Anti-party activities & MPs’ disqualification

PDT Achary

Former Secretary-General, Lok Sabha

THE Chairman of the RajyaSabha disqualified Sharad Yadav and Ali Anvar Ansari, both JD(U)  Members of the Rajya Sabha, on December 4, 2017 under para-2(i)(a) of the 10th Schedule of the Constitution. This para says that a member of a legislature who voluntarily gives up his membership of the party on whose ticket he got elected to the House can be disqualified. The order of the Chairman mentions "anti-party activities" as the ground for such disqualification. 

This order of disqualification of two Members of Parliament raises issues which need to be examined for a  better understanding of the law of defection. 

Giving up the membership of a party

The first issue is with regard to the exact meaning of "voluntarily giving up the membership of the party". This is different from resignation. Resignation from a party certainly leads to loss of membership of the House. But even if one does not resign, one can be disqualified if his conduct proves that he has given up his membership of the party. Now, what is that conduct which invites disqualification? The Supreme Court has, in a couple of cases, dealt with this matter and held that certain kinds of conduct will amount to voluntarily giving up the membership of the party and thus will disqualify the members.

1. In the case of Rajender Singh Rana vs Swami Prasad Maurya (AIR 2007 SC 1305), 13 MLAs belonging to the ruling party in UP met the Governor along with the general secretary of the rival party and made a written request to him to invite the Leader of the Opposition to form the government as against their Chief Minister's advice to the Governor to dissolve the Assembly. The SC held that this act raises an "irresistible inference" that they have voluntarily given up the membership of their party.

2. On the other hand, in the case of Bala Chandra L Jarkiholi vs BS Yeddyurappa (decided by the Supreme Court on 13th May 2011), it took a different approach on this matter. In this case, a group of members of the Assembly belonging to the ruling party in Karnataka went to the Governor and informed him that they have withdrawn their support to the government led by Yeddyurappa because he was corrupt and had lost the confidence of the people. The Speaker disqualified them on a petition filed by the Chief Minister under Para-2(i)(a) of the Tenth Schedule. The SC struck down the disqualification on the ground inter alia that those members only wanted a change in the government and that they were prepared to support any other person selected by the party as CM. The court concluded that they did not go against the party and, therefore, have not voluntarily given up its membership.

These two cases emphasise the point that a case under para-2(i)(a) of the Tenth Schedule needs to be decided with utmost care  and circumspection.   

Sharad Yadav, Anvari Ansari case: Sharad Yadav and Anvar Ansari have been found guilty of "anti-party activities" and hence disqualified under Para-2(i) (a) of the Tenth Schedule. "Anti-party activities" is not a legal term and is not found as a ground for disqualification under Schedule. Such activities may attract suspension or even expulsion from a party. But the Schedule does not recognise this term. Para 4 of the Schedule shows that even after two-third of the members move out of a party and merge with another party or form a new party, the one-third or less members who remain in the rump party are not disqualified on the ground that these members defied the leader and opposed him when he walked out with the majority of members and merged with another party.  Although Para 4 does not as such apply to the facts of Yadav's case, the principle contained in this Para, namely, defiance of the leader or not following the leader when he takes a drastic political decision to merge does not invite disqualification, is important. Thus, Para 4 re-emphasises the point that dissent is not a disqualifying factor.

In both cases, the conduct of MLAs’ was relatable to altering the power balance in the Assembly. But Yadav and Ansari spoke about ideological issues and criticised the leadership for betraying the mandate of the people. Attending a rally of a rival party in the new political scenario in Bihar can't be interpreted as voluntarily giving up party membership. In Yeddyurappa's case, meeting the Governor, withdrawing support and requesting him to dismiss the Chief Minister was not treated by the SC as voluntarily giving up the membership of the party.

Assistance of a lawyer

The second issue is the denial of assistance of a lawyer. A citizen has a general right to engage a counsel in a case. It will be an injustice if a layman is not allowed to defend himself with the help of a lawyer, especially on complex constitutional issues or issues which adversely affect him. Lack of precedent cannot be a ground for denying the assistance of a lawyer. The Lok Sabha Speaker has allowed in the past lawyers in defection cases. Even in parliamentary committees, witnesses can appear through lawyers. The disqualification order says that allowing lawyers will cause imbalance as the other party will be at a disadvantage. There is no question of imbalance if lawyers are allowed. 

The law on defection deals with politicians and political situations. Political situations are not unidimensional. They are complex and multi-layered. The success of a tribunal which determines cases under Tenth Schedule lies in its ability to remould itself into a non-partisan judicial authority.

Law of defection

• The law of defection was enacted basically to prevent power-hungry politicians from breaking parties and governments to achieve their goal of gaining power. So, the primary focus of the law was on the prevention of governments being formed through defection. It was enacted not to stifle dissent in political parties. It was made clear during the debate in Parliament that this law will not be used to snuff out political dissent.
• A perceptive understanding of the different political situations, the importance of dissent in a democracy, the process and level of democratisation in political parties etc is essential to comprehend the core of the law on defection.