LAW RESOURCE INDIA

Fate of independent MLAs has national implications

Posted in CONSTITUTION, COURTS by NNLRJ INDIA on October 16, 2010

Neena Vyas

When does independent legislator become party member?


There is no such thing as associate member of a party: Somnath

No petition was filed asking for disqualification of independents associated with BJP: Kashyap


NEW DELHI: With a safety margin of six, the Bharatiya Janata Party government in Karnataka may get by even if the five unattached MLAs disqualified by the Speaker win a legal reprieve next week. But with governments at the Centre increasingly dependent on the support of independents and one-man parties, the fate of the five has implications that go well beyond the immediate politics of the State.

The tricky question now before the Karnataka High Court is: at what point does an independent legislator, elected as an independent, lose that status and become a member of a political party he has been supporting from the outside or even as minister in government?

The five independents were disqualified by the Speaker a day before the first vote of confidence moved by Chief Minister B.S. Yeddyurappa this week. The Speaker called them “associate members” of the BJP and invoked the anti-defection law against them.

Constitutional experts say that if they were no longer independents by dint of this association, they ought to have been disqualified earlier because the anti-defection statute applies equally to unattached representatives who subsequently join a party.

While being mindful of the fact that the matter is sub judice, the former Lok Sabha Speaker, Somnath Chatterjee, was of the view that “there is no such thing as an associate member of a party.”

“The correct constitutional position is that an elected independent member remains an independent — and, therefore, cannot be disqualified for defying party discipline — unless and until he joins the party by filling up a form and paying the subscription prescribed by the constitution of that party,” Mr. Chatterjee said.

“I say this with all due respect to the Speaker of the Karnataka Assembly. There are many instances of independent members associating with a ruling party, supporting it and even accepting ministerial berths. But they do not lose their status as independent members. Neither the Election Commission nor the Constitution recognises anyone as an associate member of a party.”

Mr. Chatterjee, speaking to The Hindu from Kolkata, said that in any case, a Speaker enjoys quasi-judicial powers and his authority to disqualify an MLA flows from the Tenth Schedule of the Constitution that lays down the procedure to be followed.

His view was: “The principles of natural justice would have to be followed. Reasons have to be given by the Speaker and the member concerned has to be given a chance to defend his actions.”

Filing of petition

P.D.T. Achary, who recently retired as Lok Sabha Secretary-General, was equally categorical. “An independent can lose his independent status if he or she were to formally join a party. And if he were to do so, he would attract disqualification under the Tenth Schedule,” Mr. Achary said. The catch here is that a petition would have to be filed before the Speaker for disqualification of that member for, he is not required to take suo motu action.

Mr. Achary was of the view that “if a member has not formally joined a party, he cannot be disqualified simply because he is sitting or eating with friends in a political party or even attending party meetings.”

A constitutional expert who did not want to be quoted, as the matter was under the scrutiny of the High Court, said: “If association were to be taken to be membership, then a regular member of one political party could claim he was actually a member of another political party as he was associated with it or had even campaigned for it, as has happened in the case of many rebels. As for attending a party meeting, well, parties may invite anyone to attend their meetings. That does not make them members of that party.”

Different take

However, another former Secretary-General of the Lok Sabha, Subhash Kashyap, had a different take.

Noting that the matter was sub judice, Mr. Kashyap said the constitutional position was that an independent member could lose that status if he were to be associated with a party through his conduct, attendance at party meetings and doing party work, including campaigning for a party. Yes, he would attract disqualification for being so associated, provided a petition was filed before the Speaker.

“I think in the case of Karnataka, no such petition was filed by any Opposition member asking for disqualification of the independent members associated with the BJP,” he said.

If such a petition had been filed and rejected, a Speaker cannot “protect” an independent member who associates himself with a political party and is considered to be its member, and later use the same connection with a party to disqualify him, Mr. Kashyap said.

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