Gujarat Polls: If an AAP MLA Defects to BJP Before Oath, Can He Be Disqualified?

We reach out to legal experts for clarity on whether it matters if you've taken oath or not vis a vis defection.

Amid rumblings of newly elected AAP MLAs contemplating defection, let’s look at whether an MLA awaiting oath, can jump ship, without attracting the anti-defection law.

(Image courtesy: The Quint)

“I have just been chosen. Haven’t taken oath yet,” Aam Aadmi Party (AAP) MLA Bhupat Bhayani said in a media interview, as he contemplated shifting to the BJP after the saffron party’s historic win in the Gujarat elections.

Bhayani is one of the only five MLAs from AAP to have secured a seat in the Assembly polls in the state. His response came to a question by NDTV about whether he was concerned about attracting the anti-defection law if he switched parties now, post election. He also added that even if the anti-defection law did come into play, “kuch paane ke liye kuch khona bhi padta hai (to win something, be prepared to lose something too)”.

But amid rumblings of newly elected AAP MLAs contemplating defection, let’s look at whether an MLA awaiting oath, can jump ship, without attracting the anti-defection law. Essentially, does it matter whether you’ve taken oath or not vis a vis the anti defection law?

The short answer to this is no, it does not. But let us explain how.

What is the Anti-Defection Law?

In 1985, by way of the 52nd Amendment, the 10th Schedule was added to the Constitution of India, in a bid to curb defections and reduce the political instability that they brought.

As per, Article 191(2) of the Constitution, an MLA or a Member of a Legislative Council can be disqualified under the provisions of the Tenth Schedule.

According to paragraph two of the 10th schedule, a member of a House belonging to any political party shall be disqualified if he has voluntarily given up the membership of such a political party.

Even though this schedule does list exceptions, instances where defection of an elected representative does not result in disqualification, nowhere does it specify “awaiting oath” as reason for exemption.

But we also reached out to legal experts for further clarity.

In conversation with The Quint, Supreme Court Advocate Mohd Shahrukh Ali confirmed: 

“If you have been elected from a particular party and if you are making a switch to another party after being elected, regardless of whether or not you’ve taken oath, then the provisions of the anti-defection law will apply.”

He further added that none of the provisions in the 10th schedule  differentiate between an elected representative prior to taking the oath or after the oath.

In addition, Munawwar Naseem, partner at Dua Associates (law firm), told The Quint that the definition of voluntarily giving up membership does not just entail resignation. “Even if an MLA is making moves, and there are signs of there being material on record, indicating that he is switching sides, that will also come under the definition of voluntarily giving up his membership,” Naseem added.

Who Can Initiate Disqualification Proceedings Post a Defection?

Naseem explains that while the ball, for all practical purposes, lies in the Assembly Speaker’s court, the Speaker might not take suo motu cognisance in these matters. He may, instead, act on the complaint of the party to which the MLA attempting defection originally belongs. Thus it is the original political party that usually triggers the disqualification proceedings. 

But Haven't MLAs in the Past Defected After an Election?

Of course, they have. They still can. But subject to specific conditions.

As explained by Advocate Ali:

“The defence to defection is if two-thirds of the elected legislature members from one particular party merge with another party and/or the political party to which they belong to also decides to break up. In such a case they are immune from being disqualified.” 

He added: “In the context of a split, courts in the past have affirmed the requirement of there being a split in the original political party. This requirement, in my view would, also hold true in cases where legislators claim protection from disqualification on the ground of there being a merger (two political parties coming together).”