Defining a split

BSP Legislature Party leader Swami Prasad Maurya and Babu Lal Kuswaha handing over a memorandum to Governor T.V. Rajeshwar in Lucknow on February 15, a day after the judgment in the defection case.-SUBIR ROY

The Supreme Court disqualifies 13 Bahujan Samaj Party MLAs who supported Mulayam Singh's claim to form the government in 2003.

THE Tenth Schedule, which provides for the disqualification of elected representatives on the grounds of defection, has proved problematic ever since it was incorporated into the Constitution through the Constitution (52nd Amendment) Act, 1985, popularly known as the anti-defection law. The Schedule construed that a member belonging to a political party shall be disqualified when he/she voluntarily gives up his/her membership of a political party; or when he/she votes or abstains from voting in the House, contrary to any direction issued by the party to which he/she belongs, which has neither permitted nor condoned his/her defiance.

Paragraph 3 of the Schedule provided that disqualification on the grounds of defection would not apply in the case of a split. Paragraph 4 granted similar immunity from disqualification in the case of mergers. An amendment of the Schedule by the Constitution (91st Amendment) Act, 2003, deleted Paragraph 3, on the plea that bulk defections constituting one-third of the strength of a legislature party were no less immoral than individual defections. The Schedule - especially the deleted Paragraph 3 - came under fresh focus when the Constitution Bench of the Supreme Court examined the issue in Sri Rajendra Singh Rana & Others vs. Swami Prasad Maurya & Others. Justice P.K. Balasubramanyan delivered the unanimous judgment on February 14, on behalf of himself and four other Judges - Chief Justice K.G. Balakrishnan and Justices H.K. Sema, A.R. Lakshmanan and D.K. Jain.

The case dates back to the political events of Uttar Pradesh in 2003 when Bahujan Samaj Party (BSP) leader Mayawati, who was Chief Minister, recommended the dissolution of the State Assembly and submitted her resignation to the Governor on August 26. The Governor did not heed her recommendation. He invited Mulayam Singh Yadav to form the government and gave him two weeks to prove his majority on the floor of the House. The Governor took this step on the basis of letters of support submitted by 13 BSP Members of the Legislative Assembly (MLAs) on August 27.

On that day, the 13 BSP MLAs did not constitute one-third of the strength of the BSP Legislature Party, which had 109 members, to satisfy the requirement under Paragraph 3 for avoiding disqualification. Although these MLAs had not formally quit the BSP on August 27, the Allahabad High Court, in its majority judgment, held in 2005 that a valid inference could be drawn that they had voluntarily given up their membership by openly extending their support to the Samajwadi Party leader, who was in the Opposition, to form an alternative government in the State. The Supreme Court has upheld this inference.

Originally, eight MLAs met the Governor on August 27. Five others joined them later. Although on the face of it the 13 MLAs were bound to suffer disqualification for falling short of the required one-third strength of the BSP Legislature Party, the Governor probably was convinced that the strength of the dissidents would grow to create a valid split. And hence it was unnecessary to dissolve the Assembly and impose a wasteful election on the State within a year of the conclusion of the last elections. After all, the spirit of Paragraph 3 was not to disregard collective dissent but to discourage unprincipled individual defections. If collective dissent takes time to crystallise and find expression within a reasonable period of time, as it is quite natural for dissidents to take time to examine the pros and cons of open revolt against the party leadership, the Governor cannot be faulted for leaving the question of disqualification of any MLAs to be determined by the Speaker.

The Bench does not blame the Governor for giving Mulayam Singh an opportunity to form the government on the basis of the support of the BSP MLAs. Instead, it blames the Speaker for failing to determine their disqualification in the wake of a petition filed by BSP Legislature Party leader Swami Prasad Maurya on September 4, 2003.

The Speaker postponed a decision on Maurya's petition and, on September 6, recognised the split in the BSP on the basis of a request by 37 MLAs who had claimed the required one-third strength for a split. (The Speaker later rejected Maurya's petition as, in his view, the grounds for disqualification ceased to exist following the recognition of the split and the merger.) The Speaker met the MLAs and verified their signatures on the application presented to him seeking recognition of the split. This breakaway group, known as the Lok Tantrik Bahujan Dal, merged with the S.P. and the Speaker recognised the merger in accordance with the 10th Schedule.

The Supreme Court has held that the Speaker ought to have heard Maurya's petition before determining whether there was a split in the BSP. If the 13 MLAs were liable to be disqualified on August 27, they could not have joined the 37 MLAs on September 6 to cause a valid split in the party. Hence, it was imperative for the Speaker to decide the issue of disqualification before examining the claims of a split in the BSP, the Court held. Obviously, it wanted the Speaker to close his eyes to the reality of incremental support to the leadership of Mulayam Singh among the BSP MLAs and instead confine himself to the question of their likely disqualification.

Paragraph 3 had not said a split was a one-time affair and that it could not happen over a reasonable period of time. In fact, the Chief Justice of the Allahabad High Court, who dissented from the opinion of the two majority Judges in this case, had described it as the "snowballing effect" of persons severing their connections with the original party and joining the quitters subsequently. The 37 MLAs argued before the Supreme Court that disqualification on the grounds of defection should not hang like a sword of Damocles over honest political dissent, and the prevention of honest political dissent was not the object of the 10th Schedule. The Supreme Court conceded this argument but gave no convincing reason to reject the theory of "snowballing effect". It rejected the argument that the question of disqualification could be determined only with reference to the date of the decision of the Speaker.

The Bench said: "An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision-making authority." The Speaker considered the question of the validity of the split, as 37 MLAs quit the party in the course of 10 days, the first 13 having done so on August 27, 2003.

It is not clear why the Supreme Court thought the Speaker ought to have separated the claims of 13 MLAs from the remaining 24. The claims of both these groups were similar: they supported Mulayam Singh and they desired to form a separate group before their merger with the S.P. Just because these claims were expressed on different dates in the course of a reasonable span of time, should the Speaker have closed his eyes to the similar character of these claims, and instead shown his eagerness to decide on the disqualification of 13 MLAs first, even though the decision would have had a bearing on the fate of the other dissident MLAs? This would only mean that the Supreme Court wanted the Speaker to punish honest political dissent, thus violating the spirit of the 10th Schedule. The Speaker was under an apparent duty to decide the disqualification issue only because he was seized of Maurya's petition before he went on to decide on the split. Had Maurya not filed the petition, should the Speaker have avoided a decision on the split and the merger, as the Court seemed to suggest?

The Supreme Court also faulted the Speaker for having accepted the case of a split on the basis of a mere claim. "He has entered no finding whether a split in the original political party was prima facie proved or not," it said. According to the 37 MLAs, there was a split in the BSP on August 26, 2003, at a meeting held at Darulshafa. The Supreme Court found this claim unconvincing."The story of a split in the original political party put forward in the letter dated September 6, 2003, was only an afterthought," it said.

It would be fallacious to suggest that the Mulayam Singh government is an illegal one as the disqualification of 13 MLAs dates back to 2003. A minority government is legal as long as it enjoys the confidence of the House. The assumption that the Mulayam Singh government could not have survived if these MLAs were disqualified earlier is hypothetical.