Are TMC Rebel MPs Liable To Be Disqualified Under Anti-Defection Law?

Reports have emerged regarding a rebellion within the All India Trinamool Congress, with a section of legislators challenging the authority of the party supremo, Mamata Banerjee.The first indications of the rift emerged when 58 of the 80 MLAs of the TMC in the West Bengal legislative assembly supported expelled party legislator, Ritabrata Banerjee, to the post of Leader of the Opposition, questioning the pick of party leadership for the post, Sovandeb Chattopadhyay. The split escalated to the national level when several of its 28 MPs in the Lok Sabha, led by Kakoli Ghosh Dastidar, planned to form a separate bloc and support the BJP-led National Democratic Alliance government at the Centre. As per the latest reports, 19 MPs have sent their signatures to Lok Sabha Speaker seeking to sit as a separate faction.Are the Trinamool MPs, by deciding to split from the party's official leadership, liable to face disqualification under the tenth schedule for committing political defection?It is to be noted that the 10th schedule of the Constitution does not recognize 'split' as a defence. The only defence is 'merger' with another political party. Even if these 19 MPs are to merge with the BJP, they will still be violating the tenth schedule, according to this author, because the merger must happen at the level of the original party, and not just at the legislative party. So, merely because 2/3rd of the MPs have merged, it won't shield them from the anti-defection law, if the original party has not merged. This aspect has been explained in an earlier article dealing with the merger of Raghav Chadha and six other Rajya Sabha MPs with the BJP. Be that as it may, in the present case, the rebel MPs have not yet shown the plan to merge. Their intention seems to form a splinter group, and to eventually claim that they are the 'real Trinamool Congress', as happened in the cases of the Shiv Sena and the NCP.When can a legislator be held to have 'given party membership' as per the 10th Schedule?As per Paragraph 2(1)(a) of the tenth schedule of the Constitution, an elected member will be disqualified from the house "if he has voluntarily given up his membership of such political party". As per this provision, "political party" is the party which set up the member for election. So, if a Member of the Parliament, who was set up the TMC for the election, gives up membership of the TMC, it will be a ground for disqualification.The Supreme Court, in Ravi S. Naik Vs. Union of India (1994), has held that tendering of a formal resignation is not necessary to give up membership, and that it can be inferred from the conduct of the member. "Even in the absence of a formal resignation from the membership, an inference 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," the Court had held in this judgment. Applying this rationale, the Supreme Court, in Sri Rajendra Singh Rana v. Swami Prasad Maurya (2007), held that the conduct of 13 BSP MLAs, who supported the Samajwadi Party to form government in Uttar Pradesh in 2003, amounted to "voluntary giving up of party membership". The Court therefore declared them as disqualified.The Court held that the mere act of these MLAs visiting the Governor to extend support for the rival party's government was enough to hold that they had incurred disqualification, and no further evidence was necessary."Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule."The Court also rejected the argument of the 13 BSP MLAs that there was a split in the party ('split' was a valid ground in 2003, and it was removed later that year). The Court held that these MLAs cannot raise the defence of split without establishing that there was a split in the original political party.If a split is not recognized under the tenth schedule, then it is immaterial whether the splinter group has a majority in the legislature party. Even if the entire legislature party indulges in acts prohibited under Paragraph 2 of the tenth schedule (voluntarily giving up party membership or acting against the party whip), they ought to be disqualified under the anti-defection law. The tenth schedule nowhere recognizes the concept of “legislative majority” because the only defence is a merger with another party.Can the rebels claim they are the real Trinamool?Now, the claim of the rebel TMC group would be that they are the real TMC. This was the...

Are TMC Rebel MPs Liable To Be Disqualified Under Anti-Defection Law?

Manu Sebastian

Can the rebel MPs be deemed to have "given up party membership" by announcing their intention to form a separate faction?

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Manu Sebastian

Are TMC Rebel MPs Liable To Be Disqualified Under Anti-Defection Law?

Manu Sebastian

Can the rebel MPs be deemed to have "given up party membership" by announcing their intention to form a separate faction?

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Manu Sebastian

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