18 disqualified AIADMK MLAs pin hopes on technicalities and legal loopholes as they move SC to overturn verdict

Having an extra-marital affair with the neighbour’s wife is adultery. But how about simply looking at her? And what if we call even that infidelity? If that sounds a bit harsh, that’s what India’s anti-defection law is — and for good reason.

The law says a legislator who resigns from a party on whose ticket he has been elected to a House and either forms or joins another party must be disqualified from the membership of the House. But defection doesn’t necessarily mean resignation or even voting against the party. It can even mean an intended or implied desertion from the party.

The Supreme Court made that clear in its 2007 verdict in the Rajendra Singh Rana case. The case was about 13 BSP MLAs of Uttar Pradesh who met the governor in August 2003 and asked him to call the Opposition leader to form the government. The MLAs hadn’t actually resigned. The five-judge bench said: “Even in the absence of a formal resignation from the 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.”

Representational image. Image credit@ electadmk.com

Representational image. Image credit@ electadmk.com

There was also the Ravi S Naik case in which Justice SC Agarwal of the Supreme Court ruled in 1994: “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.”

Did the Tamil Nadu MLAs ‘defect’?

Even in the latest Tamil Nadu case, the 18 MLAs whose disqualification from the Assembly was upheld by the Madras High Court on 25 October hadn’t actually resigned from AIADMK. They hadn’t even asked the governor to call another party leader to form the government. They only met the governor in August 2017 and told him that they had lost faith in the leadership of Chief Minister Edappadi K Palaniswami and requested him to begin a “constitutional process”.

This was enough for Madras High Court Chief Justice Indira Banerjee, as part of a two-judge bench, to rule in June 2018 that the action of the MLAs amounted to defection. Justice Banerjee, now a Supreme Court judge, upheld the Tamil Nadu Speaker’s action in disqualifying the 18 MLAs from being members of the Assembly. When her fellow judge Justice M Sundar dissented, the case was heard by a third judge, Justice M Sathyanarayanan, who too upheld the disqualification on Thursday.

The story doesn’t end there. The MLAs have now decided to move the Supreme Court to  challenge Justice Sathyanarayanan’s well-argued verdict. Their decision has as much to do with their lack of preparedness to face elections again in their seats as with their hopes to cash in on technicalities and other loopholes to overturn their disqualification in the apex court. The Palaniswami government could fall if the 18 defectors are allowed to remain MLAs and vote against the chief minister in a trust vote. It’s easier to play the game of numbers than fight elections.

Few will shed tears if and when the Palaniswami government collapses.  An India Today poll says his is by far the most unpopular state government that exists in the country now.

More than the fate of a derelict, shaky government that owes itself existence to nothing more than the legacy of a dead leader — Jayalalithaa — what matters is how defectors continue to wreak havoc on India’s parliamentary apparatus despite a harsh law, and how they desperately seek to legitimise floor-crossing by playing a game of judicial musical chairs.

Origins of anti-defection law

The fight against defections supposedly began in 1973 when Indira Gandhi, the then prime minister, made a half-hearted move to ban political defections, a phenomenon that she herself had initiated and unabashedly nurtured. The move never took off. The Janata Party government of Morarji Desai made another feeble attempt by bringing in an Anti-Defection Bill in 1978 but members of both the ruling party and the Opposition scuttled it.

During the 1984 elections, called after Indira’s assassination, her son Rajiv Gandhi promised to bring in an anti-defection law and made good that promise in February 1985 after he became the prime minister.

He brought in the anti-defection law by way of the 52nd amendment to the Constitution. The law finds a pride of place in the Constitution’s Tenth Schedule.

Rajiv Gandhi was hailed as a hero of political reforms — hailed by himself and his partymen. The amendment, in fact, seemed to be aimed more at curbing desertions from his own Congress (I), as his party was then called, especially when elections to as many as 11 state Assemblies were round the corner at that time. LK Advani, then the general secretary of BJP, said the anti-defection law was meant to silence dissent in Congress-I which had no inner-party democracy.

Whatever the motive of Rajiv Gandhi was in bringing in the law, it has had little effect in curbing this evil in the 33 years it has been in existence. The latest case of Tamil Nadu only confirms how tough it is for the court to interpret and enforce the Tenth Schedule.

This is what the relevant law says:

Under paragraph 2(1) of the Tenth Schedule, a member of a House belonging to any political party is to be disqualified from being a member of the House: 

  • if he has voluntarily given up his membership of such political party; or
  • if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs.

In the latest Tamil Nadu case, 2(1)(b) is not applicable since there was no voting involved.

So the key question was whether the action of the MLAs in merely meeting the governor and telling him they had lost their faith in the chief minister and then requesting him to set off a “constitutional process” amounted to voluntarily giving up the membership of AIADMK.

But Justice Banerjee had this to say in her verdict: “The question is, what does this (Constitutional process) mean?  What is it that the Governor could do? ... the Governor could either have recommended imposition of President’s Rule, in which case the Government formed by the party on whose ticket the 18 MLAs had been elected would have been ousted or alternatively, called for a floor test, in which case also the party on whose ticket the writ petitioners were elected, led by the Chief Minister, Mr. E. Palaniswami, which had a very thin majority, would have collapsed, since the writ petitioners would obviously vote against the Chief Minister, as other opposition parties would do.”

Dissenting, Justice Sundar took the view that as past Supreme Court verdicts had made it clear, the governor had no role in “changing” a chief minister and so, the petitioners had gone to the “wrong forum” even if their intention was to replace Palaniswami. He said: “However, going to the wrong forum alone will not attract ingredients of paragraph 2(1)(a) unless there is buttressing material.” So, he quashed the Speaker’s decision.

Justice Sathyanarayanan, the third judge who upheld the Speaker’s decision on Thursday, said that the petitioners had persisted with their stand though the governor had made it clear to them the whole thing was an internal matter of their party. He said: “This court finds that there were materials available on record and the speaker has taken cognizance of the same and on appreciation has reached a conclusion.”

The question of what constitutes a legislator “voluntarily” giving up his membership of the party on whose ticket he had been elected hasn’t been an easy one for courts to answer. There are other sundry technicalities under which defectors try to take cover to escape disqualification. And then, there is always the scope to accuse the Speaker of bias and mala fide intentions — not a difficult proposition considering the utter degeneration of the institution of Speaker.

And in the meantime, defections go on, unless defectors undergo a dramatic change of heart and decide not to be defectors — a tall order — or voters decide to shun turncoats, an easier thing to do.

Author tweets @sprasadindia


Updated Date: Oct 27, 2018 16:37 PM

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