Anti-Defection Law : What Amounts To Voluntary Giving Up Of Party Membership Under Tenth Schedule Of Constitution?

Anti-defection law under the Tenth Schedule of the Constitution has once again come to the fore with the political crisis that has rocked Rajasthan in the wake of the rebellion led by a camp of Congress MLAs led by Sachin Pilot.The issue has now reached the High Court of Rajasthan, after the Pilot camp approached it challenging the disqualification notices issued by the Speaker.The Speaker's show-cause notice is premised on the ground that refusal to attend party meetings as per the directives of the party whip amounts to anti-party activities, attracting defection under Tenth Schedule.Pilot and 18 other dissident MLAs have argued before the Court that their actions cannot be construed as giving up of membership of the party.In this backdrop, this piece attempts to examine the ambit of "voluntarily given up his membership" of party as stated in Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, as explained by judicial decisions.Disqualification for Membership :The Constitutional Provision which deals with the disqualification of a member of a legislative assembly or legislative council of a state is mentioned under Article 191 of the constitution. The essential conditions for such a disqualification are :A person will be disqualified from the post of the member of a legislative assembly or legislative council of a state, if he holds an office of profit under the government.A person having unsound mind as declared by a court of law.A person who is an undischarged insolvent A person who is not a citizen of India; alien.Statutory disqualification. (eg. Representation of people's Act, 1951) Clause (2) of Article 191 states, "A person shall be disqualified for being a member of the Legislative Assembly or Legislative council of a state, if he is so disqualified under the Tenth schedule"Tenth schedule and the condition, "voluntarily giving up his membership".The statement and Reasons elaborated in the Constitution (Fifty- second Amendment) Act, 1985, which realised the tenth schedule in the constitution, states the following words:"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. "The Tenth Schedule of the Constitution was added with effect from 01/03/1985 and it provides 'provisions as to disqualification on ground of defection'.aParagraph 2 of the tenth schedule provides two explanations related to the disqualification on the ground of defection. The first explanation is that, "if he has voluntarily given up his membership of such political party". The political party referred here is such party from which the member contested for the purpose of election and became a member of the house.The second explanation is, "if he votes or abstains from voting in such hose contrary to any direction issued by the political party to which he belongs or by any person or authority he authorized by it in this behalf , without obtaining , in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the state of such voting or abstention"The underlying object and the purpose which the Tenth Schedule seeks to achieve were explained as under in Kihoto Hollohan v. Zachillhu and Others, 1992 SCC Supl.(2) 651:These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. "Voluntarily giving up his membership" not synonymous with resignation.The scope and extent of the explanation 2(1)(a) is well explained in the Supreme Court decision in Ravi.S.Naik v. Union of India, 1994 (Supp.) 2 SCC 641. "The words voluntarily given up his membership" are not synonymous with "resignation and have a wider connotation. A person may voluntarily give up his membership of a...

Anti-Defection Law : What Amounts To Voluntary Giving Up Of Party Membership Under Tenth Schedule Of Constitution?

Viswajith Anand

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