Anti-Defection Decision-Making Authority (With and Without 10th Schedule)

The anti-defection mechanism mainly comes from the Tenth Schedule added by the 52nd Constitutional Amendment Act, 1985.

1. WITH TENTH SCHEDULE (Anti-Defection Cases)

Under the Tenth Schedule, the authority to decide disqualification is the Presiding Officer of the House.

The Tenth Schedule clearly states that questions regarding disqualification on grounds of defection are decided by the Speaker/Chairman of the concerned House.

2. ROLE OF PRESIDENT / GOVERNOR (WITHOUT TENTH SCHEDULE)

When the disqualification is NOT related to defection, then Articles 103 and 192 apply.

Examples:

• Office of profit
• Unsound mind
• Insolvency
• Foreign citizenship
• Other statutory disqualifications

In such cases:

• President/Governor cannot decide independently.
• They are constitutionally bound to act according to the opinion of the Election Commission.

3. ROLE OF ELECTION COMMISSION

Under Tenth Schedule

The Election Commission has NO direct decision-making power in anti-defection matters.Decision is made by:

• Speaker
• Chairman

NOT by ECI.

Outside Tenth Schedule

ECI gives advisory opinion to:

• President (for MPs)
• Governor (for MLAs/MLCs)

And that opinion is binding in practice.

4. SPECIAL CASES

If Speaker/Chairman Himself Faces Defection Case

Then:

• House elects another member to decide the case.

5. JUDICIAL REVIEW

Originally:

• Speaker’s decision was final.

But in Kihoto Hollohan v. Zachillhu, Supreme Court held:

• Speaker acts like a tribunal.
• Decision can be challenged in:
  • High Court
  • Supreme Court

Thus judicial review is allowed.