Explained: What will happen to Rajya Sabha membership of Swati Maliwal?

New Delhi: The recent controversy involving Rajya Sabha MP Swati Maliwal, where she claimed to have been kicked, slapped, and dragged, and accusations from Bibhav Kumar about her barging in and abusing CM staff, has ignited a flurry of statements and counter-statements between the BJP and AAP. 

AAP leader and Delhi minister Atishi alleged that the BJP conspired to send Maliwal to the CM’s office to make false allegations against CM Arvind Kejriwal. 

This political drama has become a topic of widespread discussion among the public.

Amidst this, a significant question arises: what happens to Swati Maliwal’s Rajya Sabha membership if she joins another political party or if she is expelled from AAP? 

Here's the legal position and status of Rajya Sabha members in such scenarios.

Legal framework and consequences

Scenario 1: Joining another political party

If Swati Maliwal, a Rajya Sabha member, decides to join another political party, her membership in the Rajya Sabha could be at risk under the Tenth Schedule of the Indian Constitution, commonly known as the Anti-Defection Law. 

This law stipulates that a member of Parliament is subject to disqualification if they voluntarily give up their membership of their original political party or if they join another party.

Scenario 2: Expulsion from AAP

In the event that Maliwal is expelled from AAP, the situation is slightly different. Expulsion does not automatically result in disqualification under the Anti-Defection Law. 

However, if her conduct post-expulsion is interpreted as voluntarily giving up her membership of AAP, she could still face disqualification. 

This interpretation is at the discretion of the Chairman of the Rajya Sabha, who will consider whether her actions indicate a shift in allegiance.

Decision-making authority

The decision regarding disqualification under the Anti-Defection Law lies with the Chairman of the Rajya Sabha. 

If a petition is filed against Maliwal, the Chairman will review the circumstances and make a determination. This decision can be subject to judicial review if challenged in court.

The legal status of Swati Maliwal's Rajya Sabha membership hinges on whether her actions are seen as voluntarily giving up her AAP membership or joining another party. 

While expulsion alone does not lead to automatic disqualification, the interpretation of her conduct post-expulsion is crucial. Understanding these legal nuances is essential for informed public discourse on this matter.

If an Indian Parliamentarian is expelled from their party, their status and the implications for their position as a Member of Parliament (MP) are governed by several key legal provisions and rules.

Following is a detailed look at the relevant laws and rules:

The Tenth Schedule (Anti-Defection Law)

The Tenth Schedule to the Constitution of India, also known as the Anti-Defection Law, deals with the disqualification of MPs and Members of Legislative Assemblies (MLAs) on grounds of defection. This Schedule was added to the Constitution by the 52nd Amendment Act, 1985.

Key provisions:

Disqualification on the Ground of Defection An MP or MLA is subject to disqualification if they voluntarily give up the membership of their political party or if they vote (or abstain from voting) in the House contrary to any direction issued by their political party without obtaining prior permission.

Expulsion from the Party - If a Parliamentarian is expelled from their party, they do not automatically lose their seat. The Tenth Schedule specifically addresses voluntary resignation or defiance of the party whip, not expulsion.

Interpretation of "voluntarily giving up membership"

The phrase "voluntarily giving up membership" has been broadly interpreted by the courts. The Supreme Court, in the case of Ravi S. Naik v. Union of India(1994), held that even without a formal resignation, conduct indicating that an MP has voluntarily given up membership of their party can lead to disqualification.

Rule 6 of the Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985

According to Rule 6, the Speaker of the Lok Sabha (or the Chairman of the Rajya Sabha in the case of Upper House MPs) is the authority to decide on disqualification petitions. The decision of the Speaker or Chairman is final and subject to judicial review.

Recent interpretations and cases

There have been instances where expelled MPs have been disqualified under the Tenth Schedule if their expulsion is interpreted as them having "voluntarily given up membership" of their party. However, this interpretation can vary depending on the specific circumstances and the conduct of the MP post-expulsion.

Process post-expulsion:

Notification- If an MP is expelled from their party, the party usually notifies the Speaker or Chairman of the expulsion.

Petition for Disqualification- If the party believes the expulsion should result in disqualification under the Anti-Defection Law, it can file a petition with the Speaker or Chairman.

Decision by Speaker/Chairman- The Speaker or Chairman examines the petition and the conduct of the MP. If it is determined that the MP has voluntarily given up membership of the party, they may be disqualified.

Judicial Review- The decision of the Speaker or Chairman can be challenged in court.

To sum up, an MP expelled from their party does not automatically lose their seat in Parliament. The consequences depend on whether their expulsion and subsequent actions are interpreted as voluntarily giving up their party membership, which can lead to disqualification under the Tenth Schedule. The final decision rests with the Speaker or Chairman, subject to judicial review.