What the 10th Schedule says
The Congress Party has written to the Speaker, Meghalaya Legislative Assembly seeking disqualification of 10 of the 12 MLAs that recently deserted the Party to join the All India Trinamool Congress (AITMC). Curiously the Congress left out two MLAs from the list submitted to the Speaker. Perhaps the idea is to woo back the two by using intimidatory tactics. The 10th Schedule of the Indian Constitution commonly referred to as the Anti-defection Act says that disqualification on ground of defection will not apply in case of a split. Where a member of a House claims that he/she and any other members of his/her legislature party constitute the group representing a faction which has arisen as a result of a split in the original political party and such group consists of not less than two-thirds of the members of such legislature party, he/she shall not be disqualified. From the time of such split, the faction shall be deemed to be the political party to which he/she henceforth belongs. The Anti-Defection Law is not without loopholes. Those against say that voters elect individuals in the election and not parties and hence the Anti-Defection law is infructuous. Others who abhor the unchecked defection of MLAs/MPs from one party to another and therefore destabilise governments feel that the law should be applied so as not to disrupt governance.
Earlier the 10th Schedule required one third of the party strength to defect to another party for the legislators/parliamentarians to avoid disqualification. This was changed to two-thirds of the party strength vide the 91st Amendment of the Constitution in 2004. Two-thirds of 17 MLAs makes it 12 MLAs. Hence the 1Anti-Defection Law should not apply to the 12 who left the Congress. Also mergers of well-defined groups of individuals or political parties are exempted from disqualification provided the breakaway group constitutes two-thirds of the total number of MLAs. The final decision on whether or not to disqualify the group of 12 finally rests with the Speaker, Metbah Lyngdoh. The 10th Schedule says if the next general election is less than 2 years away the disqualified members can retain their seats. However if the gap between the defection and elections is over two years the defecting MLAs/MPs will have to contest elections within 6 months. . Following the current anti-defection rules which allow two-thirds members of a legislative party to officially break from the parent party, Congress MLAs in Goa used this provision to join the BJP and their counterparts in Telangana used it to join the ruling Telangana Rashtra Samithi (TRS). As they say ‘in politics, the search for fool-proof remedies is a fatal temptation.’