Anti-Defection Law: Tenth Schedule, Articles 102(2) and 191(2)
The Tenth Schedule to the Constitution of India contains the anti-defection law for Members of Parliament and State Legislatures. It sets out when a member may be disqualified for defection, the merger exception, the authority that decides a disqualification question, and related procedural provisions.
Articles 102(2) and 191(2): constitutional link
Article 102(2) provides that a person is disqualified for being a member of either House of Parliament if the person is disqualified under the Tenth Schedule. Article 191(2) applies the corresponding rule to membership of a State Legislative Assembly or Legislative Council. These provisions give constitutional effect to disqualification under the anti-defection law.
Paragraph 1: important definitions
Paragraph 1 defines expressions used in the Tenth Schedule. A House includes either House of Parliament, a State Legislative Assembly and, where applicable, either House of a State Legislature. A legislature party is the group of members of the House belonging to a political party under the Schedule. The original political party is the political party to which a member belongs for the purposes of paragraph 2(1).
Paragraph 2: disqualification on the ground of defection
A member belonging to a political party may be disqualified under paragraph 2(1) in two principal situations:
- Voluntarily giving up party membership: the member voluntarily gives up membership of the political party.
- Voting or abstaining contrary to a party direction: the member votes or abstains contrary to an authorised direction without prior permission, and the act is not condoned by the party or authorised person within fifteen days.
The expression "voluntarily given up membership" is not confined to a formal resignation. Supreme Court decisions have treated the member's conduct as relevant when deciding whether membership has effectively been given up.
Elected members and nominated members
An elected member is deemed to belong to the political party that set the member up as a candidate. An elected independent member is disqualified if the member joins a political party after the election. A nominated member who was not already a party member may join a political party within the constitutionally permitted six-month period after taking the seat; joining after that period attracts paragraph 2(3).
Paragraph 4: merger exception
Paragraph 4 protects a member from disqualification under paragraph 2(1) where the conditions for a qualifying merger are satisfied. For this purpose, the merger of the member's original political party is deemed to have taken place only when not less than two-thirds of the members of the legislature party concerned have agreed to the merger.
The former paragraph 3 protection relating to a split by one-third of a legislature party was deleted by the Constitution (Ninety-first Amendment) Act, 2003. It should therefore not be treated as a current defence to disqualification.
Paragraph 5: exemption for specified presiding officers
Paragraph 5 contains a limited exemption for specified presiding officers, including the Speaker or Deputy Speaker of the Lok Sabha or a State Legislative Assembly, the Deputy Chairman of the Rajya Sabha, and the Chairman or Deputy Chairman of a State Legislative Council. Subject to the conditions in paragraph 5, such an office-holder may give up party membership because of election to that office without attracting disqualification under the Schedule.
Paragraph 6: who decides a defection case?
Where a question arises whether a member has become subject to disqualification under the Tenth Schedule, paragraph 6 refers the question to the Chairman or Speaker of the House. If the question concerns the Chairman or Speaker personally, it is referred to a member elected by the House for that purpose.
The Supreme Court has held that the Speaker or Chairman acts as a tribunal for this purpose and that the exercise of this adjudicatory power is subject to constitutional judicial review. The Court has also stressed that disqualification petitions should be decided within a reasonable period; in Keisham Meghachandra Singh v. Hon'ble Speaker, the Court stated that, absent exceptional circumstances, three months is a reasonable outer period.
Judicial review and paragraph 7
The text of paragraph 7 purported to exclude court jurisdiction in matters connected with disqualification under the Tenth Schedule. However, the Supreme Court in Kihoto Hollohan v. Zachillhu held paragraph 7 constitutionally ineffective because the constitutional amendment introducing it had not received the ratification required for a provision affecting the jurisdiction of the Supreme Court and High Courts.
Accordingly, a final decision of the Speaker or Chairman is not wholly immune from judicial scrutiny. Judicial review is available on established constitutional grounds such as violation of constitutional mandate, mala fides, non-compliance with natural justice and perversity. Ordinarily, courts do not intervene before the Speaker or Chairman has decided the disqualification question, subject to recognised exceptional circumstances.
Paragraph 8: rule-making power
Paragraph 8 authorises the Chairman or Speaker to make rules for giving effect to the Tenth Schedule. Such rules may address records of party affiliation, reports concerning condonation of voting or abstention, information about admission of members to political parties, and the procedure for deciding disqualification questions. The rules are subject to the laying and approval mechanism stated in paragraph 8.
Practical summary of the anti-defection framework
- Party members may be disqualified for voluntarily giving up party membership or for specified voting or abstention contrary to an authorised party direction.
- Independent elected members may be disqualified if they join a political party after election.
- Nominated members are subject to the six-month rule in paragraph 2(3).
- A qualifying merger under paragraph 4 requires agreement of at least two-thirds of the legislature party concerned.
- The Speaker or Chairman decides disqualification questions under paragraph 6, subject to judicial review.
- The old one-third "split" exception is no longer part of the law.
Related constitutional provisions
Article 99 concerns the oath or affirmation by members of Parliament before taking their seats. Article 188 similarly requires every member of a State Legislative Assembly or Legislative Council, before taking the seat, to make and subscribe the prescribed oath or affirmation. These provisions are referred to in paragraph 2 in relation to nominated members.
This article is an explanatory guide. For the authoritative constitutional text and case law, refer to the official sources linked on this page.