Debriefed: Anti-Defection law in the context of the Rajasthan Political Crisis

The Constitution (52^nd Amendment) Act, 1985, which inserted the Tenth Schedule to the Constitution, has the avowed objective of bringing to an end the evil of political defections in the country.

Thirty-five years later, the Act has been unable to achieve its objectives.

Bar & Bench seeks to break down the major issues in the working of the anti-defection law, and how the courts have interpreted it in the context of the ongoing political developments in Rajasthan.

To begin with, how have the rebel Congress MLAs in Rajasthan allegedly violated the Tenth Schedule?

They have allegedly invited the rigours of Paragraph 2(1)(a) of the Tenth Schedule, under which a member of a House belonging to any political party shall be disqualified if he has voluntarily given up his membership of such political party.

What could have been the rationale for Parliament to have exempted splits (originally until it was amended in 2003) and mergers from the purview of the Act?

The Bill’s Statement of Objects and Reasons is silent on it.

Paragraph 3 of the unamended Act made it clear that a split in the legislature party must have arisen as a result of a split in the original political party, that is the organisational wing of the party.

Paragraph 4, which deals with merger, which still remains in the Act, adopts similar phraseology:

"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."

Under Paragraph 4(2), 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 legislature party concerned have agreed to such merger.

In both Rajendra Singh Rana v. Swami Prasad Maurya (2007) and in Jagjit Singh v. State of Haryana (2006), the Supreme Court held that the split in the original party is a precondition for recognising a split in the legislature party. Experts suggest that the ratio of these decisions apply to a case of merger also. However, mergers of factions of Congress legislature parties with the ruling parties have been recognised by the Speakers in Telangana and Goa recently, overlooking this requirement.

The exemptions for splits (originally before the 2003 amendment) and mergers, and the rejection of the proposal in the Draft Bill [Paragraph 2(1)(c)] to apply the Act to the members expelled from the parties, show that Parliament was concerned that legitimate dissent should not be stifled within political parties, even while seeking to punish unprincipled defections.

The question whether the expelled members can still be deemed as members of the party for the purposes of the Tenth Schedule is yet to be resolved by the Supreme Court.

What was the rationale for Parliament to delete the provision relating to splits in 2003?

The Statement of Objects and Reasons of the 91st Amendment Act, 2003 stated that the provision for exemption from disqualification in case of splits as provided in Paragraph 3 of the Tenth Schedule has, in particular, come under severe criticism on account of its destabilising effect on governments.

However, experience shows that Parliament was naïve to assume that the deletion of Paragraph 3 along with the bar on holding public office as a Minister till his or her re-election, will check defections. Paragraph 4, which permits merger of a group with two-thirds strength of a legislature party with another party, also enables bulk defections and horse-trading, but the 2003 amendment has left it untouched.

What is the fate of the votes cast by legislators who choose to defy their party whips?

In Yitachu v. Union of India and others, the Gauhati High Court’s five-judge Bench presided by its then Chief Justice J Chelameswar dealt with the question of whether the Speaker of the Nagaland Assembly was wrong in not taking into account nine votes, cast in defiance of the party whip, during voting on a no-confidence motion in 2007.

The Speaker, the High Court held, had illegally eliminated the nine votes to declare that the no-confidence motion was defeated. Had these votes been counted, the no-confidence motion would have been carried, the Court pointed out. In view of this, it was held that the subsequent imposition of President’s Rule and the placing of the state assembly under suspended animation in January 2008 was constitutional.

The Tenth Schedule, the High Court held, does not prohibit any member of a legislature from violating the direction/whip issued by a political party to legislators belonging to that political party. The judgment reads,

“All that paragraph 2(1)(b) of the Tenth Schedule prescribes is that when such a direction/whip issued by the political party is violated by a legislator without either the prior permission of the political party or such violation is not condoned subsequently by the political party, the legislator incurs disqualification for continuing as a member of the house.”

The High Court reasoned:

Can any form of indiscipline by a member of legislature party be considered as ‘voluntarily giving up membership of a party’?

In Ravi S Naik v. Union of India (1994), this question was considered in detail, and it was held that a court could infer the act of voluntarily giving up membership from a member’s conduct. In Rajendra Singh Rana v. Swami Prasad Maurya, the act of giving a letter to the Governor to invite the leader of a rival party was considered an act of voluntarily giving up membership.

In Balchandra L Jarkiholi and Ors v. BS Yeddyurappa and Others, the Supreme Court set aside the majority judgment delivered by the Karnataka High Court and portions of the minority judgment delivered by Justice N Kumar that concurred with the majority.

The majority judgment of the High Court, delivered by the then Chief Justice JS Khehar and Justice VG Sabhahit, had equated withdrawal of support from the government led by the Chief Minister with voluntarily quitting one’s party.

