When the anti-defection law is attracted
by Joginder Singh Toor in THE TRIBUNE
Developments in Punjab, with the ouster of its Finance Minister Manpreet Singh Badal from the Cabinet and the Shiromani Akali Dal, withdrawal of support by 16 Karnataka MLAs to the ruling BJP, their consequential disqualification by the Speaker and its getting upheld by the state’s High Court have triggered a debate on the application of the anti-defection law. Earlier in August 2003 in UP 13 BSP MLAs, who formed a new party and shifted their support to Mulayam Singh Yadav’s Samajwadi Party to oust Mayawati from the government followed by 24 other MLAs, had to suffer disqualification following a judgment of the Supreme Court. The Speaker had recognised the split under the then existing provisions and refused to disqualify those members.
The anti-defection law came into existence in 1985 as a result of frequent defections by individual members generally known as the Aya Ram Gaya Ram factor. Articles 102 and 191 of the Constitution of India were amended so as to provide that a person shall be disqualified for being a member of either House of Parliament or the Legislative Assembly of a state if he is disqualified under the Tenth Schedule, which too was added by way of the 52nd Amendment of the Constitution. The Tenth Schedule exhaustively and strenuously prohibited defection by any member of Parliament or a Legislative Assembly having been elected on a symbol allotted by a political party, except by way of a split by at least one-third of the members of such House or by an independent member joining a political party.
In 2003 a major change took place in the anti-defection law (The Tenth Schedule). Dinesh Goswami, Chairman of the Committee on Electoral Reforms, as well as the Law Commission in its 170th report recommended that Paragraph 3 of the Tenth Schedule, allowing defection on the basis of a split by one-third members of a political party encourages bulk defection while individual defections are discouraged and not allowed.
As a result, the 91st amendment of the Constitution was made in 2003 which came into effect on January 1, 2004. The amended provisions disallowed defection by any number of members by way of a split. The provisions in the Tenth Schedule have been redefined. A split is not allowed now by any number of members. However, merger of two political parties is permitted which does not attract any disqualification.
After deleting Paragraph 3, regarding split, the Tenth Schedule retains the provision regarding the merger of political parties. It provides that “a member of a House shall not be disqualified under Sub Paragraph (1) of Paragraph 2 where his original political party merges with another political party and he claims that he and any other member of his original political party-(a) have become members of such other political party or as the case may be, of a new political party formed by such merger”. And if those who have not accepted the merger and opted to function as a separate group, then from the time of such merger they shall be deemed to belong to the political party they originally came from. The merger of the original political party of a member of a House shall be deemed to have taken place if and only if not less than two-thirds of the members of the legislative party concerned have agreed to such merger.
The law provides the definition of “legislature party” and “original political party”. There is a difference between the two. “Legislature party” means a group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provision. “Original political party” means “the political party to which he belongs and which party set him up as a candidate for election as such member”.
“Paragraph 2 of the Tenth Schedule provides that 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 abstained from voting in such House contrary to any direction issued by the political party to which he belongs or any person or authority authorised by it in this behalf without obtaining, in either House, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party.”
There is an exception to this provision in the case of a Speaker. It is open for the member of a political party, if he is elected as a Speaker, to resign from the membership of the party. He incurs no disqualification. He can join his political party after he ceases to be Speaker. In case he opts to retain the membership of the party while being a Speaker, he will then be bound by the party discipline in the Assembly and in the event he has to cast his vote, he has to abide by the direction or the whip issued by the party.
Jagjit Singh and Karan Singh Dalal having been elected to the Haryana Legislative Assembly, as lone elected members of their respective political party, the Democratic Dal Haryana and the Republican Party, having allegedly supported the Congress(I), attracted the wrath of the Speaker who, exercising the powers under the Tenth Schedule, disqualified them for being members of the House for alleged defection. Their plea was that they being the lone member constituted 100 per cent than the one-third required majority for a split. The Supreme Court disagreed with their viewpoint on the ground that the rule of one-third split did not apply to a single-member Legislature Party.
In Jagjit Singh’s case the question arose as to the independent character of an independent member of the House. The Supreme Court held that “giving outside support by an independent elected member is not the same thing as joining another political party after election. To find out whether an independent member has extended only outside support or, in fact, has joined a political party, materials available and also the conduct of the member are to be examined by the Speaker. It may be possible in a given situation for a Speaker to draw an inference that an independent member of the assembly has joined a political party”. Accepting a portfolio as minister or as Parliamentary Secretary is a material for the Speaker to come to a conclusion whether an independent candidate has lost his independent character and suffered a disqualification under the Tenth Schedule.
The position of a member of the House expelled from a political party, as to his role, position and rights as a member of the House is a subject of controversy. Paragraph 2 of the Tenth Schedule provides that a member suffers disqualification if he voluntarily gives up his membership of such a political party or votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs. Expulsion from membership is not voluntary giving up membership. It is different from resignation.
The question arises whether he incurs disqualification. The Supreme Court of India in G.Viswanathan versus Speaker Tamil Nadu Legislative Assembly (AIR 1996 SC 1060) has held, “If a person belonging to a political party that had set him up as a candidate gets elected to the House and thereafter joins another political party for whatever reason, either because of his expulsion from the party or otherwise, he voluntarily gives up his membership of the political party and incurs the disqualification. Even if he is treated as an ‘unattached’ member in the House. It is a matter of mere convenience. It is outside the Tenth Schedule. The Supreme Court observed, “We are, therefore, of the opinion that the deeming fiction must be given full effect for otherwise the expelled member would escape the rigour of the law which was intended to curb the evil of defections which had polluted our democratic polity.” The controversy has again been taken to the Supreme Court by Amar Singh expelled from the Samajwadi Party.
The role of the Speaker, acting in extraordinary haste or sleeping over the matter, or his arbitrary conduct in denying the member due opportunity of being heard, or not to allow him to look into the record or produce his defence, has also been a point of controversy before the Supreme Court in Jagjit Singh’s case. Besides the statutory finality attached to the powers of the Speaker in the matter, in case of violation of principles of natural justice, or the rule of law, any order speaking of arbitrariness passed by the Speaker has to be held as void ab initio. The debate is continuing at the national level as it is a matter of concern for every citizen of the country. It attracts their attention and involvement.
The writer is an advocate of the Punjab and Haryana High Court, Chandigarh