5. Parliament And State Legislatures- Structure, Functioning, Conduct Of Business, Powers And Privileges And Issues Arising Out Of It

Question 1

Disqualification of MP/MLA

Answer 1

Constitution under article 102 provides for disqualification
A. Holds a office of profit that is under GOI or so declared by the parliament
B.he is of unsound mind proved by the court
C. He is discharged insolvent
D. He is not a citizen of India or has allegiance to foreign states.
E. If he is disqualified under any law made by parliament.

representation of peoples act 1951 has given few disqualifications
1. Section 8 provides for such disqualification
A. IPC sections
S. 153 offence of promoting enemies between different groups on the grounds of religion, race, pob, residence, language etc
S.171 E- offence of bribery
S. 171 F- undue influence
Section related to rape
S. 498 A cruelty towards women by husband or relatives

Protection of civil rights act 1955- preaching or practising untouchability

Customs act 1962 importing or exporting prohibited goods

UAPA act 1967 being a member of association declared unlawful

Foreign exchange regulation act 1973

Narcotics drugs and psychotropic substances act 1985 purchase, store consume, cultivate

Conversion of religious places of worship

Sati prevention act 1971

Prevention of corruption

Period of disqualification under above offences will be for 6 years from the date of conviction if it is fine and if imprisonment it would be after completion of jail term.

Corrupt practices are also provided in the RPA 1951 it is subject to the charges established in high court and it is presented to president as high court order.

Section 9 a person disqualified on the grounds of corruption or disloyalty from public office

S.10 holds office where the GOI has 25% share

S. 10A disqualification on the grounds of failure o lodge account of election expenses.

Question 2

Anti defection law

Answer 2

Anti defection law was brought in 1985 52nd CAA to curb the corrupt practices of defection. Later amended in 91st CAA 2003 .

Anti defection is disqualification based on the defection from the party or joining a party by an independent member brought in to curb the corrupt practices of horse trading and the political attitude of aya ram gaya ram.

The disqualification is based on following grounds
1. When a person is elected by affiliations and support of a party and after getting elected he leaves the party and joins other party
2. Disqualification of a nominated member who is member of a party and then joins another party
3.independent member join a party after he is elected
4.nominated independent member joins other party after the expiry of 6 months
5. 2/3 rd party member join another party would not be defection (brought in by 91st CAA 2003)
6. The presiding officer of the house has power to decide case of defection
In kihoto hollohan case 1992 while deciding cases of defection the speaker acts as a tribunal and hence its decions are subject to the high court and Supreme Court scrutiny
Mizoram minister case where the pending case of defection in front of speaker form 2017 the supreme courts stated that the decision cannot be at the will of speaker and questioned the conduct of speaker, under article 142 -doing complete justice as under article 212 the judiciary cannot interfere in the proceedings of the legislature.
7. The preceding officers can maintain the party affiliations without incurring defection

91st CAA 2003 got

1. 2/3rd defection as valid
2. COM cannot be more than 15% of the total members of lower house

Advantages

1. As a democracy that is still evolving and the parties having some similar goals the party affiliations are not so strong so there is a high defection.
2. To stop corrupt trade practices
3. Democracy is seen by political parties as number game the defection law tries to put some moral sense into them.
4. It brings political stability

Criticism
1.restricts freedom of speech and expression
2, subjects the party to a whip
3. The law has many loop holes

Suggestions

1. Arc and Dinesh Goswami committee - the president and governor must decide the defection based on the election commission recommendation.
2. Supreme Court has said that there should be a permanent tribunal which looks in to the matter headed by retired just of Supreme Court or CJI of HC.
3. Dissent in the party shouldn’t be treated as defection.
4. Singapore refers such cases to the whole parliament as whole.