My take: On Vishwajeet, Defection & Recontest

By Prabhakar Timble
16 May 2017 09:16 IST

The Congress party has filed a petition in the High Court of Bombay at Panaji seeking disqualification of Vishwajeet Pratapsingh Rane for being chosen as and for being a member of the Goa Legislative Assembly. A cursory glance at the entire drama indicates that the former Valpoi MLA having scored a self-goal by resigning as the MLA and also having voluntarily given up the membership of the political party to which he belonged as a member of the Goa Assembly stands in a way insulated  from the disqualification on the ground of defection. As Vishwajeet Rane is no longer a member of the Assembly, seeking his disqualification for being a member of the House looks infructuous. As the law and precedents stand today, a resigned or disqualified member on ground of defection can re-contest on the vacancy arisen as a consequence of resignation or such disqualification. There does not seem to be any bar or prohibition in this regard except on disqualifications for membership as enunciated under Article 191. As far as the disqualifications under the anti-defection law (Tenth Schedule) are concerned, it is restricted for being a member of the Legislative Assembly. The disqualification does not stand extended for “being chosen” at a fresh election which includes a bye-election.

However, there could be more than what meets the eye if Article 191 of the Constitution of India dealing with disqualifications for membership of Legislative Assembly is subjected to an activist interpretation in respect of “being chosen” as member of the Legislative Assembly in question.  It would be wishful thinking to consider that the odds are against Vishwajeet Rane. Legally, the Congress MLA who resigned in a few hours after taking the oath, from the Assembly and the political party and was rewarded with ministerial berth by Chief Minister Manohar Parrikar is pretty safe. If the former MLA has committed impropriety and made politics murky, it is for the electorate to take a call. The judicial intervention does not appear to be a possibility.

 Disqualified to be member

 The answer to the question whether the former Valpoi MLA invites disqualification under the tenth schedule is clearly in the affirmative. The Congress party had issued a whip to all the members to vote against the confidence motion. Defying the whip is a ground of disqualification as it is equivalent to defection. By abstaining from voting in the Goa Legislative Assembly on 16.03.2017, Vishwajeet Rane has violated the provisions of the Tenth Schedule. The confidence vote was won with 22 in favour and 16 against the motion. That the vote of the belligerent MLA would not have reversed the motion is immaterial. Clause (2) of Article 191 specifically provides that a person shall be disqualified from being a member of the legislative assembly if he is so disqualified under the Tenth Schedule to the Constitution of India. Para 2 (1) (a) of the Tenth Schedule provides that a member of a Legislative Assembly shall be disqualified for being a member of the House if he has voluntarily given up his membership of the political party to which he belongs. Though, the eventual resignation of the MLA has ceased the membership of the House and ended in the result ought to be achieved, it cannot save the technical stigma of disqualification.  

In the current disqualification petition before the High Court, it is more probable that the Court would expect the petitioner to first knock the prescribed authority under the Tenth Schedule i.e. the Speaker of the House. It is only after exhaustion of this remedy that the grievance could come within the jurisdiction of the Courts. The plea that the Speaker is likely to be prejudiced or that the issue is no longer the first prerogative of the Speaker, Vishwajeet Rane not being a member of the House may not cut ice with the High Court. Even otherwise, under the current law and precedents, the maximum relief that can be provided is ensuring that the disqualified MLA does not continue as a member of the House. With the MLA himself resigning, the grievance itself is dead. The High Court will have nothing more to provide in terms of reliefs.

Re-contest legally tenable

The petitioner’s prayer to disqualify Vishwajeet Rane for “being chosen as member” of Goa Legislative Assembly during the tenure of the current Assembly 2017 to 2022 does not have the backing of any statute. There can no prohibition from contesting elections on vacancies which arise in the current assembly. It is true that clause (e) of Article 191(1) and Article 102(1) of the Constitution of India states that “a person is disqualified for “being chosen as a member” of the Legislature of a State if he is so disqualified by or under any law of Parliament. However, these disqualifications are prescribed by Parliament in the Representation of the Peoples Act, 1951.

The Tenth Schedule is a separate code and the Constitution of India has differentiated it by inserting Article 191(2) and Article 102(2) through the 52nd Amendment which states that “a person shall be disqualified for being a member of either House of Parliament or State Legislature if he is so disqualified under the Tenth Schedule. This proviso is totally silent on “being chosen as a member” of the Legislature. It therefore means that the Parliament had no intention to put any embargo on members disqualified on grounds of defection in respect of contesting fresh elections during the remainder of tenure of the legislature. If such retribution is required, it can come only through law made by Parliament. The check and balance that exists today requiring disqualified members on grounds of defection to face the electorate can be considered to be democratic and fair.

Blogger's Profile

Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

Drop a comment

Enter The Code Displayed hereRefresh Image


Related Blogs