Written by: Tarini Gupta, Student, Vivekananda Institute of Professional Studies
(P.C. HS News)
Sachin Pilot an ousted Rajasthan deputy chief minister and 18 other MLAs were sent disqualification notices by the Rajasthan Assembly speaker based on the complaints made by Congress. They have meanwhile challenged the constitutional validity of the anti-defection law which has been embodied in the Tenth Schedule, inserted in 1985. The tenth schedule enacts the procedure by which a legislator can be disqualified on the rationale of the defect by the Presiding officer of the legislature on the basis of a petition filed by any other legislator of the House. A legislator is presumed to have been defected if :
he willfully surrenders his membership or
contravene the directives of the party leadership on a vote.
With this blog, we aim to analyse the anti defection law and the issues associated with it, and the way courts have interpreted the law following the matter in Rajasthan.
DISQUALIFICATION OF CONGRESS MLAs AND CHALLENGING THE CONSTITUTIONALITY OF PARAGRAPH 2(1)(a)
The MLAs have been alleged to have violated paragraph 2(1)(a) of the Tenth Schedule which states that a member of the house shall be disqualified if he willfully surrenders the membership of such political party. Although the petitioners have not officially resigned from the Congress, the rebels have omitted two of the Legislative Party meetings which have been taken as a ground to commence the disqualification proceedings. However, the petitioners in their petition have alleged that mere discontent against the party cannot be considered as a violation of the said clause as it jeopardises the fundamental freedom of speech and expression.[1] The petitioners have questioned the constitutionality of paragraph 2(1)(a) and also argued that the matter in Kihota Hollohon[2] was regarding crossing over, thus it does not protect action taken under paragraph 2(1)(a). Since the agitators have not joined another party, they can't lose their right to censure their party or leader because of the fear of disqualification. They argued that while upholding the validity of the Tenth Schedule, the court did not take into consideration the grounds of free speech and expression.
VOLUNTARILY GIVEN UP THE MEMBERSHIP
The Supreme Court in Ravi S. Naik And Sanjay Bandekar v Union Of India And Others[3] observed that formal resignation is not an essential requirement for voluntarily giving up the membership it can be inferred from the member's conduct as well. While in other cases legislators who publically opposed their party or supported the other party were deemed to resign.
POWER OF THE SPEAKER
Various powers have been given to the Speaker of the House with regard to the disqualification proceedings as there is no interference on the part of the Supreme Court until the speaker actually makes a decision. In the Kihoto judgement the court held that the judiciary shall not interfere in any stage antecedent to the making of a decision by the Speaker thereby working in conformity with the Tenth Schedule.
EXCEPTIONS UNDER THE LAW
As per the Tenth Schedule the parties can merge with or into another party provided that not less than two third of its members are in the favor of such merger. The Supreme Court in Rajendra Singh Rana v Swami Prasad Maurya[4] observed that to recognise a cleave in the legislature party, there should firstly be a cleave in the native party. As per the experts the ratio of such decisions apply to a case of merger also.
The dismissal of the proposal in the Draft Bill and the exemption for splits (before the 2003 amendment) and mergers indicate that the Parliament was concerned that the legitimate disapproval should not be stifled within political parties, even while punishing the defections. The question of whether the ousted members can still be considered as a member for the purpose of the Act is yet to be determined by the court.
THE FATE OF THE VOTE CASTED BY THE REBEL LEGISLATORS
In Yitachu v UOI[5] the issue was whether the speaker of the Nagaland Assembly was incorrect in not taking under consideration the nine votes which were cast in the opposition of the party whip, at the time of voting of no-confidence motion. If such votes were considered, the no-confidence motion would have executed. It was held by the court that paragraph 2(1)(b) of the schedule states that when such a whip is issued by the party and is violated by the legislator, he incurs a disqualification to continue as a member of the party.
In Balchandra L Jarkiholi and Others v BS Yeddyurappa and Others, the Apex Court set aside the majority judgement of the High Court on the ground that the Speaker's judgement was conflicting to the rule of law and principles of natural justice and upheld the minority view delivered by Justice Kumar. The majority of the judges were of the view that withdrawal of support from the government led by the Chief Minister would amount to voluntarily given up the membership. However, as per the minority view of Justice Kumar, to attract paragraph 2(1)(a) a legislator has to voluntarily give up his membership of the political party on his own accord, join another party. The intent to form a new party or join another party with the temptation of office or money is what is forbidden by paragraph 2(1)(a).
CONCLUSION
It is concluded that the requisite of minimum two-thirds legislators to justify the merger is not present in the petitioner's case. If the High Court agrees with the view that the petitioner's act is not violative of paragraph 2(1)(a), then it has to permit them to take part in the floor test, the petitioners are likely to be subjected to disqualification proceeding in either of the two cases firstly, if the petitioners disobey the whip issued by Congress during the test and secondly, even if the Gehlot government fails they will be subjected to the proceedings.
REFERENCES [1] Article 19(1)(a) of the Constitution of India [2] Kihota Hollohon V Zachilhu AIR 1993 SC 412, JT 1992 (1) SC 600, 1992 (1) SCALE 338, 1992 Supp (2) SCC 651, 1992 1 SCR 686 [3] Ravi S. Naik And Sanjay Bandekar vs Union Of India And Others AIR 1994 SC 1558, JT 1994 (1) SC 551, 1993 (2) SCALE 992, 1994 Supp (2) SCC 641, 1994 1 SCR 754 [4] Rajendra Singh Rana And Ors v Swami Prasad Maurya And Ors on 14 February, 2007 [5] Yitachu v Union Of India And Ors. 2008 (2) GLT 284
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