of:
Where an application was filed by a splinter group of the Shiromani Akali Dal Legislature Party, to
consider and recognise it as a separate group, and the Speaker before passing his order recognising the splinter
or breakway group as a separate party, did not hear the original political party i.e. the Shiromani Akali Dal
Legislature Party or any other person interested in the matter, it was held that such an order would bind none,
and in that sense the same was void ab initio.- Parkash Singh Badal v. Union of India.88
80
1992 (1) SPJ 565.
81
1992 (1) SPJ 565.
82
AIR 1971 SC 1093; Prakash Singh Badal v. Union of India, AIR 1987 P & H 263 (FB): (1987) 4 IJ Rep. 467.
83
1992 (1) SPJ 565.
84
85
(1992) 1 Gau. LR 356 (376).
86
(1992) 1 Gau. LR 356 (376).
87
1992 (1) SPJ 565.
88
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.

Order of disqualification passed by the Speaker was challenged on the ground of malafides. On the
facts and circumstances of the case, it is held that the order cannot be said to be vitiated by malafides.-
Where more than one MLA belonging to a particular political party were expelled from the party for
defying the party whip, only the petitioner/MLA was declared disqualified by the Speaker; but not the others,
it was held that their cases being different on facts on record, the decision of the Speaker was not violative of
Art. 14 of the Constitution.- Mahtab Lal Singh v. State of Bihar.90
The petitioner MLA defied his Party‟s whip by remaining absent in the House on the plea of illness,
but when asked to show-case as to why he should not be declared disqualified on the ground of defection, and
given personal hearing by the Speaker, filed to produce any evidence or medical certificate in support of his
claim. Held that his challenge to the order of disqualification as violative of the principles or natural justice is
not tenable and there was no such violation.- Mahtab Lal Singh v. State of Bihar.91
Having regard to the contents of the declaration, the failure of the petitioners to given any explanation
before the Speaker, the failure to take a definite stand before the Speaker that they thereby had not voluntarily
given up membership of their political party, it is held that the order of disqualification passed by the Speaker
cannot be regarded as perverse.- Zachilhu Khusantho v. State of Nagaland.92
Interim stay against the Speaker‘s order of Disqualification – Effect of:

The effect of the stay of operation of the order of disqualification dated December 13, 1990 in respect
of two MLAs of M.G. Party viz. Bandekar and Chopdekar was that with effect from December 14, 1990 the
declaration that they were disqualified from being the members of Goa Legislative Assembly under the
Speaker‟s order dated December 13, 1990 was not operative, and on 24th December, 1990 i.e. on the date of
the alleged split, it could not be said that they were not members of Goa Legislative Assembly.-Ravi S. Naik
v. Union of India.93
The action of the Speaker in ignoring the stay-order passed by the High Court, while passing his order
dated 15th February, 1991 cannot be condoned on the view that in the absence of decision of the Supreme
Court declaring Paragraph 7 as invalid, it was open for the Speaker to proceed on his own interpretation of
paragraph 6 and 7 of the Tenth Schedule and ignore the stay-order passed by the High Court.- Ravi S. Naik v.
Union of India.94
The Speaker was bound by the stay-order passed by the High Court on 14th December, 1990 and any
action taken by him in disregard of he said stay order would be a nullity. In the instant case, the Speaker‟s
order dated 15th February, 1991 treating Bandekar and Chopdekar as disqualified members in total disregard
of the High Court‟s stay order dated 14th December, 1990 was, therefore, held to be null and void.- Ravi S.
Naik v. Union of India.95
Speaker‘s Power to Review –Scope of:
It is not correct to say the power of review inheres in the Speaker under the Tenth Schedule as a
necessary incident of his jurisdiction to decide the question of disqualification; or that such a power existed till
12th November, 1991 when the decision in the case of Kihoto Hollonhon v. Zachillhu96 was rendered; or at
least a limited power of review inheres in the speaker to correct any palpable error outside the scope of
judicial review.-Dr. Kashinath G. Jalmi v. The Speaker, Legislative Assembly of Goa.97
89
(1993) Supp. (1) Gau LR 359 (376).
90
AIR 1993 Pat. 96: 1993 (2) BLJR 1453.
91
AIR 1993 Pat. 96: 1993 (2) BLJR 1453.
92
(1993) Supp. (1) Gau LR 359 (376).
93
94
95
96
1992 (1) SPJ 565.
97

