Important for GS Prelims: Polity
Constitutional Evolution & Scope
- 52nd Constitutional Amendment Act, 1985: Added the Tenth Schedule to the Constitution. It amended Articles 101, 102, 190, and 191 to lay down provisions for the vacation of seats and disqualification of legislators.
- 91st Constitutional Amendment Act, 2003: Tightened the law significantly. It deleted the original provision protecting a “split” (where 1/3rd of the legislative party could defect without penalty).
- Applicability: Applies equally to both Houses of Parliament (MPs) and both Houses of State Legislatures (MLAs/MLCs).
Four Pillars of Disqualification
| Member Type | Ground for Disqualification |
| Party-Affiliated Member | Voluntarily gives up membership of their political party. |
| Party-Affiliated Member | Votes or abstains from voting contrary to any direction (Whip) issued by the political party. |
| Independent Member | Joins any political party after the election. |
| Nominated Member | Joins a political party after the expiry of six months from taking their seat. |
The Only Allowed Exceptions
A legislator will not be disqualified in the following two instances:
- The 2/3rd Merger Rule: If a political party decides to merge with another party, and at least two-thirds (2/3rd of the members of the legislative party agree to the merger.
- The Presiding Officer: If a member is elected as the Speaker, Chairman, or Deputy Chairman of a House, they may voluntarily give up their party membership to maintain institutional neutrality. They can rejoin that party after they cease to hold that office.
The Adjudicating Authority
- Who Decides? Any question regarding disqualification arising out of defection is decided by the Presiding Officer (Speaker/Chairman) of the respective House.
- If the Speaker is accused: If a defection complaint is made against the Speaker/Chairman themselves, a member of the House elected by the House will decide the case.
- Complaint Requirement: The Presiding Officer cannot take suo motu action. They can only initiate proceedings when a complaint is formally received from a member of the House.
Judicial Review & Key Supreme Court Judgments
- Kihoto Hollohan vs. Zachilhu (1992): The Supreme Court upheld the constitutional validity of the Tenth Schedule. Critically, it ruled that the Speaker functions as a quasi-judicial tribunal when deciding defection cases. Hence, the decision is subject to Judicial Review on grounds of mala fides, perversity, or violation of natural justice.
- Keisham Meghachandra Singh Case (2020): The Supreme Court stated that the Speaker must decide disqualification petitions within a reasonable time frame, outer-capped at three months, barring exceptional circumstances.
Collateral Penalties (91st Amendment Additions)
- Bar on Ministerial Appointments: A disqualified legislator cannot be appointed as a Minister (at both Central and State levels) under Articles 75(1B) and 164(1B).
- Bar on Remunerative Political Posts: They cannot hold any public office or body where the salary/remuneration is paid out of public funds (Article 361B).
- Duration of Penalties: Both restrictions remain active from the date of disqualification until the expiration of their original legislative term, or until they successfully contest a fresh election and get re-elected, whichever is earlier.
Conclusion:
- The Anti-Defection Law, enshrined in the Tenth Schedule, serves as a vital constitutional check against political opportunism by disqualifying switching legislators and barring them from ministerial or remunerative government offices until re-election.
| This concept has been elaborately discussed in the following article: Anti-Defection Law: Supreme Court Seeks Centre’s Reply |