Legislator facing disqualification can’t attend floor test: SC

Subject: Polity

Section: Parliament / state legislature

Concept:

A Constitution Bench of the Supreme Court led by the Chief Justice of India has held that allowing a Legislator (MP or MLA) who is facing disqualification under the Anti-Defection Law to participate in a floor test will defeat the very purpose of the Tenth Schedule of the Constitution.
According to the Supreme Court Bench, allowing an individual whose actions caused a split in the party and is liable to be disqualified for defection, to attend a trust vote would amount to “legitimising” a “constitutional sin”.
The apex court further questioned whether a legislator who is the very reason for unsettling the ruling government can benefit from a subsequent floor test, which is the product of his actions.

10^th Schedule

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

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.

91st amendment act of 2003

The total number of ministers including the Prime minister in the central council of ministers shall not exceed 15% of the total strength of the Loksabha / State legislative assembly. (Article 75,164). However in states number of ministers shall not be less than 12.
A member disqualified under defection is also disqualified for being a minister in house.
The member disqualified on the grounds of defection shall also be disqualified for any remunerative political post, office wholly or partially under the government .
The provision regarding one third was also deleted by this amendment.
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.
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 Kihoto Hollohan case in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.