Any need for correction of errors in the Speaker‟s order made under the Tenth Schedule can be met
by the availability of judicial review against the same.- Kihoto Hollonhon v. Zachillhu98; Dr. Kashinath G.
Jalmi v. The Speaker, Legislative Assembly of Goa.99
The existence of judicial review against the Speaker‟s order of disqualification made under Para 6 is
itself a strong indication to the contrary that there can be no inherent power of review in the Speaker in the
Tenth Schedule, by necessary implication.- Dr. Kashinath G. Jalmi v. The Speaker, Legislative Assembly of
Goa.100
Judicial Review of Speaker‘s Order-Scope of:
The scope of judicial review under Article 136, 226 and 227 of the Constitution in respect of an order
passed by the Speaker or Chairperson under paragraph 6 would be confined to jurisdictional errors only.-
Kihoto Hollonhon v. Zachillhu101
Jurisdiction errors would include infirmities based on violation of Constitutional mandate, malafides,
non-compliance with rules of natural justice and perversity.- Kihoto Hollonhon v. Zachillhu102
Having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover
any stage prior to the making of decision by the Speakers or Chairpersons, as the case may be, except in cases
of interlocutory or suspensions which may have grave, immediate and irreversible repercussions and
consequences.- Kihoto Hollonhon v. Zachillhu103
It is every violation of every rule, which would call upon or require the court to strike down the order
of a Tribunal like that of Speaker. Whether the order is to be struck down on the ground of violation of a Rule,
depends on a host of circumstances, such as the nature and significance of the Rule the conduct of the Writ-
petitioners, and prejudice caused to them etc. having regard to all the circumstances, it is viewed that the final
order of the Speaker is not liable to be quashed on this ground alone i.e. violation of Rule 7 of the Members of
Nagaland Legislative Assembly (Disqualification on the Ground of Defection) Rules, 1986.- Zachilhu
Khusantho v. State of Nagaland.104
Where an order of review was passed under the Tenth Schedule by the Speaker of the State
Legislative Assembly reviewing the earlier order of disqualification against the Chief Minister and two other
Ministers on the ground of defection, a writ-petition filed by a member of the Assembly questioning the
Speaker‟s power of review, almost ten after the date of impugned order, was not liable to dismissed merely on
the ground of laches, particularly when the alleged usurpation of the public offices including that of the Chief
Minister continued.- Dr. Kashinath G. Jalmi v. The Speaker, Legislative Assembly of Goa.105
Moreover, the relief claimed by the Petitioner-MLAs in their writ-petitions before the High Court,
being in the nature of a class-action, and seeking no relief personal to them, the writ-petitions should not have
been dismissed by the High Court merely on the Ground of laches.- Dr. Kashinath G. Jalmi v. The Speaker,
Legislative Assembly of Goa.106
While applying the principles of natural justice, it must be borne in mind that they are not immutable
but flexible and they are not cast in a rigid mould and cannot be put in a legal strait-jacket. Whether the
requirements of natural justice have been complied with or not has to be considered in the context of the facts
and circumstances of a particular case.- Ravi S. Naik v. Union of India.107
98
1992 (1) SPJ 565.
99
100
101
1992 (1) SPJ 565.
102
1992 (1) SPJ 565.
103
1992 (1) SPJ 565.
104
(1993) Supp. (1) Gau LR 359 (378).
105
106
107

