Goa Speaker Rejects Plea to Disqualify Congress MLAs Over Defection to BJP

Goa Speaker Rejects Plea to Disqualify Congress MLAs Over Defection to BJP

Sub: Polity

Sec: Elections

Why in News

The Speaker of the Goa Legislative Assembly dismissed a petition seeking the disqualification of eight Congress MLAs who defected to the Bharatiya Janata Party (BJP) in 2022. This decision, based on the Tenth Schedule of the Indian Constitution, highlights ongoing debates on anti-defection laws and political stability.

Legal Basis for Disqualification:

Petition cited Para 2 of the Tenth Schedule and Article 191 of the Constitution, arguing that the MLAs should be disqualified for “voluntarily giving up” their Congress membership.

The petition claimed that the requirements under Para 4 of the Tenth Schedule for a valid merger were not met. Specifically, it argued that two-thirds of the Congress Legislature Party members did not agree to the merger, thus making the defection unconstitutional.

Speaker’s Ruling and Constitutional Interpretation:

Speaker ruled that an elected member would not face disqualification if their original political party merges with another, as per the Tenth Schedule. He stated that:

• A member has the choice to either support or reject the merger, but in either case, they cannot be disqualified on grounds of defection.

According to the ruling, the Tenth Schedule allows for a merger exception, protecting defected MLAs from disqualification if their party merges with another.

About Defection:

In Legislature, a defector is a person who gives up allegiance to one party in exchange for allegiance to another, changing sides in a way which is considered illegitimate by the first party.

In India, the defections of legislators during the 1960s and 70s from their parent parties created political instability in many States, bringing down elected governments.

Therefore, to ensure the stability of elected governments, the 52nd constitutional amendment introduced the ‘anti-defection’ law through the Tenth Schedule in 1985.

What is Anti-Defection Law?

The 52nd Amendment Act, 1985 provided for the disqualification of the members of Parliament and state legislatures on the ground of defection from one political party to another.

Through this amendment, a new Schedule i.e. Schedule 10 was added to the Constitution. This act is often referred to as the ‘anti-defection law’.

Later, the 91st Amendment Act, 2003 made one change in the provisions of the Tenth Schedule. It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

The law, part of Article 102(2) and Article 191(2), aims to maintain political stability and prevent frequent switching of party allegiance, which can destabilize governments.

Various Features of the Act:

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.

Disqualification:

Members of Political Parties:

• If he voluntarily gives up his membership of such political party; or
• 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.

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.

Exceptions:

• If a member goes out of his party as a result of a merger of the party with another party.
• A merger takes place when two- thirds of the members of the party have agreed to such merger.
• If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or re-joins it after he ceases to hold that office.

Deciding Authority:

Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

In KihotoHollohan case (1993), the Supreme Court 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.