Scope of invocation of the anti-defection law
One-upmanship in Rajasthan political crisis has lead to making a complaint by the Congress chief whip to the Speaker alleging that Mr. Sachin Pilot and his supporters abstained from the congress legislature party meetings and are involved in a conspiracy to bring down the government. The Speaker was asked to initiate proceedings for their disqualification.
Article 191(1) of the constitution of India stipulates the disqualifications for being chosen or for a being member of Legislative Assembly or Legislative council of the State. Article 191(2) also stipulates that a person shall be disqualified for being a member of legislative assembly or legislative council of a State if he is so disqualified under the Tenth Schedule. Article 191(2) was inserted by the 52nd amendment in the year 1985.
The Tenth Schedule of the Indian constitution is popularly known as ‘Anti Defection Law’. The reasons given for the 52nd amendment also incorporating Tenth Schedule is that the evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of democracy and the principles which sustain it. The Tenth Schedule contains eight paragraphs. The first para contains the definitions, the second para contemplates disqualifications, the third para deleted in 2003, the fourth para states that disqualification would not apply to mergers; the fifth para contains certain exemptions, the sixth and seventh contemplate the authority which would decide the question of disqualifications and the jurisdiction of the court respectively. The speaker is the authority to decide the disqualifications of a member of Assembly.
The Tenth Schedule contemplates that a member can be disqualified if he voluntarily gives up his membership or if he votes or abstains from voting in such house contrary to any direction issued by the political party to which he belongs. The Tenth Schedule also contemplates that an elected member belonging to a political party if joins another political party shall be disqualified. In the present facts and circumstances in Rajasthan, the question is as to whether Mr. Sachin Pilot and his associates had voluntarily given up their membership of the party to which they belong.
The complaint made by the chief whip that Mr. Sachin Pilot and his associates have abstained legislature party meetings and conspired to bring down the government is founded on the ground of his anti party activities. It is not an explicit case wherein Mr. Sachin Pilot and his associates had voluntarily given up their membership of the party to which they belong. It depends upon their conduct relating to anti party activities which invariably should infer that they have voluntarily given up their membership.
Clause 6 of the Tenth Schedule contemplates that the question which arises with regard to the disqualification shall be referred to the speaker of the house and decision shall be final. Accordingly a complaint has been made by chief whip requesting the Speaker to initiate proceedings for disqualification.
The Hon’ble Supreme Court in Shri Kihota Hollohon’s case wherein the constitutional validity of Tenth Schedule of constitution introduced by 52nd amendment in the year 1985 was challenged observed that a political party functions on the shared beliefs and the same depends upon the concerted action of its members in a furtherance of commonly held principles. It was also further held that any freedom of its members to vote as they please independently of the political parties’ declared policies will not only embarrass its political image but also undermine public confidence in which, in the ultimate analysis, is its source of sustenance.
The Hon’ble Supreme court held that the Tenth Schedule of the constitution is valid and its provisions do not suffer from the vice of subverting democratic rights of its elected members of Parliament and Legislatures of the State. The provisions are salutary and are intended to strengthening the fabric of Indian democracy by curbing unprincipled and un-ethical political defections.
The Hon’ble Supreme Court also held that the concept of statutory finality embodied in the Tenth Schedule does not detract from or abrogate judicial review under Article 136, 226 & 227 of the Constitution in so far as infirmities based on violation of constitutional mandate, malafide, non-compliance with the Rules of justice and perversity.
The Hon’ble Supreme Court also specifically held that the Judicial review should not cover any stage prior to the making of decision by the Speaker.
Since the Speaker has already issued notices in the backdrop of the first ground of disqualification i.e., ‘voluntarily giving up the membership’, the decision making process would be within the domain of the Speaker. Though there is no explicit giving up of membership, the Speaker may decide as to whether the conduct of the members constitutes ‘giving up of the membership’. In this regard the Hon’ble Supreme Court in Ravi S. Naik’s case held that the words ‘voluntary giving up membership’ have a wider meaning. An inference can be drawn from the conduct of the members also. Now since already the matter is pending before the Hon’ble Rajasthan High Court, the question that may arise for consideration is whether a writ petition is maintainable at the stage of issuing notice initiating the disqualification proceedings and as to whether the conduct of Mr. Sachin Pilot and his associates amounts to ‘giving up of membership’ of the political party.
It is a peculiar case wherein the allegations of disqualifications are made against the president of the party. A reading of the Tenth Schedule shows that it lays emphasis only on ‘the membership of a political party’. Mr. Sachin Pilot has been removed as the president of the party but it is not clear as to whether he has been expelled as a party member. The question that would arise for consideration is whether the conduct of the president of a political party in pointing out the deficiencies of the government formed by the said political party per-se attracts the first ground of disqualification that is voluntarily giving up of membership of a political party.
The other question that may arise for consideration is that whether the Speaker has power to take cognizance of the conduct of the member of legislative assembly outside the house, against whom a complaint has been made so as to infer that he has voluntarily given up the membership of the political party or the conduct within the four walls of the Assembly would only be relevant.
About the author: Chittarvu Raghu, Advocate, High Court’s of A.P. & T.S. Email ID – [email protected]
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