Can Karnataka rebels be disqualified: What is the Anti-Defection Law and how does it work?
New Delhi, July 18: The Congress in Karnataka said today that there has been a violation of their right under the 10th Schedule of the Constitution.
While the proceedings in the House where a floor test was scheduled has dragged on, there is talk that the Congress would push for the disqualification of the rebel MLAs.
In normal course ahead of a trust vote, a whip is issued and if the MLAs do not abide it, then they face disqualification. In case of disqualification, the MLA in question cannot contest a by-election for the existing legislative assembly. He cannot become a minister in the current assembly and neither can be a part of the legislative council. The MLA can however contest an election held for the next assembly.
The disqualification of MLAs or MPs takes place under the Anti Defection Law, which was introduced to stop the 'Aaya Ram, Gaya Rama syndrome. This phrase had become popular after a Haryana MLA, Gaya Lal changed his party thrice within the same day in 1967. The anti defection law was brought in to prevent such situations.
What is the anti-defection law:
In the year 1985, the Tenth Schedule was introduced in the Constitution, by which legislators could be disqualified on grounds of defection. A member is deemed to be defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party on a vote.A member defying the whip of his party may be disqualified from the membership of the House.
When does the Anti Defection law not apply:
The law allows a party to merge with or into another provided in case at least two-thirds of its legislators are in favour of the merger. A similar scenario was witnessed in Goa, when 10 Congress MLAs merged with the BJP, while the remaining 5 stayed away. They did not attract the provisions of the law.
While interpreting the law, the Supreme Court said that in the absence of a formal resignation by the member giving up the membership, the same could be inferred by his conduct.
While the law initially said that the decision of the Speaker or presiding officer is not subject to judicial review, the Supreme Court had in 1992 had allowed appeals against the presiding officer. The court said that such decisions could be reviewed by both the High Court and the Supreme Court.
In the Karnataka scenario, the Speaker has been accused of sitting over the matter and not deciding on the resignation of the rebel MLAs. The Supreme Court too had said that there is no time limit for the Speaker to decide. It however said that the rebels cannot be compelled to go to the assembly.
The law too does not specify a time limit. This means that the courts can intervene with the decision of the Speaker only once he has taken a decision.
In 2003, there was an amendment to the law. When first enacted there was a provision which said if there occurs a split in the original political party and as a result of which one-third of the legislators of the party forms a separate group, they shall not be disqualified. This led to large scale defections and hence this provision was deleted. Provided in the 4th Paragraph of the 10th Schedule, the provision can now be invoked for protection from disqualification if there is a merger.