For the BJP in Uttarakhand, a Fatal Misreading of the Power of the Anti Defection Law

In its eagerness to latch on to the opportunity which had presented itself in the state, the party clearly overlooked the stern attitude of the courts towards defectors.

Uttarakhand high court. Credit: Navin Bhatt

Uttarakhand high court. Credit: Navin Bhatt

New Delhi: For the Bharatiya Janata Party and the nine rebel Congress MLAs from Uttarkhand who approached it in early March with a plan to topple the Harish Rawat government, the operation was supposed to be a quick one. The BJP had sought a vote on the Appropriation Bill on March 18 and given notice in the matter. On the appointed day, the rebel Congress MLAs stood with opposition legislators and urged the speaker to go for a division of votes. They had hoped that the money bill would fall – and along with it the government. But that is precisely where the script went wrong.

The speaker declared the legislation as passed. Union Minister Arun Jaitley later complained that this “was the first violation of the constitution”. However, it now appears that the BJP messed up its political calculations. As the Uttarakhand high court said on Monday while dismissing the petition of the rebel MLAs against their disqualification by the speaker, in standing against the Congress government they had “voluntarily given up membership of their political party”, which became the grounds for their valid disqualification.

As Justice U.C. Dhyani pointed out, “this court, subject to scrutiny of the speaker’s action on the principles of natural justice, therefore, holds that the ingredients of paragraph 2 (1) (a) of the Tenth Schedule of the Constitution are met against the petitioners”. By their conduct, the judge held, ‘’it has been established that they have ‘voluntarily given up membership of their political party’, even if they have not become members of any other political party.”

Paragraph 2 in the Tenth Schedule – which is popularly known as the anti-defection law and was inserted through the 52nd amendment to the constitution in 1985 to combat “the evil of political defections” – lays down the grounds for disqualification.

The Tenth Schedule provides for disqualification on two grounds: The first is if a member has “voluntarily given up” his membership of the political party by which he was set up as a candidate for election; and secondly, if he “votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs”.

Incidentally, the Supreme Court has over the years provided an exhaustive interpretation of this law.

In the case of Ravi Naik v Union of India (2004) it had explained that ‘voluntarily giving up’ a seat may mean more than giving it up on one’s own volition and need not necessarily mean “resignation”. “A person may voluntarily give up his membership of a political party even though he has not rendered his resignation from the membership of that party. 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”, the apex court had held.

The Supreme Court had in the case of Rajendra Singh Rana v Swami Prasad Maurya also ruled in 2007 that if a legislator requests the governor to call the opposition to form a government, that would also amount to voluntarily giving up his or her membership of the party. In the case of Uttarakhand too, the rebel Congress MLAs had accompanied the BJP MLAs to meet the governor and tell him which side of the fence they were on.

Should the rebel MLAs or their BJP counterparts now feel aggrieved ahead of the trust vote on Tuesday, they would do well to read up how the Supreme Court had in Kihoto Hollohan v Zachillhu justified the rules pertaining to disqualification, saying they do “not violate the freedom of speech, freedom of vote and conscience as contended”. It had only termed as “side effects” and “fall out”, the feeling of hurt that “honest dissenters and conscientious objectors” may feel, but noted that “these are the usual plus and minus of all areas of experimental legislation”.

The BJP, in its eagerness to latch on to the opportunity which had presented itself in Uttarakhand, clearly overlooked these aspects.

BJP national general secretary Kailash Vijayvargiya had told the Indian Express soon after the March 18 developments that on being approached by the Congress rebels, the BJP had reached an agreement with them to demand a floor test when a money bill was taken up. The BJP was expecting that the Harish Rawat “government would collapse” if the rebels vote with it. The party even wrote to the governor seeking a vote on the money mill, which was ultimately declared passed by the speaker on the basis of a voice vote despite strong protests by the BJP and rebel Congress MLAs.

Though the BJP had expected a quick result, it suffered repeated reverses as first the nine Congress rebels were disqualified by the speaker and the imposition of President’s Rule was struck down by the high court. Though the Supreme Court stayed that ruling, it asked for a floor test and refused the disqualified MLAs permission to vote in it. It now remains to be seen if this trend of setbacks continues for the BJP during the floor test on Tuesday morning as well.

  • ashok759

    I have a lay person’s knowledge of the law but I feel that all aspects of conducting the confidence vote today ought to have been the Speaker’s domain and prerogative. Given the background, the proceedings could have been videographed, even televised, the mode of voting ought to have allowed everyone to see who had voted for or against the government. Whether observers ought to have been present is borderline, for it undermines the majesty of the House. Some years ago, when Somnath Chatterjee was Speaker, he fought back a challenge from the apex court to his supremacy. It will be good for our democracy if the three major organs make space for each other.