On Tuesday, nominated MP Swapan Dasgupta resigned from Rajya Sabha, a year before completion of his term. Trinamool Congress MP Mahua Moitra had raised the issue of his disqualification from Rajya Sabha under the anti-defection law, after the BJP had fielded Dasgupta as its candidate for Tarakeswar constituency in the West Bengal Assembly elections. What is the anti-defection law because of which Dasgupta had to resign after being chosen as an election candidate?

Nominated members

During the making of the Constitution, members of the Constituent Assembly felt that Rajya Sabha should have members who might not win elections but will bring knowledge and expertise to discussions in the Upper House. N Gopalswami Ayyangar said that nominating members to Rajya Sabha gives “an opportunity, perhaps, to seasoned people who may not be in the thickest of the political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with the House of the People”.

It led to Rajya Sabha having 12 nominated members from different walks of life. The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service. The President nominates such individuals as recommended by the Centre. Nominated members have the same rights and privileges as elected members, with one notable difference — they cannot vote in the election of the President.

Anti-defection law

In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution. But its enactment was catalysed by the political instability after the general elections of 1967. This was the time when multiple state governments were toppled after MLAs changed their political loyalties. The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected. The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.

The law specifies the circumstances under which changing of political parties by MPs invite action under the law. The law covers three types of scenarios with respect to an MP switching parties. The first is when a member elected on the ticket of a political party “voluntarily gives up” membership of such a party or votes in the House contrary to the wishes of the party. The second possibility is when an MP who has won his or her seat as an independent candidate after the election joins a political party. In both these instances, the MP lose the seat in the House on changing (or joining) a party.

The third scenario relates to nominated MPs. In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party. The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want. But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.

That is what has happened in Dasgupta’s case. After his nomination to Rajya Sabha in 2016, he did not join a political party within the mandatory period of six months, and his membership was open to challenge under the anti-defection law.

Changing/joining a party

Over the years, courts have decided that changing a party or joining another does not have to be a formal act. It can also be interpreted through an MP’s actions, on a case-by-case basis. In the past, actions like campaigning for another political party, joining a delegation of elected representatives from another political party to give a representation to the Governor, appearing in political rallies or fighting an election on the symbol of a political party have been held to constitute defection.

When the 1985 law was made, its statement of objects and reasons stated: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.”

Now the continuity and stability of an elected government are decided in Lok Sabha, where a no-confidence motion can be moved against the government. But the anti-defection law applies equally to both Lok Sabha and Rajya Sabha MPs, even though the Upper House has no role in deciding the government’s fate. Earlier versions of the law did not contain the provision for the disqualification of nominated MPs.

Of the 12 nominated members in Rajya Sabha today, eight members have joined the BJP, including classical dancer Dr Sonal Mansingh and sculptor Dr Raghunath Mohapatra.

Chakshu Roy is Head of Outreach, PRS Legislative Research