Anti-Defection Law: Empowering the voter

By Prabhakar Timble
25 April 2011 14:13 IST

The recent judgement of the Karnataka High Court upholding the verdict of disqualification of the five independent MLAs of the state assembly by Speaker Bopayya may prove to be historic  and a forerunner of activism in dealing with covert defections and unashamed live-in relationships. It all depends on the view that will be taken by the Supreme Court on progressive postulates enunciated by the Karnataka High Court. The decision is relevant to Goa since after Babush Monserrate, the lone UGDP MLA joined the Congress party, the UGDP lawyer duo Anacleto Viegas and Radharao Gracias washed their hands off stating that they do not have any other MLA to file a disqualification petition. No other MLA from the BJP, NCP, MGP came forward to file the complaint.

All along it was a strongly held belief that only the member of the House can petition the Speaker to invoke the anti-defection law. The Karnataka High Court has upheld five complaints filed by voters against each of the independent MLAs as maintainable. The court has clearly stated that voter has a locus standi to file complaints seeking disqualification under the tenth schedule. Expressing the possibility that members of the House may collude not to file complaint and members may also sometimes conspire and withdraw the complaint, the Court observed that “the election promises and pledges held out to the electorate at the time of election have to be maintained. Any deviation of the same would amount to betrayal of the electorate………..”

It was contended before the court that the rules made by the Speaker under the tenth schedule only provide for redress by the member of the House. The High court found this unacceptable since the rules by the Speaker cannot restrict filing of a complaint seeking disqualification since the tenth schedule nowhere contemplates that the petition has to be filed by the member of the House only. Section 6 of the tenth schedule provides for any person to refer the matter of disqualification to the Speaker.  Further, to draw a parallel,  Article 192 (1) provides for any person to refer to the Governor a matter of disqualification of the member of the House. Hence, rules prepared by the Speaker cannot take away the rights vested under the Constitution. If the rules restrict the voter, they are ultra vires.

Hinting at possibility of unholy mutual understanding between MLAs, the voter being an interested person should not be mute, helpless since the MLAs do not complain to the Speaker or the Governor. The Court spoke of possibility of silence by members of the House as an intentional bargain or barter because birds of the same feather have decided to flock together.

The threat that there may be frivolous references cannot be a reason to debar the remedy to the voter. The Speaker can dispose any frivolous reference in limine. However, any member of the House who has incurred disqualification should not be allowed to continue and needs to vacate his seat immediately.

The High court moving a step further opined that the proceeding under the tenth schedule is non-adversarial. The tenth schedule is to maintain the purity of the House. Even if the members refrain from filing matters involving disqualification or withdraw the complaints filed, or have deficiencies in leading evidence, the Chairman has to still carry out the mandate of the tenth schedule. This is a striking observation by the High Court.

To understand the full import of the emphatic ruling, I quote from the judgement….”Tenth schedule nowhere restricts filing of complaint seeking disqualification by a voter of that particular constituency. Tenth schedule nowhere contemplates that the complaint of disqualification would be moved only by member of the House.…….Every voter in the constituency has got the right to file application seeking disqualification since a Rule should not be permitted to bar a remedy which is not barred by the Constitution”.

As regards what constitutes defection in respect of an independent MLA, the High Court relying on Section 2(2) of the tenth schedule confirmed the extended meaning of “joining a political party after election” as  enunciated by the Speaker of the Karnataka Assembly. An independent member would invite disqualification once he loses his independent character. An independent MLA joining the Council of Ministers, attending meetings of a political party, attending functions of a political party, receiving whips from the Chief Whip of a political party, joining the delegation of a political party before the governor i.e. doing everything else except the ritual of filling a membership form would be construed as having joined the political party. Independents joining coalition ministries may not attract the provisions of the anti-defection Act. However, swearing as Ministers in the government formed by a single party would amount to joining the political party due to lack of heterogeneous character. This judgement of the High Court is nothing less than an obituary note to independents following the merry-go-round tactics to install ministries and also pull down governments.

With the above interpretation, that joining a political party can be established by implied conduct and explicit behaviour, though not in writing; the related corollary is that giving up membership of a political party could also be implied by conduct and could be established. A formal letter of resignation need not be produced as evidence.

The tenth schedule provides for mergers of political parties within the laid parameters. However, one member legislature party mergers do not have the sanction of the anti-defection law.  Section 4 providing for joining of any other political party after merger does not allow for single member legislature party. Parliament did not intend to grant the benefit to a single member legislature party. The intention of Parliament is to curb merger by small number of members. (Jagjit Singh v/s Haryana: SC 2006)

I need to make a special mention on natural justice. The Karnataka High Court refused to interfere with the order of the Speaker on the ground there is violation of natural justice since only two days time was provided to the MLAs by the Speaker. The High Court held that quantum of days are irrelevant as long as fair opportunity of hearing is offered and there is no issue of malafides. The High Court hinted that the Speaker is not expected to wait for the illegal damage to happen on account of the withdrawal of confidence by MLAs facing disqualification. The Presiding Officer of the House should follow the mandate of the tenth schedule and any disqualified member should be directed to vacate the seat immediately.

 

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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.

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