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3. Disqualification on ground of defection not to apply in a case of split - Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original party and such group consists of not less than one third of the members of such legislature party,-
(a) he shall not be disqualified under sub-

paragraph (1) of paragraph 2 on the ground 

(i) that he has voluntarily given up his membership of his original political party; or

The question, however, is not only of the definition of the expression 'legislature party' or of the words 'unless the context otherwise requires' in paragraph 1 of the Tenth Schedule, but is also of the interpretation of paragraph 3 under which protection is sought by the petitioners. The words in paragraph 3 are 'he and any other members of his legislature party'. The further requirement is of such members constituting 'the group' representing a faction. It is the group which has to represent a faction which has arisen as a result of split in the original political party. It is such 'group' which is to consist of not less than one third of the members of such legislature party. The question also is as to the interpretation of the expression 'original political party' mentioned in paragraph 3. Further, the contention is that for the applicability of paragraph 3, mere making of a claim about the split is sufficient and nothing more is required to be shown in so far as split is concerned. The submission is that mere making of claim as to the split would entitle a member to the protection of Paragraph 3 subject, of course, to the fulfillment of other conditions laid therein.

Paragraph 3 requires the following conditions to be complied with :

(a) a split in the original political party giving rise to a faction; and
(b) faction is represented by group of MLAs in the House which consists of not less than one-third of the members of such legislature party.

Re. (a) The submission urged on behalf of the petitioners is that only requirement of this paragraph is that a claim of split is made by the member of the House and it is not the requirement to even prima facie show that such claim is correct or not. The disqualification under paragraph 2(1)(a) is incurred when a member of the House voluntarily gives up membership of his original political party. Paragraph 2 is, however, subject to paragraph 3 of the Tenth Schedule. If conditions of paragraph 3 are satisfied, despite giving up membership voluntarily, a member would not incur disqualification under paragraph 2. Paragraph 3 proceeds on the assumption that but for the applicability of the said provision the disqualification under paragraph 2 would be attracted. The burden to prove the requirements of paragraph 2 is on the person who claims that a member has incurred the disqualification. The burden to prove the requirements of paragraph 3 is on the member who claims that there has been a split in his original political party and for that reason disqualification under paragraph 2 is not attracted. In Ravi S. Naik, it was observed that :

In support of the contention that for the purposes of paragraph 3 of the Tenth Schedule, the split in a State unit is the requirement, reliance has been placed on a Full Bench decision of Punjab High Court in the case of Madan Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha [The Punjab Law Reporter Vol.CXVII (1997-3) page 374)]. In the said case, it was held :

"A reading of these provisions clearly indicate that importance was given to the House of the Legislative Assembly of the State. The original political party in relation to a member of the House is the political party to which he belongs. Thus, it is clear that the Parliament intended to treat the State unit of a political party as a separate entity for the purpose of determining whether there is any disqualification of a member of the House of that State Legislature. It is further made clear that in the case of split one- third members of the State Legislature belonging to that political party must form a group to make the split effective within the State Legislature. Likewise for the purpose of (sic) merger within the meaning of paragraph 4, two-thirds of the members of the State Legislature party must have agreed to such merger. Thus, while deciding the disqualification of the member of the State Legislature the events that have taken place at the national level have no concern to decide whether there is a split or (sic) merger. To elucidate this point one may take the case of split of a national political party at the national level but in a particular State the members of that political party do not want to split and they want to continue the State unit intact. In such an event the split or events that have taken place at the national level of the political party will have no effect on the State unit of that political party and the political party at the State level continues to be in the original form. Likewise there may not be a split at the national level but at the State level there may be a split in the State unit of that political party and one-third of the members of the State Legislature constitute the group representing the faction as a result of the split in the State unit of the political party. Then the split comes into existence even though there is no split as such at the national level. The scheme of Tenth Schedule is to be looked from the point of view of State units of political parties when the question of disqualification arises within the State Legislative Assembly. Thus, according to us if there is a split of a political party at the State level and one-third members of the Legislature party of that political party at the State level consists of the group representing that faction which splits away from the original political party then the split comes into existence and is effective."