ANTI-DEFECTION LAW
Extract from the Constitution of India
191.
Disqualifications for membership. - (1) A person shall be disqualified for being
chosen as, and for being, a member of the Legislative Assembly or Legislative
Council of a State-
(a)
if he holds any office of
profit under the Government of India or the Government of any State specified
in the First Schedule, other than an office declared by the Legislature of the
State by law not to disqualify its holder;
(b)
if he is of unsound mind and stands
so declared by a competent court;
(c)
if he is an undischarged
insolvent;
(d)
if he is not a citizen of
India, or has voluntarily acquired the citizenship of a foreign State, or is
under any acknowledgement of allegiance or adherence to a foreign State;
(e)
if he is so disqualified by or
under any law made by parliament.
Explanation.-For the purposes of this clause. a
person shall not be deemed to hold an office of profit under the Government of
India or the Government of any State specified in the First Schedule by reason
only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a
Member of the Legislative Assembly or Legislative Council of a State if he is
so disqualified under the Tenth Schedule
Articles
102(2) and 191(2)
Provisions as
to disqualification on ground of defection.
1. Interpretation.- 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
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.
2. Disqualification on ground of
defection.- (1) Subject to the
provisions of
[paragraphs 4 & 5, a member of a House belonging to any political party
shall be disqualified for being a member of the House-
(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 authorized 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.
4. Disqualification on ground of defection not to
apply in case of merger.- (1) A member of a House shall
not be disqualified under sub-paragraph (1) of paragraph 2 where his original
political party merges with another political party and he claims that he and
any other members of his original political party-
(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.
5. Exemption.-
Notwithstanding anything contained in this schedule, a person who has 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.
6. Decision on questions as to disqualification on
ground of defection.-(1) If any question arises
as to whether a member of a House has become subject to disqualification under
this schedule, the question shall be referred for the decision of the Chairman
or, as the case may be, the Speaker of such House and his decision shall be
final.
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.
7. Bar of jurisdiction of courts.- Notwithstanding anything in this Constitution, no
court shall have any jurisdiction in respect of any matter connected with the
disqualification of a member of a House under this schedule.
8. Rules. (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 report, which a political party shall
furnish with regard to admission to such political party of any members of the
House and the officer of the House to whom such report 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 105or,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
Haryana Legislative Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986 Extract from Haryana Government Gazette (extras) dated
the 10th March, 1987.
HARYANA VIDHAN
SABHA SECRETARIAT
NOTIFICATION
The 10th March, 1987
No.
HVS-LA-6/85/26.- In exercise of the powers conferred by paragraph 8 of the
Tenth Schedule to the Constitution of India, the Speaker, Haryana Legislative
Assembly, hereby makes the following rules, namely:-
Short
Title 1 These rules may be called
the Haryana
Legislative Assembly(Disqualification
of Members on Ground of Defection)
Rules, 1986.
Definition 2 In these rules, unless the context otherwise
requires,-
(a)
Committee means the Committee
of
Privileges of the Haryana Legislative
Assembly;
(b)
Form means a form appended to
these rules;
(c)
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;
(d)
House means the Haryana
Legislative Assembly;
(e)
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 discharges the functions of, the leader of the party
for the purposes of these rules;
(f)
member means a member of the
Haryana Legislative Assembly;
(g)
Tenth Schedule means the
Tenth Schedule to the Constitution of India;
(h)
Secretary means the Secretary
to the Assembly and includes any person for the time being performing the
duties of the Secretary.
Information 3.(1) The leader of each legislature party (other
than a
to be
fur- legislature party consisting of only one member)
shall,
nished
by within thirty days after the first sitting of the
House, or,
leader
of a where such legislature party is formed after the
first
legislature sitting, within thirty
days after its formation, or, in either
party
parag- case within such further period as the Speaker may
for
raph 8(1)(b) sufficient cause allow,
furnish the following to the
and(c) Speaker, namely:-
(a)a statement (in writing) containing the names of
members of such legislature party together with other particulars regarding
such members as in form 1 and the names and designations of the members of such
party who have been authorized by it for communicating with the Speaker 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 Speaker, within thirty days
after the first sitting of the House or, where he has become a member of the
House after the first sitting, within thirty days after he has taken his seat
in the House, or, in either case within such further period as the Speaker 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 apply 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 sub-rule (2), he shall, within thirty days thereafter, or,
within such further period as the Speaker may for sufficient cause allow,
furnish in writing information to the Speaker with respect to such change.
