Uttarakhand governor KK Paul’s directive that the Congress government prove its majority in the state assembly by March 28 has put embattled chief minister Harish Rawat in a catch-22 situation. For one, he doesn’t know what to do with the nine rebel MLAs of his party.
Speaker Govind Singh Kunjwal has said that the “anti-defection law is in place, and whoever found guilty of violating it will have to be acted against”. However, if the Congress does not get its nine rebels disqualified under the law, they may vote against the Rawat government during the trial of strength. If it does, the party would risk being reduced to a minority in the 70-member assembly.
The Congress – which has 36 six members (including nine rebels) in the House – enjoys the support of one Uttarakhand Kranti Dal, three independent, and two BSP MLAs. The BJP has 28 MLAs. If the nine rebel MLAs led by former chief minister Vijay Bahuguna support the BJP, Rawat can be dislodged. The saffron party has claimed the support of a BSP MLA as well.
Disqualification under anti-defection law
According to paragraph 2(1)(a) of the 10th Schedule of the Constitution, a member can be disqualified if he/she “voluntarily gives up 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 1994 Ravi Naik vs. Union of India case, the Supreme Court (SC) had 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.”
If the conduct of Congress rebels is observed in the context of the anti-defection law and the SC ruling in Ravi Naik’s case, it can be concluded that they have voluntarily given up their membership of the party. So, will the Congress invoke the anti-defection law against its rebel MLAs – expelling Bahuguna and other rebel MLAs?
If Congress rebels are expelled
From the rebels’ point of view, their expulsion is unlikely to make things easier for them. They may still be required to follow the Congress whip and vote for the Rawat government during the floor test, thanks to an SC ruling.
In the 1996 Viswanathan case, the court had ruled that an expelled member was bound by the party’s whip even after expulsion, and failure to adhere to it would result in his/her disqualification from the House. However, it had provided relief to former Samajwadi Party leaders Amar Singh and Jaya Prada on November 15, 2010, declaring that they could not be disqualified from Parliament under the anti-defection law even if they defied the whip of their former party.
Though the matter was referred to a larger bench, so the contradictions on the important constitutional issue could be resolved, it still remains pending before it.
What does a split mean under anti-defection law
The BJP, for its part, appears quite keen to form a government in the state with the support of the rebel MLAs. If the rebel Congress MLAs are disqualified, it would require the support of at least four more MLAs to reach the magic figure of 32 (it currently stands at 36). According to law, it requires at least two-third members of a legislature party to form a new political group, or ‘merge’ with another political party without getting disqualified under the anti-defection law.
Added to the Constitution as the tenth schedule by the 52nd amendment during Rajiv Gandhi’s tenure as the prime minister in 1985, the anti-defection law originally recognised a ‘split’ if at least one-third members of the legislature party decided to form or join another political party.
However, this provision was done away with by the 91st amendment to the Constitution in 2003. The amendment, which came into force in January 2004, does not recognise a ‘split’ in a legislature party. Instead, it recognises a ‘merger’ that requires at least two-third members of a legislature party to join another political formation or form a new one without inviting the wrath of the anti-defection law.
Will the BJP succeed in engineering a split in the Uttarakhand Congress Legislature Party? Given the complicated political scenario in the state, it appears headed for the President’s rule in the near future.