HC on defection issue
After the 1984 landslide victory by Rajiv Gandhi at the General Elections following the assassination of Indira Gandhi, apprehensions were expressed about the stability of the Congress Party. So, the Anti-Defection Law came to be enacted in 1985 through an Amendment. The new Schedule X laid down the provisions. In order to protect genuine split in a political party, an exception was provided that if at least one?third members of a party go out, it shall be treated as a ?split? and not defection.india Updated: Mar 13, 2006 01:23 IST
After the 1984 landslide victory by Rajiv Gandhi at the General Elections following the assassination of Indira Gandhi, apprehensions were expressed about the stability of the Congress Party. So, the Anti-Defection Law came to be enacted in 1985 through an Amendment. The new Schedule X laid down the provisions. In order to protect genuine split in a political party, an exception was provided that if at least one–third members of a party go out, it shall be treated as a ‘split’ and not defection.
But, later, experience found that this exception had been grossly abused and only given encouragement to large-scale defections while punishing defections of one or a few members. So, ultimately the provisions relating to the split were repeated by Parliament.
But the instant case relates to the period prior to that repeal. The split was legal at that time when Mayawati (BSP) resigned as CM on August 26, 2003. SP leader Mulayam Singh (MSY) had only 144 members, much short of a majority. So, he engineered large-scale defections from BSP in order to support his claim to form the new government.
At first on August 27, only 13 MLAs of BSP (in two groups of 8 and 5) met the Governor in support of a new SP Government and appealed to him not to dissolve the Assembly as recommended by Mayawati.
On September 2, the Speaker treated these 13 as “unattached” and allotted them a separate block for sitting in the House. This number was insufficient for SP. However on August 29, as no other party had staked a claim, Governor called upon MSY to form the government and prove his majority in the House by September 8.
On September 5, the BSP filed a caveat before the Speaker not to pass any orders on the defecting MLAs without hearing BSP. On September 6, a total of 37 BSP MLAs, including the original 13, represented to the Speaker that they had all decided on August 26, to form a new Loktantrik Bahujan Dal (LBP) and to merge the new party with SP and requested him to recognise the split and the merger. The then Speaker Kesari Nath Tripathi, accepted their request. Significantly the other 24 members had till then all along sat in the House with BSP not with the first 13.
The contention of BSP was that the original 13 defectors had on August 27 disqualified themselves under Schedule X. Hence, there was no question of the subsequently defecting 24 merging with them and making the number 37 which was enough to constitute over 1/3 of the BSP membership (109). BSP also contended that the defectors’ claim that all 37 had decided to go out was a concocted story.
On September 6, another six BSP members gave an application for going with these 37. Of them, three retracted and remained with BSP.
Thus, 40 MLAs are involved, Speaker KNT while recognising the alleged split and merger (which enabled the SP to secure vote of confidence) kept the BSP’s complaint of September 4, for their disqualification pending without any decision at all.
It was then that BSP approached the High Court. While the petition was pending Speaker Tripathi (BJP) had to resign and a new Speaker MPP of SP took office. After a full bearing in 2005 he dismissed the disqualification petition. Then BSP got their writ petition amended in order to challenge the verdict of the new Speaker also.
Chief Justice Ray said the defectors’ story of a merger having taken place on August 26 itself be rejected and the later walking away of the 27 be treated as a subsequent defection their claim had to be considered in its entirety. There is nothing in law to require that all breakaway MLAs should walk out at the same time.
Split may well be a continuous process spreading over a few days’ time. So BSP’s petition was rejected by him. However, his two brother judges (Justices Bhalla and Pradeep Kant) dissented, so their majority decision prevails, and the matter is now before the Supreme Court on an SLP by one of the said 40 defectors.
Justices Bhalla and Pradeep Kant have held that there was nothing in law to permit any members being treated as “unattached” (as KNT had done) and that the law should be so interpreted as to curb the evil of defections which went against the roots of Parliamentary democracy. Whether legally permissible split had taken place had first to be determined on August 27 itself.
The disqualification of the first 13 was automatic. The situation was not to be viewed as at the point of time of the Speaker’s decision but at the times when the defections took place.
The Speaker’s prompt decision accepting split and merger and indefinitely postponing his decision on the disqualification petition was arbitrary, mala fide and against the principles of natural justice and as such judicially reviewable. It defeated the legislative intent of the Schedule X. When BSP had already made a disqualification petition against the 13 defectors the Speaker should have decided that first before recognizing the alleged split and merger.
Thus, the majority upheld the contentions of BSP writ petitioners except that they held that it was not for the HC to disqualify the defectors. That fell within the jurisdiction of the Speaker.
The two Speakers’ decisions (Speaker KNT recognising the split and merger and Speaker MPP rejecting the disqualification petition) were quashed and the matter was sent back to Speaker for hearing and decision afresh. But the Speaker cannot differ from the majority view on validity or otherwise of alleged split and merger.
He is for all practical purposes thus expected only to give findings in accordance with those views and pass a formal order of disqualification. Of course he may again take his own time in holding a hearing and passing orders. A party can also delay the decision by repeatedly going to the High Court against his interlocutory orders passed from time to time.
All learned judges pronounced separate judgments analysing various cases decided by the SC and the provisions of the Constitution. As each judge has his own style of expounding law even the two concurring brethren chose to write separate judgments. While SP was represented by a battery of top SC lawyers (like Shanti Bhushan and Rakesh Dwivedi), the BSP was represented by its vice-president and senior advocate Satish Misra alone.