(5) In the case of the House in existence
on the date of commencement of these rules, the reference in sub-rules (1) and
(2) to the date of the first sitting of the House shall be construed as a
reference to the date of commencement of these rules.
(6) Where a member belonging to any political
party votes or abstains from voting in the House 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 after
the expiry of fifteen days form the date of such voting or abstention and in
any case within thirty days from the date of such voting or abstention inform
the Speaker as in Form II whether such voting or abstention has or has not been
condoned by such political party, person or the authority.
Explanation.- A member may be regarded as having a abstained from voting only
when he, being entitled to vote, voluntarily refrained from voting.
Information 4.(1) Every member who has taken his seat in
the House
before the date of commencement of etc. to be
these rules shall furnished to the Secretary, within
thirty days from such
date or within furnished by
such further
period as the Speaker may for
sufficient cause allow, a statement of
members
particulars and
declaration
as in Form III.
paragraph 8(a)
(2) every member who takes his seat in the
House after the commencement of
these rules shall, before making and subscribing an oath or affirmation under
article 188 of the Constitution and taking his seat in the House, deposit with
the Secretary, his election certificate and also furnish to the Secretary 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 circulated to all the members of the
House and if any discrepancy therein is pointed out to the satisfaction of the
Speaker, necessary corrigendum shall be circulated to all the members of the
House.
Register 5.(1)
The Secretary shall maintain, as in Form IV, a register
of
inform- based on the information furnished under rules 3
and 4
ation as to in relation to the members.
members (2) The information in relation to each
member shall be
paragraph recorded
on a separate page in the register.
8(a)
References 6.(1)
No reference of any question as to whether a
member has
become subject.to disqualification to be by
under the Tenth Schedule
shall be made except by a petition in relation to such member petitions.
made in
accordance with the
provisions of this rule.
paragraph
(2)
A petition in relation to a member may be made in writing to the
Speaker by any
other member:
provided
that a petition in relation to the Speaker shall be addressed to the Secretary.
(3)
The Secretary shall,
(a)as soon as may be after the receipt of a petition
under the proviso to sub-rule (2), make
report in respect thereof to the House; and
(b)as soon as may be after the House has elected a
member in pursuance of the proviso to sub-paragraph (1) of paragraph 6 of the
Tenth Schedule, place the petition before such member.
(4) 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.
(5) 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.
(6)
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.
(7) Every
annexure to the petition shall also be signed by the petitioner and verified in the same manner as the
petition.
Procedure
7.
paragraph(8)(1)(d)
(1) On receipt
of a petition under rule6, the Speaker shall consider whether the petition
complies with the requirements of that rule.
(2) If the petition does not comply with the requirements of the
rule 6, the Speaker shall dismiss the petition and intimate the petitioner
accordingly.
(3) If
the petition complies with the requirements of rule 6, the Speaker shall cause
copies of the petition and of the annexures there 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 Speaker may for sufficient cause allow, forward his comments in
writing thereon to the Speaker.
(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 Speaker 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 enquiry and submitting a report to him.
(5)
The Speaker 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 circulated
to all the members of the House accordingly.
(6)
Where the Speaker 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 Speaker 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 for inquiry and determination by the
Committee of any question as to breach of privilege of the House by a member,
and neither the Speaker 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.
(8)
The provisions of sub-rule (1) to (7)
shall apply with respect to a
petition in relation to the Speaker as they apply with respect to a petition in
relation to any other member and for this purpose, reference to the Speaker in
these sub-rules shall be construed as including references to the member
elected by the House under the proviso to sub-paragraph (1) of paragraph 6 of
the Tenth Schedule.
