Can Mathany defy the party?

| 31 January 2005 23:14 IST

Adv Cleofato Almedia Coutinho

Goa has contributed a lot to the evolution of the Anti defection Law. That the law Anti Defection Law could be defeated by resignation from the legislature is the original contribution of Goa in as much as the contribution on the countermanding of elections when winds of election are not favourable is also an original contribution to the State.

One aspect that could be tested in terms of the anti Defection Law is the public stand of shri Matanhy Saldanha who was elected on the ticket of the United Goans Democratic Party and upon whose support Shri Manohar Parrikar who sworn in. now the party has withdrawn support but the MLA of that party who happens to be the sole MLA has publicly stated that he remains with the government. The question is whether the party and the MLA can take two stands and whether such a stand by itself would tantamount to giving up membership of the political party which set him up as a candidate for the elections within the meaning of para 2(a) of the 10th schedule which deals with defections.

The above issue has come up befor ethe Supreme Court in the celebrated case of Kihoto Hollohon V/s. Zachilhu (AIR) 1993 Supreme Court 412 at pages 118 the Hon'ble Supreme Court has approved a passage from J.A.G Griffith as under :

" of all the factors that go to make up the general characteristics of the House of Commons, party is the strongest. It is because of the party that members are in the House. Party determines whether they sit on the government side or on the opposite side. Party indicates where their support lies in the Country. Party will decide whether they are re-selected. the leader of the party in the House may exercise the greatest influence on their future political careers and party whips on their day today activities.

The Supreme Court has also quoted a passage from Rodney Braziers constituently reform reshaping the British political system.

... Once returned to the House of Commons, the member's party expects him to be loyal. this is not entirely unfair or improper, for it is the price of the party's legal which secured his election. But the question is whether the balance of a member's obligations has titles too for in favour of the requirements of party...

The Supreme Court has also approved a passage of Sir Ivor Jennings at page 17 of his book cabinet government 3rd addition 1961.

"...Moreover, the electors do not vote for a candidate but for a party. an unusually feeble candidate may lose some votes; a particularly able candidate may secure some votes on his personality. But the ablest candidate cannot win a seat which is, from the party point of view, "hopeless" nor can the feeblest candidate lose a seat which is "safe". There is a core of voters who would think it treachery to vote against the party. Even the so called "floating vote", which possesses no fixed party affiliations, is affected more by the reputation of a party than by the reputation of a candidate. Sir Ivor Jennings further says the successful candidate is almost invariably returned to parliament not because of its personality nor because of his judgement or capacity but because of his party label. His personality and his capacity are alike unknown to the great mass of his constituents. A good candidate can secure a number of votes because he is good; a bad candidate can lose a few because he is bad. Local party organizations, therefore, do their best to secure a candidate of force and character. But his appeal is an appeal on his partys policy.

The views of Sir Ivor Jennings have been approvingly quoted by the Bombay High court in the case of Narsingrao G. patel v/s. Arun Gujarati . that was a case arose out of few some 4 NCP MLAs withdrawing support to the Vilasrao Deshmuk Government. Which was in the form of a letter to the governor even prior to issuance of the whip by the party the contention that the MLAs have exercised their freedom of speech and remain loyal to the party manifesto was not acceptable firstly to the speaker and the decision of the speaker was upheld by the division bench of the Bombay High Court where the High Court held as under

The electorate essentially votes for a party and legislature mainly consists of parties. It is the party which decides whether to sit on the government side or the opposition side. It is because of the party that the members are in the house. To abstain from voting when required by the party is to suggest degree of unreliability to vote against the party is disloyalty to join with others in abstaining or voting for the other side smacks of conspiracy. For legislator whose party is in the government, to vote against the government is to vote against the party; to rebel against the government is to leave the party.

The above judgement of the Bombay High court. The view of the Supreme Court coupled with the views of Sir Ivor Jennings the great constitutional thinker and jurist there is no scope for the legislator to go against the political party that has set him up as the candidate for the elections.

The public stand of the MLA Shri Saldanha tantamount to giving up membership of the political party within the meaning of giving up membership of the political party within the meaning of para 2(a) of the 10th Schedule.

However the decision under the 10th Schedule is to be given by the speaker in case such a petition is brought before him.

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