Judicial review in respect of an order passed by the Speaker or Chairman under para 6 of the Tenth
Schedule of the Constitution is held confined to jurisdiction errors only.-Keshab Gogoi v. Speaker, Assam
Legislative Assembly.108
If the impugned notice of the Speaker creates only an apprehension in the mind of the appellant-
petitioner that a wrongful action is going to be taken against him under 10th schedule to the Constitution and
no decision has been taken by the Speaker causing the injury to the appellant-petitioner, judicial review will
not be available against such wrongful action or injury apprehended by the by the petitioner-appellant.-
Keshab Gogoi v. Speaker, Assam Legislative Assembly.109
In case of expulsion of a member of a political party from such party on the ground of anti-party
activity, the dispute relates to intra-party discipline and right of a number to go against the party-whip and
wishes of the party to which he belonged, and therefore, it cannot be a subject-matter of any writ-petition.-Dr.
Mohan Babu v. Chief Election Commissioner, E.C. of India.110
Exercise of Discretion in entertaining a delayed Writ-petition- Circumstances for:

The exercise of discretion by the court even where the application is to be governed by the objective
of promoting public interest and good administration, and on that basis it cannot be said that discretion should
not be exercised in favour of interference by way of a Writ-petition under Art. 226, where it is absolutely
necessary to prevent continuance of usurpation of public office or perpetuation of an illegality, as in the
present case.- Dr. Kashinath G. Jalmi v. The Speaker, Legislative Assembly of Goa.111
Non-awarding of costs-Relevant considerations for:
The motive or conduct of the members in such a situation can be relevant only for denying them the
costs, even if their writ-petition and the claim therein succeed.- Dr. Kashinath G. Jalmi v. The Speaker,
Legislative Assembly of Goa.112
Irregularity in procedure-Effect of:
As long as irregularity of procedure does not amount to violating an essential principle of natural
justice, it cannot be used as a ground to challenge the validity of the disqualification-proceedings before the
Speaker.- Zachilhu Khusantho v. State of Nagaland.113
When a certain procedure is required by the Disqualification Rules to be adopted for giving effect to
the provisions of the Constitution, the non-adoption of the procedure cannot be side-lined altogether as a mere
procedure and of no circumstance.- Mayawati v. Markandeya Chand.114
Where the two MLAs expelled by their Party President and later declared “unattached” by the
Speaker did not challenge the order of expulsion or the order of the Speaker declaring them unattached, the
writ-petitioners other than those two MLAs are not entitled to challenge the same collaterally in these
proceedings under Art. 226.- Banjak Phom v. Thenucho.115
A plea not taken before the Speaker cannot be taken before the High Court in a writ-proceeding.
When the omission as regards verification of Annexures to the petition seeking disqualification of certain
MLAs was not pleaded before the Speaker, nor was noticed by the Speaker, and nor even noticed in the writ-
petition as no ground in this respect was taken in the writ-petition, it was held that the order of the Speaker
could not be interfered with under Art. 226 on the ground of alleged omission of verification of the Annexures
to the Petition of disqualification.- Zachilhu Khusantho v. State of Nagaland.116
Perversity- Meaning of:
108
1995 1 Gau. LR 53.
109
1995 1 Gau. LR 53.
110
AIR 1999 AP 405: 1999(4) Andh. LT 253: 1999 (4) Andh. LD 458.
111
112
113
(1993) Supp. (1) Gau LR 359 (370-370).
114
517: 1998 All. LJ 2550.
115
(1992) 1 Gau. LR 356 (376).
116
(1993) Supp. (1) Gau LR 359 (370-370).

In any event, merely because there is a delay in concluding the hearing by the Speaker, his order
cannot be said to be perverse.-Mayawati v. Markandeya Chand.117
Unreasonableness-Meaning of:
It is frequently used as a general description of the things that must not be done. For instance a person
entrusted with a discretion must direct himself properly in a law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the
matter that he has to consider. If he does not obey these rules, he may truly be said, and often is said, to be
acting “unreasonably.”- Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation.118
It applies to a decision which is so outrageous in its defence of logic or accepted moral standards that
no sensible person who had applied his mind to the question to be decided could have arrived at it.-CCSU v.
Minister of Civil Service.119
To arrive at a decision on „reasonableness,‟ the court or the authority has to find out if any relevant
factors have been left out or an irrelevant factors have been taken into account. A decision to be reasonable
should be within the four corners of the law, and not one which is no which no sensible person could have
reasonably arrived at, having regard to the above principle, and should be bonafide one.- Union of India v.
Ganayutham.120
Sub-Paragraph (2)- Scope of:

