Rajasthan political crisis: What is anti-defection law & how it impacts Sachin Pilot

NEW DELHI: Sachin Pilot and 18 other MLAs of the Rajasthan Assembly were sent disqualification notices by the Rajasthan Assembly speaker on the basis of the complaints made by the ruling Congress party. The dissident MLAs have to reply by Friday. Meanwhile, Pilot along with the 18 MLAs have decided to challenge the constitutional validity of the disqualification notices in the Rajasthan High Court. Here is all you need to know:
What does disqualifying an MLA means
If an MLA is disqualified, they can no longer act as an elected representative of their constituency. In simple words, disqualification from the state Assembly means you are no longer an MLA.
When can an MLA be disqualified
An MLA can be disqualified if they hold an office of profit under the government of India or the government of any State; if they are declared to be of unsound mind; if they voluntarily acquire the citizenship of any other country OR if the speaker concludes that they are disqualified under the Tenth Schedule of the Constitution then they are disqualified from the Assembly.
The Tenth Schedule of the Constitution deals with the defection of an MLA and is known as the anti-defection law. Members of an Assembly can be disqualified for having defected from their party. Defection means that an elected legislator changed their party after winning an election.
Anti-defection law
The anti-defection law seeks to prevent political defections which may be due to reward of office or other similar considerations. A popular instance often quoted in this context is from 1967 when Gaya Lal, a Haryana MLA changed his party three times in a day. The anti-defection law intends to curb such motivated defections was inserted in the Constitution in 1985.
Any member of the House can petition the Presiding Officer of a legislature— the speaker—to disqualify an MLA under the Tenth Schedule.
A legislator is deemed to have defected if he either voluntarily gives up the membership of his 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.
There is an exception though. Legislators may change their party without the risk of disqualification if a party merges with or into another party with two-thirds of its legislators. In such a scenario, neither the members who decide to merge nor the ones who stay with the original party face disqualification.
The law applies to both Parliament and state assemblies.
Given that speaker has exclusive judicial rights over matters of defection of MLAs and MPs, various expert committees have recommended that rather than the speaker, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs), similar to the process followed for cases of office of profit.
An important point to note is that a speaker's decision can be challenged in the High Court and the Supreme Court, however, judicial intervention can take place only after the speaker has given the final order. The law does not specify a time period for the presiding officer to decide on a disqualification plea. However, the Vice-President, in his 2017 order disqualifying two JD(U) members from Rajya Sabha had stated that all such petitions should be decided by the Presiding Officers within a period of around three months.
Disqualification notice to Sachin Pilot
The Assembly speaker CP Joshi sent disqualification notices to Sachin Pilot, an MLA from Tonk constituency, and 18 other MLAs on the plea of the ruling Congress party.
The disqualification notices came amidst an ongoing power struggle between Pilot and Rajasthan chief minister Ashok Gehlot.
Gehlot called for Congress Legislative Party (CLP) meeting twice this week. Congress general secretary Avinash Pande had issued a whip, making it mandatory for all Congress MLAs to attend the CLP meeting.
Pilot, who was the deputy chief minister of the state did not attend either of the two meetings which were a show of confidence by Congress MLAs in the Gehlot-led state government. Pilot was sacked from the post of deputy chief minister and state chief of Rajasthan Congress on Tuesday.
Before the CLP meetings, last weekend both Gehlot and Pilot were served notices by the Rajasthan Police to participate in an investigation into horse-trading activities aimed at destabilising the state government.
Gehlot, in his statements given to the media, has maintained that Pilot is being misguided by the BJP; while Pilot has said that he has no intention to join the BJP.
Congress wants Pilot and his camp to be disqualified on the grounds that he disobeyed the party.
Can Rajasthan speaker disqualify Pilot
The apex court, in a plethora of verdicts, has given varying judicial opinions on speakers' powers ranging from refusing to intervene in the matter to assuming the role of the speaker itself and going to the extent of disqualifying lawmakers under the 10th Schedule of the Constitution.
The 2011 verdict of the Supreme Court in the Karnataka case may strengthen the case of the 19 Rajasthan MLAs, according to some legal experts.
The apex court in the Karnataka case had observed that speaker cannot disqualify MLAs if they express lack of confidence in the BS Yeddyurappa-led state government. It had taken note of the assertion that the 11 Karnataka MLAs were part of the BJP and would support any other leader in the party, and held that this rebellion did not require action under tenth schedule.
Some legal experts are of the view that Rajasthan speaker's notice is beyond the scope of tenth schedule as neither Pilot nor the 18 other MLAs have joined or expressed a wish to join or support BJP, yet. Protesting against the chief minister or asking for a change in leadership cannot be deemed as defection, said the experts.
Meanwhile, others have pointed out that a speaker can issue a notice which the MLAs can challenge within the purview of the law. However, some have questioned if a political party can issue a whip for activities outside the Assembly or for intra-party activities underlining that attending a party meeting is not same as attending vote in Assembly.