Why Swati Maliwal’s fight with AAP won’t impact her Rajya Sabha seat

New Delhi: Even as the Aam Admi Party (AAP) refuted its lawmaker Swati Maliwal’s claim that she was assaulted by Delhi chief minister Arvind Kejriwal’s aide Bibhav Kumar and termed her as the “face and the pawn” of a Bharatiya Janata Party (BJP) conspiracy against Kejriwal, Maliwal is all set to retain her Rajya Sabha seat.
According to the rules governing the Tenth Schedule of the Indian Constitution, a lawmaker can be disqualified only in two circumstances – if he/she voluntarily resigns or if a lawmaker votes or abstains during division (voting) contrary to the directions of the party.
This means that, even if, say, AAP suspends Maliwal from the party, she will continue to remain the party MP and has to abide by the AAP’s directions on voting in the House. But if AAP expels, she will automatically become an independent MP of the Rajya Sabha and would not remain bound to the directions of any party, according to experts.
On “Disqualification on ground of defection”, according to the Tenth Schedule, “(1) Subject to the provisions of 3 [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House— (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”
To be sure, there is no indication so far that AAP will suspend or take action against its MP. Maliwal is the AAP’s newest MP in the Upper House. She took her oath in January this year.
But even if the ties between AAP and Maliwal result in her expulsion from the party, Maliwal can’t join any other party during the remainder of her term.
According to Section (2) of paragraph 2 of the Tenth Schedule, “An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election”.
A Communist Party of India (Marxist) Rajya Sabha member, Ritabrata Banerjee, was recently expelled from the party but he remained an independent MP.