The deeming provision contained in paragraph 6(2) of the Tenth Schedule attracts an immunity
analogous to that in Art. 122(a) and 212(1) of the Constitution as understood, and explained in Keshav
Singh‟s case reported in (1965)121 to protect the validity of proceedings from irregularities of procedure, but
confined the scope of such immunity only to the proceedings in Parliament or in the Legislature of State, as
the case may be.- Kihoto Hollonhon v. Zachillhu122
Validity of the proceedings inside the Legislature of a State cannot be called in question on the
allegation that the procedure laid down by the law had not been strictly followed. No court can go into those
questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its
own business.- M.S.M. Sharma v. Dr. Shree Krishna Sinha.123
The High Court has no jurisdiction to entertain a writ-petition under Art. 226 to decide the legality of
a proceeding in the Legislature of a State.- Saradhakar Supakar v. Speaker, Orissa Legislative Assembly.124
As the Speaker has not yet taken a final decision and has merely referred the matter of disqualification
to the Committee of Privileges for enquiry and report, on the receipt of which only he would take a final
decision, and the Committee is yet to conclude its proceeding, the present writ-petition is held as premature
and not maintainable on this ground alone.- Bhajanman Bohera v. Speaker, Orissa Legislative Assembly.125
The Disqualification Rules framed under paragraph 8 of Tenth Schedule are procedural in nature, and
any violation of the same would amount to an irregularity in procedure, which is immune from judicial
scrutiny in view of sub-paragraph (2) of Paragraph 6.- Ravi S. Naik v. Union of India.126
7. Bar of jurisdiction of courts. 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.
117
517: 1998 All. LJ 2550.
118
(1947) 2 All 680: (1948) 1 KB 223.
119
(1984) 3 All ER 935.
120
(1997) 7 SCC 463: 1997 AIR SCW 3464.
121
1 CSR 413: AIR 1965 SC 745
122
1992 (1) SPJ 565.
123
AIR 1960 SC 1186.
124
AIR 1952 Orissa 234; Godavari Misra v. Nandakishore Das, AIR 1953 Orissa 111; Surendra Mohanty v. Nabakrishna
Choudhary, AIR 1958 Orissa 168.
125
AIR 1990 Orissa 18 (FB)
126

Constitutionality:
Para 7 of the Tenth Schedule to the Constitution has the effect of excluding the jurisdiction of the
Supreme Court as well as the High Court under Art. 136 and 226 respectively in regard to any matter
connected with the disqualification of a members of a House under the said Schedule.- Parkash Singh Badal v.
Union of India.127
As the Constitution (52nd Amendment) Act introducing para 7 of the Tenth Schedule was not got
ratified by one-half of the State in terms of the Proviso to clause (2) of Art. 368, the same is ultra-virus and
unconstitutional.- Parkash Singh Badal v. Union of India.128
However, the whole of the Constitution (52nd Amendment) Act, 1985 would not be liable to be struck
down because of Para 7 having been declared unconstitutional.- Parkash Singh Badal v. Union of India.129
Even if the provisions of para 7 are omitted having been held ultra-vires the Constitution, it would not
affect the working of the other provisions of the Tenth Schedule and the effect would be that the order of the
Speaker would become amenable to the jurisdiction of the Supreme Court and the High Court under Art. 136
and 226.- Parkash Singh Badal v. Union of India.130
In view of non-compliance with the Proviso to Art. 368(2), it is not correct to say that not only
Paragraph 7 but also the entire Bill resulting in the Constitution (52nd Amendment) Act, 1985 stands vitiated
and becomes invalid, as because, the doctrine of severability would apply to such case.-Kihoto Hollonhon v.
Zachillhu131
Para 7 of the Tenth Schedule requiring ratification under Proviso to Art. 368(2) of the Constitution
was not ratified. However, by applying the doctrine of severability, it may be said that paragraph 7 of the
Schedule contains a provision which is independent of, and stands apart from the main provisions of the Tenth
Schedule, which are intended to provide a remedy for the evil of the Tenth Schedule, which are intended to
provide a remedy for the evil of unprincipled and unethical political defections, and therefore, is severable
part.- Kihoto Hollonhon v. Zachillhu132
The remaining provisions of the Tenth Schedule, other than Paragraph 7. Therefore, the remaining
provisions of the Tenth Schedule are held not unconstitutional due to non-ratification of Paragraph 7.- Kihoto
Hollonhon v. Zachillhu133
The effect of non-compliance with the proviso to Article 368(2) inbalidates Paragraph 7 alone, and
the other provisions which by themselves do not attract the Proviso, do not become invalid.- Kihoto
Hollonhon v. Zachillhu134
The decision of the Supreme Court in Kihoto Hollonhon v. Zachillhu135 declares the law i.e. invalidity
of Paragraph 7, inter alia as it was on the date of the coming into force of the Constitution (52 nd Amendment)
Act. 1985.- Ravi S. Naik v. Union of India.136
8. Rules.
1) Subject to the provisions of subparagraph (2) of this paragraph, the Chairman or the Speaker of a
House may make rules for giving effect to the provisions of this Schedule, and in particular, and
without prejudice to the generality of the foregoing, such rules may provide for-
a) the maintenance of registers or other records as to the political parties, if any, to which different
members of the House belong;
127
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
128
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
129
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
130
AIR 1987 P. & H. 263 (FB): (1987) 4 IJ Rep. 467.
131
1992 (1) SPJ 565.
132
1992 (1) SPJ 565.
133
1992 (1) SPJ 565.
134
1992 (1) SPJ 565.
135
1992 (1) SPJ 565.
136

