CDS (II) 2023 General Knowledge · Question 94 of 120

Correct — B, The Speaker of the Lok Sabha. The Tenth Schedule, added by the Constitution (Fifty-second Amendment) Act, 1985, sets out the grounds on which a member is disqualified for defection, and paragraph 6 says who decides: a question whether a member of a House has become subject to disqualification under the Schedule is referred for the decision of the Chairman or, as the case may be, the Speaker of that House, and that decision is final. For the Lok Sabha, that is the Speaker; for the Rajya Sabha, the Chairman; and where the question is about the presiding officer himself, the House elects a member to decide it. The Schedule originally tried to shut the courts out altogether through paragraph 7, but in Kihoto Hollohan (1992) the Supreme Court struck that bar down and held that the presiding officer acts as a tribunal when deciding such a question, so the decision is open to judicial review under Articles 32 and 226.

• (a)The President of India — The President decides disqualification questions under Article 103 — office of profit, unsoundness of mind and the other grounds in Article 102(1) — acting on the Election Commission's opinion. Defection under Article 102(2) and the Tenth Schedule is deliberately kept out of that route.
• (c)The Supreme Court of India — The Court reviews such a decision after it is made; it does not decide the question in the first instance. Kihoto Hollohan opened the door to review precisely because the deciding authority is the presiding officer.
• (d)The concerned Political Party — A party can expel a member or issue a whip, but disqualification from the House is a constitutional consequence decided by the presiding officer, not by the party.

The Tenth Schedule disqualifies a member who voluntarily gives up membership of the party on whose ticket he was elected, or who votes or abstains against a party direction without permission and without the direction being condoned within fifteen days. An independent member is disqualified on joining a party; a nominated member on joining one more than six months after taking his seat. A merger is protected where not less than two-thirds of the legislature party agrees to it — the original one-third split exemption was removed by the Ninety-first Amendment in 2003.

Two different disqualification routes exist for a Member of Parliament and the exam mixes them. Article 102(1) grounds — office of profit, unsound mind, insolvency, foreign citizenship — go to the President under Article 103, on the Election Commission's binding opinion. Defection, under Article 102(2) read with the Tenth Schedule, goes to the presiding officer of the House. Keeping those two apart answers most questions in this area. The unresolved difficulty, which the exam has also tested, is that the Schedule sets no time limit for the presiding officer to decide, so petitions can sit for years, and the Supreme Court has repeatedly urged that they be decided within a reasonable period.

• The Tenth Schedule was inserted by the Constitution (Fifty-second Amendment) Act, 1985.
• Paragraph 6 makes the Chairman or the Speaker of the House the deciding authority on a question of disqualification for defection.
• Where the question concerns the presiding officer himself, the House elects a member to decide it.
• Paragraph 7 barred the jurisdiction of courts; Kihoto Hollohan (1992) struck it down and held the presiding officer's decision subject to judicial review.
• The Ninety-first Amendment, 2003, removed the one-third split exemption, leaving only the two-thirds merger protection.

• Sending defection questions to the President; that route is for the Article 102(1) grounds.
• Assuming the Speaker's decision is beyond challenge because paragraph 6 calls it final.
• Believing a one-third split still protects defectors; that exemption went in 2003.

As a who-decides item, or as a statements question on the time limit and on judicial review of the presiding officer's order.

• practice — not a real PYQ

  Provisions relating to disqualification on the ground of defection are contained in which Schedule of the Constitution of India?

  • (a)Ninth Schedule
  • (b)Tenth Schedule
  • (c)Eleventh Schedule
  • (d)Twelfth Schedule

  Answer(b) Tenth Schedule — added by the Fifty-second Amendment in 1985.

• practice — not a real PYQ

  Under the Tenth Schedule, a merger of a legislature party is protected from disqualification if it is agreed to by

  • (a)not less than one-third of the members
  • (b)not less than one-half of the members
  • (c)not less than two-thirds of the members
  • (d)all the members

  Answer(c) not less than two-thirds of the members — the one-third split exemption was removed by the Ninety-first Amendment in 2003.