Disqualification of members of parliament – anti defection law

Disqualification of members of parliament – anti defection law


The tenth schedule of the Constitution talk about the defection law, which means that when the member of a political party changes their loyalty from one party to another. This is also known as crossing the floor. The 10th schedule was not the part of the original constitution framed by the constituent assembly but, was added to the Constitution of India by the 52nd amendment under the leadership of the Prime Minister Rajiv Gandhi.

The 10th schedule of the constitution also bars the Judiciary from interfering in the matter of disqualification until the speaker pronounce his decision to disqualify or not to disqualify, the person from the house.

Power of speaker

When the speaker is deciding on the disqualification of a member, he acts as quasi-judicial body. “The speaker of the House represents the House itself. But the proceedings before him relating to the disqualification of a member of the House does not involve a privilege of the House itself. In fact, the proceedings of disqualification are; not before the House, but only before the speaker as a specially designated authority.” 2005 AIR Jhar HCR 1764 (1772).

Over the course of time the power of the speaker is questioned as, the speaker is also a part of the political party, whether the decision of the speaker is partial or impartial. In the case of the ‘Kihoto Hollohan v Zachillhu And Others’ (1992) Supreme Court held that the decision of the speaker with regard to disqualification is subject to judicial review.

Role of Judiciary

“By enacting Para 7 the powers of the Supreme Court under Art. 136 and the High Court under Art. 226 have been directly affected and taken away so far as the disqualification of a member of the Lok Sabha or the Vidhan Sabha under Tenth Schedule is concerned. Since it is not ratified in terms of Art. 368, Cl. (2), the same is ultra vires and unconstitutional.” AIR 1987 P&H 263 (271) (FB)

Need of Law

Need of this kind of law arise when a member of a house or assembly deflect from his party to another for money or power, this can lead to the change of ruling party in the state or centre. “aaya ram gaya ram” this phrase was invented, when a person has changed his political party 3 times in a single day. When there is a deflection from a political party then there can be a chance when no political party is able to attend the majority. In this situation the President can proclaim the state emergency under the Article 356 of Indian Constitution, on report on the Governor of the State.

In the case of state emergency, the judgement pronounced by the Supreme Court in the case of S.R. Bombai and others vs Union of India is of great significance as in this case Supreme Court held that the proclamation of state emergency is subject to Judicial review and the majority of the house can only be proven on the floor of the house.

When anti-defection law shall apply: –

  • If a member of a political party resigns from his post without the consent of the party leadership.
    “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 party or otherwise; he voluntarily gives up his membership of the political party and incurs the disqualification. Being treated as “unattached” is a matter of mere convenience outside the Tenth Schedule and does not alter the fact to be assumed under the Explanation to Para 2(1).” AIR 1996 SC 1060.
  • If an independent candidate joins a political party post-election.
    “To determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party.” AIR 2007 SC 590.
  • If a nominated member joins the political parties 6 months after the nomination to the house.
  • When a person votes against or abstain from voting, to the whip issued by the party to which he/she belong.

When anti-defection law shall not apply: –

  • When 2 political party merges.
  • If 2/3 of a political party joins another party.
  • The speaker of the house is free to quit his party members during his tenure as speaker. He may again join the party after completion of his/her tenure.

Author: Devanshu Jain,
SLS Nagpur

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