ANTI-DEFECTION LAWAND

PARLIAMENTARY PRIVILEGES

SECOND EDITION

DR. SUBHASH C. KASHYAPAdvocate Supreme Court of India,Consultant in Constilutional Law,

Parliamentary Affairs and Political Management,Honorary Professor Centre for Policy Research

Formerly,Secretary-General Lok Sablia,

Member National Commission to Reviewthe Working of the Constüutio)i and

Cliainnan of its Drafting and Editorial Committee,Hoiwrary Constitutional Advisor toGovernment of India on PRl Laws,

Director Institute of Constitutional andParliamentary Studies

Head CIDP, Inter-Parliamentary Union, Geneva

Foreword bySoli J. Sorabjee

universalLaw Publishing Co. Pvt. Ltd.

CONTENTS

1 Foreword v1 Preface ix

• List of Statutes Referred xxv1 TableofCases xxvii

CHAPTER 1

BACKGROUND AND THE LAWDefinition and Background 1

The Chavan Committee Report and the Anti-Defection Bills of 1973 and 1978 2

The Constitution (Fifty-second Amendment) Act, 1985 4

Disqualification on Ground of Defection Rules 7

CHAPTER 2

CONSTITUTIONALITY OF THE LAWThe Supreme Court JudgmentInterpretation by Speakers

CHAPTER3

DEFECTIONS IN STATE LEGISLATURESAndhra

Arunachal Pradesh

Bihar

Delhi

Goa

Gujarat

Haryana

Himachal Pradesh

Karnataka

Keraka

Madhya Pradesh

Maharashtra

Manipur

Meghalaya

Mizoram

Nagaland

Orissa

1316

18

19

22

23

24

28

29

30

32

33

34

35

36

38

40

40

42

Anti-Defection Lnw and Parliamentary Privileges

Pondicherry 44Punjab 45Rajasthan 47Sikkim 48Tamil Nadu 50Uttar Pradesh 51West Bengal 55

CHAPTER4

CASES IN UNION PARLIAMENTEarly Cases of Disqualification 57Opinion of the Attorney-General 59The Janata Mergers/Splits 61

Minor Janata Splits/Mergers 72Other Party Splits: Defections to the Congress 73

CHAPTER5

REFORMING THE LAWA Case for Amending the Tenth Schedule 78Suggestions for Reform 81

CHAPTER 6

PARLIAMENTARY PRIVILEGES, PARTY WHIPS ANDTHE ANTI-DEFECTION LAW—A CASE STUDY

Issues involved 91The "Whip"—Meaning and Functions 91

Types of Whips 93Privilege of freedom of speech and vote 98The Anti-Defection Law 100The Privilege Issue 100The summing up 110

CHAPTER7

THE ANTI-DEFECTION LAWARTICLES OF THE CONSTITUTION AND THE TENTH SCHEDULE

CommentaryArticle 102(2) 112Article 191(2) 113The Tenth Schedule 113Instances of Disqualification 118

Contents x v

Instances of Split ]25

Instances of Merger 140

CHAPTER 8

DISQUALIFICATION ON GROUND OFDEFECTION RULES, 1985

1. Short Title 150

2. Definitions 150

3. Information to be furnished by leader of a legislature party 151

4. Information etc. to be furnished by members 152

5. Register of information as to members 152

6. Reference to be by petitions 152

7. Procedure 153

8. Decision on petitions 154

9. Directions as to detailed working of these rules 154

ANNEXURE I

DECISIONS OF LOK SABHA SPEAKERSIN DEFECTION CASES

1. Decision of Lok Sabha Speaker Rabi Ray inthe Janata Split Case. (11 January 1991) 159

Order 168

2. Decision of Lok Sabha Speaker Shivraj Patil inthe Janata Split case. (1 June 1993) 172

Facts: Main points in the pleadings 172

How the proceedings were conducted? 178

Issues Relating to Document Dl 179

Issues Relating to Violation of Whip 180

Issues relating to voluntarily giving up the membership of the Political Party 180

Issues Relating to the case of Shri Ajit Singh and three others 180

Issues Relating to the case of Shri Rajnath Sonkar Shastri and three others 180

Law points 180

How Law of Anti-Defection should be interpreted 181

Expulsion 182

Unattached 184

When does the decision taken become operative? 185

Has the Speaker any authority to adjudicate in the matters relating to theparty activities and their leaders' decisions outside the Parliament. 186

Document marked Dl 188

xvi Anti-Defection Law and Parliamentary Privileges

Petition against Shri Ram Sundar Das 190Petition Against Shri Govind Chandra Munda 190Petition Against Shri Ghulam Mohammed Khan 192Petition Against Shri Ram Badan 193Eight Petitions 193Petition Against Shri Ajit Singh and three others 196Petition Against Shri Rajnath Sonkar Shastri and three others 198Some Thoughts On the Case And the Law 199Some Suggestions On The Law: The Tenth Schedule 201Definitions 201Sitüafiöns Envisaged 201Party Activities Outside The Legislature 201Who Should Decide? 201The Whip 203Other Provisions in the Law 203

Committee For the Purpose 203Can We Have Some Other Device? 203Order 204

3. Decision of Lok Sabha Speaker, Shivraj Patel in the Janata Dal (A)Split Case of the Seven (3 January 1996) 205Order 208

ANNEXURE II

DECISIONS IN REGARD TO MEMBERS OFSTATE LEGISLATURES

1. Andhra Pradesh Legislative Assembly 209

Decision of the Speaker, given under Paragraph 6 (1) of the TenthSchedule to the Constitution. (7 May, 1987) 209

2. Arunachal Pradesh Legislative Assembly 213(i) Decision of the Speaker under Tenth Schedule to the Constitution.

(25 February, 1991) 213(ii) Decision of the Speaker under Tenth Schedule to the Constitution.

(1 July, 1991) 214(iii) Decision of the Speaker Under Tenth Schedule to the Constitution.

(22 November, 1991) 225(iv) Decision of the Speaker under Tenth Schedule to the Constitution.

(20 December, 1991) 226(v) Decision of the Speaker under Tenth Schedule to the Constitution.

(20 August, 1992) 226(vi) Decision of the Speaker under Tenth Schedule to the Constitution.

(19 September, 1996) 227(vii) Decision of the Speaker under Tenth Schedule to the Constitution.

(20 September, 1996) 227

Contents xvji

(viii) Decision of the Speaker under Tenth Schedule to the Constitution.(10 March, 1997) 228

(ix) Decision of the Speaker under Tenth Schedule to the Constitution.(6 November, 1997) 229

(x) Decision of the Speaker under Tenth Schedule to the Constitution.(27 May, 1998) 229

(xi) Decision of the Speaker under Tenth Schedule to the Constitution.(5 August, 1998) 230

(xii) Decision of the Speaker under Tenth Schedule to the Constitution.(12 January, 1999) 230

(xiii) Decision of the Speaker under Tenth Schedule to the Constitution.(19 January, 1999) 231

(xiv) Decision of the Speaker under Tenth Schedule to the Constitution.(5 February, 1999) 232

(xv) Decision of the Speaker under Tenth Schedule to the Constitution.(12 February, 1999) 232

(xvi) Decision of the Speaker under Tenth Schedule to the Constitution.(10 April, 1999) 233

(xvii) Decision of the Speaker under Tenth Schedule to the Constitution.(15 December, 1999) 233

(xviii)Decision of the Speaker under Tenth Schedule to the Constitution.(17 December, 1999) 234

(xix) Decision of the Speaker under Tenth Schedule to the Constitution.

(25 July, 2002) 234

3. Bihar Legislative Assembly 235

(i) Decision of the Speaker under Tenth Schedule to the Constitution.(18 April, 1991) 235

(ii) Decision of the Speaker under the Tenth Schedule to the Constitution.

