Karnataka trust vote: How the anti-defection law can kick in

Can the non-BJP MLAs switch parties or abstain from trust vote? Here is what action can be taken against the MLAs under the 10th Schedule of Constitution or the Anti-defection law.

Karnataka trust vote: How the anti-defection law can kick in

The Supreme Court on Friday ordered a floor test to be held in the Karnataka Assembly to prove which party holds the majority in the House. Bharatiya Janata Party's BS Yeddyurappa who took oath as the Chief Minister of Karnataka on Thursday will have to prove whether he has enough numbers on his side or not. If he loses the floor test, he will have to step down as the CM. 

Karnataka had thrown a hung assembly with BJP winning 104 seats, Congress with 78 and JDS with 38 seats (37 JDS plus 1 BSP seat). As none of the parties reached the magic number of 112 of the 222 seats on which counting was held, it was the discretion of Governor Vajubhai Vala to invite a party to form government. The BJP staked claim on the argument that it is the single largest party while the Congress joined hands with the JDS and claimed that they have the majority in the House.

After BS Yeddyurappa took the oath of office on Thursday, the Congress and JDS knocked the door of the Supreme Court challenging the Governor's invitation to the BJP. The trust vote will now be held on Saturday as per the SC order.   

Can the non-BJP MLAs switch parties or abstain from trust vote? Here is what action can be taken against the MLAs under the 10th Schedule of Constitution or the Anti-defection law:

1. An elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall, (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

2. An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

3. A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

4. Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,— (i) where he was a member of political party immediately before such commencement, be deemed, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party, be deemed to be a nominated member of the House.

A disqualification on ground of defection will not to apply in case of merger.

(1) A member of a House shall not be disqualified where his original political party merges with another political party and he claims that he and any other members of his original political party - (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs and to be his original political party.

(2) The merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

Exemption:

Notwithstanding anything contained in this Schedule, a person who has been elected to the office, shall not be disqualified 

(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.

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