Focus: Tightening the noose around defectors? neck

THE TENTH Schedule to the Constitution provides for incurring of disqualification for defection on two grounds. One is when a member voluntarily gives up his membership of the party on whose ticket he had been elected. The other is when he votes contrary to the whip of the party or even abstains from voting without its permission. Very often the dissenters avoid resigning from the party while openly criticising it and its decisions even in the House itself. This, they think, would save them from disqualification on the first ground. This is not always a correct assumption. In a 1994 case from Goa, two MLAs had been elected to the Assembly on MGP ticket. They, however, accompanied the leader of the Congress party when he went to meet the Governor to show that he had the support of 20 MLAs. On a complaint by MGP, the Speaker held that the two MLAs must be deemed to have resigned from their party, writes KN Goyal

THE TENTH Schedule to the Constitution provides for incurring of disqualification for defection on two grounds. One is when a member voluntarily gives up his membership of the party on whose ticket he had been elected. The other is when he votes contrary to the whip of the party or even abstains from voting without its permission.
Very often the dissenters avoid resigning from the party while openly criticising it and its decisions even in the House itself. This, they think, would save them from disqualification on the first ground. This is not always a correct assumption.
In a 1994 case from Goa, two MLAs had been elected to the Assembly on MGP ticket. They, however, accompanied the leader of the Congress party when he went to meet the Governor to show that he had the support of 20 MLAs. On a complaint by MGP, the Speaker held that the two MLAs must be deemed to have resigned from their party. The Supreme Court held:
“A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation 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”.
In a 1996 Tamil Nadu case, the dissenting members were expelled by the party (ADMK) on the ground of indiscipline. So the Speaker treated them as unattached members. Later, they joined another party (MDMK). At that stage, the original party ADMK applied to the Speaker for their expulsion on ground of defection. They pleaded in defence that they had already been expelled by the ADMK and had become unattached and had never resigned from that party. The Supreme Court held that such a stand, if accepted, will defeat the very purpose of the anti-defection law which was designed to suppress the mischief of breach of faith with the electorate.
The Court held that even after expulsion from his party his status as a member of the political party by which he was set up for election will not be obliterated.
On the question, that of voluntarily giving up the membership of the party, it was held that such giving up need not be expressed, it may be implied.
In a Bihar case decided in October 2004 by the Constitution Bench of the Supreme Court an MLC who had been elected to the Legislative Council on the ticket of the Congress party later contested the election for the Lok Sabha as an independent. The chairman on a complaint of the Congress party held him to be disqualified. He had by implication voluntarily given up his membership of the Congress party. The Court agreed with the Chairman.
The member also disputed the validity of the proceedings against him on the ground that the complaint did not conform to the rules. According to the rules, a complaint had to be signed and verified in the same manner as a plaint under the CPC. The CPC requires a plaint to be accompanied by an affidavit too. The complaint in this case was not accompanied by an affidavit, and therefore was non-est, hence the chairman had no jurisdiction to act upon it.
The Court held that the rules had been framed by the chairman by way of delegated legislation. They were not part of the Constitution. As they were procedural in nature, this rule was held to be directory and not mandatory. Its violation could amount to an irregularity in procedure. This ground was, therefore, beyond the jurisdiction of the courts.
Another ground taken before the court was that as the member had not been given a copy of a document on which the chairman had based his decision, the rules of natural justice had been violated. The essential facts, namely, that he was elected on the Congress ticket and that he had later contested the parliamentary election as an independent, being undisputed, mere non-supply of a document could not vitiate the decision.
Following the Tamil Nadu case it was held that by necessary implication the member contesting the parliamentary election as an independent amounted to his having voluntarily given up the membership of the Congress party.
This is a decision of the five judge Constitution Bench and it will go further to tighten the noose round the defectors’ necks.