14th NOVEMBER, 2019
|RAJYA SABHA TELEVISION|
IN DEPTH: MLA DISQUALIFICATION: SC VERDICT
The Supreme Court has confirmed the disqualification of 17 Karnataka MLAs whose revolt triggered the collapse of the Janata Dal Secular-Congress government and the subsequent takeover by the BS Yediyurappa-led BJP in the state. But the court has cancelled the former Karnataka Assembly Speaker K R Ramesh Kumar’s decision to bar the rebel MLAs from contesting polls till 2023.
Bypolls to 15 out of 17 Karnataka assembly seats, which became vacant following the disqualification of the MLAs, are scheduled for December 5. After their disqualification the MLAs had filed petitions asking for the order to be quashed.
This verdict once again brings into focus the anti-defection laws in the country
What is the anti-defection law?
- Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
- The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
- A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.
- An independent MP/ MLA cannot join a political party after the election.
- An MP/ MLA who is nominated (to the Rajya Sabha or upper houses in state legislatures) can only join a party within 6 months of his election.
- Mergers of well-defined groups of individuals or political parties are exempted from disqualification if certain conditions are met.
- The decision to disqualify is taken by the Speaker/ Chairman of the House.
Are there any exceptions under the law?
Yes, legislators may change their party without the risk of disqualification in certain circumstances. The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favor of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.
How has the law been interpreted by the Courts while deciding on related matters?
- The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation. The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.
- However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.
Decision of the Presiding Officer is subject to judicial review
The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
Does the anti-defection law affect the ability of legislators to make decisions?
- The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgment and interests of his electorate.
- Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
- Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
The way forward
Various expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President in case of MPs or the Governor (in case of MLAs) on the advice of the Election Commission. This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries remuneration, and has not been excluded in a list made by the legislature).
Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions)