Defection and the Tenth Schedule

In one line

A legislator who leaves the party that got him elected, or who votes against its instructions, loses his seat, and the Speaker of his own House decides whether he has done so.

In the wording a student can write in an exam: the Constitution (Fifty-second Amendment) Act 1985 inserted the Tenth Schedule and added clause (2) to articles 102 and 191, so a member of Parliament or of a State Legislature is disqualified if he is disqualified under that Schedule. Paragraph 2 states the grounds: voluntarily giving up party membership, and voting or abstaining contrary to the party's direction without prior permission and without condonation within fifteen days. Paragraph 4 saves a merger; paragraph 3 saved a split until it was omitted by the Ninety-first Amendment in 2003. Paragraph 6 makes the Chairman or Speaker the deciding authority and calls his decision final. Paragraph 7 tried to exclude the courts and was declared invalid in Kihoto Hollohan v. Zachillhu, which held the Speaker to be a tribunal open to judicial review.

Why the law has this at all

Between the fourth general election and February 1968, Indian legislatures came apart. The figures are in the report of the Committee on Defections of 7 January 1969, quoted in Kihoto Hollohan: against roughly 542 cases of a legislator changing party in the whole period from the First to the Fourth General Election, at least 438 defections occurred in those twelve months alone, and of 210 defecting legislators in seven States, 116 were taken into the Councils of Ministers they had helped to bring into being.

That last figure is the argument: a defection is rarely a change of conviction but a transaction, and the price is office. The Statement of Objects and Reasons to the Fifty-second Amendment Bill put it in a sentence: "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."

The provision

Article 102(2) provides that "a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule." Article 191(2) is in the same words for a State Legislative Assembly or Council. Both were inserted by the Fifty-second Amendment with effect from 1 March 1985, and the Schedule, printed under the rubric of articles 102(2) and 191(2), is headed "Provisions as to disqualification on ground of defection".

The disqualification is therefore constitutional, not statutory, and sits beside the older grounds in articles 102(1) and 191(1): office of profit, unsoundness of mind, insolvency, loss of citizenship, and disqualification under a law made by Parliament.