Making a case for disqualification

The key question is whether Pilot and associates have voluntarily given up their party membership by their actions

By Author Chittarvu Raghu   |   Published: 21st Jul 2020   12:05 am Updated: 20th Jul 2020   11:34 pm

The Rajasthan political crisis has resulted in a complaint by the Congress chief whip to the Speaker alleging that Sachin Pilot and his supporters abstained from the Congress Legislature Party meetings and are involved in a conspiracy to bring down the government. The Speaker was asked to initiate proceedings for their disqualification.

Article 191(1) of the Constitution stipulates the disqualifications for being chosen or for a being member of Legislative Assembly or Legislative Council of the State. Article 191(2) stipulates that a person shall be disqualified from being a member of Assembly or Council of a State if he is so disqualified under the Tenth Schedule. Article 191(2) was inserted by the 52nd amendment in 1985.

The Tenth Schedule is popularly known as the ‘Anti-Defection Law’. The reasons given for the 52nd amendment is that the evil of political defections has been a matter of national concern. If not combated, it is likely to undermine the very foundations of democracy and the principles, which sustain it.

Tenth Schedule

The Tenth Schedule contains eight paragraphs as follows: First para deals with definitions; second with disqualifications; third para was deleted in 2003; fourth states disqualification would not apply to mergers; fifth contains certain exemptions; sixth and seventh paras contemplate the authority that would decide the question of disqualifications and the jurisdiction of the court respectively; and the eighth para states Speaker is the authority to decide the disqualifications of a member of Assembly.

The Tenth Schedule contemplates that a member can be disqualified if he voluntarily gives up his membership or if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs. It also contemplates that an elected member belonging to a political party, if joins another political party, shall be disqualified. In the present facts and circumstances in Rajasthan, the question is as to whether Pilot and his associates had voluntarily given up their membership of the party to which they belong.

The complaint made by the chief whip that Pilot and his associates had abstained from legislature party meetings and conspired to bring down the government is founded on the ground of his anti-party activities. It is not an explicit case wherein Pilot and his associates had voluntarily given up their membership of the party to which they belong. It depends upon their conduct relating to anti-party activities, which invariably should infer that they have voluntarily given up their membership.

Clause 6 of the Tenth Schedule contemplates that the question, which arises with regard to the disqualification, shall be referred to the Speaker of the House and his decision shall be final. Accordingly, a complaint has been made by the chief whip requesting the Speaker to initiate proceedings for disqualification.

Constitutional Validity

The Supreme Court in the Kihota Hollohon’s case, wherein the constitutional validity of the Tenth Schedule was challenged, observed that a political party functions on the shared beliefs and the same depends upon the concerted action of its members in furtherance of commonly held principles. It was also held that any freedom for its members to vote as they please independently of the political parties’ declared policies will not only embarrass the party’s political image but also undermine public confidence, which, in the ultimate analysis, is its source of sustenance.

The court held that the Tenth Schedule is valid and its provisions do not suffer from the vice of subverting democratic rights of its elected members of Parliament and Legislatures of the State. The provisions are salutary and are intended to strengthening the fabric of Indian democracy by curbing unprincipled and un-ethical political defections.

It also held that the concept of statutory finality embodied in the Tenth Schedule does not detract from or abrogate judicial review under Articles 136, 226 & 227 insofar as infirmities based on the violation of constitutional mandate, malafide, non-compliance with the rules of justice and perversity are concerned. The SC also specifically held that the judicial review should not cover any stage prior to the making of the decision by the Speaker.


Speaker’s Call

Since the Speaker has already issued notices against the backdrop of the first ground of disqualification, ie, ‘voluntarily giving up the membership’, the decision-making process would be within the domain of the Speaker. Though there is no explicit giving up of membership, the Speaker may decide as to whether the conduct of the members constitutes ‘giving up of the membership’.

In this regard, the Supreme Court in Ravi S Naik’s case held that the words ‘voluntary giving up membership’ have a wider meaning. An inference can be drawn from the conduct of the members also. Now since the matter is pending before the Rajasthan High Court, the question that may arise is whether a writ petition is maintainable at the stage of issuing notice initiating the disqualification proceedings and as to whether the conduct of Pilot and his associates amounts to ‘giving up of membership’ of the party.

It is a peculiar case wherein the allegations of disqualifications are made against the State president of the party. A reading of the Tenth Schedule shows that it lays emphasis only on ‘the membership of a political party’. Pilot has been removed as the State president of the party but it is not clear as to whether he has been expelled as a party member. The question now is whether the conduct of the president of a political party in pointing out the deficiencies of the government formed by the said political party per se attracts the first ground of disqualification, that is voluntarily giving up of membership.

The other question that may arise is whether the Speaker has the power to take cognisance of the conduct of the member of the Assembly outside the House, against whom a complaint has been made, so as to infer that he has voluntarily given up the membership of the party or the conduct within the four walls of the Assembly would only be relevant.

(The author is Advocate, High Courts of AP & Telangana)

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