• Under Article 190(3), a provision under which the
THE HINDU PRELIMS SPECIFIC ANALYSIS 14th
NOVEMBER 2019
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daily prelims specific analysis from the Hindu dated 14th
November 2019.
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TENTH SCHEDULE OF THE CONSTITUTION FOR
DEFECTION pg 1, 10
• Context: The Supreme Court upheld the
disqualification of 17 dissident Congress and Janata
Dal (Secular) legislators by then Karnataka Assembly
Speaker under the Tenth Schedule (anti-defection
law) but held that their ouster is no bar from
contesting repolls.
Analysis
• The Court said, “Neither under the Constitution nor
under the statutory scheme (the Representation of the
People Act, 1951) it is contemplated that
disqualification under the Tenth Schedule would
operate as a bar for contesting re-elections.”
• The court rejected the MLAs’ contention that their
disqualification was invalid as they had tendered their
resignations.
• The court said: "Disqualification relates back to the
date when the act of defection takes place. Factum
and taint of disqualification does not vapourise by
tendering a resignation letter to the Speaker. A
pending or impending disqualification action does not
become infructuous by submission of the resignation
letter, when act(s) of disqualification have arisen prior
to the member’s resignation letter.”
• The court noted that it would defeat the purpose of the
Tenth Schedule if it was held that disqualification
proceedings would become infructuous upon
tendering resignation.
Right to resign
• Speakers are not given a free pass to sit on
resignation letters indefinitely.
• The court said the Speaker’s enquiry on a resignation
should be confined to whether it was a voluntary and
genuine act.
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Speaker has to ascertain the “voluntary” and
“genuine” nature of a resignation before accepting it,
the court is clear that it is a limited inquiry, only to see
if the letter is authentic and if the intent to quit is
based on free will.
• “Once it is demonstrated that a member is willing to
resign out of his free will, the Speaker has no option
but to accept the resignation,” the court has said.
• This effectively ends the argument that the Speaker is
empowered to consider the motives and
circumstances whenever a resignation is submitted.
• The Speaker had the discretion to reject a
resignation but his decision should be based on
“objective material” and not just ipse dixit (an
assertion).
Tenth Schedule of the Constitution for Defection
• The Tenth Schedule was inserted in the Constitution
in 1985.
• The law applies to both Parliament and state
assemblies.
• A member incurs a disqualification under the
defection law if:
o He voluntary gives up the membership of the
political party on whose ticket he is elected to the
House;
o He votes or abstains from voting in the House
contrary to any direction given by his political;
party;
o Any independently elected member joins any
political party; and
o Any nominated member joins any political party
after the expiry of six months.
• The disqualifications under the 10th schedule are
decided by the Chairman in the case of Rajya
Sabha/Legislative Council and Speaker in the case of
Lok Sabha/Legislative Assembly (and not by the
President or Governors).
• The decision of the Chairman/Speaker in this regard
is subject to judicial review.
o The Constitution has limited the powers of the
court to judicially review the Speaker’s order
under the Tenth Schedule.
 o An order of the Speaker under the Tenth
Schedule could be subject to judicial review only
on four grounds: mala fide, perversity,
violation of the constitutional mandate and
order passed in violation of natural justice -
the Kihoto Hollohan case.
• Indian law allows a person to be sworn in as Minister
and provides six months for the person to be elected
to either of the Houses. However, “if MLAs are
disqualified for defection, they cannot become
Ministers till they are successfully elected as
legislators.”
• In the light of the existing constitutional mandate, the
Speaker is not empowered to disqualify any member
till the end of the term. However, a member
disqualified under Tenth Schedule cannot be
appointed Minister or hold any remunerative political
post till the date on which the term of his office as
such member would expire or till the person is elected
to either of the Houses, whichever is earlier.
o 91st amendment act, 2003 – Relates to the
anti-defection laws and restricting the size of the
council of ministers to aid and advice the
President.
o 91st amendment act sates that the size of the
council of ministers and in the respective state
governments should not be more than 15% of
the total members of lower house (i.e. 15%
strength of Lok Sabha in the parliament and 15%
strength of lower houses of respective states
legislatures), the minimum strength in the case of
small states (Sikkim, Mizoram, Goa) is being 12
due to lower strength of the Legislative assembly
of that states, Sikkim - 32, Mizoram – 40, Goa –
40.
o 91st Amendment act of Indian constitution also
state that person who is disqualified under anti-
defection law (Schedule 10th of Indian
constitution) shall not be appointed as a minister
nor hold and remunerative political post from the
period of disqualification.
Are there any exceptions under the law?
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• Yes, legislators may change their party without the
risk of disqualification in certain circumstances.
• The law allows a party to merge with or into another
party provided that at least two-thirds of its
legislators are in favour of the merger.
• In such a scenario, neither the members who decide
to merge, nor the ones who stay with the original party
will face disqualification.
• 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).
Is there a time limit within which the Presiding Officer
has to decide?
• The law does not specify a time-period for the
Presiding Officer to decide on a disqualification plea.
• Given that courts can intervene only after the
Presiding Officer has decided on the matter, the
petitioner seeking disqualification has no option but to
wait for this decision to be made.
Article 190: Vacation of seats
• (1) If a person becomes member of both Houses of
the legislature of a State, then he has to vacate his
seat in one House or the other.
• (2) If a person becomes member of the legislatures of
two or more States, then that persons' seat in the
Legislatures of all such States shall become vacant,
unless he has previously resigned his seat in the
Legislatures of all but one of the States.
• (3) If a member of a House of the Legislature of a
State
• (a) becomes subject to any of the disqualifications
mentioned in clause (1) or clause (2) of Article 191
(discussed ahead); or
• (b) his resignation is accepted by the Speaker or the
Chairman, as the case may be:
 o If from information received or otherwise and
after making such inquiry as he thinks fit, the
Speaker or the Chairman, as the case may be, is
satisfied that such resignation is not
voluntary or genuine, he shall not accept
such resignation.
• (4) If for a period of sixty days a member of a House
of the Legislature of a State is without permission of
the House absent from all meetings thereof, the
House may declare his seat vacant:
o Provided that in computing the said period of
sixty days no account shall be taken of any
period during which the House is prorogued or is
adjourned for more than four consecutive days.
Clause (1) or clause (2) of Article 191 of Constitution
of India "Disqualifications for membership"
• (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly
or Legislative Council of a State-
o (a) if he holds any office of profit (being a
Minister either for the Union or for such State is
not office of profit).
o (b) if he is of unsound mind and stands so
declared by a competent court;
o (c) if he is an undischarged insolvent;
o (d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is
under any acknowledgement of allegiance or
adherence to a foreign State;
o (e) if he is so disqualified by or under any law
made by Parliament.
• (2) if he is so disqualified under the Tenth Schedule
(anti-defection).

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