Even after being expelled from the Aam Aadmi Party, Vinod Kumar Binny may not lose his membership of the Delhi legislative assembly as the anti-defection law is not clear on the status of expelled legislators.
Binny was expelled by the AAP disciplinary committee on Sunday night for anti-party activities, hours before his planned dharna against the party. But on Monday, barely four hours after he had launched the strike, Binny called off the hunger strike on the advice of activist Anna Hazare.
He threatened to launch a major agitation if his demands including passage of the Janlokpal bill were not met within the next 10 days, but also said he would support the party on public-related issues.
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 by the 52nd Amendment.
According to it, a member would incur disqualification if he/she "voluntarily gives up his membership of a party" or if he/she votes or abstains from voting, contrary to the directive issued by the party.
In the Viswanathan case (1996), the SC had ruled that an expelled member was bound by the party’s whip even after expulsion and the failure to adhere to such whip would result in disqualification of the expelled member from the House.
But coming to the rescue of former Samajwadi Party leaders Amar Singh and Jaya Prada, the SC on November 15, 2010 declared they could not be disqualified from Parliament under the anti-defection law in case they defied the whip of their former party. The matter was referred to a larger bench to clear the air on the important issue that still remains pending.
Can Speaker MS Dhir disqualify Binny under the anti-defection law on the ground that he had ‘voluntarily' given up membership of AAP?
In 1994, in the Ravi Naik vs Union of India, the SC said: "Even in the absence of a 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 to which he belongs."
Can it be inferred from Binny’s conduct that he has "voluntarily" given up the AAP membership?
The question will arise only after he is declared disqualified as an MLA.