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Understanding the anti-defection law amidst the Karnataka crisis


With Karnataka throwing up a split verdict, the big debate is around the anti-defection law. The issue also came up before the Supreme Court which is hearing a petition challenging the invitation extended by the Governor to B S Yeddyurappa to form the government.

 JD(S) Supremo H D Deve Gowda with senior Congress leader Mallikarjun Kharge

The Court had on Thursday dubbed as preposterous the argument which contended that the anti-defection law would not apply to MLAs defying the party whip before they are sworn in.

"It is preposterous to argue that before the MLAs take oath they are not amenable to anti-defection law. This means it would be an open invitation for anyone to indulge in horse trading prior to MLAs taking oath," a Bench comprising Justices S K Sikri, S A Bobde and Ashok Bhushan said.

Understanding the anti-defection law:

The law was passed by Parliament in 1985. The 52nd amendment to the Constitution added the tenth schedule which laid down the process by which legislators, both in Parliament and in the assemblies can be disqualified. The law says that a legislator was deemed to have defected if he or she voluntarily resigned from the party, or disobeyed a whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

The law further state that a party could be merged into another if at lest two-thirds of its party legislators voted for the merger.

The ground for disqualification are specified in Paragraph 2 of the 10th Schedule. A member would incur a disqualification under paragraph 2 (1) (a) when he "voluntarily gives up his membership of a party" and under 2 (1) (b) when he/she votes (or abstains from voting) contrary to the directive issued by the party.

While interpreting the phrase 'voluntarily gives up.' The Supreme Court in the Ravi Naik vs Union of India case said that, the words 'voluntarily gives up his membership' are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party.

"Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs," the judgment said.

The act of giving a letter requesting the Governor to call upon a leader of the other side to form a government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected, the Supreme Court said in the Rajendra Singh Rana vs Swami Prasad Maurya case.

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