Disqualification of MLAs, Key Provisions under Anti-Defection Law

Six Congress legislators, who had cross-voted in the Rajya Sabha elections were disqualified from the Himachal Pradesh Assembly by the Speaker.

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Context: Six Congress legislators, who had cross-voted in the Rajya Sabha elections were disqualified from the Himachal Pradesh Assembly by the Speaker.

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The ground for disqualification was defying a party whip to vote in favour of the government.
The motion for disqualification was moved by the State Parliamentary Affairs Minister.
If there is no stay on the disqualification by a court, under Section 151A of the Representation of the People Act, 1951, the Election Commission is duty-bound to conduct bypolls to Assembly constituencies within six months

Section 151A of the Representation of the People Act, 1951

It mandates the Election Commission to fill the casual vacancies in the Houses of Parliament and State Legislatures through bye elections within six months from the date of occurrence of the vacancy, provided that the remainder of the term of a member in relation to a vacancy is one year or more.

Anti-Defection Law (Tenth Schedule)

The Anti-Defection Law in India refers to a set of constitutional provisions enacted to prevent political defections by elected representatives.
The law aims to maintain stability in the democratic system by discouraging elected officials from switching parties after being elected.
It was first introduced through the 52nd Amendment Act of 1985 and is enshrined in the Tenth Schedule of the Indian Constitution.

What is ‘Defection’?

The term ‘Defection’ has been derived from a Latin word ‘Defectio’ which means to abandon a position or association, often to join an opposing group.
Defection covers the change of party affiliation both from the opposition to the government side or vice versa as also change as between the parties on the side of the house.
Traditionally this phenomenon was known as ‘floor crossing’ which had its roots in the British House of Commons, where the legislator could change his allegiance when he crossed the floor and moved from the side of the government to the side of the opposition or vice-versa as the case may be.

Key Provisions under the Anti-Defection Law

The Anti-Defection Law (or the Tenth Schedule) includes the following provisions with regard to the disqualification of MPs and MLAs on the grounds of defection:

Grounds for disqualification	If a member of a house belonging to a political party: Voluntarily gives up the membership and affiliation to a political party or If he votes or abstains from voting in the House, contrary to any direction issued by his political party. However, if the member has taken prior permission on the particular issue, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified. The other grounds for disqualification of a member are: If an independent candidate joins the party after the election. If a nominated member joins a party six months after he has become a member of the legislature.
Power to disqualify	The Chairman or the Speaker of the House has been conferred with the power to take the decision to disqualify a member, and his/her decision is final. If a complaint is made with respect to the defection of the Chairman or the Speaker, a member of the house elected by that House shall have the right to take the decision. All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case. Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House. However, there is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification.
Exceptions under the Anti Defection Law	Merger: In the situation where two-thirds of the legislators of a political party decide to merge into another party, neither the members who decide to join nor the ones who stay with the original party will face disqualification. Split: Earlier, the law allowed parties to be split, but at present, this has been outlawed. If at least one-third of the members of a legislative party decide to form a separate group, it is considered a split. Any person elected as chairman or speaker can resign from his party, and rejoin the party if he demits that post.
Scope for Judicial Review	Originally, the Act provided that the presiding officer’s decision was final and could not be questioned in any court of law. But, in Kihoto Hollohan case (1992), the Supreme Court declared this provision as unconstitutional. The court held that while deciding a question under the 10th Schedule, the presiding officer should function as a tribunal. Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of mala fides, perversity, etc.