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Schedules to the constitution by ATRISHEKHAR - Coggle Diagram

- - - - The representation in India is unequal and depends on the population of the state.
      - Punchhi commission recommended an equal representation for states in India.
- - - - It deals with the sensitive areas of the North East.
- - - - The union list had initially 97 subjects
        which has been enlarged to 100,
        
        After the 101 st amendment of 2016 (GST Act), two subjects namely 92 and 92c were removed
        from the Union List and subject number 52 and 55 were removed from the state list,
    - - the state list had 66 which has been reduced to 61 now
    - - concurrent list contained 47 subjects that has increased to 52 now
- - - - Why such a legislation was needed:
        
        Breach of trust
        
        Instability
        
        Political Corruption
        
        Political Parties
        
        In the late 1960s, defection was becoming rampant and thus a committee under YB Chavan was
        appointed,
        
        suggested the moment a legislator defects from the party and joins another
        party, he should be disqualified and fresh elections must be held but stopped short of recommending disqualification as a result of defection
  - - - The second attempt was in 1979 through 48th Constitution Amendment Bill, which also didn't pass.
        
        Eventually Anti-defection law came into being in Rajiv Gandhi's premiership through 52nd
        Constitution Amendment Act, 1985.
  - - - This provision was present in the original law that along with the defectors, if one third split, it would
        be deemed a legal split. This has been done away with now
    - - If they join a party (but they can support government from outside and even become ministers if the
        political executive decides as such)
    - - If the person who is being nominated is already a member of the party, then if he defects, the AntiDefection Law will apply to him too
        
        If a nominated member is not a member of a party, he has two options namely
        
        (1) He can join a party within 6 months fromthe date of his nomination
        
        (2) Post the six month limit if he joins a political party, Anti-Defection Law will come into play.
    - - Speaker, deputy speaker of LS and legislative assembly, chairman and deputy chairman of
        legislative assembly and deputy chairman of RS are exempted
        
        A speaker or deputy speaker is allowed to resign from the party but is not allowed to rejoin the
        political party during his tenure as speaker and once his/her tenure ends, he can rejoin only his parent political party from which he resigned
        
        There is no such provision for Vice
        President(Chairperson of Rajya Sabha) since he is not a member of the house, so his defection does not arise
    - - After the 91 st Constitution Amendment Act in 2003, some changes were made in the Anti-Defection
        Law and some changes in the constitution too were added to further cement the effectiveness of the it
        
        The one-third split legal rule was repealed.
        
        A party with two-third majority resolution passed can merge with the other party, the members
        who do not support the resolution will not be treated as defectors and can continue as a separate
        
        Changes in constitution:
        
        Any allurement concern arising from the prospect of becoming a minister was curbed by limiting
        a cap on ministers in LS and assemblies - Article 75(1A}, Article 164(1A).
        
        Article 75(1B) states that any member who has defected cannot be appointed minister again by
        the executive for the remaining term of his office unless he gets elected to the house again.
        
        Article 361-B: Any disqualified member shall also be disqualified to hold any remunerative political post commencing from the date of his disqualification till the date of elections of the house
    - - Whip gagging:
        
        The provision of whip suppresses genuine dissent.
        
        It does not allow to faithfully represent constituents
        
        It does not allow following one's own conscience.
        
        It also reverses the paradigm of accountability
        
        The courts have given some leeway with regard to ADL: Whip should be applicable on vote of confidence, no
        confidence or major policy issue on which the party went to polls.
        
        Anti-Party activities outside the house
        
        The ADL is silent on anti-party activities of this nature.
        
        Halim Committee(1998) said that a legislator is subjected to ADL when he resigns, but for anti-party
        activities outside the house the term voluntary resignation in the ADL has to be defined in a more refined way so as to cover the anti-party activities outside the house.
        
        In Ravi Naik Case(1994), even the apex court said that the legislator's conduct from outside the house
        like when he is no longer interested in the betterment of the party, he is working against the interest of the party, if not formally, he has taken himself informally outside the party, such a conduct of the
        legislator can be inferred as an act of voluntary resignation, even though he hasn't submitted any formal resignation
        
        But the problem concerning how an anti-party activity is defined still remains a matter of debate.
        
        Status of Expelled Members
        
        The Supreme Court in Viswanathan Case (1996) held that this expelled member hasn't voluntarily
        resigned and hence such an expelled member would be treated as "unattached member" but he will be subjected to the discipline of his parent political party i.e. accepting whip etc
        
        Formally for the purpose Anti-defection law, he will be still treated as a member of the parent political
        party
        
        Role of Speaker
        
        what will happen if the speaker refuses to accept the Anti-defection law petition.
        
        It is the speaker's constitutional duty to accept the petition.
        
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        the speaker has
        made inordinate delay in arriving at the conclusion and has done floor management to preserve the interests of the political party in power
        
        This is because Anti-defection law does not talk about any time frame within which the decision
        should be taken.
        
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        Another problem is that if a matter for defection goes to the courts, even the courts don't have a fixed
        time frame to decide upon the issue.
        
        The SC has laid down the norm that if an Anti-defection law
        petition is laid before the courts, it has to be decided within 6 months.
        
        Views of the NCRWC
        
        The National Commission for the Review of the Working of the Constitution was set up under Justice
        MN Venkatachalaiah in 2000 to examine the functioning of the constitution, which gave its report in in 2002
        
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        Views of Law Commission:
        
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      - Power to decide on the defection:
        
        Article 102 mentions the grounds of disqualification including the defection provision. These
        disqualification provisions excluding the defection ones are decided over by the President of India according the advice of Election Commission of India. Similar provisions for state
        legislature in Article 192.
        
        If a case of defection happens, any member of the house can file a petition to the speaker to take
        action under Anti-Defection Law (ADL)
        
        if the speaker himself undergoes defection, the
        petition is supposed to be filed with the secretary general of the house.
        
        And decision regarding ADL petition against speaker would be taken by such a person of the
        house specifically elected for the purpose
        
        Since usually the speaker holds the membership of a political party, any decision made by him
        can be seen with doubtful lens regarding the fairness of the process
        
        Thus the apex court in Kihoto Hollohan case in 1992, said that there is no wrong in the case
        being decided by the speaker,
        
        but there will be a provision for judicial review since the speaker
        acts in a quasi-judicial capacity exercising judicial functions, and the highest judicial court is Supreme Court, hence judicial review can be done.
        
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        Article 103: Decision on questions as to disqualifications of members
        
        (1) If any question arises as to whether a member of either House of Parliament has become
        subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
        
        (2) Before giving any decision on any such question, the President shall obtain the opinion of
        the Election Commission and shall act according to such opinion