DISQUALIFICATION OF MEMBERS
ON GROUND OF DEFECTION

 

 

RAJYA SABHA SECRETARIAT
NEW DELHI
2004

 

 

CONTENTS
Preface
1. (a) Constitutional Provision	(b) The Members of Rajya Sabha (Disqualification on ground of Defection) Rules, 1985

                                                                            

 

 

 

 

P R E F A C E

 

By the Constitution (Fifty-second Amendment) Act, 1985, which came into force on the 1^st March, 1985, a new provision as to disqualification on ground of defection has been incorporated in the Constitution.  The Act amended articles 101, 102, 190 and 191 of the Constitution and added the Tenth Schedule thereto.

 

Paragraph 8 (1) of the Tenth Schedule to the Constitution empowers the Presiding Officers of two Houses to make rules for giving effect to the provisions of this Schedule.  In exercise of this power Chairman, Rajya Sabha, framed the Members of Rajya Sabha (Disqualification on ground of Defection) Rules, 1985.  These Rules came into force with effect from the 18^th March, 1986.

This booklet contains the relevant provisions of articles 101 and 102 of the Constitution, as amended by the Constitution     (Fifty-second Amendment) Act, 1985, the Tenth schedule to the Constitution, as amended by the Constitution (Ninety-first Amendment) Act, 2003 and the Members of Rajya Sabha (Disqualification on ground of Defection) Rules, 1985 (both in Hindi and English).

 

 

 

CONSTITUTIONAL PROVISIONS

DISQUALIFICATION ON GROUND OF DEFECTION

--

CONSTITUTIONAL PROVISIONS

Article 101.  Vacation of Seats-

(1)        x          x          x          x          x          x        x       x

(2)        x          x          x          x          x          x        x       x

(3)        If a member of either House of Parliament-

(a)  becomes subject to any of the disqualifications mentioned in ¹[Clause (1) or Clause (2) of article 102], or

            (b)   x        x     x         x          x             x       x     x

            his seat shall thereupon become  vacant:

            x          x          x          x          x          x        x       x

(4)        x          x          x          x          x          x        x       x

 

Article 102.    Disqualifications for membership-

 

(1)        x          x          x          x          x          x        x       x

²[(2)     A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.]

‘TENTH SCHEDULE

[Articles 102(2) and 191(2)]

 

Provisions as to disqualification on ground of defection

 

Interpretation.1.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 ¹[x x x] 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 sub-paragraph (1) of paragraph 2;

      (d)  “paragraph” means a paragraph of this Schedule.

 

 

                (a)if he has voluntarily given up his membership of such political party; or

                (b)if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

Explanation.-For the purposes of this sub-paragraph,-

                 (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was
           set up as a candidate for election as such member;

     (b) a nominated member of a House shall,-

                  (i) where he is a member of any political party on the date of his nomination as such member, be    

                    deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case  
                 may be, first becomes, a member before the expiry of six months from the date on which he takes
                 his seat after complying with the requirements of article 99  or, as the case may be, article 188.

(2) An elected member of a House who  has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he  joins any political party after such election.

(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,-

      (i)where he was a member of a political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;

      (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph, or, as the case may be, be deemed to be a  nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.

      3.   [Disqualification on ground of defection not to apply in case of a split] Rep. by the Constitution (Ninety-first Amendment) Act, 2003, s.5.

                     (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 sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

        (2) For the purposes of sub-paragraph (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.

 

Exemption.      5.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, rejoin that political party or become a member of another political party; or

(b) if he, having given up by reason of his election to such office his membership of the political party to
         which he belonged immediately before such election, rejoins such political party after he ceases to hold 
         such office.

                         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 sub-paragraph (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.

                              8.(1) Subject to the provisions of  sub-paragraph (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;

             (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 sub-paragraph (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 to such political party or any  
   members of the House and the officer of the House to whom such reports shall be furnished; and

             (d) the procedure for deciding any question referred to in sub-paragraph (1) of     paragraph 6 including the 
   procedure for any inquiry which may be made for 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

                                                             THE MEMBERS OF RAJYA SABHA
                                          (DISQUALIFICATION ON GROUND OF DEFECTION) RULES, 1985

 

THE  MEMBERS  OF  RAJYA  SABHA  (DISQUALIFICATION ON   GROUND   OF   DEFECTION)   RULES,   1985

In exercise of the powers conferred by paragraph 8 of the Tenth Schedule to the Constitution of India, the Chairman, Rajya Sabha, hereby makes the following rules, namely :-

   1.      These rules may be called the Members of Rajya Sabha                 Short title.
            (Disqualification on ground of Defection) Rules, 1985