Justice Kumar, in his separate judgment, had held that an act of no-confidence in the leader of the legislature party does not amount to his voluntarily giving up the membership of the political party.

It was further observed in the minority opinion that deserting the leader and deserting the government is not synonymous with deserting the party. What constitutes defection under Paragraph 2(1)(a) of the Tenth Schedule is deserting the party; dissent is not defection and the Tenth Schedule while recognising dissent, prohibits defection, Justice Kumar held.

While setting aside the Speaker’s order disqualifying the MLAs on the ground of defection, Justice Kumar, however, concurred with the Chief Justice regarding absence of mala fides on the part of the Speaker.

Justice Kumar opined that in order to attract disqualification under Paragraph 2(1)(a), a member of a House belonging to any political party has to voluntarily give up his membership of such political party and on his own volition, join another political party. The intention to join another political party or form a new party with the lure of office or money is what, according to him, sought to be forbidden by Paragraph 2(1)(a). The giving up of membership of the party should be established by positive, reliable and unequivocal evidence, he explained.

The two-judge Bench of the Supreme Court, while hearing the appeal against this judgment, set aside the majority judgment on the ground that the Speaker’s order was contrary to the principles of natural justice and the rule of evidence.

Justice Kumar’s judgment, which the Supreme Court cited with approval, therefore, prevails.

How does Justice Kumar’s judgment differentiate voluntarily quitting the party from acting contrary to the directions of the party?

These two grounds, he held, are mutually exclusive and constitute the ingredients of Paragraphs 2(1) (a) and 2(1) (b) respectively. He explained Paragraph 2(1)(b), which enables party leadership to condone members who vote against its directions, thus:

“It only shows an opportunity is given to a political party to respect honest dissent, re-think, retrace its steps and take corrective methods, if its members do not agree with the official line of the party. It is a wake up call by the members of the party who are in minority, to the party, not to curb internal democracy, stifle dissent..."

The same concern, Justice Kumar said, is not shown to a person who voluntarily leaves the party, as Paragraph 2(1)(a) does not provide for condoning such act. He elaborated:

“To join other party, and extending support to the other party or trying to form a Government with the support of other party smacks of conspiracy. Therefore, such an act cannot be condoned…”

But Vice-President M Venkaiah Naidu had used a different reasoning to establish voluntarily quitting a party while disqualifying Janata Dal (U) leader Sharad Yadav, right?

According to Naidu, if a member got elected as a candidate of a political party on the basis of its policies and manifestos, but criticised it publicly, he would be deemed to have given up his membership of the party voluntarily. The Delhi High Court is yet to decide Yadav’s petition challenging his disqualification.

Meanwhile, the Supreme Court upheld the Delhi High Court’s decision to reject an application moved by the respondent seeking permission to place additional evidence with regard to Yadav’s conduct subsequent to his disqualification from the Rajya Sabha. As Yadav subsequently joined another political party, the respondent (Ram Chandra Prasad Singh) wanted the High Court to consider this as evidence against him.

What does the future hold for the Congress rebels in Rajasthan?

It is clear that supporters of the rebel leader, Sachin Pilot, fall short of the requisite strength for two-thirds of the members of the Congress legislature party to justify a possible merger of their faction with a new or existing party.

If the High Court accepts their view that their conduct does not fulfil the ingredients of Paragraph 2(1)(a), it will permit them to take part in the likely floor test. And if they defy the whip issued by the party leadership during the floor test, they will be subject to disqualification proceedings under Paragraph 2(1)(b), but their vote against the Gehlot government will be valid. If the Gehlot government falls after the floor test, the rebels who voted against him will still be subject to disqualification proceedings.

Is there scope for challenging the constitutionality of Paragraph 2(1)(a) on the ground of violation of Article 19(1)(a) which guarantees freedom of speech and expression?

Reports suggest that the Rajasthan rebels have amended their petition to include this challenge. The Supreme Court had already held Paragraph 2 of Tenth Schedule constitutional in 1992. The petitioners have argued before the High Court that the Kihoto Hollohan judgment was in the context of crossing the floor. Therefore, their contention is that the judgment will not protect any action taken under Paragraph 2(1)(a) against members’ conduct other than crossing the floor.

The question is whether the Speaker’s notice under Paragraph 2(1)(a) can act as a Damocles Sword over the right to free speech of a legislator. As long as the rebels in Rajasthan have not implicitly joined another party, they can’t lose their right to criticise their party or leader under threat of disqualification. The plea for quashing the Speaker’s notice as a remedy for protecting the rebels’ freedom of speech and expression therefore, makes sense.

The Congress rebels in Rajasthan, by taking the Rajasthan Speaker to the High Court, have underlined that resort to Paragraph 2(1)(a) to discipline them can have a chilling effect on their right to freedom of speech and expression.