Politics

Questionable verdicts by the SC in judgments over defection

Print edition : April 24, 2020

Madhya Pradesh Chief Minister Shivraj Singh Chouhan (second from right) and outgoing Chief Minister Kamal Nath (right) during the former’s swearing-in ceremony at Raj Bhavan in Bhopal on March 23. Photo: PTI

O. Panneerselvam, Deputy Chief Minister of Tamil Nadu. Defying the party whip, he voted against Chief Minister E. Palaniswami during a confidence motion in 2017. Photo: M. VEDHAN

The Supreme Court’s inconsistency in judgments over defections in many States erodes the credibility of the judiciary.

The Kamal Nath-led Congress government in Madhya Pradesh resigned on March 20 ahead of the floor test in the Assembly, paving the way for the formation of a Bharatiya Janata Party (BJP) government, led by Shivraj Singh Chouhan, on March 23. The transition of power happened because the Supreme Court, in the midst of the health crisis triggered by the coronavirus threat, prioritised the hearing of a petition filed by Chouhan seeking an immediate floor test in the Assembly following the resignation of 22 Congress MLAs which cast doubts over the majority of the Kamal Nath government.

With Speaker N.P. Prajapati accepting the resignations, the Congress’ strength in the 230-member Assembly was reduced from 114 to 92. Prajapati resigned with the change of government. Chouhan won the trust vote in the Assembly on March 24 with the support of 112 MLAs (including 107 of the BJP). The number of vacant seats in the Assembly is now 24, reducing the effective strength of the House to 206.

On March 19, acting on Chouhan’s plea, a two-judge bench of the Supreme Court comprising Justices D.Y. Chandrachud and Hemant Gupta held that the state of uncertainty in the State must be effectively ended. It issued a direction to the Speaker to convene a floor test bearing in mind the principles enunciated in the decision of the nine-judge Supreme Court bench in S.R. Bommai vs Union of India in 1994 and of the Constitution Bench in Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly, in 2016. The bench directed that the Madhya Pradesh Assembly session, which had been deferred to March 26 (citing the COVID-19 threat), be reconvened on March 20 and that it should be confined to a single agenda, namely, whether the government of the incumbent Chief Minister (Kamal Nath) continued to enjoy the confidence of the House.

The bench also directed that the floor test be concluded by 5 p.m. peacefully on March 20 and that there should be no restraint or hindrance whatsoever on any of the 16 MLAs lodged in a resort in Bengaluru by the BJP exercising their rights and liberties as citizens. The 16 MLAs of the Congress, owing allegiance to the rebel Congress leader Jyotiraditya Scindia, who joined the BJP, had submitted their resignations from the Assembly. “In the event that they or any of them opt to attend the session of the Legislative Assembly, arrangements for their security shall be provided by all the concerned authorities,” the bench said in its order.

The Speaker was yet to accept their resignations even though he had accepted the resignations from the Assembly of six Ministers in the Kamal Nath government owing allegiance to Scindia. The Congress claimed that the 16 MLAs were held in captivity in Bengaluru and that the Governor could not have sought a floor test knowing well that these MLAs could not attend the session if they were held in captivity in another city. In another petition, the Madhya Pradesh Congress sought the Supreme Court’s intervention to secure access to these MLAs.

While the Supreme Court is yet to give a reasoned judgment in this case, it is unfortunate that the court did not choose to address the concerns of the Madhya Pradesh Congress seeking access to the rebel MLAs held in captivity in Bengaluru. More important, the court missed an opportunity to lift the veil behind the mass resignations of MLAs, which was done to evade the rigour of the Anti-Defection Act. As a result, the Congress’ plea that a floor test could be held in the Assembly only after the Election Commission conducted byelections to fill the vacancies caused by these resignations failed to convince the bench.

Karnataka

In Shrimanth Balasaheb Patil vs Hon’ble Speaker, Karnataka Legislative Assembly and others, the Supreme Court bench comprising Justices N.V. Ramana, Sanjiv Khanna and Krishna Murari, on November 13, 2019, had held that the Speaker had no power to disqualify the members on the ground of defection until the end of the current term of the Assembly. The then Karnataka Speaker, while disqualifying rebel Congress MLAs, made them ineligible to contest the byelections to the Assembly until the end of its current term. The Supreme Court, while upholding the Speaker’s act of disqualification of rebel MLAs, struck down the part of his order that disqualified them for the entire duration of the Assembly. This effectively blurred the distinction between the disqualification of a legislator on the grounds of defection and the acceptance by the Speaker of the resignation of a member from the Assembly, as in both the situations, the rebel MLAs would be free to contest the byelections to the vacant seats and re-enter the Assembly if they were victorious.

The Anti-Defection Act does not prevent the resignation from the Assembly of a legislator who is elected on the ticket of one party and seeking re-election on the ticket of another political party. But the Supreme Court held that if the legislator who resigns from the Assembly is found guilty of defection by the Speaker on the basis of his or her conduct prior to resignation, the Speaker would be right in disqualifying the member, leaving a decision on his resignation unnecessary. Therefore, in Karnataka, the Supreme Court did not find the Speaker’s decision to reject the resignations of the disqualified MLAs illegal. “Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter,” the bench held.

But the bench in the Karnataka case also held that the Speaker’s scope of inquiry with respect to the acceptance or the rejection of a resignation tendered by a member of the legislature is limited to examining whether such a resignation was tendered voluntarily or genuinely. “Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation,” the bench held. In Madhya Pradesh, the Speaker took note of the fact that the rebel MLAs, in their separate petition before the Supreme Court, had declared in an affidavit that they were resigning out of their free will. The bench, therefore, concluded that their resignations were voluntary and genuine.

