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RSTV: IN DEPTH – MLA DISQUALIFICATION – SC VERDICT


RSTV: IN DEPTH – MLA DISQUALIFICATION – SC VERDICT


Introduction:

            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. 14 of these MLAs were from the Congress, and three from the JDS. After their disqualification the MLAs had filed petitions asking for the order to be quashed.

 

SC’s Verdict:

  • The Supreme Court upheld the disqualification of the dissident legislators however it also held that their ouster does not put any bar upon them from contesting by-polls.
  • According to the Court, ‘neither under the Constitution nor under the statutory scheme (i.e, Representation of the People Act, 1951 or the Anti-Defection Law) it is mentioned that disqualification under the Tenth Schedule would lead to a bar for contesting re-elections.’
  • The court also remarked that even the 91st Amendment Act, 2003 which did not allow a disqualified member to be appointed as a minister, did not give Speaker the power to put a ban upon them to contest elections till the end of the term.

 

What is the anti-defection law?

  • The Tenth Schedulewas inserted in the Constitution in 1985 by the 52nd Amendment Act.
  • 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.
  • The decision on question as to disqualification on ground of defection is referred to the Chairman or the Speaker of such House, and his decision is final.
  • The law applies to both Parliament and state assemblies.

 

Features of anti defection law :

  • Disqualification
    • If a member of a house belonging to a political party:
      • Voluntarily gives up the membership of his political party, or
      • Votes, or does not vote in the legislature, contrary to the directions of his political party.  However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.
      • If an independent candidate joins a political party after the election. 
      • If a nominated member joins a party six months after he becomes a member of the legislature.
    • Power to Disqualify
      • The Chairman or the Speaker of the House takes the decision to disqualify a member.
      • If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the  House elected by that House shall take the decision.
    • Exception 
      • A person shall not be disqualified if his original political party merges with another, and:
        • He and other members of the old political party become members of the new political party, or
        • He and other members do not accept the merger and opt to function as a separate group.
      • This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

 

Court interpretations on anti defection law:-

  • The Tenth Schedule says the Speaker’s/Chairperson’s decision on questions of disqualification on ground of defection shall be final and can’t be questioned in courts. In Kihoto Hollohan vs Zachillhu and Others (1991), an SC Constitution Bench declared that the Speaker’s decision was subject to judicial review.
  • In 1996 – Once a member is expelled, he is treated as an ‘unattached’ member in the house. However, he continues to be a member of the old party as per the Tenth Schedule.  So if he joins a new party after being expelled, he can be said to have voluntarily given up membership of his old party.
  • The Speaker of a House does not have the power to review his own decisions to disqualify a candidate. Such power is not provided for under the Schedule, and is not implicit in the provisions either
  • If the Speaker fails to act on a complaint, or accepts claims of splits or mergers without making a finding, he fails to act as per the Tenth Schedule. The Court said that ignoring a petition for disqualification is not merely an irregularity but a violation of constitutional duties

 

AIADMK MLA’s Disqualification Case:

  • Tamil Nadu speaker disqualifies 18 dissident MLAs.
  • Speaker expels MLAs under anti-defection law.
  • MLAs approached Madras high court seeking relief.
  • MLAs loyal to the rebel AIADMK leader TTV Dhinkaran.
  • 2 judge division bench delivers split verdict.

 

AAP MLAs Disqualification Case:

  • EC issues show cause notice to 21 AAP MLAs
  • MLAs accused of holding offices of profit.
  • Congress move EC seeling disqualification of MLAs.
  • EC rejects pleas of AAP MLAs to drop ‘Office of Profit’ case.
  • MLAs move Delhi HC against EC’s order.
  • EC recommends to President of disqualification of MLAs.
  • President approves it.
  • MLAs move Delhi HC seeling quashing of decision.
  • HC reserves order on AAP MLA’s pleas.
  • HC quashes notification that had led to disqualification of MLAs

 

Committee interpretations on anti defection law:-

  • Following demands that disqualification not be decided by speakers as they failed to be impartial, the Dinesh Goswami Committee and the Constitution Review Commission headed by Justice MN Venkatachaliah (2002) had recommended such a decision be made by the President or the Governor on the Election Commission’s advice, as in the case of disqualification on grounds of office of profit. 
  • Dinesh Goswami Committee on electoral reforms (1990)
    • Disqualification should be limited to cases where (a) a member voluntarily gives up the membership of his political party, (b) a member abstains from voting, or votes contrary to the party whip in a motion of vote of confidence or motion of no-confidence. 
  • Law Commission (170th Report, 1999)
    • Pre-poll electoral fronts should be treated as political parties under anti-defection law.
    • Political parties should limit issuance of whips to instances only when the government is in danger.

 

Advantages of anti-defection law:

  • Provides stability to the government by preventing shifts of party allegiance.
  • Ensures that candidates remain loyal to the party as well the citizens voting for him.
  • Promotes party discipline.
  • Facilitates merger of political parties without attracting the provisions of Anti-defection
  • Expected to reduce corruption at the political level.
  • More concentration on governance is possible.
  • Provides for punitive measures against a member who defects from one party to another.

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