Union Govt The Appropriate Party To Respond To Plea Seeking 5 Year Bar On Legislators Violating Anti-Defection Law : ECI Tells Supreme Court

Recently, the Election Commission of India (ECI) filed its response before the Supreme Court in a plea seeking disqualification of Members of Legislative Assembly and Parliament from standing for election for five years upon having violated Article 191(1)(e) and Tenth Schedule of the Constitution of India.

The ECI submitted that the issue involved in the petition relates to interpretation of Article 191(1)(e) of the Constitution that elaborates on the aspect of disqualifications for memberships. The provision enumerates the circumstances under which a person shall be disqualified from being a member of the Legislative Council of a State. The counter affidavit emphasises that one of the conditions so enumerated is that the person is disqualified by or under any law made by the Parliament.

The ECI clarified that since the issue relevant to the petition does not bear a nexus to the conduct of elections under Article 324 (Superintendence, direction and control of elections to be vested in a Election Commission), the appropriate party for adjudicating the prayers is the Union Government and not the ECI. Thus, the response filed by the ECI is not a detailed para-wise response, but a preliminary one. However, it sought the leave of the Court to file additional affidavits if required during the course of the hearing.

In 2021 the Bench led by the then CJI, SA Bobde had issued notice in the matter. On 17.10.2022, a Bench comprising Justice AS Bopanna and Justice PS Narasimha had directed the respondents i.e. the Union Government and the ECI to file their objections in the matter. Pursuant to the said directions the present counter affidavit has been filed by the ECI.

The plea argues the Constitution makes it abundantly clear that those disqualified under the Tenth Schedule are barred from re-contesting during the term for which they were elected. It is urged that if the same is not followed that the object and purpose of the anti-defection law would be defeated.

[Case Title: Jaya Thakur v. Union of India And Anr. WP(C) No. 1032 of 2020]