Context: Recently, a nominated MP resigned from Rajya Sabha, a year before completion of his term. 

• MPs had raised the issue of his disqualification from Rajya Sabha under the anti-defection law, after a party had fielded him as its candidate in the West Bengal Assembly elections. 
• After his nomination to Rajya Sabha in 2016, he did not join a political party within the mandatory period of six months, and his membership was open to challenge under the anti-defection law.

Nominated members of Rajya Sabha

• As per the Fourth Schedule to the Constitution of India on 26 January 1950, the Rajya Sabha was to consist of 216 members of which 12 members were to be nominated by the President and the remaining 204 elected to represent the States.
• The present strength, however, is 245 members of whom 233 are representatives of the states and union territories and 12 are nominated by the President.

Constitutional provisions

• Article 80(1)(a) of Constitution of India makes provision for the nomination of 12 members to the Rajya Sabha by the President of India in accordance with provisions of Arts.80(3).
• Article 80(3) says that the persons to be nominated as members must be possessing special knowledge or practical experience in respect of such matters as the following namely : Literature, science, art and social service.
• The broad criterion for their nomination is that they should have distinguished themselves in fields like literature, science, art, and social service. 

Rights and privileges: Nominated members have the same rights and privileges as elected members,

• But they cannot vote in the election of the President.

The Anti-Defection Law 

• It was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. 
• The main intent of the law was to combat “the evil of political defections”.
• Articles 102 (2) and 191 (2) deal with anti-defection.
• The law applies to both Parliament and state assemblies.

What are the conditions for disqualification 
If a member of a house belonging to a political party: - 

• Voluntarily gives up the membership of his political party, or
• Votes, or does not vote in the legislature, contrary to the directions of his political party. However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

If an independent candidate who is not aligned to any political party, joins a political party after the election.
Case of nominated MPs

• In their case, the law specifies that within six months of being nominated to the House, they can choose to join a political party. 
• The time is given so that if a nominated MP is not a member of a political party, they can decide to join one if they want. 
• But if they don’t join a political party during the first six months of their tenure, and join a party thereafter, then they lose their seat in Parliament.

Criteria for changing/joining a party

• Over the years, courts have decided that changing a party or joining another does not have to be a formal act. 
• It can also be interpreted through an MP’s actions, on a case-by-case basis. 
• In the past, actions like campaigning for another political party, joining a delegation of elected representatives from another political party to give a representation to the Governor, appearing in political rallies or fighting an election on the symbol of a political party have been held to constitute defection.

Who has the power to disqualify? 

• The Chairman or the Speaker of the House takes the decision to disqualify a member and his decision is final.
• If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision. 

Split and merger under anti-defection law

• The 91st amendment to the Constitution in 2003, does not recognise a ‘split’ in a legislature party.
• Instead, it recognises a ‘merger’ that requires at least two-thirds of the members of a legislature party to join another political formation or form a new one without getting disqualified under the anti-defection law.

Is there any time period for the presiding officer to decide on a disqualification plea?

• No, Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.