Report No. 255

D. Recommendation

5.20. The Law Commission recommends a suitable amendment to the Tenth Schedule of the Constitution which shall have the effect of vesting the power to decide on questions of disqualification on the ground of defection, with the President or the Governor (as the case may be) who shall act on the advice of the Election Commission.

5.21. A constitutional amendment vesting the power to decide matters relating to disqualification on the ground of defection with the President/Governor acting on the advice of the Election Commission would also help in preserving the integrity of the Speaker's office.

5.22. Hence, Paragraph 6 of the Tenth Schedule should be amended to read as under:

"6. Decision on questions as to disqualification on ground of defection.- (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the:

(a) President, in case of disqualification of a member of either House of Parliament;

(b) Governor, in case of disqualification of a member of a House of the Legislature of a State.

Provided that the decision of the President or the Governor as to whether a member of a House has become subject to disqualification under this Schedule shall be final.

(2) Before giving any decision on any such question, the President or the Governor, as the case may be, shall obtain the opinion of the Election Commission and shall act according to such opinion.

Provided that no member of a House shall be disqualified under this Schedule, unless he has been given a reasonable opportunity of being heard by the Commission in the matter."