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SC tightens the screws on defection law
S.S. Negi
Legal Correspondent

‘To determine whether an independent member has joined a political party, the test is not whether he has fulfilled the formalities of joining it.’

New Delhi, December 16
Tightening the law on defection, particularly in case of independent legislators who often change loyalty, the Supreme Court has ruled that an independent member first has to shed his ‘independent character’ to escape disqualification if he joins a political party.

“To determine whether an independent member has joined a political party, the test is not whether he has fulfilled the formalities of joining it. The test is whether he has given up his independent character on which he was elected by the electorate,” the court ruled in a recent judgement, while rejecting the writ petitions of five Haryana MLAs in the previous Assembly against the Speaker’s order disqualifying them for joining the Congress prior to the June 2004 Rajya Sabha elections.

A Bench of Chief Justice Y.K. Sabharwal, Mr Justice C.K. Thakker and Mr Justice P.K. Balasubramanyan said that a mere expression of outside support would not lead to an implication of a member joining a political party. “The question of fact that a member had given up his independent character and joined, for all intent and purposes, a political party though not formally, so as to incur disqualification provided in paragraph 2(2) (of Tenth Schedule of the Constitution) is to be determined on appreciation of the material on record,” the court said.

The judgement though would not have any bearing on the present status of the Haryana Assembly for it has been re-elected, but the verdict lays down clear guidelines for presiding officers to deal with similar situations in the future.

Five MLAs - Karan Singh Dalal (RPI), Jagjit Singh (NCP) and three independents - had challenged their disqualification by the Speaker. While Mr Dalal and Mr Jagjit Singh, who were lone representatives of their respective parties in the House, had claimed that the provisions of anti-defection law did not apply to them as they had joined the Congress as a part of the split, the independents claimed that the Speaker had no basis for coming to the conclusion that they had joined the Congress and the disqualification order was passed in a hurry.

The court did not agree with their contention and held that in the case of the two legislators belonging to the RPI and NCP, there was no split in the original party and in the case of the independents, the word “join” in paragraph 2(2) of the Tenth Schedule deserved strict interpretation in view of “serious consequences of disqualification”.

The important parameters to be considered were whether the independent had fulfilled the rules and regulations formed under the Representation of People Act for joining the party and paid the prescribed membership fee of that party, the court said.

“We are unable to find fault with the course adopted by the Speaker. We are of the view that the Speaker has not committed any illegality by stating that he had on various occasions seen and heard these MLAs,” the Bench said, pointing out that there was a fundamental difference between an independent legislator and the one who was elected on a ticket given by a political party.

“An independent elected member of a House incurs disqualification when he joins any political party after election as provided in paragraph 2(2) of the Tenth Schedule,” the court said, clarifying that outside support by an independent to a party was not the same thing as joining it after election.