Context:
The defection of several Rajya Sabha MPs from one party to another has triggered debate on whether they will face disqualification under the anti-defection law. The issue hinges on interpretation of the merger provision and the role of the Chairman.
- The anti defection law is contained in the Tenth Schedule of the Constitution, added by the 52nd Constitutional Amendment Act, 1985 to curb political defections.
- It aims to ensure stability in legislatures and prevent “horse-trading” of elected representatives.
- A member is liable for disqualification if they voluntarily give up membership of their party or vote/abstain contrary to the party whip without permission.
- The decision on disqualification is taken by the Presiding Officer of the House (Speaker in Lok Sabha/Assembly and Chairman in Rajya Sabha).
- The law provides an exception in case of merger, where at least two-thirds of members of a legislative party agree to merge with or into another party.
- If this threshold is met, members are protected from disqualification; otherwise, they are liable under the law.
- The earlier provision allowing one-third “split” was removed by the 91st Constitutional Amendment Act, 2003 due to misuse.
- The 91st Amendment also limited the size of the Council of Ministers to 15% of the strength of the House to reduce incentives for defections.
- There is no fixed time limit for the Presiding Officer to decide on disqualification petitions, leading to delays and legal uncertainty.
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