We have come across news articles dealing with political crisis in different states, rebel MLAs defying whip’s order or abstains from attending its legislature party meetings; Rebel MLAs getting disqualification notices from the Speaker.
Do you know?
Tenth Schedule 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.
A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
The law applies to both Parliament and state assemblies.
Deciding Authority
Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
Originally, the decision of the presiding officer was final and could not be questioned in any court. However, in 1993 Kihoto Hollohan case, the Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the high courts.
It held that the presiding officer, while deciding a question under the Tenth Schedule, function as a tribunal. Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc
