JK law does not allow defections
While defections are common in other states especially when there is no clear majority for any party, in Jammu and Kashmir, where election has thrown up a hung assembly, it is not an option for parties to increase its strength.
Jammu and Kashmir has its own anti-defection law, different from the national law, that prevents the elected representatives from defying their party whip.
According to the anti-defection law effective in the rest of India, if less than one-third of the total elected representatives of a party defect or defy party whip at a time, they are disqualified. But the state law is more stringent.
“According to the state anti-defection law, even if all the MLAs defy the party whip, they are liable to be disqualified,” Altaf Naik, the former advocate general of the state, told PTI.
The other situation which will not be deemed as defection under the national law is if an elected member or members of the party have not accepted the merger between the two parties and opted to function as a separate group from the time of such a merger.
However, the state law does not make any differentiation on these counts.
Naik said any number of elected members of a particular party can be disqualified from the membership of the house, if they defy the party whip.
The 13th amendment to the constitution of Jammu and Kashmir was enacted in 2006, during the tenure of Ghulam Nabi Azad as chief minister, that omitted the provision of split in legislature parties.
The anti-defection law was invoked by BJP in the previous assembly when it moved an application before the Speaker, seeking disqualification of its seven MLAs for voting against their party candidate in elections to the Legislative Council in April 2011.
Although law is very clear on the matter, the seven BJP rebels continued to remain members of the Legislative Assembly as the two Speakers — first Mohammad Akbar Lone and then Mubarak Gul — did not give their ruling on the matter till the last session held in August this year.
The BJP MLAs were accused of voting in favour of ruling National Conference candidates in the election three years ago. PTI
