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KTK: SC observations on anti-defection law evokes mixed reax

Press Trust of India  |  New Delhi 

The historic pre-dawn hearing on the crisis in which the today dubbed as "preposterous" the arguments of K K that the was not attracted, has led to an open debate among jurists.

A clear division of opinion was reflected with experts like Vikas Singh and constitutional expert agreeing with the remarks of a bench headed by Justice A K Sikri, while others like and finding merits in the Attorney General's argument that comes into play only against the MLAs who have taken the oath.

The observation of the bench that Venugopal's argument was preposterous and implies an open invitation to horse trading, has become a subject requiring authoritative pronouncement, a on condition of anonymity said after hearing the divergent views.

Dwivedi said the AG was right that unless a person takes oath, he is not a member of the and disqualification can happen only after he does something wrong there.

He said the issue of switching loyalty before oath is relevant only for the to take a decision, but the floor test has to be conducted.

His view was shared by Dhawan who said the will apply only after the MLAs take oath because it concerns the assembly.

"In democracy, people should honour the identity for which they have been voted. It is not an invitation to subvert democracy. You cannot cheat the electorate. They (MLAs) should and must retain their identity. Post-poll alliance is a different issue. Any attempt by the BJP to erase the identity before swearing-in is contrary to the Constitution," he said.

However, Vikas Singh differed with them and said the will apply before taking oath because voting will take place in the only after the MLAs take oath. He said by the time oath is administered, everything would have been done.

Goel also said this law will apply at any stage when the MLAs leave their political party and joins another or disobeys the of their political party.

"In the 10th Schedule of the Constitution, which is also referred to as the 'Anti-Defection Law', there is no mention of oath. It mentions that any person elected as a member of a political party, will not leave the political party or join any other political party. If he does so, he will lose his office of elected

"Oath is only a formality. Once the person is elected to the legislative assembly as a member of a political party, he cannot leave that political party nor join any other political party or acts to prejudice the political party on whose ticket he has been elected. Nor can he disobey the I disagree with Venugopal," he said.

Singh also said the had no business to call BJP to form government as this amounted to encouraging defection, which is constitutionally impermissible.

He said the who holds a constitutional post cannot do anything which is not permissible and "according to me, the Governor's decision was illegal". "What is the premise on which BJP has been called by the governor," he also asked.

The anti-defection law was passed by Parliament in 1985. The 'Tenth Schedule' which was added in the 52nd amendment to the Constitution laid down the process by which legislators may be disqualified on grounds of defection.

It says that a or state legislature is deemed to have defected if he either voluntarily resigns from his party or disobeys the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party's

Independent members would be disqualified if they joined a political party. Nominated members who are not members of a party could choose to join a party within six months. After that period, they are treated as a party member or an independent.

It also includes exceptions like any person elected as or to resign from his party and rejoin the party if he demits that post.

A party could be merged with another if at least two-thirds of its legislators voted for the merger.

As per Parliament legislative research done in 2009, complaints were made against 62 Lok Sabha MPs till then. Of these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against MPs (two in 1989 and two in 2008) and all were upheld.

In state legislatures, up to 2004, out of 268 complaints, 113 were upheld.

Besides, had expelled (United) leaders and from membership of the on December 12, 2017 after finding them guilty of defection.

In September 2008, then Kuldeep Bishnoi, son of former Bhajan Lal, and rebel were disqualified from Lok Sabha by then under the anti-defection law.

(This story has not been edited by Business Standard staff and is auto-generated from a syndicated feed.)

First Published: Thu, May 17 2018. 20:35 IST