Pilots episode of Rajasthan power politics raised the issue of freedom of speech verses restrictions on defection. A political party which is not internally democratic cannot promise democratic governance while in power. Dissent and debate are, as rightly argued by Harish Salve, essential components of democracy. None should be disqualified as legislator for criticising the leader or the party. Constitutionalism of democracy must be in total agreement with the point raised on behalf of Pilot "disqualification notice for inner party dissent is violation of freedom of speech".
Question of law
The freedom of a party member means he is free to defy the party whip direction" outside the assembly and it did not constitute defection. Intra-party dissent, however shrill it may be, until the moment it goes to the extent of supporting another party, cannot be a ground to even start disqualification proceedings. Its pure question of law, Sachin's lawyer has raised. He also took the concept to logical conclusion by stating that when 'dissidence' becomes 'support' to rival party, that smacks of defection and invokes the tenth schedule.
Question of fact
If Sachin's group of 19 supports 72 member BJP that becomes 'defection'. Otherwise the conduct and statements of the group and its leader could lead to an inference that he might topple the government to support the rivals, i.e., BJP. This amounts to voluntarily giving up the membership of party. It is question of facts, that need to establish intended defection.
Two parts of defection
Political Defection has two parts – first is abandonment of loyalty towards one's own political party. Shifting the loyalty to another is final part. The victim party can invoke the disqualification threat at the first part itself.
People say the anti-defection law was a big failure. It is partly correct. Had there been no lawful threat of losing elected office, the ruling party at centre could have lured at least 50 legislators of Rajasthan in no time and install BJP government. Anti-defection law though a weak dam to stop a flood but it can stop the small streams of defection. As per EPW article around 50 per cent of the 4,000 legislators elected to Parliament and Assemblies in the 1967 and 1971 general elections subsequently defected, leading to political turmoil in several states and the country. If that is continued, the foundations of democracy could have been destroyed failing the Constitution and law of Representation.
When ruling party is a luring party…
When ruling party is a luring party, engineering defections becomes order of the day, which was the case even during the BJP regime since last seven years in states where it failed to win elections. Karnataka and Madhya Pradesh stand as proof of pathetic abuse of power to topple the governments.
Sachin Pilot's actions, words and meetings suggest that he is voluntarily giving up the membership of the Congress party, which made him MLA and deputy Chief Minister. The first part of defection is completed.
The tenth Schedule of the Constitution, which is popularly called anti-defection law, paragraph 2(1)(a) starts operating against Sachin Pilot and his supporters, and there is no need for invoking the ground (b) for Speaker to act upon 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. What is to be noted is that there is 'or' between clauses (a) and (b). It was not 'and', as some media reports noted. If it is 'and' defectors like Sachin Pilot s would have some more scope to fly. The law is clear that two are alternatives. The Speaker can examine his conduct and infer whether it amounts to 'voluntarily giving up his membership of such political party (Congress). If that could be conclusively inferred, Speaker need not investigate second aspect to disqualify him.
In law, the debate, dissent and to differ from the opinion of majority is part of freedom of speech and expression generally and as part of internal democracy for any political party. There is no democracy without dissidence or difference of opinion, which is tolerated by Constitution and the tenth Schedule. What is prohibited by 10th Schedule is the defection in express terms and by implication. First part (a) prohibits the passive way of leaving the mother party while (b) deals with open defiance of direction which is otherwise called 'whip'.
The law makers deliberately left expression 'resignation'. Because no elected member would prefer to lose the office of membership, as he can retain it even after expulsion. But the ruling party's legislature wing is empowered to compel the member to support the Government under the threat of losing that office. Hence to curb the activities of member 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 Sachin Pilot are clear indications that he would topple his own party government to fulfil his ambition to become CM with support of non-Congress parties. It is subversion of people's verdict which was emphatically against BJP. Sachin Pilot has no runway left. He went out of legal, Constitutional and moral radar.
Second stage of express defiance of party direction is yet to happen in Rajasthan. Hence any litigation contemplated against part (b) of Paragraph 2 is premature, and unnecessary. He has no right to waste court's time.
The Constitution of India did not mention 'political party' though entire democratic machinery depends on parties only. Nowhere it talked about 'legislature party', until the tenth Schedule is added in 1985 out of sheer necessity created by Scindhias and Sachins.
Ridiculously Sachin Pilot is approaching the courts at premature stage on the ground of his freedom of speech, which was allegedly curbed by anti-defection law. It's a case of res judicata (=not to raise a decided case), as challenge to anti defection law on that ground was rejected by Supreme Court in Kihoto Hollohan v Zachillhu (AIR 1993 SC 412) where the constitutionality of anti-defection law was unequivocally upheld. The lawyers are compelled to raise this ground again on the instructions of clients knowing full well that it could be rejected on the ground of res judicata at threshold itself.
Pilot has no case to rush to High Court to prevent Speaker from acting on CLP's petition. When there is no decision, what is to be reviewed? Judicial review is available to examine the order of speaker for violation of constitutional norms, principles of natural justice, malafides and perversity, as held in Dr Mahachandra Prasad Singh v Chairman, Bihar Legislative Council (AIR 2005 SC 69)
Courts presumes an occurrence of defection when legislator speaks against his party and meets the rival party leaders indicating defection. If it is a dissent without element of defection, speaker has no ground. It was held in Rajendra Singh Rana v Swamy Prasad Maurya (AIR 2007 SC 1305) that the date of disqualification is the date on which the act took place and not the date of speaker's decision over it. In that case speaker disqualified a legislator when he was part of opposition delegation to 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 10th schedule". Pilots conduct is res ipsa loquiter and his case is hit by res judicata.
If the High Court refuses to interfere with the process initiated by Speaker, it may lead to disqualification of rebels, and then the case lands again before High Court. If for some reason speaker is prevented from proceedings, the toppling game gets heated up.
The engineers of defection were caught on tapes, which expose mala fides. It will be an attempt to commit illegal gratification under Prevention of Corruption Act. These rulers do not have any moral power to prosecute the employees for small bribes. Holding the legislators in captivity and guarding them from being poached or hijacked is a continuing fraud on democracy.
Views are personal only
M Sridhar Acharyulu, a Constitutional Law professor and former Central Information Commissioner.