10th Schedule of the Constitution

Context: The Punjab Assembly has issued notice to Sukhpal Singh Khaira, Former rebel AAP leader and MLA from Bholath, for disqualification under the 10th Schedule of the Constitution.

Background:

Mr. Khaira had resigned from the party on January 6, but did not resign as legislator. Later, he floated a new political outfit.

What is the anti-defection law?

The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act. 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.

• The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
• The law applies to both Parliament and state assemblies.

Disqualification:

If a member of a house belonging to a political party:

• Voluntarily gives up the membership of his political party, or
• Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
• If an independent candidate joins a political party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature.

Exceptions under the law:

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.

Decision of the Presiding Officer is subject to judicial review:

The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.

Sources: the hindu.