SC refers anti-defection law issue to larger Bench

Plea urges second look on status of expelled legislator with regard to Tenth Schedule

NEW DELHI, 18/02/2014: Index: Supreme Court of India, New Delhi . Photo: V. Sudershan

Will the anti-defection law apply to expelled members of either Houses of Parliament or Legislative Assemblies?

Twenty-one years ago, the Supreme Court had concluded in G. Viswanathan versus Hon’ble Speaker, Tamil Nadu Legislative Assembly that a legislator expelled from his party shall be deemed to have “voluntarily given up” his membership of that party who got him elected and nominated him to the House. This legal fiction of deeming him to continue in the party post-election as an “unattached member” makes him therefore vulnerable to disqualification from the House on the ground of defection under the Tenth Schedule (anti-defection law) of the Constitution.

Still susceptible

Under the Viswanathan judgment, the expelled legislator would still be susceptible to the “whims and fancies” of the leaders of the party which threw him out despite the fact that subsequently, after his expulsion, he had gone ahead and formed his own political party.

Seven questions referred to a larger Bench

• 1. Status in either House of Parliament or the State Legislatures of a member expelled by his party?
• 2. Will the provisions of the Tenth Schedule to the Constitution apply to such a member?
• 3. Was the view taken in G. Viswanathan’s case as regards expelled MPs and MLAs in harmony with the Tenth Schedule correct?
• 4. Is the decision in G. Viswanathan’s case that expelled legislators must be “deemed to continue” to belong to the party which threw them out correct?
• 5. Can explanation (a) to paragraph 2(1) of the Tenth Schedule be extended to include Members of the two Houses of Parliament who are expelled from their parties?
• 6. When an expelled MP or MLA either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule ?
• 7. What is the status of an ”unattached” Member in either House of Parliament or in the State Legislatures ?”

In August 2016, the Supreme Court refrained from adjudicating the constitutional question in expelled Samajwadi Party leaders Amar Singh and Jaya Pradha’s case. The court had then found the issue ‘infructuous’ as both leaders had by that time completed their tenure in Parliament.

But Mr. Singh, whose political career has come a full circle with his re-induction into the Samajwadi Party and has a tenure in Parliament till July 2022, returned to the Supreme Court. He asked the court to take a second look at the question of status of an expelled legislator with regards to the Tenth Schedule and lay down the law.

Mr. Singh, represented by senior advocate C.U. Singh, contended that the application of Tenth Schedule to an expelled legislator is violative of the Basic Structure of the Constitution.

Picking up from where it dropped the case last year in August, a Supreme Court Bench of Justices Dipak Misra and A.M. Khanwilkar on Monday agreed to refer Mr. Singh’s petition to a an “appropriate larger Bench.”

Question still alive

Justice Misra’s Bench observed in a seven-page order that the fate of expelled legislators and the Sword of Damocles that hangs over them “remains to be dealt with as the same has not been answered with the efflux of time... the question remains alive today.”

At the centre of the controversy is the Supreme Court’s interpretation of paragraph 2(1) of the Tenth Schedule in the Viswanathan judgment of 1996. The court held that even if a member was thrown out or expelled from the party, for the purposes of the Tenth Schedule he would not cease to be a member of the political party that had set him up as a candidate for the election. He would continue to belong to that political party even if he was treated as “unattached.” The court had held that the act of voluntarily giving up the membership of the political party may be either “express or implied.”

“When a person who has been thrown out or expelled from the party which set him up as as a candidate and got elected, joins another [new] party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member,” the Viswanathan judgment had held.