Comprehension
The concept of per se disqualification is unknown to the Constitution. Any decision as to the disqualification proceedings under the Tenth Schedule must be taken after following the due process of law and the principles of natural justice. A member incurs disqualification only after adjudication by the Speaker. The procedure for the adjudication of disqualification petitions is prescribed under the Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986. The MLAs facing disqualification retain the right to participate in the proceedings of the House and vote on resolutions. Article 189(2) of the Constitution provides that any proceedings of the House are not invalid even if it is subsequently discovered that persons who were not entitled to participate or vote or otherwise take part in the proceedings, did so. In Pratap Gouda Patil v. State of Karnataka and Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi, this Court observed that members should not be stopped from taking part in the proceedings of the House merely because disqualification proceedings were pending against them
Prior to the deletion of Paragraph 3 of the Tenth Schedule, the Speaker’s enquiry as to the existence of a split within a political party was limited to a prima facie determination for deciding the disqualification proceedings. As a result of the deletion of Paragraph 3, the authority of the Speaker to form even a prima facie opinion regarding a split within a political party has been removed. Upon the deletion of Paragraph 3, the only defence for disqualification proceedings under the Tenth Schedule are that of a merge under Paragraph 4. The Election Commission of India is the sole authority empowered to decide disputes between rival factions of a political party according to the provisions of the Symbols Order.
[Extracted from Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)]
Prior to the deletion of Paragraph 3 of the Tenth Schedule, the Speaker’s enquiry as to the existence of a split within a political party was limited to a prima facie determination for deciding the disqualification proceedings. As a result of the deletion of Paragraph 3, the authority of the Speaker to form even a prima facie opinion regarding a split within a political party has been removed. Upon the deletion of Paragraph 3, the only defence for disqualification proceedings under the Tenth Schedule are that of a merge under Paragraph 4. The Election Commission of India is the sole authority empowered to decide disputes between rival factions of a political party according to the provisions of the Symbols Order.
[Extracted from Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023)]
Question: 1
Which of the following judgments that ruled, which a Speaker stands disabled to act under the Tenth Schedule to curb defection if a notice of intention to move a resolution for their removal is issued, was referred to a seven-judge bench by the five-judge bench in Subhash Desai v. Principal Secretary, Governor of Maharashtra?
Which of the following judgments that ruled, which a Speaker stands disabled to act under the Tenth Schedule to curb defection if a notice of intention to move a resolution for their removal is issued, was referred to a seven-judge bench by the five-judge bench in Subhash Desai v. Principal Secretary, Governor of Maharashtra?
Updated On: Nov 7, 2024
- Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly
- Raja Ram Pal v. Hon’ble Speaker, Lok Sabha
- Keisham Meghachandra Singh v. Hon’ble Speaker Manipur Legislative Assembly
- Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly
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The Correct Option is A
Solution and Explanation
The case of Nabam Rebia Bamang Felix v. Deputy Speaker, Arunachal Pradesh
Legislative Assembly was referred for reconsideration to a seven-judge bench in Subhash Desai for determining the Speaker’s role under the Tenth Schedule during removal proceedings.
The correct option is (A): Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly
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Question: 2
Srinivasan, J. in Mayawati v. Markandeya Chand held that ‘Political Party’ cannot be read as ‘Legislature Party’. Which among the following was not a reason provided by the Hon’ble Judge?
Srinivasan, J. in Mayawati v. Markandeya Chand held that ‘Political Party’ cannot be read as ‘Legislature Party’. Which among the following was not a reason provided by the Hon’ble Judge?
Updated On: Nov 7, 2024
- The phrase ‘Political Party’ in Paragraph 2(1)(b) of the tenth schedule cannot be interpreted to mean ‘Legislative Party’ while the same phrase in Paragraph 2(1)(a) of the Tenth Schedule retains its original meaning.
- Such an interpretation would render explanation (a) to Paragraph 2(1) of the Tenth Schedule otiose because a legislature party cannot set up a person as a candidate for election
- Disqualification from membership of the assembly is a serious consequence. Such a consequence can only ensue from voting contrary to the direction of the political party
- In Kuldip Nayar v. Union of India, it was held that to balance the competing considerations of the anti-defection law and intra-party dissent, a direction to vote (or abstain from voting) can only be given if the vote would alter the status of the government formed or if it is on a policy on which the political party that set up the candidate went to polls on. Only the political party and not the legislature party can issue directions concerning issues of this nature
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The Correct Option is D
Solution and Explanation
The ruling emphasized that only the political party has the authority to issue binding
directions under the anti-defection law, not the legislative party. Option (D) does not address
this distinction directly.