(14 September, 1998) 246

4. Delhi Vidhan Sabha

(I) Decision of the Speaker under Tenth Schedule to theConstitution. (8 August, 1995) 264

(ii) Decision of the Speaker, under sub-section 2 of section 2 ofTenth Schedule to the Constitution. (19 March, 1996). 264

(iii) Decision of the Speaker, under para 3 of the Tenth Scheduleto the Constitution. (2 April, 1996) 265

(iv) Decision of the Speaker under Para 4 of theTenth Schedule to the Constitution. (6 May, 1996) 265

(v) Decision of the Speaker under Tenth Schedule tothe Constitution. (20 March, 2001) 266

5. Goa Legislative Assembly 267

(i) Decision of the Speaker under Rule 7(2) of the Members of GoaLegislative Assembly (Disqualification on Ground of Defection)Rules 1986 framed under the Tenth Schedule to the Constitution.(13 December, 1990) 267

xviii Anti-Defection Law and Parliamentary Privileges

(ii) Decision by Dr. Kashinath G. Jalmi, Member of the LegislativeAssembly of Goa, elected as a Member as required under provisoto Para 6(1) of the Tenth Schedule to the Constitution.(13 December, 1990) 268

(iii) Decision of the Speaker under Paragraph 2(1 )(9), 2(b) of theTenth Schedule to the Constitution. (13 December, 1990) 278

(iv) Decision of the Speaker under Rule 7(2) of the Members ofGoa Legislative Assembly (Disqualification on Ground of Defection)Rules, 1986 framed under the Tenth Schedule to the Constitution.(6 February, 1991) 280

(v) Decision of the Speaker under Rule 8(l)(a) of the Members ofGoa Legislative Assembly (Disqualification on Ground of Defection)Rules, 1986 framed under the Tenth Schedule to the Constitution.(7 February, 1991) 281

(vi) Decision of the Speaker under paragraph 2(l)(a) of theTenth Schedule to the Constitution. (15 February, 1991) 283

(vii) Decision of the Acting Speaker. (8 March, 1991) 287

(viii) Decision of the Acting Speaker. (8 March, 1991) 298

(ix) Decision of the Speaker under rule 7(2) of the Members ofGoa Legislative Assembly (Disqualification on Ground of Defection)Rules 1986 framed under the Tenth Schedule to the Constitution.(21 June, 1991) 306

(x) In the High Court of Bombay at Goa (Writ Petition Nos. 296/1998and 297/1998) 311

(xi) In the High Court of Bombay at Goa (Writ Petition No.317/1998) 330(xii) In the High Court of Bombay at Goa (Writ Petition No. 317/1998) 334

6. Gujarat Legislative Assembly 366(i) Decision of the Speaker given under Paragraph 6 of the

Tenth Schedule to the Constitution. (25 June, 1991) 366(ii) In the Supreme Court of India:

Special Leave Petition No. 11742/1991: Order (1 August, 1991) 371(iii) Speaker's Order (13 December, 1991) 373(iv) In the Supreme Court of India:

Special Leave Petition No. 11742/1991: Order (12 November 1992) 374(v) Speaker's Order (30 November, 1992) 375(vi) In the Supreme Court of India:

Special Leave Petition No. 11742/1991: Order (8 May, 1995) 3767. Haryana Vidhan Sabha 377

(i) Decision of the Speaker given under Paragraph 6 of theTenth Schedule to the Constitution. (26 March, 1991) 377

(ii) Decision of the Speaker given under Rule 8(1 )(a) of theHaryana Legislative Assembly (Disqualification of Members

on Ground of Defection) Rules, 1986. (10 April, 1992) 3838. Himachal Pradesh Vidhan Sabha 386

(i) Decision of the Speaker under Tenth Schedule to the Constitution.(2 February, 1991) 386

Contents xix

(ii) Decision of the Speaker, Himachal Pradesh Vidhan Sabhaunder Tenth Schedule to the Constitution. (25 July, 1991) 386

(iii) Decision of the Speaker, Himachal Pradesh Vidhan Sabhaunder Tenth Schedule to the Constitution. (1 July, 1992) 387

