Political defection occurs in two stages -- first, the abandonment of loyalty toward one’s political party; second, the shifting of one’s loyalty to another party. The victim party can invoke the disqualification threat at the first stage itself.
People say the anti-defection law has been a big failure. It is partly true. But, had there been no lawful threat of defectors losing elected office, the ruling party at the Centre could have lured at least 50 legislators in Rajasthan in no time and installed a BJP government. The anti-defection law, though a weak dam to stop a flood, can still stop small streams of defection. It is estimated that nearly half of the 4,000-odd legislators elected to Parliament and state Assemblies in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in several states and at the national level. If that had continued, the foundations of our democracy would have been destroyed by now.
Luring party
When the ruling party becomes a luring party, engineered defections become the order of the day, which has been the case under the BJP regime since 2014 in states where it failed to win elections. Karnataka and Madhya Pradesh stand as recent proof of the abuse of power to topple state governments.
Sachin Pilot’s actions, words and meetings suggest that he is voluntarily giving up the membership of Congress, which made him MLA and deputy chief minister. The first part of defection is complete. Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, or the anti-defection law, starts operating against Pilot and his group of MLAs. There is no need to invoke the ground (b) for the Speaker to disqualify him as on today.
Paragraph 2 lists out two grounds for disqualification: (a) if he has voluntarily given 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. Note that there is ‘or’ between clauses (a) and (b), not ‘and’, as some media reports said. If it was ‘and’, defectors like Pilot would have some more scope to fly. But the law is clear. The Speaker can examine his conduct and infer whether it amounts to “voluntarily giving up his membership of such political party (Congress)”. If that is conclusively inferred, the Speaker need not investigate any further to disqualify him.
In law, debate, dissent and to differ from the opinion of a majority are all part of the freedom of speech and expression generally, as well as part of internal democracy in any political party. There is no democracy without dissent and difference of opinion, which is tolerated by the Constitution and the Tenth Schedule. What is prohibited by the Tenth Schedule is defection in express terms or by implication. Para 2(1)(a) prohibits the passive way of leaving the mother party; Para 2(1)(b) prohibits open defiance of party direction, or the party ‘whip’.
The lawmakers deliberately left out the expression ‘resignation’, because no elected member would prefer to lose his office, as he can retain it even after expulsion from the party. But the ruling party’s legislature wing is empowered to compel the member to support the government under threat of losing that office. Hence, to curb the activities of members when they reach the stage of leaving the party, the expression incorporated is “voluntarily giving up the membership of the party.” The conduct and statements of Pilot are clear indications that he would topple his own party’s government to fulfil his ambition to become CM with the support of non-Congress parties. It is subversion of the people’s verdict, which was emphatically against the BJP in the 2018 elections. Pilot has no runway left to take off.
The second stage -- of express defiance of a party direction -- is yet to happen in Rajasthan. Hence, any litigation contemplated against application of Para 2(1)(b) is premature. Pilot has no right to waste the court’s time.
The Constitution did not mention ‘political party’ though the entire democratic machinery depends on political parties. Nowhere did it even talk about the ‘legislature party’, until the Tenth Schedule was added in 1985 out of the sheer necessity created by the Scindias and Pilots of that time.
Ridiculously, Pilot has approached the courts at a premature stage on the ground of his freedom of speech, which was allegedly curbed by the anti-defection law. It’s a case of res judicata (not to raise a decided case), as challenge to the anti-defection law on that ground was rejected by the Supreme Court in Kihoto Hollohan vs Zachillhu, in which the constitutionality of the law was unequivocally upheld. Lawyers are compelled to raise this ground on the instructions of clients, knowing full well that it would be rejected on the ground of res judicata at the threshold itself.
Pilot had no case to rush to the High Court to prevent the Speaker from acting on the Congress Legislature Party’s petition. Judicial review is available to examine the order of the Speaker for violation of constitutional norms, principles of natural justice, mala fide or perversity. When there is no decision by the Speaker yet, what is there to be reviewed?
Courts presume an occurrence of defection when a legislator speaks against his party and meets the rival party leaders, indicating defection. If it is dissent without an element of defection, the Speaker has no grounds to disqualify the member. It was held in Rajendra Singh Rana vs Swamy Prasad Maurya that the date of disqualification is the date on which the act took place and not the date of the Speaker’s decision on it. In that case, the Speaker disqualified a legislator when he was part of the Opposition delegation to the Governor demanding dismissal of his party’s government. That was res ipsa loquiter (the thing speaks for itself). The court said, “no further evidence or enquiry is needed to find that their action comes within Paragraph 2(1)(a) of the Tenth Schedule.” Pilot’s conduct is res ipsa loquiter and his case is hit by res judicata.
The engineers of defection were allegedly caught on tape, which exposes mala fide. It would be an attempt to commit illegal gratification under the Prevention of Corruption Act.
(The writer is a Professor of Constitutional Law and a former Central Information Commissioner)