   2.      In these rules, unless the context otherwise requires:-                       Definitions.

                       (a)        ‘Bulletin’ means the Bulletin of the Council of States (Rajya Sabha);

                       (b)        ‘Committee’ means the Committee of the Privileges of the Council of States (Rajya Sabha);

                       (c)        ‘Council’  means the Council of States (Rajya Sabha);

                       (d)        ‘Form’ means a form appended to these rules;

                       (e)        ‘date of commencement’, in relation to these rules, means the date on which these rules take effect under sub-paragraph (2) of paragraph 8 of the Tenth Schedule;

                       (f)         ‘leader’, in relation to a legislature party, means a member of the party chosen by it as its leader and includes any other member of  the party authorized by the party to act, in the absence of the leader as, or discharge the functions of the leader of the party for the purposes of these rules;

                       (g)        ‘member’ means a member of the Council of States (Rajya Sabha);

                       (h)        ‘Tenth Schedule’ means the Tenth Schedule to the Constitution of India;

                       (i)         ‘Secretary-General’ means the Secretary-General to the Council of States (Rajya Sabha) and includes any person for the time being performing the duties of the Secretary-General.

 (a) a statement (in writing) containing the names of members of such legislature party together with other particulars regarding such members as in Form-I and the names and designations of the members of such party who have been authorized by it for communicating with the Chairman for purposes of these rules;

(b) a copy of the rules and regulations (whether known as such or as constitution or by any other name) of the political party concerned; and

(c) where such legislature party has any separate set of rules and regulations (whether known as such or as constitution or by any other name), also a copy of such rules and regulations.

      (2)  Where a legislature party consists of only one member, such member shall furnish a copy of the rules and regulations mentioned in clause (b) of sub-rule (1) to the Chairman within thirty days from the date of commencement of these rules or, where he has become a member of the Council after such date, within thirty days from the date on which he has taken his seat in the Council or, in either case, within such further period as the Chairman may for sufficient cause allow.

      (3) In the event of any increase in the strength of a legislature party consisting of only one member, the provisions of sub-rule (1) shall aply in relation to such legislature party as if such legislature party had been formed on the first date on which its strength increased.

      (4) Whenever any change takes place in the information furnished by the leader of a legislature party under sub-rule (1) or by a member under sub-rule (2), he shall, as soon as may be thereafter and in any case within thirty days from the date on which such change has taken place or within such further period as the Chairman may for sufficient cause allow, furnish in writing information to the Chairman with respect to such change.

     (5) Where a member belonging to any political party votes of abstains from voting in the Council contrary to any direction issued by such political party or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, the leader of the legislature party concerned or where such member is the leader, or as the case may be, the sole member of such legislature  party, such member, shall, as soon as may be thereafter and in any case within thirty days from the date of such voting or abstention, inform the Chairman as in Form-II whether such voting or abstention has or has not been condoned by such political party, person or authority.

Explanation.- A Member may be regarded as having abstained from voting only when he, being entitled to   
        vote, voluntarily refrained from voting.

                  4. (1) Every member who has taken his seat in the Council before the date of commencement of these
              rules shall furnish to the Secretary-General within thirty days from such date or within such further period as the
             Chairman may for sufficient cause allow, a statement of particulars and declaration as in Form-III.

                    (2) Every member who takes his seat in the Council after the commencement of these rules shall,  
       before making and subscribing an oath or affirmation under article 99 of the Constitution and taking his seat in 
       the Council, deposit with the Secretary-General his election certificate or, as the case may be, a certified copy
      of the notification nominating his as a member and also furnish to the Secretary-General a statement of
      particulars and declaration as in Form-III.

Explanation.- For the purposes of this sub-rule “Election Certificate” means the certificate of election issued     
       under the Representation of the People Act, 1951 (43 of 1951) and the rules made thereunder.

                      (3) A summary of the information furnished by the  members under this rule shall be published in the 
       Bulletin and if any discrepancy therein is pointed out to the satisfaction of the Chairman, necessary corrigendum
       shall be published in the Bulletin.

                       (2) The information in relation to each member shall be recorded on a separate page in the register.

References to be               6. (1) No reference of any question as to whether a member has become subject to disqualification
by petitions.           under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance
                        with the provisions of this rule.

                         (2) A petition in relation to a member may be made in writing to the Chairman by any other 
         member.

                          (3) Before making any petition in relation to any member, the petitioner shall satisfy himself that  
         there are reasonable grounds for believing that a question has arisen as to whether such member has become
         subject to disqualification under the Tenth Schedule.

                          (4) Every petition,-

         a. shall contain a concise statement of the material facts on which the petitioner relies; and

         b. shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and addresses of such persons and the gist of such information as furnished by each such person.