b) the report which the leader of a legislature party in relation to a member of a House shall furnish with
regard to any condonation of the nature referred to in clause (b) of subparagraph (1) of paragraph 2 in
respect of such member, the time within which and the authority to whom such report shall be
furnished;
c) the reports which a political party shall furnish with regard to admission tosuch political party of any
members of the House and the officer of the Houseto whom such reports shall be furnished; and
d) the procedure for deciding any question referred to in subparagraph(1)of paragraph 6 including the
procedure for any inquiry which may be madefor the purpose of deciding such question.
2) The rules made by the Chairman or the Speaker of a House under sub-paragraph(1) of this paragraph
shall be laid as soon as may be after they are made before the House for a total period of thirty days
which may be comprised in one session or in two or more successive sessions and shall take effect
upon the expiry of the said period of thirty days unless they are sooner approved with or without
modifications or disapproved by the House and where they are so approved, they shall take effect on
such approval in the form in which they were laid or in such modified form, as the case may be, and
where they are so disapproved, they shall be of no effect.
3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105 or, as
the case may be, article 194, and to any other power which he may have under this Constitution direct
that any wilful contravention by any person of the rules made under this paragraph may be dealt with
in the same manner as a breach of privilege of the House.
Paragraph 8- Scope of:

The Disqualification Rules cannot be read in isolation from the provisions of the Xth Schedule;
instead they must be read as part of it.- Mayawati v. Markandeya Chand.137
It is desirable that every Speaker should fix a time-schedule in the relevant Rules for disposal of the
proceedings for disqualification of MLAs or MPs. All such proceedings should be concluded and orders
should be passed within a period of three weeks from the date on which the petitions are taken to file.-
The contention that violation of Disqualification Rules framed by the Speaker under Para 8 of the
Tenth Schedule amounts to violate of Constitutional mandates is not tenable.- Ravi S. Naik v. Union of
India.139
Mere violation of any provision of a Disqualification Rules is not enough to constitute violation of the
provisions of the Xth Schedule.- Ravi S. Naik v. Union of India.140
However, by virtue of sub-paragraph (3), any wilful violation of any provisions of such Rules would
amount to a breach of privilege of the House and would be dealt in the similar manner.
Before making a petition against any member under 10th Schedule to the Constitution, the person
making such petition shall have to satisfy himself that a question has arisen as to whether such member has
become subject to disqualification under the 10th Schedule. If the person is satisfied, he may file a petition as
provided under sub-rules (1) and (2) of Rules 6 of the Memebr of Assam Legislative Assembly
(Disqualification on the Ground of Defection) Rules, 1986.- Keshab Gogoi v. Speaker, Assam Legislative
Assembly.141
Rule 6:
The concise statement as contemplated in Rule 6 of the members of Assam Legislative Assembly
(Disqualification on Ground of Defection) Rules, 1986 and supporting documents and gist of statement of
witness should show prima facie that the members concerned has voted or abstained from voting in the House
contrary to any direction issued by the Political Party to which he belongs without obtaining prior permission
137
517: 1998 All. LJ 2550.
138
517: 1998 All. LJ 2550.
139
140
141
1995 1 Gau. LR 53.