(iv) Decision of the Speaker under Paragraphs 2 and 4 of theTenth Schedule to the Constitution read with rule 6 of theMembers of Himachal Pradesh Legislative Assembly(Disqualification on the Ground of Defection) Rules, 1986.(26 July, 1999) 387

9. Kamataka Legislative Assembly 394

(i) Decision of the Speaker under the Tenth Schedule to the Constitution.(20 March, 1989) 394

(ii) Decision of the Speaker under Rule 6 of the KarnatakaLegislative Assembly (Disqualification of Members onGround of Defection) Rules, 1986. (7 May, 1999) 398

10. Kerala Legislative Assembly 400

Decision of the Speaker given under Paragraph 6(i) of theTenth Schedule to the Constitution. (15 January, 1990) 400

11. Madhya Pradesh Vidhan Sabha 409

Order passed by the Speaker on petitions received under theMadhya Pradesh Vidhan Sabha Sadasya (Dal Pariwartan KeAdhar Per Nirharta) Niyam, 1986. (1 May, 1991) 409

12. Maharashtra Legislative Assembly 419

(i) Information about merger of parties 419

(ii) Information about party splits 420

13. Maharashtra Legislative Council 423

(i) Information about merger of parties 423

(ii) Information about party splits 424

14. Meghalaya Legislative Assembly 426

(i) Decision of the Speaker under Para 6 of the Tenth Schedule tt) theConstitution, published under sub-rule (3) of Rule 8 of the Membersof Meghalaya Legislative Assembly (Disqualification on Ground ofDefection) Rules, 1988. (17 August, 1991) 426

(ii) Decision of the Speaker Meghalaya Legislative Assembly underPara 4 of the Tenth Schedule to the Constitution. (24 May, 1995) 431

(iii) Decision of the Speaker under Para 6 of the Tenth Schedule to theConstitution, published under sub-rule (3) of Rule 8 of the Membersof Meghalaya Legislative Assembly (Disqualification on Ground ofDefection) Rules, 1998. (25 June, 1998) 432

(iv) Decision of the Speaker in the matter of seeking recognition of theMeghalaya Congress Legislature Party as 'Nationalist Congress Party'and the Legislature Party as Nationalist Congress Legislature Party.(3 August, 1999) ' 433

(v) Decision of the Speaker Meghalaya Legislative Assemblyunder the Tenth Schedule to the Constitution. (1 November, 1999) 435

ex Anti-Defection Law and Parliamentary Privileges

(vi) Decision of the Speaker Meghalaya Legislative Assembly underthe Tenth Schedule to the Constitution. (7 March, 2000) 438

(vii) Decision of the Speaker Meghalaya Legislative Assembly under

the Tenth Schedule to the Constitution. (29 September, 2001) 442

15. Nagaland Legislative Assembly 445

(i) Decision of the Speaker under Para 6(i) of the Tenth Schedule.(1 August, 1987) 445

(ii) Decision of the Speaker under Para 3 of the Tenth Schedule.(30 July, 1988) 446

(iii) Decision of the Speaker under Para 6(1) of the Tenth Schedule.(15 May, 1990) 447

(iv) Decision of the Speaker under the Tenth Schedule and rulesframed thereunder. (9 August, 1990) 449

(v) Letter issued by the Speaker to ten members under para 6(1)of the Tenth Schedule. (15 May, 1990) 449

(vi) Decision of the Speaker under Rule 7 of the Members(Disqualification on Ground of Defection) Rules.(9 August, 1990) 450

(vii) Decision of the Speaker under Para 6(1) of the Tenth Schedule.(15 December, 1990) 451

(viii) Decision of the Speaker under Para 6(1) of the Tenth Schedule.(16 December, 1990) 453

(ix) Decision of the Speaker under Para 6(1) of the Tenth Schedule.(11 January, 1994) 454

(x) Decision of the Speaker under Para 6(1) of the Tenth Schedule.(16 March, 1994) 455

(xi) Decision of the Speaker under Para 6(1) of the Tenth Schedule.(8 July, 1994) 456

