Amid a raging controversy over the alleged fake degree of former Delhi law minister Jitender Singh Tomar, the AAP has launched an internal inquiry against him - alluding to his possible expulsion from the party.
But even after his expulsion from AAP, Tomar may not lose his membership of the Assembly as the anti-defection law is not clear on expelled legislators’ status. Originally, there was no provision in the constitution to check defection. But in 1985, the 10th Schedule, commonly referred to as the ‘Anti-Defection Law,’ was added to the Constitution by the 52nd Amendment.
According to paragraph 2(1)(a) of the 10th Schedule, a member would incur a disqualification when he “voluntarily gives up his membership of a party” and under paragraph 2(1)(b) when he/she votes (or abstains from voting) contrary to the directive issued by the party.
In the Viswanathan case (1996), SC had ruled that an expelled member was bound by the party’s whip even after expulsion and failure to adhere to such whip would result in disqualification of the expelled member from the House.
However, on a petition filed by former SP leader Amar Singh, the SC on November 15, 2010 declared he could not be disqualified from Parliament under the anti-defection law in case he defied his former party’s whip.
The matter was referred to a larger bench and remains pending. So far Tomar has not said anything against the AAP or its leaders. But if he does, can the Speaker Ram Niwas Goel declare him disqualified as an MLA under the anti-defection law on the grounds that he has ‘voluntarily’ given up of membership of AAP?
In 1994, Ravi Naik vs. Union of India, the SC said, “Even in absence of formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party.” The question will arise only after he is actually expelled from AAP and declared disqualified as an MLA.