Disqualification under Anti-Defection Law

  • Category
    Polity & Governance
  • Published
    13th Aug, 2019

Delhi Assembly Speaker had disqualified rebel AAP MLA Kapil Mishra under the anti-defection law.

Context

Delhi Assembly Speaker had disqualified rebel AAP MLA Kapil Mishra under the anti-defection law.

About

Whether only resignation constitutes voluntarily giving up membership of a political party?

  • Voluntarily giving up the membership is not the same as resigning from a party.
  • The Supreme Court in Ravi S. Naik v. Union of India has held that the words “voluntarily giving up membership” have a wider meaning.
  • An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.
  • In this case, the Aam Admi Party MLA was found to be campaigning for Bharatiya Janta Party in the recent 2019 Lok Sabha Election.
  • With this conduct, the Speaker of Delhi Assembly concluded that he (Kapil Mishra) had “given up the membership of his original political party”.

Anti-Defection provisions under the Tenth Schedule

  • Disqualification

a. 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.

b. If an independent candidate joins a political party after the election.

c. If a nominated member joins a party six months after he becomes a member of the legislature.

  • Power to Disqualify

a. The Chairman or the Speaker of the House takes the decision to disqualify a member.

b. 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 - Merger

a. 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.

b. This exception shall operate only if not less than two-thirds of the members of party in the House have agreed to the merger.

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