Question

Which of the following statements are correct regarding the Anti-Defection Law?

1. A member disqualified under the Anti-Defection Law for defection is also barred from being appointed as a minister.

2. The decision of the presiding officer on disqualification under the Tenth Schedule is final and cannot be questioned in any court.

3. The 91st Amendment removed the provision exempting disqualification in cases of a merger of political parties.

• A. 1 and 2
• B. 1 and 3
• C. 2 and 3
• D. All are correct

Answer 1

Answer:

B. 1 and 3

Anti-Defection Law in India (Tenth Schedule of the Constitution)

• Background: The Tenth Schedule, commonly known as the Anti-Defection Law, was added to the Constitution by the 52nd Amendment Act, 1985. It aims to curb the 'evil of defection' by members of Parliament and State Legislatures.
• Disqualification Grounds: A member of a House belonging to a political party can be disqualified on the following grounds:
  • If they voluntarily give up their membership of the political party.
  • If they vote or abstain from voting in the House contrary to the direction issued by their political party, without prior permission or condonation.
• Exemptions: The law provides for certain exemptions, such as:
  • If a member leaves their political party, and their party subsequently merges with another party, and they (and at least one-third of the members of the legislature party) agree to the merger or do not leave the group.
  • A person elected as a presiding officer can resign from their political party, and if they are re-elected, they can rejoin the party.
• Role of Presiding Officer: The decision on whether a member should be disqualified rests with the Presiding Officer of the House (Speaker in Lok Sabha/State Legislative Assembly, Chairman in Rajya Sabha/State Legislative Council).
• Judicial Review: Initially, the 1985 Act made the Presiding Officer's decision final, barring judicial review. However, the Supreme Court in the Kihoto Hollohan case (1992) ruled that judicial review is applicable to the decisions of the Presiding Officer, though it is limited to certain grounds like mala fides, perversity, or procedural irregularity.
• 91st Amendment Act, 2003: This amendment significantly changed the merger provisions. It removed the exemption that allowed disqualification not to apply in cases of a merger of political parties if at least two-thirds of the members of the legislature party agreed to the merger. This means that even after a merger, individual members who defect from the merged party can still be disqualified.
• Consequences of Disqualification: A member disqualified under the Anti-Defection Law is barred from being appointed as a minister until they are re-elected to the House. This provision ensures that defectors do not gain undue advantage by becoming ministers immediately after disqualification.