Disqualification of MLAs

Context: 

Recently, the NCP led by Sharad Pawar filed a disqualification petition against the nine NCP MLAs who joined the BJP-Sena government in Maharashtra.

Constitutional provisions for disqualifying the lawmakers:

• Article 102 of the Constitution of India lays down the grounds under which a legislator may be disqualified from being a member of the house. 
• The first part of Article 102 elaborates several instances when such a disqualification may be done 
  • If the person holds any undeclared office-for-profit under the Government
  • If he is declared to be of unsound mind by a competent court
  • If he is an undischarged insolvent etc.
• The second part of Article 102 gives authority to the Tenth Schedule of the Constitution to disqualify any member. It is this Tenth Schedule that is popularly known as the anti-defection law.
  • The Tenth Schedule finally came into being through the Constitution (52nd Amendment) Act in 1985.

Features of the Anti-Defection Law:

• Disqualification on ground of defection: A legislator belonging to a political party will be disqualified if he: 
  1. Voluntarily gives up his party membership
  2. votes/abstains to vote in the House contrary to the direction issued by his political party. 
  3. A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days. 
  4. Independent members will be disqualified if they join a political party after getting elected to the House. 
  5. Nominated members will be disqualified if they join any political party six months after getting nominated.
• Exemptions in Cases of merger: 
  • Members are exempted from such disqualification when at least two thirds of the original political party merges with another political party. 
  • The members must have become members of the party they have merged with/into, or 
  • They should have not accepted the merger and choose to function as a separate group.
• Decision Making Authority: The decision to disqualify a member from the House rests with the Chairman/Speaker of the House.

Recent Supreme Court Judgment:

The Supreme Court bench led by Chief Justice of India (CJI) DY Chandrachud in the May 11 verdict in Shiv Sena tussle case, laid down principles for the Speaker of the Assembly.

• The Constitution bench had said that unless there are extraordinary circumstances, the courts do not adjudicate the disqualification pleas at the first instance.
• On proceedings:
  • In arriving at their decision (in disqualification proceedings), the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party.
  • The Speaker must also consider defence raised by the member against whom a disqualification petition has been filed.
  • If the two or more versions of the party constitution are submitted by rival groups, the the Speaker must consider the version which was submitted to the ECI before rival factions emerged.
• On Whip, Leader of Legislative Party:
  • The Whip and Leader of the Legislative Party must be appointed by the political party as a whole unit, and not merely by the legislative party as it is “crucial for the sustenance of the Tenth Schedule of the Constitution.
• To decide the issue in “reasonable time”:
  • The SC had said the Speaker  must decide the disqualification petitions within a reasonable period.

News Source: Indian Express 

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