The Supreme Court Monday adjourned till Nov 9 the hearing on a petition by actor-turned-politician Jayaprada and former Samajwadi Party leader Amar Singh challenging the provisions of the anti-defection law.
The law empowers a political party to seek the disqualification of its members from a legislature if they have been expelled from the primary membership of the party.
Senior counsel Harish Salve, appearing for Jayaprada, said that the anti-defection law was enacted to discourage the frequent change of parties by the elected representatives but it was not anti-dissent to muzzle the dissenting voices within a party.
He said that any attempt to curb dissent would be against the constitution and in breach of its basic structure.
Salve said the question was "what is the application of the 10th schedule (dealing with the anti-defection law) in respect of a member who has been expelled by a political party".
He said that there was nothing in the schedule that dealt with the member who has been expelled from the primary membership of the party that he represented in the legislature.
"Are not we anticipating the things (expulsion from parliament)," asked the apex court bench of Justice Altamas Kabir and Justice Cyriac Joseph, hearing the matter.
At this, Salve said: "It has to be." As the situation stands today "expulsion (of Amar Singh and Jayaprada) from parliament is a fate accompli".
Referring to an earlier apex court judgment on the anti-defection law, Salve said it appears that complete material that was brought before parliament was not placed before the court.
The senior counsel told the court that under the existing provisions of the anti-defection law a member could forfeit his membership of the House if he voluntarily disassociates himself from the party or he defies the whip of the party in the legislature at the time of voting.
He told the court that the original anti-defection law envisaged a situation wherein a member would attract disqualification if he was expelled from the primary membership of the party.
He said that this clause was withdrawn from the original bill.
He said that Amar Singh resigned as Samajwadi Party general secretary on the ground of health but maintained that he would continue to remain the ordinary member of the party.
He said that party president Mulayam Singh Yadav said "sorry, you (Amar Singh) are not part of us. You go".
Now both the petitioners were faced with the prospect of expulsion from parliament -- Jayaprada from Lok Sabha and Amar Singh from Rajya Sabha, he said.
The court said that before the matter could come up for hearing Nov 9, a copy of the petition should be given to the attorney general.