“Controversy Erupts: Himachal Pradesh Rebels’ Disqualification Raises Legal Questions”

“Controversy Erupts: Himachal Pradesh Rebels’ Disqualification Raises Legal Questions”

In a surprising turn of events, the disqualification of six rebel MLAs in Himachal Pradesh has sparked a legal debate, with questions raised over the provision of the Anti-Defection Law cited in the disqualification notification.

The Himachal Pradesh Vidhan Sabha Secretariat issued a notification announcing the disqualification of six members of the 14th Vidhan Sabha, including Sudhir Sharma, Ravi Thakur, Rajinder Rana, Inder Dutt Lakhanpal, Chaitanya Sharma, and Devinder Kumar (Bhutto). The notification cited Paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India, commonly known as the Anti-Defection Law, as the basis for their disqualification.

However, Advocate Hemant Kumar has raised objections to the mention of Paragraph 2(1)(a) in the notification. According to him, this provision pertains to voluntarily giving up the membership of the parent political party, whereas the rebel MLAs in question were disqualified for defying the party whip during the passage of the Budget in the Assembly.

Hemant Kumar argues that the appropriate provision for disqualifying rebel MLAs who defy party directives is Paragraph 2(1)(b) of the Anti-Defection Law. This provision deals with disqualification if MLAs vote or abstain from voting contrary to party directions without obtaining prior permission, and the party does not condone such actions within fifteen days.

Expressing surprise over the expeditious manner in which the Speaker of the HP Assembly passed the disqualification order, Hemant Kumar highlights the legal recourse available to challenge the Speaker’s decision. He points out that the Supreme Court, in a 1992 Constitution Bench ruling, established the right to challenge disqualification orders before the High Court under Writ Jurisdiction.

Moreover, Hemant Kumar notes that the High Court may even direct the Election Commission of India (ECI) not to hold bye-elections for the vacant seats until the matter is adjudicated. However, if bye-elections are conducted, they must take place within six months from the date of vacancy occurrence, as per Section 151 A of the Representation of the People Act, 1951.

Considering the impending General Elections to the 18th Lok Sabha in April-May 2021, the ECI may opt to hold the bypolls simultaneously with the Lok Sabha polls. This raises further complexity in the political landscape of Himachal Pradesh.

The controversy surrounding the disqualification of rebel MLAs has attracted widespread attention, raising significant legal and political implications for the state.

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