of the political party within 15days from the date of such voting or abstention, no action can be taken.- Keshab
Gogoi v. Speaker, Assam Legislative Assembly.142
A petition seeing disqualification of any member under 10th Schedule should strictly comply with
requirements of Rule 6(5) of the Members of Assam Legislative Assembly (Disqualification on Ground of
Defection) Rules, 1986 i.e. must contain a concise statement of material facts on which the petitioner relies
and must be accompanied with copies of documentary evidences, if any and the information, if received, by
the petitioner from any other person, a statement containing name and address of such person and gist of such
information as furnished by each such person.- Keshab Gogoi v. Speaker, Assam Legislative Assembly.143
On receipt of a petition under rule 6, the Speaker shall consider whether the petition complies with the
requirements of that rule viz. rule 6. Such consideration means that Speaker has to apply his mind and think
over the matter. While doing so, the first consideration is whether the concise statement of material facts in
the petition as mentioned in clause (a) of sub-rule (5) of rule 6 discloses a case under clause (b) of sub-para (1)
of Para of the 10th Schedule.- Keshab Gogoi v. Speaker, Assam Legislative Assembly.144
On Bihar Vidhan Sabha (Disqualification on Ground of Defection) Rules, 1986- Rule 3:
The MLA remained absent in the House in defiance of his Party‟s Whip on the ground of illness, but
failed to file any application before the Speaker under Rule 3(6) of the Bihar Vidhan Sabha (Disqualification
on Ground of Defection) Rules, 1986 for condonation of his absence. Under the circumstances of the case, the
order of disqualification passed by the Speaker against him proper.- Mahtab Lal Singh v. State of Bihar.145
Rule 8:
Power of the Speaker to declare an MLA as disqualified is independent and not under command or
control of any party-leader or Chief Whip or any other authority.- Mahtab Lal Singh v. State of Bihar.146
On Goa Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986:
The 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.- Ravi S. Naik v. Union of India.147
Rules 3 & 4:
A failure to prove the split cannot be merely because no intimation about the split had been given to
the Speaker in compliance with Rule 3 or 4 of the Goa Legislative Assembly (Disqualification on Ground of
Defection) Rules, 1986.- Ravi S. Naik v. Union of India.148
Rule 7 (3)(b):
The allegation of non-compliance of Rule 7(3)(b) of the Goa Legislative Assembly (Disqualification
on Ground of Defection) Rules, 1986 regarding forwarding of comments of the member to the Speaker within
seven days was not sustainable because though the appellant-member has been given only two days time, he
had submitted his detailed reply within that period and therefore, denial of adequate opportunity cannot be
alleged on the ground of grant of insufficient time. Other allegations like consideration of extraneous
materials and circumstances by the Speaker, or denial of opportunity to adduce evidence are without
substance, and therefore, the Speaker‟s order of disqualification was not in violation of the principles of
natural justice too.- Ravi S. Naik v. Union of India.149
On the members of Nagaland Legislative Assembly (Disqualification on Ground of Defection) Rules,
1986:
No Rule-making authority can make Rules in derogation of the provisions of the statute which confers
power on the authority. Rules cannot override the statute. The duty of the court is always to endeavour to
bring about a harmony between the provisions of the statute and the provisions of the statute.- Banjak Phom v.
Thenucho.150
Rule 6- Scope:
142
1995 1 Gau. LR 53.
143
1995 1 Gau. LR 53.
144
1995 1 Gau. LR 53.
145
AIR 1993 Pat. 96: 1993 (2) BLJR 1453.
146
AIR 1993 Pat. 96: 1993 (2) BLJR 1453.
147
148
149
150
(1992) 1 Gau. LR 356 (376).

