♤ Disqualification on the ground of Defection

The Tenth Schedule to the Constitution, popularly known as the Anti-Defection Law, was introduced by the Constitution (Fifty-second Amendment) Act, 1985. It was further amended by the Constitution (Ninety-First Amendment) Act, 2003 and lays down the conditions regarding disqualification on ground of defection. The main provisions of the Tenth Schedule are:

 An elected member of Parliament, who has been elected as a candidate set up by a political party and a nominated member of Parliament who is a member of political party at the time she/he takes her/his seat would be disqualified on the ground of defection if she/he voluntarily relinquishes her/ his membership of such political party or votes or abstains from voting in the House contrary to any direction of such party.

 An independent member of Parliament will also be disqualified if she/he joins any political party after her/his election.

 A nominated member of Parliament who is not a member of a political party at the time of her/ his nomination and who has not become a member of any political party before the expiry of six months from the date on which she/he takes her/his seat shall be disqualified if she/he joins any political party after the expiry of the said period of six months.

 No disqualification would be incurred when a legislature party decides to merge with another party and such decision is supported by not less than two-thirds of its members.

 Special provision has been made to enable a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of People or to the office of the Deputy Chairman of the Council of States to sever her/his connections with her/his political party without incurring disqualification.

 The question as to whether a member of a House of Parliament has become subject to disqualification will be determined by the presiding officer of the House; whereas the question is with reference to the Presiding Officer herself/himself it will be decided by a member of the House elected by the House on that behalf.

As per article 361B of the Constitution, such member of the House belonging to any political party who is disqualified for being a member of the House under the Tenth Schedule shall also be disqualified to hold any remunerative political post for duration of the period commencing from the date of her/his disqualification till the date on which the term of her/his office as such member would expire or till the date on which she/he contests an election to a House and is declared elected, whichever is earlier.

4.2.1. 91st Amendment Act

It was brought to implement the recommendations of the committee on Electoral Reforms (Dinesh Goswami Committee) in its report of 1990, the report of Law Commission of India in its report on “Reform of Electoral Laws” (1999) and the National Commission to Review the Working of the Constitution (NCRWC) all of which had recommended outlawing split. It provides that:

♤ Split (1/3rd of the members defect from the party) is not an exception to the anti-defection law.

♤ Council of Ministers should not be more than 15% of the strength of the lower house. Art.75 and 164 have been amended to this effect. However, in case of smaller states like Sikkim, Mizoram and Goa having 32, 40 and 40 Members in the Legislative Assemblies respectively, a minimum strength of 12 Ministers is proposed.