16. Orissa Legislative Assembly 457

(i) Decision of the Speaker under para 6(1) of the Tenth Schedule tothe Constitution and Rule 6 of the Members of Orissa LegislativeAssembly (Disqualification on Ground of Defection) Rules, 1987.(15 September, 1989) 457

(ii) Decision of the Speaker under para 6 of the Tenth Schedule to theConstitution read with Rule 6 of the Members of Orissa LegislativeAssembly (Disqualification on Ground of Defection) Rules, 1987.(20 December, 1994) 459

(iii) Decision of the Speaker under para 6 of the Tenth Schedule tothe Constitution. (1 December, 1994) 460

(iv) Decision of the Speaker under Para 4 of the Tenth Schedule tothe Constitution. (24 June, 2001) 461

17. Pondicherry Legislative Assembly 461

(i) Decision of the Speaker under Rule 8 of the Members ofPondicherry Legislative Assembly (Disqualification onGround of Defection) Rules, 1986. (18 December, 1986) 461

Contents xxi

(ii) Decision of the Speaker under Rule 8 of the Members ofPondicherry Legislative Assembly (Disqualification onGround of Defection) Rules, 1986. (20 December, 1990) 466

(iii) Decision of the Speaker under the Members of PondicherryLegislative Assembly (Disqualification on Ground of Defection)Rules, 1986. (26 December, 1990) 468

(iv) Decision by the Hon'ble Speaker, Legislative AssemblyPondicherry in the matter of the petition filed by ThiruR. Viswanathan, Member against Thiru M. Manjini anotherMember of the Pondicherry Legislative Assembly underTenth Schedule to the Constitution of India and the Membersof the Pondicherry Legislative Assembly (Disqualification onGround of Defection) Rules, 1986. (8 September, 2000) 469

(v) Decision by the Hon'ble Speaker, Legislative AssemblyPondicherry in the matter of the petitions filed by TVL. C.Jayakumar and M. Kandasamy, Members against TVL.Rathinam @ Manohar, K. Rajasekaran and A. Elumalai,Members of the Pondicherry Legislative Assembly underTenth Schedule of the Constitution of India and the Membersof the Pondicherry Legislative Assembly (Disqualification onGround of Defection) Rules, 1986. (25 December, 2000) 472

18. Punjab Vidhan Sabha 478

(i) Decision of the Speaker given under Paragraph 6(1) ofthe Tenth Schedule to the Constitution. (16 February, 1987) 478

(ii) Decision of the Speaker given under Paragraph 6(1) ofthe Tenth Schedule to the Constitution. (1 May, 1987) 480

(iii) Decision of the Deputy Speaker Punjab Vidhan Sabha performingthe duties of office of Speaker under article 180(1) of the Constitutionunder the Tenth Schedule to the Constitution. (16 July, 1993) 484

(iv) Decision of the Speaker under Para 4 of the Tenth Schedule tothe Constitution. (15 December, 1993) 486

19. Rajasthan Legislative assembly 487

(i) Decision of the Speaker under Disqualification on Groundof Defection Rules. (27 June, 1994) 487

(ii) Decision of the Speaker under the Tenth Schedule andDisqualification on Ground of Defection Rules. (13 July, 1994) 498

(iii) Decision of the Speaker under Disqualification on Groundof Defection Rules. (8 September, 1994) 507

(iv) Decision of the Speaker under the Tenth Schedule andDisqualification on Ground of Defection Rules. (17 October, 1998) 520

(v) Decision of the Speaker under the Tenth Schedule andDisqualification on Ground of Defection Rules. (17 October, 1998) 524

(vi) Decision of the Speaker under the Tenth Schedule andDisqualification on Ground of Defection Rules. (24 October, 1998) 529

(vii) Decision of the Speaker under the Tenth Schedule andDisqualification on Ground of Defection Rules. (24 October, 1998) 537

xxii Anti-Defection Law and Parliamentary Privileges

20. Sikkim Legislative Assembly 551(i) Decision of the Speaker under the Tenth Schedule to the

Constitution read with Rule 8 of the Members of SikkimLegislative Assembly (Disqualification on Ground of Defection)Rules, 1985. (8 July, 1994) 551

