A COMMON CITIZEN'S UNDERSTANDING OF 10TH SCHEDULE (ANTI DEFECTION LAW) OF CONSTITUTION OF INDIA : SPECULATIONS DO NOT CHANGE THE CONSTITUTIONAL PROVISION WHICH STAYS FIRM

 A COMMON CITIZEN'S UNDERSTANDING OF 10TH SCHEDULE (ANTI DEFECTION LAW) OF CONSTITUTION OF INDIA : SPECULATIONS DO NOT CHANGE THE CONSTITUTIONAL PROVISION WHICH STAYS FIRM


Dear Readers,
Now a days all of you must be reading in the public domain regarding the "10th Schedule" of Constitution of India known as the Anti Defection Law. There are many news coming in the media in public domain, some lawyers also give varying views through that, however any speculation does not change the Constitutional Provision, it stays firm. 

1. In 1985 there was a 52nd  Constitutional Amendment of Constitution of India, introducing the "10th Schedule" in it as the Anti Defection Law. This law precisely said the following among other things:

a)  A member of Hon'ble Parliament of India (any of the two houses) or Legislative Assemblies of the States, will get disqualified from the Seat He/She holds if he/she voluntarily resigns including from the Political Party that sponsored his/her election to the august house. 

b) A member of  Hon'ble Parliament of India (any of the two houses) or Legislative Assemblies of the States, will get disqualified from the Seat He/She holds if he/she votes against the Whip of the Political Party that sponsored his/her election to the august house without prior permission of his/her political party. 

c) In case of Nominated Members, they are allowed to join a political party within 6-months of taking their seat, however, if the Nominated Member joins a political party after six months from taking his/her seat of the Nomination to the august house will get disqualified.  

d) Independent Members will be disqualified from the Seat of the august house if they join a political party after their elections.

f) The Exceptions will be the Members of the House who get elected further as the Speaker / Chairman of the House and they have to mandatorily resign from the political party to maintain their Neutrality of the Constitutional Positions thus held. They will not be disqualified under such conditions. 

g) The Split Provision that was Allowed by the 1985 52nd Constitutional Amendment which has been repealed by the 91st Constitutional Amendment in 2003. 
Actually the 1985 52nd Constitutional Amendment had allowed Split of a Political Party in the House, if minimum 1/3rd of the Strength of Members of that Political Party defected together. However the said Provision of 1985 52nd Constitutional Amendment has been repealed and replaced by the 91st Constitutional Amendment  2003 which stipulates that minimum 2/3rd of the Strength of a Political Party in the House should defect together to merge with another Political Party or Outfit of Alliance in the House, then the question of disqualification for those minimum 2/3rd Strength of the Political Party in the House, who are merging with another outfit will not be there. Once the minimum 2/3rd of the Strength of the Political Party in the House decide to merge with another outfit in the house, their previous  political party (previous original party that sponsored their elections to the House) really has very little choice to do anything in that. If the Hon'ble Speaker/Chairman of the August House allows it within Speaker's/Chairman's Authority, it becomes final. However as I said, anybody being aggrieved with the happening and having locus standi on the subject matter may seek a Judicial Review of it before the Constitutional Courts of the Nation. That is the Precise Constitutional Provision as per the 10th Schedule of the Constitution of India as it exists today. 

h) The Final Decision of allowing a merger of minimum 2/3rd Strength of a Political Party in the August House, rests with the relevant Hon'ble Speaker/Chairman of the August House. However, the decision can be subjected to Judicial Review if anybody having due locus standi in the matter, approaches the Constitutional Courts of the Nation.  

There are various lawyers and legal luminaries  of the Nation even very Senior Lawyers and Legal Luminaries giving different opinions on the subject matter on speculative basis from time to time in this way or that way or whatever way, which I have been reading in the public domain and all of you may be also reading. I wrote this note as Common Citizen's Understanding, as the Constitutional Provision stays as on today as per Constitution of India, and any speculation does not change the Constitutional Provision. 

With best regards,
Dr. Nimain Charan Biswal,
Mumbai, India

About the Author : Dr. Nimain Charan Biswal is a B.Sc.(Agri. Science and Technology), M.B.A. and Ph.D.(Management Area ) by qualifications; and he has 40 years of work experience in Social, both industrial and Development sectors in diversified fields of Social Importance. He has been educated at Orissa University of Agriculture and Technology (OUAT)-Bhubaneswar, Institute of Rural Management Anand (IRMA) and Gujarat University (with Resource Support of IIM-Ahmedabad). He is further educated at IIM-Calcutta, XLRI-Jamshedpur, Apple Computer Industries and Spar Inc., USA. He has worked for reputed National and International Organizations in Senior/Top Management Capacities at Board level as well as Managing Director and CEO. He is a management expert covering extensive areas from management in Social Sectors, industrial sectors, management in Agriculture, Dairy and Foods, Agri-Food, Pharma, FMCG and Consumer Healthcare Sectors and Management of Cooperatives, Development Management to management of Public Systems. He is a prominent professional of India and known Internationally 


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