Anti-Defection Law

Context

• Recently, the Anti-Defection Law has regained national prominence following the resignation of several high-profile legislators from the Aam Aadmi Party (AAP) in Delhi and Punjab to join the Bharatiya Janata Party (BJP). These political shifts, have triggered fresh legal debates regarding the potential disqualification of Rajya Sabha members and State MLAs under the Tenth Schedule.
• Furthermore, the Supreme Court has recently intensified its scrutiny of the “time-bound” disposal of disqualification petitions, emphasizing that Speakers cannot indefinitely delay decisions to favor a particular political faction.

1. Introduction and Constitutional Basis

The Anti-Defection Law was introduced to curb the “Aya Ram, Gaya Ram” culture of frequent floor-crossing which destabilized governments.

• 52nd Amendment Act, 1985: This amendment inserted the Tenth Schedule into the Constitution.
• Articles Affected: It amended Articles 102(2) and 191(2), which deal with the disqualification of Members of Parliament and State Legislatures, respectively.

2. Grounds for Disqualification

The law specifies three categories of members who can be disqualified:

1. Members of Political Parties:
   1. If they voluntarily give up the membership of their political party. (Note: Resignation is not mandatory; “conduct” can also imply giving up membership).
   1. If they vote or abstain from voting in the House contrary to the direction (whip) issued by the party without prior permission, and the act is not condoned by the party within 15 days.
2. Independent Members:
   1. If an independent candidate joins any political party after the election.
3. Nominated Members:
   1. If they join a political party after the expiry of six months from the date they take their seat. (They can join a party within the first six months without penalty).

3. Key Exceptions

Legislators are protected from disqualification in the following scenarios:

• Merger (2/3rd Rule): If at least two-thirds of the members of a party’s legislative wing agree to a merger with another party.
• Presiding Officers: If a member is elected as the Speaker or Chairman, they may resign from their party and rejoin it after they demit office without being disqualified.

4. The 91st Amendment Act, 2003

This amendment significantly strengthened the law by:

• Removing the “Split” Provision: Earlier, a “split” by one-third of the members protected them from disqualification; this was abolished to prevent frequent breaks in parties.
• Limiting the Cabinet Size: The total number of ministers, including the PM/CM, cannot exceed 15% of the total strength of the Lok Sabha/Legislative Assembly (State minimum is 12).
• De-barring from Office: Any member disqualified for defection is also disqualified from being appointed as a Minister or holding any remunerative political post until the end of their term or until they are re-elected.

5. The Deciding Authority and Judicial Review

• The Presiding Officer: The Speaker or Chairman of the House has the final authority to decide on disqualification.
• Kihoto Hollohan Case (1992): The Supreme Court ruled that while the Speaker decides, the decision is subject to Judicial Review. The Speaker acts as a “Tribunal” in such cases.
• Timeline: While the law does not specify a timeline, the SC in the Keisham Meghachandra Singh Case (2020) suggested that disqualification petitions should ideally be decided within three months.

Q. With reference to the Tenth Schedule of the Constitution of India, consider the following statements:
Statement I: A nominated member of a House becomes disqualified for being a member if he joins any political party after the expiry of six months from the date on which he takes his seat.
Statement II: The law specifies that the Presiding Officer must decide on a disqualification petition within a period of six months from the date of its filing.
Which one of the following is correct in respect of the above statements?
A) Both Statement I and Statement II are correct and Statement II is the correct explanation for Statement I.
B) Both Statement I and Statement II are correct and Statement II is not the correct explanation for Statement I.
C) Statement I is correct but Statement II is incorrect.
D) Statement I is incorrect but Statement II is correct.
Solution: C
• STATEMENT I IS CORRECT: Under the Tenth Schedule, a nominated member has a window of six months to join a party; joining after that results in disqualification.
• STATEMENT II IS INCORRECT: The Tenth Schedule does not specify any time limit for the Presiding Officer to decide. While the Supreme Court has "suggested" a 3-month timeline in various judgments, the law itself remains silent on the duration.