Defections (political): India
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The anti-defection law
July 13, 2019: The Times of India
Karnataka political crisis: All about the anti-defection law
How anti-defection law came into force
- ‘Aaya Ram Gaya Ram’ was a phrase coined in 1967 after Haryana MLA, Gaya Lal, changed parties thrice in the same day.
- The anti-defection law sought to prevent such political defections which may be due to reward of office or similar consideration.
- The 10th Schedule was inserted in the Constitution in 1985 laying down the process by which legislators may be disqualified.
- A legislator is deemed to have defected if he either voluntarily gives up membership of his party or disobeys the directives of the party leadership on a vote.
When can a MLA be disqualified?
- If the member voluntarily gives up membership of the party on whose ticket s/he is elected.
- If the member votes or abstains from voting in the House contrary to any direction of his/her party.
- Disqualification may be avoided if the party leadership condones the vote or abstention within 15 days.
What happens if an MLA is disqualified?
- If a member of the current House (15th legislative assembly) is disqualified, it means s/he cannot contest any election to the 15th House. However, s/he can contest the next assembly election (to the 16th House). Also, Article 164 (1B) of the Constitution states a member who has been disqualified cannot be made a minister till the expiry of his or her term, or till s/he is re-elected.
- If an MLA is disqualified on conviction for certain offences, he will be disqualified for a period of six years under Section 8 of the Representation of People’s (RP) Act. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.
Time limit
The law does not specify a time-period for the presiding officer to decide on a disqualification plea.
Resignation vs disqualification
- If an MLA is disqualified, then s/he cannot be a minister in the new dispensation without being re-elected.
- However, if an MLA resigns s/he can be inducted as a minister and get elected to either House of the legislature within six months.
SC, 2019: discretion of Speaker should not be fettered
Dhananjay Mahapatra & Amit Anand Choudhary, July 18, 2019: The Times of India
Though the SC will decide later the key question of if rebel Karnataka MLAs have submitted their resignations prior to initiation of disqualification proceedings, it feels an interim order is urgently needed given the involvement of competing rights of parties in the litigation. “In these circumstances, the competing claims have to be balanced by an appropriate interim order, which according to us, should be to permit the speaker of the House to decide on the request for resignations by the 15 members of the House within such timeframe as the speaker may consider appropriate,”the SC said.
“We also take the view that in the present case, the discretion of the Speaker while deciding the above issue should not be fettered by any direction or observation of this court and the Speaker should be left free to decide the issue in accordance with Article 190 (of the Constitution)... The order of the speaker on the resignation issue, as and when passed, be placed before the court.”
The bench clarified, “Until further orders, the 15 members of the assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or opt to remain out of the same.” The order puts the ruling coalition in a quandary as it dispels the coercive element in the disqualification proceedings initiated by the speaker which could have annulled the effect of resignation of the 15 MLAs that reduces the ruling side to a minority.
See also
The Constitution of India (issues)
