Disqualification under Anti Defection

Subject: Polity

Context:

The notice has been served under the Tenth Schedule of the Constitution to 19 MLAs in Rajasthan assembly. The Congress in its complaint to the Speaker has accused the rebel MLAs of attempting to jump parties.

Concept:

The Tenth Schedule contains the following provisions with respect to the disqualification of members of Parliament and the state legislatures on the ground of defection:

• Members of Political Parties: A member of a House belonging to any political party becomes disqualified for being a member of the House, (a) if he voluntarily gives up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.
• Independent Members: An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.
• Nominated Members: A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.

Speaker Power

• Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
• Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court. However, in KihotoHollohan case (1993), the Supreme Court declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the high courts.
• It held that the presiding officer, while deciding a question under the Tenth Schedule, function as a tribunal. Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.
• The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule. All such rules must be placed before the House for 30 days. The House may approve or modify or disapprove them.
• According to the rules made so, the presiding officer can take up a defection case only when he receives a complaint from a member of the House. Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation. He may also refer the matter to the committee of privileges for inquiry. Hence, defection has no immediate and automatic effect.

Whip

• A whip is a directive from the party that binds party members of a House to obey the line of the party.
• Though the office of whip is not officially recognised in the standing orders, there has been a long tradition to give them a place in the Parliamentary form of government.
• The whip plays a crucial role in ensuring the smooth and efficient conduct of business on the floor of the House.
• The whip is an MP drawn from the party that is in power and also from the party that sits on the opposition bench. They are vital in maintaining the links between the internal organisation of party inside the Parliament.
• It is also the duty of the chief whip to maintain discipline of the party on the floor of the House. Besides, he is responsible for keeping MPs, especially Ministers, informed of opinion in the party on the moods of individual members.
• If an MP violates his party’s whip, he faces expulsion from the House under the Anti-Defection Act.