The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
Disqualification On Grounds Of Defection
1. He voluntarily gives up his membership of such a political party.
2. He disobeys the directions of his political party or votes or does not vote in the legislature.
3. After the election, he joined another political party.
4. If a nominated member joins any political party after 6 months from the day he becomes a member of the legislature.
Disqualification On Ground Of Defection Not Applied In Case Of Merger
Disqualification of members is not applied in case of merger. Provided that this merger with or into another party shall be done with the consent of at least two-third of its legislators. In such a case neither the member who decides to merge or member who stays in the original party can be disqualified on the ground of defection.
Decision On Question As To Disqualification On Ground Of Defection
In case of any question related to the disqualification of a member then it is referred to the chairman or the speaker of the legislative house for and his decision shall be final and binding.
Bar Of Jurisdiction Of Courts
The section of this Schedule bars the jurisdiction of any courts in the case of disqualification of a member. But this provision is not applied under Article 32, 137 and 226 of the Indian Constitution.
This paragraph of Schedule empowers the Chairman and the Speaker to frame the rules related to the disqualification of members of their various houses of the legislature.
Advantages Of Anti-Defection Law
1. It provides stability to the government by restricting the shift of party relations.
2. It ensures that candidate shall be loyal to his party and citizens also gave vote to him
3. It also promotes party discipline.
4. It allows the merger of political parties without disqualifying a member on the ground of defection.
5. It also helps in reducing corruption at the political level by restricting the change of party.
6. It provides procedures for those who defect from one party to another.
What is SC’s ‘Kihoto Hollohan’ judgment?
Tenth Schedule describes the Speaker’s sweeping discretionary powers: “If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.”
The petitioners in ‘Kihoto Hollohan’ argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
The Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs. SC also held that “the Speaker/Deputy Speaker while deciding disqualification Petition under the 10th Schedule as such a Tribunal and therefore it is incumbent upon the Deputy Speaker to afford a reasonable opportunity of hearing and defending his case to the Petitioner”.
Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission. This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries a remuneration, and has not been excluded in a list made by the legislature).