The footballer, Gary Linekar, had once cheekily remarked, “Football is a simple game – 22 men chase a ball for 90 minutes and at the end, the Germans always win.” Although football would rarely find parallels with the Anti-defection law, given BJP’s repeated political victories, often prompted by interpretations of the AntiDefection law (for instance, in Karnataka, Manipur, Madhya Pradesh, Uttarakhand, Goa, Arunachal Pradesh et al. and now possibly in Rajasthan), it would be fair to say that “Anti -Defection law is a simple game, everyone chases the majority, in the end, the BJP always forms the government”.
The courts have consistently held that the decision to disqualify a member from the Assembly, for defection, is entirely the Speaker’s remit, and that the courts do not have the jurisdiction to entertain a petition against the actions of the Speaker leading up to the final order. In other words, no interim orders would lie against the Speaker while he or she was seized of the matter and in the process of deciding the question of disqualification. However, after the Rajasthan episode, it seems that the courts are willing to pass interim orders in such matters even before the Speaker finally decides on the disqualification of members. Thus, the courts are now entering a sphere, that was hitherto the Speaker’s exclusive domain.
The Anti- Defection law may work in mysterious ways, but there are some questions that are well settled in law over which there is no scope of ambiguity, as this piece will elaborate.
Can the act of defection be implied even though the MLAs insist they have not left the party?
Many pundits have entrenched opinions on the subject. The arguments made by the Pilot camp, principally, are the following: One, that the whip could not have been issued to the MLAs to attend the legislature party meeting as a whip is only issued for voting in the Assembly and not for attending party meetings; Two, a whip is not binding, when the Assembly is not in session. Some even went on to argue that if the MLAs are claiming that they have not left the Congress, how can it be concluded that they have “voluntarily given up the membership of the party?”
The confusion lies in the poor drafting of the 10th Schedule, the relevant portion of which reads, “
…a member of a House belonging to any political party shall be disqualified for being a member of the House if
he has voluntarily given up his membership of such political party;
if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission…”
Let us for a moment assume without conceding that a whip can only be issued for purposes of voting in the Assembly, and because the Rajasthan Assembly is not in session, therefore, the whip in the instant case, was not valid. This, however, only covers point (b) above and not (a).
Disqualification for violating a whip is one of the grounds but not the only ground. That a member has indulged in anti-party activities, and as a result has voluntarily given up membership, is a different ground for disqualification altogether. In Ravi S. Naik’s case (1994), the exact words of the Supreme Court judgement in this context, were, “Even in the absence of a formal resignation from 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.” Therefore, it is quite clear that one does not have to formally tender resignation to be disqualified on the ground that ‘one has voluntarily given up one’s membership’.
Thus, it would be well within the powers of Speaker Joshi, to disqualify an MLA, by inferring from their conduct, that they have given up the membership of the party, by indulging in antiparty activities. Speculating what Speaker Joshi would decide on merits, is not the focus of this piece. Regardless of whether the Speaker would ultimately conclude that these MLAs’ actions are an act of defection, it would certainly be incorrect to say that an MLA cannot be disqualified unless he has expressly resigned.
Could Speaker Joshi be injuncted against acting upon the ‘Disqualification Notice’ when he has not decided the matter finally?
It is settled law that, in matters of disqualification, only the final decision of the Speaker, is assailable before courts. Interim orders cannot be granted along the way. This finality is apparent from the 10th Schedule itself, where in para 6, it says that the Speaker’s decision is final. In Kihoto Hollohan’s case (1992), the exact words of the Constitution Bench of the Supreme Court, in this context, were, “there is exclusion of all courts’ jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6.” The Supreme Court, speaking through Justice Nariman in the Manipur Legislative Assembly case (2020) had again reiterated this. This view had held the field for over two decades till the Rajasthan High Court decided otherwise, that too, in the teeth of several Constitution Bench decisions of the Supreme Court.
A petition apprehending future injury, seeking to injunct Speaker Joshi from acting on a Disqualification Notice was, therefore, not maintainable before the Rajasthan High Court, to begin with.
As events unfold, it appears, that the Governor of Rajasthan is now unwilling to summon the Assembly. This, however, is not a matter of his discretion, he is constitutionally bound to summon the Assembly, if advised so by the Council of Ministers (See Nabam Rebia’s case, 2016). In fact, in the Karnataka Assembly case earlier in 2018, and in the Madhya Pradesh Assembly case (subsequent to Scindia’s defection in 2020), separate benches of the Supreme Court reiterated that the floor test is the only way to determine if a government has majority. The clear exception of denying the floor test in Rajasthan’s case, therefore, raises legitimate suspicion that the summoning is being withheld as the opposition does not yet have the numbers to topple the government.
That was about the law, but one wonder’s whether BJP will indeed be Linekar’s Germany!
Sourav Roy is Advocate on Record, Supreme Court.