Anti-defection law won’t apply to AAP MPs, say experts | India News
New Delhi: Eminent legal experts have pointed to the inability of the Tenth Schedule to stop political defections when they achieve the scale of “amalgamation” and said seven AAP Rajya Sabha MPs led by Raghav Chadha joining the BJP would not be a breach of the anti-defection law, which allows a two-thirds majority to defect to other parties and MLAs.Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul and Maninder Singh said Article 4(2) of the Tenth Schedule provides that disqualification may not be imposed if two-thirds of the strength of the legislative party in a House approves the separation from the party on whose ticket they were elected and merger with another party.Senior advocate AM Singhvi, who has been the lead advocate in the SC on both opposing and supporting such political decisions, said, “The Tenth Schedule provides that (i) one political party must merge with another and (ii) two-thirds of the members of the legislative party must agree to the said merger. The SC said that since legislative parties and political parties are separate entities, they cannot merge. Accordingly, mere merger of legislative parties is not enough.“AAP had 10 MPs in RS and seven would form two-thirds of its legislative team in the House.However, he said the further element is that the arbitrator of such disputes may be the Presiding Officer/Speaker of a House who owes his position to the ruling party, making it difficult to disqualify such MPs/MLAs under the provisions of the Anti-Defection Act.“I have said many times over the past decade that the Tenth Schedule is a sterile part of the Constitution, which should be repealed and replaced by two lines: Any MP/MLA who deviates from the party from which he was elected to Parliament should cease to be a member of Parliament and be re-elected,” Singhvi said.“If two-thirds of the members of a legislative party approve that the merger of the party has taken place, then the merger is deemed to have taken place and, therefore, it is a valid defense by them to avoid disqualification in the House,” Kaul said. He said in the Shiv Sena case, the SC accepted that Section 4(2) of the Tenth Schedule is a valid defense in disqualification proceedings.Rohatgi and Singh said that a legislative party belongs to the respective houses. “If two-thirds of the total membership of a party in the RS decides to merge with another party, it shall be considered a valid merger and shall not invite disqualification under the Anti-Defection Act.” In April 2003, an amendment to the Tenth Schedule prevented the earlier customary defection arising out of party splits.
