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HP 6 Cong rebels MLAs disqualification : Question raised over provision of Anti-Defection Law mentioned in Disqualification Notification

In lieu of Para 2(1)(b) of Tenth Schedule to Constitution of India a.k.a. Anti Defection Law, Para 2(1)(a) has been mentioned -- Advocate Hemant Kumar

Himachal Pradesh, Himachal, Congress, Indian National Congress, Himachal Congress, Chandigarh
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5 Dariya News

Chandigarh , 29 Feb 2024

The Himachal Pradesh Vidhan Sabha  Secretariat  issued a Notification which mentions that in pursuance of Hon'ble Speaker, Himachal Pradesh Legislative Assembly decision dated 29 February 2024, six members of 14th  Vidhan Sabha of Himachal Pradesh viz. Sudhir Sharma, Ravi Thakur, Rajinder Rana, Inder Dutt Lakhanpal, Chaitanya Sharma and Devinder Kumar (Bhutto) have incurred disqualification from being a Member of Himachal Pradesh Legislative Assembly in terms of Paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India read with Article 191(2) of the Constitution of India and The Members of Himachal Pradesh Legislative Assembly (Disqualification on ground of Defection) Rules, 1986. 

Accordingly, all the aforementioned 6 MLAs cease to be members of the Himachal Pradesh Legislative Assembly with effect from 29 February 2024. Consequently, the seats of Dharamshala, Lahaul and Spiti, Sujanpur, Barsar, Gagret and Kutlehar have fallen vacant and 6 vacancies have occurred in the 14th Vidhan Sabha of Himachal Pradesh. 

Meanwhile, Hemant Kumar, an Advocate at Punjab and Haryana High Court  has questioned mention of  Para 2(1)(a) of Tenth Schedule to Constitution of India (Anti Defection Law) in their disqualification Notification since the ibid provision pertains to voluntarily giving up the membership of parent political party by such rebel MLAs. 

Hemant says  the fact is  that even if 6 rebel MLAs are to be disqualified, it can be done under Para 2(1)(b) of Anti Defection Law which provides for disqualification if rebel MLA(s) vote or abstain from voting in the House contrary to any direction issued by the political party to which they belong or by any person or authority authorised by it in this behalf without obtaining in either case the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. 

Indeed,  the ground  taken by the ruling Congress dispensation  is that since 6 rebel MLAs defied the party issued Whip in the HP Legislative Assembly notably during passage of Budget (Appropriation/Finance Bill) in the Assembly on 28 Feb 2029, hence they incur disqualification from the membership of Himachal Pradesh Legislative Assembly.   

Now if Para 2(1)(a)  in lieu of Para 2(1)(b) of Tenth Schedule to the Constitution as mentioned in their Disqualification Notification has been done inadvertently or otherwise is anybody's guess quips Hemant. Hemant also expressed utter surprise over the extremely expeditious manner in which the Speaker of HP Assembly disqualified 6 rebel Cong MLAs from membership of the current 14th HP Vidhan Sabha. 

He further said courtesy a 1992 Constitution Bench of  Supreme Court, the disqualification order passed by  the Speaker under Tenth Schedule to Constitution of India (Anti Defection Law) can be challenged before High Court under Writ Jurisdiction and the Court may even direct the Election Commission of India (ECI) not to hold the bye-election on such 6 Assembly Constituencies as declared vacant till the matter is adjudicated. 

If this doesn't happen, then as per Section 151 A of RP  Act, 1951, the maximum time period for holding bye-elections in 6 seats  is six months from the date of occurrence of vacancy. i.e. bypolls can be conducted  till Aug 28, 2023. However, since the General Elections to 18th LokSabha are due in April-May 2021, hence the  ECI can also simultaneously hold such bypolls along with LokSabha polls.


Tags: Himachal Pradesh , Himachal , Congress , Indian National Congress , Himachal Congress , Chandigarh



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