Question

Consider the following statements regarding the Anti-Defection Law:

1. A nominated member of a House becomes disqualified if they join any political party within six months of taking their seat in the House.

2. The provision exempting disqualification on the ground of a 'split' by one-third of a legislature party's members was removed by the 91st Amendment Act.

3. The Supreme Court, in the Kihoto Hollohan case, ruled that the presiding officer's decision on disqualification is final and cannot be subjected to judicial review.

Which of the statements given above is/are correct?

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

Answer 1

Answer:

A. 2 only

Anti-Defection Law (Tenth Schedule)

• The Anti-Defection Law was enacted by the 52nd Amendment Act of 1985 and is enshrined in the Tenth Schedule of the Indian Constitution.

• Its primary objective is to prevent political defections by Members of Parliament (MPs) and Members of State Legislative Assemblies (MLAs) from their parties, thereby bringing stability to governments.

• The law specifies the circumstances under which an elected or nominated member of a legislature can be disqualified for changing political affiliations.

Key Provisions and Amendments:

• Regarding Statement 1: A nominated member of a House is allowed to join any political party within six months from the date on which they take their seat. If they join a political party after the expiry of six months, they become disqualified. Therefore, the statement that they are disqualified if they join within six months is incorrect. They are only disqualified if they join *after* six months.

• Regarding Statement 2: The 91st Amendment Act of 2003 brought significant changes to the Anti-Defection Law. Prior to this amendment, paragraph 3 of the Tenth Schedule provided an exception to disqualification if a 'split' occurred in the original political party and at least one-third of the members of the legislature party formed a new party or merged with another. The 91st Amendment removed this provision of 'split' to curb frequent defections. Now, only a 'merger' of a political party with another party is exempted, provided at least two-thirds of the members of the legislature party have agreed to such a merger. Hence, statement 2 is correct.

• Regarding Statement 3: In the landmark case of Kihoto Hollohan v. Union of India (1992), the Supreme Court upheld the constitutional validity of the Tenth Schedule. However, it specifically ruled that the decision of the presiding officer (Speaker in Lok Sabha/Assembly, or Chairman in Rajya Sabha/Council) regarding disqualification under the Anti-Defection Law is subject to judicial review. The Court clarified that judicial review would be available only *after* the presiding officer has made a decision, not at an interlocutory (intermediate) stage. Therefore, the statement that the presiding officer's decision is final and cannot be subjected to judicial review is incorrect.

Additional Facts for Competitive Exams:

• The final authority to decide on disqualification under the Anti-Defection Law is the Presiding Officer of the respective House (Speaker in Lok Sabha/Assembly and Chairman in Rajya Sabha/Council).

• The law applies to both Parliament and State Legislatures.

• The 91st Amendment Act also capped the size of the Council of Ministers (15% of the total strength of the Lok Sabha/Assembly) and mandated that any member disqualified under the Anti-Defection Law cannot be appointed as a minister or hold any remunerative political post until the expiry of the term of his office or till he is re-elected to the legislature, whichever is earlier.

• Grounds for disqualification include voluntarily giving up membership of the political party, voting or abstaining contrary to party directions, and an independent member joining a political party after election.