(ii) Decision of the Speaker under para 2(l)(a) of the Tenth Scheduleto the Constitution read with Rule 6(1) of the Members of SikkimLegislative Assembly (Disqualification on Ground of Defection)Rules, 1985. (22 July, 1994) 551

(iii) Decision of the Speaker under para 3 of the Tenth Schedule tothe Constitution. (21 March, 1995) 557

(iv) Decision of the Speaker under para 6 of the Tenth Schedule tothe Constitution read with Rule 6 of the Members of SikkimLegislative Assembly (Disqualification on Ground of Defection)Rules, 1985. (26 September, 1996) 557

21. Tamil Nadu Legislative Assembly 559(i) Decision of the Speaker given under Paragraph 6 of the

Tenth Schedule to the Constitution. (28 January, 1988) 559(ii) Decision of the Speaker given under the Tenth Schedule.

(28 January, 1988) 56822. U.P. Legislative Assembly 572

(i) Decision of the Speaker under the Tenth Schedule, Para 3.(4 March, 1994) 572

(ii) Decision of the Speaker under the Tenth Schedule. (4 March, 1994) 572(iii) Decision of the Speaker under the Tenth Schedule, Para 3.

(24 March, 1994) 573(iv) Decision of the Speaker under the Tenth Schedule, Para 4.

(30 March, 1994) 574(v) Decision of the Speaker under the Tenth Schedule, Para 3.

(23 June, 1994) 575(vi) Decision of the Speaker under the Tenth Schedule, Para 4(2).

(24 June, 1994) 576(vii) Decision of the Speaker under the Tenth Schedule, Para 3.

(29 June, 1994) 576(viii) Decision of the Speaker under the Tenth Schedule, Para 4.

(29 June, 1994) 577(ix) Decision of the Speaker under the Tenth Schedule, Para 3.

(22 July, 1994) 577(x) Decision of the Speaker under the Tenth Schedule, Para 4.

(25 July, 1994) 579(xi) Decision of the Speaker under the Tenth Schedule, Para 3.

(7 September, 1994) 580(xii) Decision of the Speaker under the Tenth Schedule.

(7 September, 1994) 580(xiii) Decision of the Speaker under the Tenth Schedule, Para 3.

(3 June, 1995) 581

Contents xxiii

(xiv) Decision of the Speaker under the Tenth Schedule.(3 June, 1995) 582

(xv) Decision of the Speaker under the Tenth Schedule, Para 3.(24 June, 1996) 583

(xvi) Decision of the Speaker under the Tenth Schedule, Para 4.(24 June, 1996) 585

(xvii) Decision of the Speaker under the Tenth Schedule, Para 4.(23 April, 1997) 586

(xviii) Decision of the Speaker under the Tenth Schedule, Para 3.(24 October, 1997) 587

(xix) Decision of the Speaker under the Tenth Schedule, Para 3.(20 October, 1997) 589

(xx) Decision of the Speaker. (21 October, 1997) 590(xxi) Decision of the Speaker. (21 October, 1997) 590(xxii) Decision of the Speaker under article 191(2) and the

Tenth Schedule and Disqualification on Ground of Defection Rules.(25 February, 1998) 591

(xxiii) Decision of the Speaker under the Tenth Schedule andDisqualification on Ground of Defection Rules.(23 March, 1998) 618

(xxiv) Decision of the Speaker under the Tenth Schedule, Para 4.(17 March, 1999) 686

(xxv) Decision of the Speaker under the Tenth Schedule, Para 4.(4 December, 2000) 687

(xxvi) Decision of the Speaker under the Tenth Schedule.(5 February, 2000) 688

(xxvii) Decision of the Speaker under the Tenth Schedule.(22 February, 2001) 689

(xxviii) Decision of the Speaker under the Tenth Schedule, Para 4.(4 March, 2001) 691

ANNEXURE III

RECOMMENDATIONS OF THE NATIONALCOMMISSION TO REVIEW THE WORKING

OF THE CONSTITUTION

Subject Index 699