Question

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

1. A member of a political party can be disqualified for voting against the party’s direction without prior permission, unless condoned within 15 days.

2. The decision of the presiding officer regarding disqualification is final and cannot be challenged in court.

3. The 91st Amendment removed the exemption for disqualification in case of a split in the party.

Which of the statements given above is/are correct?

• A. 1 and 3 only
• B. 2 only
• C. 1 and 2 only
• D. All of the above

Answer 1

Answer:

A. 1 and 3 only

Anti-Defection Law

• The Anti-Defection Law was introduced by the 52nd Constitutional Amendment Act of 1985. This amendment added the Tenth Schedule to the Indian Constitution.

• Its primary objective was to curb political defections by members of Parliament and State Legislatures from one party to another, which was seen as undermining the very foundations of Indian democracy.

Key Provisions and Amendments:

• Grounds for Disqualification:

  • A member elected on a party ticket voluntarily gives up membership of that political party.

  • A member votes or abstains from voting in the House contrary to any direction (whip) issued by their political party, without obtaining prior permission. However, if such voting or abstention is condoned by the political party within 15 days from the date of such voting or abstention, the member is not disqualified.

  • An independently elected member joins any political party after their election.

  • A nominated member joins any political party after the expiry of six months from the date on which they take their seat in the House.

• Decision on Disqualification:

  • The decision on questions as to disqualification on ground of defection is made by the Presiding Officer of the House (Speaker in Lok Sabha/Assembly, Chairman in Rajya Sabha/Council).

  • Initially, the 52nd Amendment stated that the decision of the Presiding Officer was final and could not be challenged in any court.

  • However, the Supreme Court, in the landmark Kihoto Hollohan v. Zachillhu (1992) case, ruled that the decision of the Presiding Officer under the Tenth Schedule is subject to judicial review. This means the decision can be challenged in the High Courts and the Supreme Court. Therefore, the statement claiming the decision cannot be challenged in court is incorrect.

• Impact of the 91st Constitutional Amendment (2003):

  • The original 52nd Amendment provided an exception for disqualification in case of a 'split' in a political party, where one-third of the members of a legislative party formed a new group.

  • The 91st Constitutional Amendment Act of 2003 removed this exception. It abolished the provision that protected a legislator from disqualification if a split occurred and one-third of the members of the legislature party formed a new group.

  • This amendment aimed to prevent frequent splits and mergers for political gains.

  • The only exception that remains for not being disqualified is if a political party merges with another political party, provided that at least two-thirds of the members of the legislative party concerned have agreed to such a merger.

• Additional Facts:

  • The law applies to both Parliament and State Legislatures.

  • The term 'defection' refers to a change of allegiance by a political party member from one party to another.

  • The Anti-Defection Law is enshrined in Articles 102(2) and 191(2) of the Constitution, which refer to the Tenth Schedule.