The correct option is (D): In Kuldip Nayar v. Union of India, it was held that to balance the competing considerations of the anti-defection law and intra-party dissent, a direction to vote (or abstain from voting) can only be given if the vote would alter the status of the government formed or if it is on a policy on which the political party that set up the candidate went to polls on. Only the political party and not the legislature party can issue directions concerning issues of this nature
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Question: 3
Which of the following was not challenged by the petitioners in the case of Subhash Desai v. Principal Secretary, Governor of Maharashtra?
Which of the following was not challenged by the petitioners in the case of Subhash Desai v. Principal Secretary, Governor of Maharashtra?
Updated On: Nov 7, 2024
- Disqualification of thirty-four MLAs
- Swearing in Mr. Ekanth Shinde as the Chief Minister
- Election of the Speaker by the House, which included the thirty-four MLAs who are facing disqualification notices
- Legality of the trust vote dated July 4, 2022
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The Correct Option is A
Solution and Explanation
The petitioners did not challenge the invitation extended to the thirty-four MLAs.
They contested other procedural and legal aspects related to the formation and conduct of the
government.
The correct option is (A): Disqualification of thirty-four MLAs
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Question: 4
A violation of the anti-defection law will not result in a member of the House being:
A violation of the anti-defection law will not result in a member of the House being:
Updated On: Nov 7, 2024
- Disqualified from the House
- Disqualified from holding any election campaign for the duration of the period commencing from the date of their disqualification till the date on which the term of their office as a member of the House would expire or till the date on which they contest election to a House and are declared elected, whichever is later
- Disqualified from holding any remunerative political post for the duration of the period commencing from the date of their disqualification till the date on which the term of their office as a member of the House would expire or till the date on which they contest election to a House and are declared elected, whichever is earlier.
- Disqualified from being appointed as a Minister for the duration of the period commencing from the date of their disqualification till the date on which the term of their office as a member of the House would expire or till the date on which they contest election to a House and are declared elected, whichever is earlier
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The Correct Option is B
Solution and Explanation
Under the anti-defection law, disqualification generally affects a member’s ability
to hold political office and certain other roles, but it does not disqualify them from participat-
ing in election campaigns.
The correct option is (B): Disqualified from holding any election campaign for the duration of the period commencing from the date of their disqualification till the date on which the term of their office as a member of the House would expire or till the date on which they contest election to a House and are declared elected, whichever is later
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Question: 5
The Tenth Schedule specifies five defense that a member may take recourse to shield themselves from the consequences of the anti-defection law. Which among the following is not a defense?
The Tenth Schedule specifies five defense that a member may take recourse to shield themselves from the consequences of the anti-defection law. Which among the following is not a defense?
Updated On: Nov 7, 2024
- In cases where the original political party of a member is found to have merged with another political party under Paragraph 4(1)(a), members of the original political party are protected from being disqualified if they have not accepted such merger and have opted to function as a separate group
- Members who have been elected to the office of the Speaker or the Deputy Speaker (or the Chairman or the Deputy Chairman as the case may be) in Parliament or in the Legislative Assemblies of States are exempted from disqualification under the Tenth Schedule if they voluntarily give up the membership of their political party by reason of their election to such office and do not re-join the political party or become a member of another political party so long as they continue to hold such office. Further, they are not disqualified if they re-join the political party which they gave up membership of, after ceasing to hold office
- Disqualification on ground of defection not to apply in case of split. Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction, which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party
- A member is protected from being disqualified if the political party to which they belong has condoned their actions in voting or abstaining from voting contrary to the directions issued by such political party, within fifteen days from such voting or abstention
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The Correct Option is C
Solution and Explanation
The provision for protection against disqualification due to splits was removed by
the 91st Amendment to the Constitution, so it no longer serves as a defense under the Tenth
Schedule.
The correct option is (C): Disqualification on ground of defection not to apply in case of split. Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction, which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party
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