                           (5) Every petition shall be signed by the petitioner and verified in the manner laid down in the       
 Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings.

                           (6) Every annexure to the petition shall also be signed by the petitioner
       and verified in the same manner as the petition.                                                                     Procedure

                                    7. (1) On receipt of a petition under rule 6, the Chairman shall consider whether the petition complies  
         with the requirements of that rule.

                            (2) If the petition does not comply with the requirements of rule 6, the Chairman shall dismiss the  
        petition and intimate the petitioner accordingly.

                     (3) If the petition complies with the requirements of rule 6, the Chairman shall cause copies     
 of the petition and of the annexures thereto to be forwarded,-

                          (a)to the member in relation to whom the petition has been made; and

                          (b)where such member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader;

and such member or leader shall, within seven days of the receipt of such copies, or within such further period as the Chairman may for sufficient cause allow, forward his comments in writing thereon to the Chairman.

                            (4) After considering the comments, if any, in relation to the petition, received under sub-rule (3)
                         within the period allowed (whether originally or on extension under that sub-rule), the Chairman  
                          may either proceed to determine the question or, if he is satisfied, having regard to the nature and 
                          circumstances of the case that it is necessary or expedient so to do, refer the petition to the  
                          Committee for making a preliminary inquiry and submitting a report to him.

                            (5) The Chairman shall, as soon as may be after referring a petition to the Committee under sub-rule  
        (4) intimate the petitioner accordingly and make an announcement with respect to such reference in the House
        or, if the House is not then in session, cause the information as to the reference to be published in the Bulletin.

                            (6) Where the Chairman makes a reference under sub-rule (4) to the Committee, he shall proceed to  
        determine the question as soon as may be after receipt of the report from the Committee

                            (7) The procedure which shall be followed by the Chairman for determining any question and the 
        procedure which shall be followed by the Committee for the purpose of making a preliminary inquiry under 
        sub-rule (4) shall be, so far as may be, the same as the procedure applicable for the determination by the  
        Committee of any question as to breach of privilege of the Council by a member, and neither the Chairman nor
         the Committee shall come to any finding that a member has become subject to disqualification under the Tenth
         Schedule without affording a reasonable opportunity to such member to represent his case and to be heard in
         person.

Decision on                        8. (1) At the conclusion of the consideration of the petition, the Chairman shall by order in writing,-
Petitions                                      (a) dismiss the petition, or

                        (b) declare that the member in relation to whom the petition has been made has become subject to 
                             disqualification under the Tenth Schedule, and cause copies of the order to be delivered or   
                             forwarded to the petitioner, the member in relation to whom the petition has been made and to   
                             the leader of the legislature party, if any, concerned.

                          (2) Every decision declaring a member to have become subject to disqualification under the Tenth    
            Schedule shall be reported to the Council forthwith if the Council is in session, and if the Council is not in 
            session immediately after the Council reassembles.

                           (3) Every decision referred to in sub-rule (1) shall be published in the Bulletin and notified in the    
            Official Gazette and copies of such decision shall be forwarded by the Secretary-General to the Election  
            commission of India and the Central Government.

                                   

                                     9. The Chairman may, from time to time, issue such directions, as                   Directions as to detailed
                  he may consider necessary in regard to the detailed working of these rules.             working of these rules.

FORM  I

[ See Rule 3 (1) ]

 

 

Name of the  legislature party:                                              Name of the corresponding political party:

 

 

 

                                                      

FORM  II

[See Rule 3 (5)]

 

To

       The Chairman,

       Rajya Sabha.

Sir,

       At the sitting of the Council held on __________(date) during voting on ________________________(subject-matter)­­­­____ _________

 

 

contrary to the direction issued by ____________________$$ (*person/authority/party) without obtaining the prior permission of the said *person/authority/party.

 

2.    On (date)_________________________the  aforesaid matter was considered by _________________$$ (*person/authority/party) and the said voting* /abstention was condoned*/was not condoned by him*/it.

 

 

      

                                                         

FORM III

[See Rule 4]

 

 

1.  Name of the member (in block letters) :

2.  Father’s/Husband’s name                    :

3.  Permanent Address                 :

4.  Delhi Address                                     :       

5.  Date of election/nomination     :

6.  Party affiliation as on -                         :

(i)  date of election/nomination       :

^*(ii) the 28^th February, 1985            :

(iii) date of signing this form           :

 

DECLARATION

 

 

 

     I_______________________________________hereby declare that the information given above is true and correct.

 

     In the event of any change in the information above, I undertake to inform the Chairman immediately.

 

 

 

 

 

                                                             

FORM IV

[See Rule 5 (1)]