In a diplomat democracy, political parties are an essential concomitant of elections. Criminalization of politics and the role of money in elections are serious causes of failure. The evil of political defections has been a matter of national concern. If not combined, it might undermine the very foundation of our democracy. With this object, on December 8, 1967, the Lok Sabha unanimously passed a Resolution for setting up a high-level committee consisting of representatives of political parties and constitutional experts to consider the problem and make recommendations in this regard.
A bill was enacted into the Constitution (Fifty-second Amendment) Act, 1985, which came into force on March 1, 1985. The Fifty-second Amendment Act, 1985, made necessary changes in Articles 101,102,190 and 191, besides adding the Tenth Schedule in the Constitution.
WHAT (PARA 2) of The TENTH SCHEDULE SAYS?
Disqualification on ground of defection.—(1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—
(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 to which he belongs, without obtaining the prior permission of such political party.
When a person is thrown out or expelled from the party which had set him up as a candidate and got elected, would continue to be the member of that party. If such a person joints another party, he would be said to have voluntarily given up the membership of the party which had set him up as a candidate.
In Kihota Hollohon v. Zachilhu [AIR 1993 SC 412], the Supreme Court held that keeping in view the consequences of the disqualification, i.e. termination of the membership of a house, it would be appropriate that the direction or whip, which would result in disqualification under Para (2)(b), should be so worded as to indicate that voting or abstaining from voting contrary to said direction, would result in incurring the disqualification under the said Para so that the member concerned would have foreknowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.
VALIDITY OF PARA 2 (1) (a) IS NOW IN QUESTION-
The Rajasthan High Court in its order dated July 24, 2020, in Sachin Pilot’s case holding writ petition maintainable framed 13 questions. Do these questions doubt whether Para 2 (1)(b) of the Tenth Schedule is violative of the basic structure of the constitution? These are –
1. Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohan Vs. Zachillhu & Ors. ,1992 SCC Supp. (2) 651, has tested the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India only with the touchstone of ‘crossing over’ or ‘defection’, and the Court was never called upon to answer, much less the question of intra-party dissent?
2. Whether, in the facts and circumstances of the present case, Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, is violative, in particular to the basic structure of the Constitution of India including the fundamental right of freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India and thus void?
3. Whether the expression of dissatisfaction or disillusionment and the strongly worded opinions against the party leadership can be conduct falling within the scope of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?
4. Whether the foundational facts based upon which the Speaker issued a notice, are the facts which if not constitutionally construed in the aforesaid context, would render the provisions itself unconstitutional?
5. Whether the manner of exercise of jurisdiction of the Speaker has to be differentiated from the existence of jurisdiction of the Speaker to commence a proceeding against any legislator under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution?
6. Whether ‘whip’ as an instrument of party discipline only applies for actions expected out of legislators inside the House?
7. Whether the Speaker is not in a position to adjudicate upon the said question of constitutionality as raised by the petitioners in this petition?
8. Whether the notice issued by the Speaker is ex-facie violative of the essence of democracy and aims at throttling dissent against persons in power?
9. Whether by way of the instant notice, the voice of the petitioners seeking a leadership change within the party expressed most democratically is sought to be stifled and the petitioners are threatened with abdication their right to express their reservations on the functioning of such leadership?
10. Whether the words ‘voluntarily given up his membership of such political party’ in Paragraph 2(1)(a) of the Tenth Schedule take within their ambit, a criticism of the Chief Minister/manner of functioning of the State unit of the party, by an MLA, outside the House?
11. If the answer to issue No.(x) is in the affirmative, then, would not Paragraph 2(1)(a) be violative of the basic structure of the Constitution which includes Article 19(1) (a)?
12. Whether the action of the Speaker including the haste in issuing notice dated 14.07.2020 is not mala fide, abuse of power, in breach of natural justice, and also betrays a foregone conclusion?
13. Whether the judgment of the Hon’ble Supreme Court in Kihoto Hollohans’s case (supra) can be understood to bar the High Court from examining the aforesaid questions?
The final decision is yet to come.
This article is written by Priya Bishnoi and edited by Rupreet Kaur Dhariwal.