Decision on
8 (1) At the conclusion of the consideration of
the petition,the
Speaker or , as the
Petitions
case may be, the member
elected under
the proviso to
Paragraph 8(1)(d)
(1) of paragraph 6 of the Tenth Schedule shall by order in writing.-
(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 House forthwith if the House is in
session, and if the House is not in session, immediately after the House
reassembles.
(3)
Every decision referred to in
sub-rule (1) shall be circulated to all the members of the
assembly and notified in the Official Gazette and copies of such decision
forwarded by the Secretary to the Election Commission of India, Chief Electoral
Officer, Haryana and the State Government.
Directions 9. The Speaker may, from time to time,
issue such
as to det- directions as he may consider necessary in regard
ailed
work- to the detailed working of these rules.
Ing of these
rules parag-
raph 8.
FORM I
[See rule
3(1)(a)]
Name of the Name
of the corresponding
Legislature
Party : Political
Party:
S. No. Name of the Member Fathers/ Permanent Name of the
(in
block letters)
husbands
address
Constituency
name
from
which
elected
1 2
3 4
5
Date : Signature
of the leader
of
the legislative party.
FORM
II
[See rule
3(6)]
To
The
Speaker,
Haryana
Vidhan Sabha.
Sir,
At
the sitting of the House held on
.(date) during voting on
..(subject-matter)
|
+Shri
.M.L.A. (Division
No
) Member
of
... (name of political
party), and the member of
.
.(name of
legislature party) had
voted/abstained form voting, |
+I,
(name
of the member), M.L.A. (Division No.
), member of
.(name of
political party) and leader of/sole member of
(name of
legislature party) voted/abstained from voting, |
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.
Date: Yours
faithfully
(Signature)
+Strike out inappropriate
words/portions
*(Here mention the name of the
person/authority/party, as the case may be, who had issued the direction).
FORM III
[See
rule 4(1) and (2)]
1. Name of the member (in block
letters):
2. Fathers/husbands name:
3. Permanent Address:
4. Present Address:
5. Date of Election:
6. Party affiliation as on-
(i)
Date of
election;
(ii) The
*28th February, 1985:
(iii)
Date of singing 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 intimate the Speaker immediately.
Date: Signature/thumb
Impression of member.
*To be
filled in only by members elected
before the 1st March, 1985, being the date of commencement of the
Constitution (52 Amendment) Act, 1985.
FORM IV
[See
rule 5(1)]
Name
Fathers/
Permanent
Present
Date
of Name of
Name of
Remarks
of the husbands
Address Address
election
political legislature
Member name
party
party
(in block
to
which to which
letters)
he belongs he belongs
1
2
3
4
5
6
7 8
By
order of the Speaker
G.L.
Batra
Secretary,
Haryana Vidhan Sabha
___________________________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
List of Pending Cases under the Tenth Schedule to the
Constitution of India in Hon'ble Punjab & Haryana High Court
| Sr. No. | Title of the Case | Remarks |
| 1 | Shri Moola Ram, MLA V/s State of Haryana & others. | CWP No. 3062 of 2005 Case Pending in Hon'ble Punjab & Haryana High Court. |
| 2. | Shri Daryao Singh, MLA V/s State of Haryana & Others | CWP No. 3112 of 2005 Case Pending in Hon'ble Punjab & Haryana High Court. |
1, Petition pending before the Hon'ble Speaker under the Tenth Schedule to the Constitution of India titled as under:-
| Petition No. | Petitioner(s) | Respondent(s) | |
| Petition No. 15 of 2011 | Sh. Sher Singh Barshami, MLA | Vs. | Sh. Om Parkash Jain, Minister; Sh. Gopal Kanda, Minister of State; Sh.Shiv Charan Sharma, Minister of State; Sh. Sukhbeer (Kataria), Minister of State; Sh. Parhlad Singh Gillankhera, Chief Parliamentary Secretary; Sh.Sultan (Jadaula), Chief Parliamentary Secretary; Sh.Jaleb Khan, Chief Parliamentary Secretary. |