Q. Consider the following statements:

  1. If any question arises as to whether a Member of the House of the People has become subject to disqualification under the 10th Schedule, the President’s decision in accordance with the opinion of the Council of Union Ministers shall be final.
  2. There is no mention of the word ‘political party’ in the Constitution of India.

Which of the statements given above is/are correct?

  • 1 only
  • 2 only
  • Both 1 and 2
  • Neither 1 nor 2

Answer: (d) Neither 1 nor 2

Anti Defection Law
  • The provisions of the anti-defection law of India, as set out in the Tenth Schedule of the Constitution of India, are as follows:
    • Disqualification: A member of a House belonging to any political party becomes disqualified for being a member of the House,
      • if he voluntarily gives up his membership of such a political party; or
      • if he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
    • Independent Members: An independent member of a House becomes disqualified from remaining a member of the House if he joins any political party after such an election.
    • Nominated Members: A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date he takes his seat in the House.
    • Exceptions: The above disqualification on the ground of defection does not apply in the following two cases:
      • Merger: If a member goes out of his party due to a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such a merger.
      • Presiding Officer: If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.
    • Deciding Authority: Under the 10th Schedule of the Indian Constitution (Anti-Defection Law), if any question arises as to whether a Member of the House has become subject to disqualification, the decision is made by the Speaker or Chairman of the House, not by the President, and not in accordance with the opinion of the Council of Union Ministers.
      • The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
    • Rule-Making Power: The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule. According to the rules made so, the presiding officer can take up a defection case only when he receives a complaint from a member of the House.
    • Role of Whip: The whip is responsible for communicating the party’s position to its members and ensuring they vote in line with that position. In the case of a member defying the whip and voting against the party’s official position, they may be subject to disciplinary action under the anti-defection law.
Political Parties:
  • The word “political party” is not explicitly mentioned in the original text of the Indian Constitution. However, political parties are crucial for the functioning of Indian constitutional structures. The term “political party” was introduced into the Constitution in 1985 with the 52nd Amendment, specifically in the Tenth Schedule, to address defections.
    • Despite their constitutional importance, political parties are considered “extra-constitutional,” meaning they are not explicitly defined or regulated by the Constitution but are crucial for its functioning.
    • The registration and functioning of political parties are regulated through laws like the Representation of the People Act, 1951.
  • Legal provisions with respect to political parties:
    • Political parties in India are extra-constitutional.
    • The right to form political parties is not mentioned in the Constitution of India.
    • Section 29A (5) of the Representation of the People Act, 1951 – It is the only major statutory provision dealing with political parties in India.
    • It sets down certain conditions for a political party for the formation and registration by ECI.
      • It must consist only of Indian citizens
      • It must call itself a political party set up for the purpose of contesting elections to the Parliament and State Legislatures and for no other purpose.
      • It must have at least 100 registered electors as its members.
    • It orders that a political party shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism, democracy, and would uphold the sovereignty, unity and integrity of India
    • Deregistration of parties:
      • The ECI is not empowered to de-register parties on the grounds of violating the Constitution or breaching the undertaking given to it at the time of registration.
      • A party can only be de-registered
        1. if its registration was obtained by fraud;
        2.  if it is declared illegal by the Central Government;
        3. if a party amends its internal Constitution and notifies the ECI that it can no longer abide by the Indian Constitution.