Rule 6 does not and cannot have the effect of taking away the suo motu power of the Speaker. Rule 6
and the succeeding Rules referring to petition being filed by a Member of the House lay down procedure
where a member of House seeks to invoke the jurisdiction of the Speaker and cannot detract from the suo
motu power of the Speaker.- Banjak Phom v. Thenucho.151
Rule 6(6) and 6(7):
Signing and verification of the petition seeing for disqualification, with annexures required under sub-
rule (6) and (7) of Rule 6 of the Rules are to be done in the manner as laid down in the Code of Civil
Procedure.-Zachilhu Khusantho v. State of Nagaland.152
A careful reading of Rule 7(3) would show that the Speaker is not compelled to issue any notice at all.
All that is required to do is to forward a copy of the petition with annexures. Thereupon it is open to the
member to submit comments within seven days of the receipt of the copy of the petition with annexures.-
In the absence of any petition filed by any member of the House, seeking disqualification of the
petitioners, and the proceeding of disqualification having been initiated by the Speaker suo motu, the question
of observing the requirement of Rule 7(3)(b) of the 1986- Rules in regard to the leader of the Legislative Party
did not arise. The failure on the part of the Speaker to observe the said rule does not vitiate the impugned
order.- Banjak Phom v. Thenucho.154
Though there has been a technical violation of Rule 7(3)(b) of the Rules, the final order passed by the
Speaker cannot be quashed on that ground.- Zachilhu Khusantho v. State of Nagaland.155
Rule 7(4):
The Rules do not contain any provision requiring the Speaker to conduct an enquiry into the petition
for disqualification. He is required to determine the question of disqualification after considering the
comments, if any, received by him and after affording a reasonable opportunity to the member to present his
case and to be heard in person. Other than this, the Rule 7(4) does not contemplate any enquiry as such.-
Banjak Phom v. Thenucho.156
Rule 7(7):
No person can be deprived of a valuable status or right unless he is informed of the grounds on which
he is sought to be so deprived and given an opportunity to defend himself. This basic principle of natural
justice must necessarily apply even in a case where the Speaker proceeds suo motu.- Banjak Phom v.
Thenucho.157
On the Members of U.P. Legislative Assembly (Disqualification on Ground of Defection) Rules, 1987-
Rule3:
The leader of the newly formed legislature party arisen out of a split of the original legislature party is
also obliged to comply with the requirements contained in Rule 3 of the Disqualification Rules.- Mayawati v.
Markandeya Chand.158
151
(1992) 1 Gau. LR 356 (376).
152
(1993) Supp. (1) Gau LR 359 (370-370).
153
(1993) Supp. (1) Gau LR 359 (377).
154
(1992) 1 Gau. LR 356 (376).
155
(1993) Supp. (1) Gau LR 359 (370-370).
156
(1992) 1 Gau. LR 356 (375).
157
(1992) 1 Gau. LR 356 (361).
158
517: 1998 All. LJ 2550.


Anti Defection Law in India An Analysis

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Anti Defection Law in India An Analysis

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IRJMST Vol 7 Issue 6 [Year 2016] ISSN 2250 – 1959 (0nline) 2348 – 9367 (Print)

ANTI DEFECTION LAW IN INDIA: AN ANALYSIS

Provisions as to disqualification on ground of defection (Tenth Schedule)

1. Interpretation - In this Schedule, unless the context otherwise requires,-

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Para 2- Scope of:

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Words ―any direction‖- Meaning of:

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a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground-

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Leader of Legislature Party- Role of:

Interim stay against the Speaker‘s Order of Disqualification- Effect of:

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Exemption under Para 5-Scope of:

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Disqualification Proceeding – Whether can be initiated suo motu by the Speaker:

Question of disqualification-Whether can be decided suo motu by the Speaker:

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Interim stay against the Speaker‘s order of Disqualification – Effect of:

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Exercise of Discretion in entertaining a delayed Writ-petition- Circumstances for:

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Sub-Paragraph (2)- Scope of:

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Paragraph 8- Scope of:

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