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Here’s what the anti-defection law challenged by Sachin Pilot in Rajasthan HC says

The anti-defection law, enshrined in the Tenth Schedule of the Constitution, was inserted in 1985 to prevent political defections.

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New Delhi: The outcome of the political crisis in Rajasthan now rests with the courts, where arguments on the Speaker’s powers and the validity of a part of the anti-defection law will be heard, said the Rajasthan High Court Friday. 

With the order, the court also effectively barred Rajasthan assembly Speaker C.P. Joshi from acting on the 14 July disqualification notices issued to Sachin Pilot and 18 other ‘rebel’ Congress MLAs. 

Pilot and the MLAs had moved the high court last week, claiming that the disqualification notices issued to them by Joshi were an attempt to stifle their voices, which sought a leadership change within the party in the “most democratic manner”. They had challenged the correctness and validity of the notices.

They had also challenged the Constitutional validity of para 2(1)(a) of the Tenth Schedule, which is the anti-defection law.

But what does the Tenth Schedule say? And how has the Supreme Court interpreted the anti-defection law over the years? 

What does the Constitution say?

The phrase ‘Aaya Ram, Gaya Ram’ became popular in Indian politics after Haryana MLA Gaya Lal changed his party twice within a few hours and thrice within a fortnight in 1967.

The anti-defection law, enshrined in the Tenth Schedule of the Constitution of India, was inserted in 1985 to prevent such political defections.

It lists two situations for disqualification on the ground of defection. Firstly, if an MP or an MLA “has voluntarily given up his membership of such political party” (clause 2(1)(a)). Secondly, if he votes or abstains from voting in the House contrary to any direction issued by his party, that is if he violates the party whip in the House (clause 2(1)(b). 


Also read: Pay Re 1 and tender apology — Sachin Pilot to Congress MLA who alleged Rs 35 cr bribe offer


What has Pilot alleged in the court?

It is the first ground under clause 2(1)(a) that Pilot and the MLAs have challenged in the high court, asserting that the provision cannot be so widely construed that the very same fundamental freedom of speech and expression of a member of the House is jeopardised.

“Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2(1)(a) of the 10th Schedule of the Constitution of India,” their petition had said.

They have, therefore, demanded that clause 2(1)(a) be declared ultra vires (outside the scope of) the basic structure of the Constitution, and the freedom of speech and expression under Article 19(1)(a). 

While on 21 July, the high court requested Joshi to defer action on disqualification notices until Friday (24 July), Joshi quickly moved the Supreme Court, challenging this order. 

The apex court heard the case Thursday and wondered if the notices issued to the rebel Congress MLAs by the Speaker would amount to shutting out dissenting voices.

It, however, refused to restrain the Rajasthan High Court from ruling on the petition filed by Pilot and other MLAs. 

What does voluntarily giving up party membership mean?

In a 1994 judgment, the Supreme Court had held that voluntarily giving up membership does not necessarily mean that the legislator needs to formally resign, and that this can be inferred from the member’s “conduct” as well.

The court had explained: “Even in the absence of a formal resignation from 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”.

For instance, in 2007, the Supreme Court had upheld the disqualification of 13 Bahujan Samaj Party MLAs who had supported Mulayam Singh’s claim to form the government in 2003. The MLAs had met the Governor along with the general secretary of the rival party and made a written request to him to invite the Leader of the Opposition to form the government as against their chief minister’s advice to the Governor to dissolve the Assembly.

On this, the Supreme Court had said: “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.”

However, in 2011, the Supreme Court had set aside the Karnataka Speaker’s order disqualifying 11 BJP MLAs. These MLAs had approached the Governor, saying that they had withdrawn their support to the government led by Yeddyurappa because he was corrupt and had lost the confidence of the people. 

Among other things, the Supreme Court had noted that the MLAs had continued to be members of the BJP, but were merely against Yeddyurappa. 


Also read: Sachin Pilot’s political graph saw a steep rise, before it nosedived between Congress and BJP


What are the Speaker’s powers?

The Speaker of the House enjoys vast powers on disqualification proceedings, with the Supreme Court consistently holding that it would not interfere in such proceedings until the Speaker actually makes a decision. 

One of the first cases in this regard was a 1992 judgment, when the court asserted that “having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman”.

It is on this judgment that Joshi had moved the Supreme Court to challenge the 21 July high court order, directing him to extend time given to the rebel MLAs to reply to the disqualification notices issued.

As for the time that the Speaker can take to decide the disqualification proceedings, the Supreme Court held in January this year that the decision should ordinarily be taken within 3 months, “absent any exceptional circumstances”.


Also read: Sachin Pilot is ‘nikamma’, he was only making people fight, says CM Ashok Gehlot


 

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