Question

Consider the following statements regarding the Anti-Defection Law under the 52nd Constitutional Amendment:

1. A member of a House is disqualified if they voluntarily give up their party membership or vote against the party’s direction without prior permission.

2. The decision on disqualification under the Anti-Defection Law is made by the presiding officer and is not subject to judicial review.

3. The 91st Amendment removed the exemption from disqualification in cases of a split in the legislature party.

Which of the statements given above is/are correct?

• A. 1 and 3 only
• B. 1 only
• C. 2 and 3 only
• D. 1, 2, and 3

Answer 1

Answer:

A. 1 and 3 only

Understanding the Anti-Defection Law

• The Anti-Defection Law was introduced in India by the 52nd Constitutional Amendment Act of 1985. This amendment added the Tenth Schedule to the Constitution, which lays down the provisions for disqualification of Members of Parliament (MPs) and State Legislative Assemblies (MLAs) on the grounds of defection.
• The primary objective of this law was to curb political defections by legislators, which had become a major problem leading to instability in governments. It aims to ensure party loyalty and stability in parliamentary democracy.

Key Provisions and Grounds for Disqualification (52nd Amendment)

• A member of a House belonging to any political party is disqualified if they voluntarily give up their membership of such political party. This is a crucial ground and does not require a formal resignation.
• A member is also disqualified if they vote or abstain from voting in the House contrary to any direction (whip) issued by their political party, without obtaining prior permission from the party. Furthermore, such voting or abstention must not be condoned by the party within 15 days from the date of such voting or abstention.
• An independent member (elected without belonging to any political party) is disqualified if they join any political party after such election.
• A nominated member is disqualified if they join any political party after the expiry of six months from the date on which they take their seat in the House.

Judicial Review of the Presiding Officer's Decision

• Initially, the 52nd Amendment stated that the decision of the Presiding Officer (Speaker in Lok Sabha/Assembly, Chairman in Rajya Sabha/Council) on disqualification due to defection would be final and not subject to judicial review.
• However, in the landmark Kihoto Hollohan v. Zachillhu (1992) case, the Supreme Court held that while the Presiding Officer acts as a tribunal, their decision under the Tenth Schedule is indeed subject to judicial review. This means that high courts and the Supreme Court can examine the legality and constitutionality of the Speaker's or Chairman's decision.

Impact of the 91st Constitutional Amendment Act, 2003

• The 91st Constitutional Amendment Act, 2003, brought significant changes to the Anti-Defection Law.
• One of the most important changes was the removal of the exemption for disqualification in cases of a 'split' in the original political party. Prior to this amendment, if one-third of the members of a legislature party split from the original party, they were exempt from disqualification.
• The 91st Amendment abolished this 'one-third split' provision, making it harder for small groups of defectors to avoid disqualification. This was done to further strengthen the law against defection.
• The provision for a 'merger' remains, where a legislator is not disqualified if their original political party merges with another political party, provided that not less than two-thirds of the members of the legislature party agree to such a merger.