But there is one distinction that leaves a disqualified legislator at a disadvantage as compared to one whose resignation from the Assembly is accepted by the Speaker. The 91st amendment to the Constitution ensures that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or until the date on which his term of office would expire or he/she is re-elected to the legislature, whichever is earlier.

There is no similar bar on a member who resigns from the Assembly until he or she is re-elected to the legislature. This makes the rebel Congress MLAs in Madhya Pradesh who have resigned from the Assembly eligible for the posts of Ministers for six months, prior to their possible re-election to the Assembly. With 22 rebel Congress MLAs joining the BJP, there is nothing to prevent the BJP from rewarding them even before their re-election to the Assembly. In other words, by legitimising bulk resignations from the Assembly, the Supreme Court has encouraged MLAs to “defect” and cock a snook at the Anti-Defection Act and the 91st amendment to the Constitution.

The Manipur story

Even as the Supreme Court enabled defections in the garb of bulk resignations to destabilise governments with majority strengths in Assemblies in Karnataka and Madhya Pradesh, in Manipur, another bench of the Supreme Court effectively intervened to ensure strict implementation of the Anti-Defection Act. A three-judge bench comprising Justices R.F. Nariman, Aniruddha Bose and V. Ramasubramanian on January 21, in Keisham Meghachandra Singh vs The Hon’ble Speaker, Manipur Legislative Assembly, directed the Speaker to decide on the disqualification petition against a rebel Congress MLA, Thounaojam Shyamkumar, who joined the BJP even before he was sworn in as MLA. (The Assembly election in Manipur in 2017 had led to a fractured verdict, with none of the political parties in a position to secure a majority in the 60-member House. Shyamkumar’s defection helped the BJP form the government despite the Congress emerging as the single largest party with 28 seats, and the BJP coming second only with 21 seats.)

Shyamkumar subsequently became a Minister in the BJP-led coalition government. He claimed that the Anti-Defection Act did not apply to him as he had switched his loyalties before being sworn in as the legislator.

As many as 13 applications for disqualifying Shyamkumar were filed before the Speaker in 2017. But the Speaker kept delaying a decision on the petitions for obvious reasons. Therefore, the Supreme Court recommended Parliament to consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification under the Tenth Schedule with a permanent tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a High Court or with some other outside independent mechanism to ensure swift and impartial decisions, “giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy”.

On March 18, the Supreme Court bench of Justices Rohinton F. Nariman and S. Ravindra Bhat took note of the Speaker’s non-compliance with its January 21 judgment directing him to decide the disqualification petition within four weeks, restrained Shyamkumar from entering the Assembly and directed the immediate cessation of his being a Cabinet Minister. On March 28, the Speaker, Y. Khemchand Singh, disqualified Shyamkumar under the Tenth Schedule until the expiry of the current term of the Manipur Assembly for voluntarily giving up the membership of the Congress.

Clearly, the Supreme Court cannot hold that an individual member of the Assembly stands disqualified on the ground of defection but can be rewarded for resigning from the Assembly and seeking re-election before the end of its tenure. Such inconsistency in its judgments will only erode the court’s credibility.

Tamil Nadu

In Tamil Nadu, the Dravida Munnetra Kazhagam (DMK) alleged that the Tamil Nadu Speaker had not acted on its plea to disqualify 11 MLAs of the All India Anna Dravida Munnetra Kazhagam (AIADMK) who voted against Chief Minister E. Palaniswami during a voting on the confidence motion moved by him on February 18, 2017. These 11 MLAs included former Chief Minister O. Panneerselvam, who later merged his group with the one led by Palaniswami. He assumed the post of Deputy Chief Minister.

By violating the whip issued by the official faction of the party, the 11 rebel MLAs had clearly attracted disqualification under the Anti-Defection Act. However, in view of the coming together of the two warring factions of the party, the Speaker, without stating any reason, chose to not act on the disqualification petitions against the 11 MLAs.

Paragraph 2(b) of the Tenth Schedule to the Constitution enables a political party to condone such violation of direction issued by it to vote or abstain from voting within 15 days. Since the party led by Palaniswami did not condone the violation of its direction by the 11 rebel MLAs within 15 days, the Speaker ought to have acted on the petitions seeking their disqualification.

The Madras High Court refused to intervene in the matter citing the pendency of a similar petition in the Supreme Court on whether the court could direct the Speaker to decide a disqualification petition within a time frame. On February 14, the Supreme Court disposed of the DMK’s appeal against the Madras High Court’s order after the State’s Advocate General, Vijay Narayan informed the court that the Speaker had issued notice in the disqualification proceedings.

Unlike the Nariman-led bench of the court which directed the Manipur Speaker to decide the pending disqualification case within four weeks, the Supreme Court bench led by Chief Justice of India S.A. Bobde, which heard the Tamil Nadu matter, refused to direct the Speaker to decide the case within a deadline. “There is no reason to entertain these appeals any further. Hence, these appeals are disposed of as having become infructuous. Needless to say that the Speaker will take a decision in accordance with the law,” the bench comprising Justices B.R. Gavai and Surya Kant observed in the short order closing the case.

With the Tamil Nadu Speaker not deciding the case even six weeks after issuing notice in the proceedings, the wisdom of CJI-led bench closing the case on February 14 is in contrast to the active intervention of the Nariman-led bench in the Manipur case to ensure that the Speaker decide in accordance with the law.

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