The Supreme Court of India has recently called for responses from the Centre and the Election Commission of India (EC) to a proposal seeking disqualification of legislators under the Tenth Schedule from standing in byelections during the tenure of the current House. This plea is rooted in recent political events across multiple states including Manipur, Madhya Pradesh, and Karnataka, wherein Members of Legislative Assemblies (MLAs) resign, leading to a fall of the incumbent government, only to reemerge as ministers in a newly formed rival party’s government.
The Plea’s Argument
The petitioners argue that any member of the House who incurs disqualification under the Tenth Schedule should not be allowed to contest again during the term for which they were initially elected. This premise stands on Article 172 of the Constitution. The argument further suggests that if a seat becomes vacant due to disqualification, that same disqualified member of the House should have a disability under Article 191 (1)(e) of the Constitution. This would prevent them from being chosen again during the term they were initially elected for.
Relevant Constitutional Provisions
Para 2 of the Tenth Schedule dictates that defecting legislators are “disqualified for being a member of the House.” Article 172 makes the membership of a House co-extensive with the House’s five-year term. According to Article 191(1) (e), a person will be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if they are disqualified under the Tenth Schedule.
The Tenth Schedule
The Tenth Schedule was added to the Constitution in 1985 by the 52nd Amendment Act. It details the process for disqualifying legislators due to defection, as decided by the Presiding Officer of a legislative body. This law applies to both the Parliament and state assemblies.
Disqualification Criteria
Legislators can be disqualified if they voluntarily quit their political party’s membership, vote or abstain from voting contrary to any direction issued by the party without obtaining its prior approval and if such action has not been condoned by the party within 15 days. Independent candidates joining a political party after elections and nominated members joining a party six months after becoming a member of the legislature also constitute grounds for disqualification.
Exceptions under the Law
Members defecting from their parties as a result of a merger with another party are exempted from disqualification, provided two-thirds of the members agree to the merger. A member who relinquishes his party membership after being elected as the presiding officer of the House or rejoins it after he ceases to hold that office is also not subject to disqualification.
Judicial Review of Presiding Officer’s Decision
In the Kihoto Hollohan case (1993), the Supreme Court ruled that the presiding officer functions as a tribunal when deciding a question related to the Tenth Schedule. Thus, their decision, like any other tribunal’s verdict, can be subjected to judicial review based on mala fides, perversity, etc.
Timeframe for Presiding Officer’s Decision
Legally, there is no prescribed timeframe within which the Presiding Officers should decide on a plea for disqualification. Courts can intervene only after the officer has made a decision, leaving the petitioner with no choice but to wait for the decision. Several cases have seen the judicial system express concerns over unnecessary delays in deciding disqualification petitions. Recently, the Supreme Court declared that unless there are “exceptional circumstances,” disqualification petitions under the Tenth Schedule should be resolved within three months.
Last Modified: February 10, 2024