Article 21(3) of UDHR mandates that, ‘[T]he will of the people shall be the basis of the authority of government’. Thus, a government which rules without the will of the people by misusing Constitutional offices can be argued to violate the basic human rights of the citizen. The most effective tool of political parties of some of the countries which includes India, Pakistan, Bangladesh and Fiji to violate the basic human rights of elector is Anti-defection law. This time, the beneficiary is Edappadi Palaniswami Government in Tamil Nadu, India.
Basis of Disqualification of 18 AIADMK MLAs
After the death of veteran actor cum Politician Jayalalithaa’s di on December 5, 2016, total number of 18 MLAs pressed their loyalty towards Jayalalithaa’s close friend Sasikala and her nephew TTV Dinakaran through a letter to Speaker in which they decided to withdraw their support against Chief Minister Palaniswami. The speaker disqualified them since they voted against the confidence motion presented before the house and thereby indulged in anti- party activities. The Madras High Court upheld the disqualification of 18 Rebel AIADMK MLAs.
This article is not that whether Madras High Court misinterpreted the law or gave the wrong ruling but issue lies in the law itself. Let us understand the Rule of Disqualification and scheme of Anti-Defection laws.
52nd amendment
This anti-defection law was introduced in the Constitution under 10th Schedule. Para 2[i] talks of only two situations when a member can be disqualified: one, if he/she voluntarily gives up the membership of a party; two, when he/she votes contrary to the directive issued by the Party.
The rationale for such law seems to have been the prevention of Horse-Trading i.e. to hit on the ‘Aaya Ram Gaya Ram’ practise which the parliamentary debates is sufficient to showcase but the judicial interpretation did all wrong.
Let us see three among those handful of judgments in brief:
Ravi Naik v Union of India (1994)
The Supreme Court ruled that “Even in the absence of a formal recognition from membership, an interference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs”. Therefore, the said ruling has made life bad for those who want to criticise their own party’s policies and stand by their own conscience.
Vishwanathan v The Honourable Speaker, Tamil Nadu Legislative Assembly (1996)
The Apex Court ruled that Anti-defection law will bind a member of parliament to her party’s directives even if that party has expelled him/her. The ruling here has made the things worse.
Amar Singh v Union of India (2010)
The issue in respect of application of anti- defection laws on the expelling members that arose in 1996 judgment was again came in controversy in the present case and was referred to larger bench in 2010 which has not been ascertained yet even after eight years. Actually, there are these two problems that needs to be address by three-judges bench.
Problem 1
In Vishwanathan, the Court based its entire reasoning on the explanation given to Para 2. But, it is well settled that explanation to section can only clarify the scope, it can never be a stand-alone provision or expand the scope of section.
Any citizen without a legal background would easily come to this conclusion that the word ‘Voluntary’ cannot apply to a situation of expulsion. Therefore Para 2(1)(a) of the Schedule does not apply. Further, since he is expelled, he can no longer be said to be part of expelling party and therefore, is not bound by any of its directives as mandated under Para 2(1)(b) of the tenth schedule. Thus, the Tenth Schedule is inapplicable in case of expulsion but the laws were made applicable through Vishwanathan ruling.
Problem 2
The genesis of Supreme Court’s reasoning lies in the fact that anti defection is premised on the theory that political parties are both the soul and the body of parliamentary democracy. Therefore, a legislator’s responsibility is more towards his/her party than their responsibility to the constituents.
However, through other judgments the Supreme Court has indicated that relationship between an elector and a candidate is as important as that of the role of political party within the Indian Constitutional Scheme. Two of such judgements are:
Union of India v Association for Democratic Reforms (2002)
The apex court ruled that for health of democracy and fair election, the disclosure of assets, his/her educational qualification, criminal antecedents must be informed to voters before they cast their votes.
PUCL v Union of India (2014)
Petitioner filed for having a separate button on the Electronic Voting Machine (EVM) with the option of ‘None of the Above (NOTA).’ The Supreme Court gave a favourable ruling on 27th Sept. 2013 and the NOTA button was inserted in the EVM machines for the Lok Sabha elections in 2014 thereby right to reject is recognised by the apex court. Therefore, the Court emphasis heavily upon the relationship between citizen-elector and the candidate.
Conclusion
This suggests that saviour of Parliamentary democracy is not only the political parties. Indian parliamentary democracy contains elements both of the political party model as well as legislator-elector model. Thus, Xth Schedule ought not to be interpreted giving the supremacy to former over the latter.
If the conscience of legislator goes in favour of the elector and against the ideology of the his/her party, a balancing act is needed on part of the judiciary because what works for the political parties, works only for the political parties, not to the interests of common man whose interest to be safeguarded also lies on the shoulder of the elected representatives.
Hopefully, we will see the three-judges bench overruling the Vishwanathan judgment but for the same to happen, firstly, they should have to be constituted and fix the date for hearing.
[i] 2. Disqualification on ground of defection.—
(1) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House—
(a) if he has voluntarily gives up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Explanation.—For the purposes of this sub-paragraph,—
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.
Authored by:
Aman Chachan & Rishabh Bhandari
Contego Humanitas Foundation 