Question

Analyze the following statements concerning the provisions for disqualification under the Tenth Schedule (Anti-Defection Law):

i. A nominated member is disqualified if they join any political party within six months of taking their seat in the House.
ii. An independent member is disqualified if they join any political party at any point after their election.
iii. The provision exempting disqualification in case of a 'split' (one-third of members) was omitted by the 91st Amendment Act.

Which of the above statements is/are correct?

• A. i and ii
• B. iii only
• C. ii and iii
• D. i, ii and iii

Answer 1

Answer:

C. ii and iii

Anti-Defection Law (Tenth Schedule)

• The Tenth Schedule to the Indian Constitution, commonly known as the Anti-Defection Law, was added by the 52nd Constitutional Amendment Act of 1985.

• Its primary objective is to prevent political defections by members of Parliament and State Legislatures, ensuring stability in governments and upholding the mandate of the electorate.

Provisions for Disqualification under the Tenth Schedule:

• Voluntarily Giving up Party Membership: If a member elected on a party ticket voluntarily gives up membership of their political party, they are disqualified.

• Voting Against Party Whip: If a member votes or abstains from voting in the House contrary to any direction (whip) issued by their political party, without obtaining prior permission, and such act is not condoned by the party within 15 days, they are disqualified.

Specific Provisions for Different Types of Members:

• Independent Members: An elected member who has been elected as an independent candidate shall be disqualified if they join any political party at any point after their election. This clarifies that statement (ii) is correct.

• Nominated Members: A nominated member is allowed to join any political party within six months from the date on which they take their seat in the House without incurring disqualification. However, if they join a political party after the expiry of six months, they shall be disqualified. Therefore, statement (i) is incorrect as joining within six months *does not* lead to disqualification.

Key Amendments and Exemptions:

• Originally, the Tenth Schedule provided for an exemption from disqualification in case of a 'split' in a political party, provided that one-third of the members of the legislative party defected. This was specified under paragraph 3 of the Schedule.

• The 91st Constitutional Amendment Act, 2003, omitted this paragraph 3, thereby eliminating the exemption for a 'split' in a legislative party. This was done to strengthen the anti-defection law and prevent mass defections under the guise of a split. This confirms that statement (iii) is correct.

• Another exemption, which still exists, is for a 'merger' of political parties. Disqualification does not apply if a legislative party merges with another political party, provided that not less than two-thirds of the members of the legislative party concerned have agreed to such a merger.

Important Facts for Competitive Exams:

• The decision on disqualification under the Tenth Schedule rests with the Presiding Officer of the House (Speaker in the Lok Sabha and State Assemblies, Chairman in the Rajya Sabha and State Legislative Councils).

• 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.

• The 91st Amendment Act, 2003, also introduced other significant changes, such as limiting the size of the Council of Ministers (15% of the total strength of the Lok Sabha/State Assembly, with a minimum of 12 for states) and disqualifying defectors from holding any remunerative political post.