Edit & Opinion

Defection Definition: End the uncertainty

By Dr. S. Saraswathi

Raj Bhavans, the official residence of Governors, became the venues for protests by members of the Congress Party in many States on 27 July “to highlight the gravity of the issue and draw people’s attention to violations of the Constitution” in Rajasthan. What is happening in the State in the last few days reveals how complicated is the question of determining defection from political parties and various possibilities of using the law by diverse players.

This case started in the High Court of Rajasthan when the former Deputy Chief Minister Sachin pilot complained against disqualification notices issued by the Speaker to 19 rebel Congress MLAs.  In reply, the Speaker approached the Supreme Court with a special leave petition that a court cannot bar a Speaker from acting on disqualification notice even before a decision is taken. The Speaker later withdrew his petition.

The fault of the rebel members that earned them the disqualification notices from the Speaker was defiance of the whip issued by the Congress and failure to attend Congress Legislative Party meetings on two days. This team of Sachin Pilot challenges the notices and maintains that it is only seeking leadership change in the “most democratic manner.”

The ruling Rajasthan Chief Minister, Ashok Gehlot along with 100 legislators had reason to   stage a dharna on the lawns of Raj Bhavan in Jaipur on 24 July demanding convening of the Legislative Assembly primarily to prove his majority as there was open rebellion within his party. He did not succeed and ended the dharna after about five hours. A list of MLAs numbering 102 was submitted to the Governor as his supporters.

The CM met the Governor the next day and insisted on convening the Legislative Assembly session.  The Cabinet took the stand that the Governor had no discretion in the matter and had to follow its advice. Relying on the number, the CM seemed to be sure of majority support in a house of 200 to save his government and urged Governor Kalraj Mishra to convene the Assembly on 31 July.

Convening the Assembly session, fixing the procedures, and setting the agenda are normally in the domain of the Cabinet. The Governor, it is reported, initially questioned the necessity for floor test when the government was claiming the support of a majority in the House. The revised note of the CM to the Governor mentioned only the need for a special session to discuss the situation on COVID-19 and to introduce six bills and not floor test.

On 27 July, the Governor agreed to convene the Assembly on the condition that 21 days notice should be given to the members as per rules and social distancing norms must be followed. As floor test was not included in the agenda, short notice was not enough.

The legal course, neither in the State nor at the Centre was so far favourable to the Congress Party. The alternative, in keeping with the current trend in Indian party politics, is to take the fight outside the courts and on the roads.

To the BJP, which lost the General election and became the Opposition party in the State, the  matter reflects the internal conflict raging within the Congress and dharna  at the Raj Bhavan is   a “criminal act” under Section 124 of the IPC similar to “assaulting the President/ Governor with intent to compel or restrain the exercise of any lawful power”.

CM’s posture was the immediate response to the Rajasthan High Court direction to the Speaker  on maintaining the status quo on the disqualification notices he had issued to 18  rebel Congress MLAs and Sachin Pilot, under clause 2(1) (a) of the Constitution’s Tenth Schedule. The order itself had come after the Supreme Court refused to restrain the High Court from ruling on the matter on the plea of the Speaker.

The Tenth Schedule including para 2(1)(a) on freedom of speech, vote or conscience of elected members, which was validated by the Supreme Court in 1992, mentions two grounds for disqualification of  a member  – one, when he voluntarily gives up membership of the party; and the other, if he votes or abstains from voting contrary to any direction issued by his party, meaning if he violates whip. Pilot asks for deletion of this provision which is very widely construed and violates freedom of speech and expression and is not necessary to uphold the basic structure of the Constitution.

A judgement of the Supreme Court in 1994 has clarified that voluntarily giving up membership does not require a formal resignation from the party, but may be inferred from certain actions. It paved way for party action against members for having and/or expressing views different from that of the party or party leaders while remaining within the party. Party discipline overtook inner party democracy.

This judicial interpretation was followed in UP in 2003 when 13 MLAs  of the BSP Party were disqualified for supporting SP chief to form the government as against their leader’s advice to dissolve the Assembly. It was an inference by the court that the action of those MLAs was a proof that they had voluntarily given up their membership of the BSP.

This provision has remained a contentious issue ever since it was written. Even courts have taken varied stand on what constitutes defection. In Karnataka,  the Speaker’s order disqualifying 11 BJP MLAs who approached the Governor for removal of the CM of their own party was set aside by the Supreme Court in 2011 as they had not resigned from the party, but only seeking leadership change.

The High Court of Rajasthan, in the present case, rejected two pleas by the rebels – one, to uphold their status as MLAs, and the other, to declare their boycott of CLP meetings as outside the purview of Anti-Defection law. Another petition to make the Centre a party to the case on the ground that the constitutional validity of Schedule 10 was being challenged was admitted.

Thirty-five years have elapsed since the Anti-Defection Schedule was adopted, but still we are not definite about what actions are to be construed as defection. Like the Reservation policy, defection is a headache to courts.

This Schedule is different from other parts of the Constitution which provide the fundamental law or instrument of government, and various organs of the supreme power in the State – the legislature, the executive and the judiciary and their relations with one another. It was added as a remedy to check frequent movement of members (described as “Aya Ram and Gaya Ram”) between parties thus destabilising governments for the advantage of parties and individuals. Its origin lies in political party behaviour and not in constitutional need. Its use has also been shrouded in the politics of political parties necessitating frequent interpretation by the courts.

Uncertainty over the definition of “Defection” must be ended and the sphere of discretion given to constitutional authorities must be clarified.  Scope for inner- party democracy and freedom of opinion and expression of party members have to be protected as an essential preliminary for democratic freedom and rights for all in the society.


The author is Former Director, ICSSR, New Delhi

 

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