Events & Issues
New Delhi, 20 July 2020
Defection Definition
END THE UNCERTAINTY
By Dr. S. Saraswathi
(Former Director, ICSSR, New Delhi)
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.—INFA
(Copyright, India
News & Feature Alliance)
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