Legislature, Privilege and Defection: Free Constitutional Law Notes

Legislature, Privilege and Defection - Prolawctor


The legislature is that organ of the government which passes the laws of the government. It is the agency which has the responsibility to formulate the will of the state and vest it with legal authority and force.

The parliament of India consist of the-

  1. President
  2. Rajya sabha
  3. Lok sabha

Composition of the Lok sabha

The total strength of Lok Sabha is the 552. 530 members are the representatives of the states, 20 are the representatives of union territory and 2 members are nominated by the president.

Composition of Rajya Sabha

The total strength of Rajya sabha is the 250.238 members are the representatives of the states, and of union territory and 12 members are nominated by the president.

Qualification of the members of the parliament

  1. He must be a citizen of India
  2. He must make oath or affirmation before the person authorised by the election commission for this purpose.
  3. He must be not less than 30 years of age in case of Rajya Sabha and 25 in case of Lok Sabha.
  4. He must posses other qualification prescribed by the parliament.


A person shall be disqualified when

  1. He hold any office of profit under the union or the state government.


K.B. Pohmaray v. Shankar Rao

It was held that the hororarium paid to the members of the wage Board under the Bombay Industrial act is not a profit because it is not sufficient even for this pocket expenses.

  • If he is of unsound mind and stands so declared by a court.
  • If he an undischarged insolvent.
  • If he is not a citizen of India.
  • If he is so disqualified under any law made by parliament.


Jaya Bachchan v. Union of India

A member of Rajya sabha, was appointed as chairperson of the Film Development council. The parliament didn’t exempt the said office of profit from the disqualification under article 102(1)(a) of the constitution.

The supreme court held that the petitioner’s disqualification from the membership of the Rajya sabha is valid.


Parliamentary privileges are special rights, immunities, exceptions enjoyed by the members of the two houses of Parliament and their committees.

Parliamentary privileges are defined in Article 105 of the Indian Constitution.


Raja Ram Pal vs The Honble Speaker, Lok Sabha & Ors , 2007

The interpretation of Article 105 of Constitution of India is in issue in these matters. The question is whether in exercise of the powers, privileges and immunities as contained in Article 105, are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists,is it subject to judicial review and if so, the scope of such judicial review.

Parliamentary privileges can be broadly divided into two categories

  1. Enjoyed by the Members of Parliament collectively as a part of Parliament.
  • Right to exclude the strangers from the proceedings

The members of the house collectively have the power and right to exclude strangers who are not members of the house from the proceedings. This right is very essential for securing free and fair discussion in the house. If any breach is reported then the punishment in the form of admonition, reprimand, or imprisonment can be given.

  • Right to prohibit the publication of proceedings

According to the Article 105(2) of the Constitution, “no person shall be held liable for publishing any reports, discussions etc. of the house under the authority of the member of the house”.

As because of national importance, it is essential that the proceedings should be communicated to the public to aware them about what is going on in the parliament.


P.V. Narsimha Rao v. state

A five judge bench of supreme court held that the scope of Protection of immunity available to the members of Parliament is quite wide and is not confined only against judicial proceedings but is available to them against all civil action and criminal proceedings for anything said or any vote given by them in the house of Parliament.

  1. Enjoyed by the Members of Parliament individually
  • Freedom from arrest

No member can be arrested and no legal process (criminal or civil) can be initiated within the premises of the house without the permission of the presiding officer of the house.


K. Anandan Nambiar v. Chief Secretary Government of Madras

The court held that if a person was detained under a valid detention order , he could claim no special status higher than that of an ordinary citizen and that he was as much liable ti be arrested and determine under it as any other citizen.

  • Freedom of Speech

 According to the Indian Constitution, the members of Parliament enjoy freedom of speech and expression. No member can be taken to task anywhere outside the four walls of the House (e.g. court of law) or cannot be discriminated against for expressing his/her views in the House and its Committees.

          Exemption from attendance as witnesses:

       The members of Parliament also enjoy freedom from attendance as witnesses.


  • Legislative function: The Parliament makes laws on all subjects listed in the Union List. It can also make laws on subjects listed under the Concurrent List. In case there is any conflict or overlapping in the provisions existing in the Union and State enactment, the Union law prevails. In cases when an emergency has been declared, the Union Parliament can also make laws on subjects that fall within the State List.
  • Executive function: According to parliamentary form of government executive is responsible to the parliament for its acts and policies. Hence parliament exercises control by various measures like committees, question hour, zero hour etc. ministers are collectively responsible to the Parliament.
  • Constitutional Functions: The power to amend the Constitution vests with the Parliament. Constitutional amendments have to be passed by each house by a majority of total membership as well as by two-third majority of members present in voting. In some cases amendments need ratification from half of the Legislative assemblies of the States.
  • Electoral Powers: It has its participation in the election of President and Vice-President
    The members of Lok Sabha elect speaker and deputy speaker from among its members. Similarly members of Rajya Sabha elect deputy chairman.
  • Judicial Functions: Parliament has the exclusive powers to impeach the President and remove judges of the Supreme Court and the High Court’s through a prescribed procedure. Parliament can also punish a person for contempt or defamation of the House.
  • Financial Powers: This power has various functions in it. It includes scrutinizing the performance of the government particularly with respect to financial committees. Also, it includes the enactment of the budget.


The anti-defection law in India, is found in the 10th schedule of the Constitution of India., was enacted to address the perceived problem of instability caused by democratically elected legislators in India’s Parliamentary System of Government shifting allegiance from the parties they supported at the time of election, or disobeying their parties’ decisions at critical times such as during voting on an important resolution

Case law:

Kihota Hollohon vs. Zachilhu (1992)

  • In the judgment, the Supreme Court clarified that the 10th schedule is constitutionally valid. It neither impinges upon the freedom of speech and expression nor subverts the democratic rights of elected members.
  • It also upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
    • However, it also held that Presiding Officer’s decisions of disqualification shall be open to judicial review.

Narsingrao Gurunath Patil vs Arun Gujarathi, Speaker And Ors. 2002

In Kihota’s case, the Supreme Court has explained the whole basis of anti-defection law. The same has been accepted by it in its subsequent rulings also. It has been recognised by the Supreme Court that political parties fight elections on the basis of principles and programmes stated in their manifestos and formed Governments, if elected, to implement them.

Amendment related to the Anti Defection Law:

91st Constitution Amendment Act-2003

It aimed at limiting the size of the Council of Ministers to debar defectors from holding public offices, and to strengthen the anti-defection law.

Earlier, a defection by one-third of the elected members of a political party was considered a ‘merger’. The amendment changed it to at least two-thirds.

Advantages of Anti Defection law

  • Provides stability to the government by preventing shifts of party allegiance.
  • Ensures that candidates elected with party support and on the basis of party manifestoes remain loyal to the party policies.

Disadvantages of Anti-Defection Law

  • The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides.

However, this law also enforces a restriction on legislators from voting in line with their conscience, judgement and interests of his electorate.

  • The Anti-Defection Law, in effect, dilutes the separation of powers between the Executive and the Legislature – and centralises power in the hands of the executives.

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