As many as 10 MLAs from Karnataka may face disqualification for anti-party activities and defying party whips. The ball is now in the Assembly Speaker’s court as he has the power to invoke the 10th Schedule of the Constitution, also known as the anti-defection law.

What is the anti-defection law?

* Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.

* The anti-defection law is aimed at preventing such political defections, which may be due induced by a reward of office or other similar considerations.

* The 10th Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House.

* A legislator is deemed to have defected if he/she either voluntarily gives up the membership of his/her party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state Assemblies.

Are there any exceptions under the law?

* Yes, legislators can change their party affiliation without the risk of disqualification in certain circumstances.

* The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

* Various expert committees have recommended that rather than the presiding officer, the decision to disqualify a member should be made by the president (in case of MPs) or the governor (in case of MLAs) on the advice of the Election Commission.

* This would be similar to the process followed for disqualification in case the person holds an office of profit (someone who holds an office under the central or state government that carries a remuneration, and has not been excluded from a list made by the legislature).

How has the law been interpreted by courts?

The Supreme Court has interpreted different provisions of the law.

* The phrase ‘voluntarily gives up his membership’ has a wider connotation than resignation.

* The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.

* In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

* In the case of the two JD(U) MPs who were disqualified from the Rajya Sabha in 2018, they were deemed to have ‘voluntarily given up their membership’ by engaging in anti-party activities, which included criticising the party on public forums on multiple occasions, and attending rallies organised by rival parties.

Decision is subject to judicial review

* The law initially stated that the decision of the presiding officer is not subject to judicial review. This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the presiding officer’s decision in the High Court and Supreme Court.

* However, it held that there may not be any judicial intervention until the presiding officer gives his/her order.

* In 2015, the Hyderabad High Court refused to intervene after hearing a petition which alleged that there had been a delay by the Telangana Speaker in acting against a member under the anti-defection law.

Is there a time limit for taking a decision?

* The law does not specify a time period for the presiding officer to decide on a disqualification plea. Given that courts can intervene only after the presiding officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

* There have been several cases where the courts have expressed concern about the unnecessary delay in deciding such petitions. In some cases, this delay has resulted in legislators - who have defected from their parties - continuing to be members of the House. There have also been instances where Opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.

* In recent years, Opposition MLAs in Andhra Pradesh and Telangana have broken away in small groups gradually to join the ruling party. In some cases, more than two-thirds of the Opposition has defected to the ruling party.

* In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups. However, it is not clear if they will still face disqualification if the presiding officer makes a decision after more than two-thirds of the Opposition has defected to the ruling party.

* In March 2016, the Speaker allowed the merger of the TDP legislature party in Telangana with the ruling TRS, citing that in total, 80 per cent of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.

* In Andhra Pradesh, legislators of the main Opposition party boycotted the Assembly in protest against the delay in action being taken against legislators of their party who had allegedly defected to the ruling party.

* In his order disqualifying the two JD(U) MPs, the vice-president stated that all such petitions should be decided by the presiding officers within a period of three months.

Does it hamper the powers of legislators?

* The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However, this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate. Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.

* Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the Budget or no-confidence motions).