Karnataka assembly Speaker K.G Bopaiah's decision to disqualify 16 MLAs just before Monday's trust vote has suddenly brought the political focus on the anti-defection law, added to the Constitution in 1985.
According to paragraph 2 (1) of the Tenth Schedule of the Constitution, an MP or a state legislature will incur a disqualification when he/she “voluntarily gives up his/her membership of a party” or votes/ abstains from voting violating a party whip.
Generally, it is understood that a legislator can be disqualified only if he/she violated the party whip and the term “voluntarily gives up his/her membership of a party” only meant quitting the party.
However, in Ravi S. Naik versus Union of India, the Supreme Court in 1994 clarified that an MP/MLA need not formally resign from their party to attract disqualification under the anti-defection law.
Interpreting paragraph 2 (1) (a) of the Tenth Schedule, the SC had said: “The expression ‘voluntarily given up his membership' is not synonymous with ‘resignation'… Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”
In 2007, in Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the SC held that the act of giving a letter requesting the governor to call on the leader of the other side to form a government would amount to an act of voluntarily giving up membership of the previous party. The case related to 13 BSP MLAs, who supported Mulayam Singh's claim to form a government in UP in 2003.
According to paragraph 2(2) of the Schedule, an independent MP/MLA can be disqualified if they join any political party after being elected as an independent member of the House.
In 2004, the SC had barred four independent MLAs disqualified by Haryana Speaker for switching support to Congress from the Indian National Lok Dal from casting their vote in Rajya Sabha election.
Now it's to be seen how the Karnataka HC interprets the anti-defection law while dealing with the petitions filed by disqualified MLAs.