Punjab and Haryana high court's orders that the five Haryana MLAs against whom petitions of disqualification of membership were filed before the Assembly Speaker, would be regarded as unattached members of the legislative assembly would have no bearing on the stability of the Bhupinder Singh Hooda government.
In the 90 member Assembly, the Congress has 41 MLAs who were elected on party tickets. It also has the support of seven Independents and lone BSP MLA in the House.
Chief minister Bhupinder Singh Hooda has kept all the seven Independents in good humour by giving Gopal Kanda, Shiv Charan Lal Sharma and Sukhbir Kataria ministerial berths and Prahlad Singh Gillankhera, Jaleb Khan and Sultan Singh the posts of Chief Parliamentary Secretaries (CPS). The seventh Independent MLA, OP Jain was a Cabinet minister some months back before he was divested of the charge following a controversy.
In fact, Kanda, Sharma and Kataria who earlier were given the status of Ministers of State (attached with CM or the concerned Minister) were this year given a portfolio each with an independent charge. The lone BSP MLA, Akram Khan has been bestowed with the post of Deputy Speaker of the Assembly.
The only occasion the Congress government was put to a trust vote on the floor of the assembly was soon after its formation in October 2009 when it won the vote of confidence by securing a head-count of 47 from amongst 82 MLAs present in the House. The five HJC MLAs facing disqualification petitions for joining the ruling Congress along with HJC leader, Kuldeep Bishnoi had stayed away from the confidence vote and were not present in the House when the motion of confidence was passed.
In fact, a renewed dependence of Congress on the Independents for support may just facilitate the "recovery" of rgaining power for the seven.
Though there is a fair amount of ambiguity over the rights of the five MLAs who have been declared unattached by the High Court yet even if one assumes that they are barred from voting in the House, the Congress will still sail through with the support of independents in the same way it did in October 2009.
The HC orders say that the five MLAs- Satpal Sangwan, Vinod Bhayana, Narendra Singh, Zile Ram Sharma and Dharam Singh would not be deemed to be members of the Congress party nor that of HJC till the decision of disqualification petitions.
"However, they would continue to be regarded as un-attached members of the legislative assembly for the purposes of attending the session and for no other purpose,'' the order said,
Former secretary-general of Lok Sabha and constitutional expert, Subhash C Kashyap told HT that there is no provision for "unattached" members in the anti-defection law.
A senior Haryana Vidhan Sabha official said that party whip would not apply to the unattached members but they have a right to participate in the proceedings of the House since they continue to be the members of the House.
Supreme Court on unattached members
(A) The Supreme Court in a 1996 case (G. Viswanathan vs. Speaker, Tamil Nadu legislative assembly) took the opinion that the labeling of a member as unattached has no recognition under the Tenth Schedule. The then Chief Justice of India, AM Ahmadi said that the Tenth Schedule classified members in accordance with their manner of entry in the House - one who has been elected on his being set up as a candidate by a political party for an election; one who has been elected as a member otherwise than as a candidate set up by any political party and the one who has been nominated. Taking the view that being treated as unattached as a matter of mere convenience, the Court held that it impermissible to invent a new category not envisaged in Tenth Schedule. Such a construction would defeat the purpose of the Tenth Schedule and fail to suppress the evil for which it was enacted.
(B) The apex court while hearing a petition filed by expelled Samajwadi party member, Amar Singh and Jaya Prada in 2010 said that they were convinced that the decision in G. Viswanathan's case merits another look as far as the members of the House who are expelled from their parties on whose banner they had been elected to the House would be left completely vulnerable to the whims and fancies of the leaders of their parties. Amar Singh and Jaya Prada had approached the SC view of the imminent threat to their continuation as members of Parliament in view of the decision in the G. Viswanathan case.
The apex court bench of Justice Altmas Kabir and Cyriac Joseph requested the Chief Justice to refer the matter to a larger bench on certain questions including the status of an unattached member in either house of Parliament or in the state legislatures. The matter is pending.