It has been more than three decades since the anti-defection law was passed in Parliament in 1985, but grey areas in the law are far from resolved. Through the 52nd amendment, the Tenth Schedule was added to the Constitution, laying down the process by which legislators may be disqualified on grounds of defection. An unresolved question was again put up before the Supreme Court recently — whether an expelled member can be disqualified under this law if he or she defies party whip. And the apex court on Wednesday chose not to answer this question posed by former parliamentarians Amar Singh and Jaya Prada, because a constitutiol bench has been considering the matter for the last six years. As of now, the Supreme Court’s 1996 ruling in the G. Viswathan case stands. In that decision, the apex court had held that an elected or nomited member of Parliament of a political party is bound by its whip even after expulsion. The case arose when AIADMK MLAs G. Viswathan and A. Thiruvukkarasu were expelled from the party in 1994, after which the Speaker declared them ‘uttached’ members of the Tamil du Assembly. But when they joined the newly formed MDMK, they were promptly disqualified from the House. When the duo moved the Madras High Court, their writ petitions were dismissed, after which they appealed to the Supreme Court. There too the case went against them, as the SC bench ruled that even if a lawmaker is expelled from the party, for the purposes of two Houses of Parliament and the State Legislatures, he or she would be deemed to continue to belong to the party which had set him/her up as a candidate for election.
But in 2010, the then Rajya Sabha MP Amar Singh and Lok Sabha MP Jaya Prada, both expelled from the Samajwadi Party, moved the Supreme Court fearing they may be disqualified for not obeying the party whip if they chose to vote in favor of the Women’s Reservation Bill to which the party was dead against. While granting them interim relief from any possible action against them, the SC bench led by Justice Altamas Kabir referred the matter to a larger constitutiol bench in November 2010, seeking clarity on the status of MPs ‘uttached’ after expulsion. The two politicians had argued that the anti-defection law could be applied only against those who either defect from their party or defy its whip while being in the party. So, the apex court’s 1996 interpretation of the Tenth Schedule impinged upon fundamental rights of expelled lawmakers, including their rights to equality, free speech and expression and life under Articles 14, 19 and 21 respectively. In the last six years, the SC constitutiol bench has been examining the law and lay down a judicial precedent. Apart from questions about the ‘uttached’ status, there are issues of fairness and equity. Since expelled lawmakers are not referred in the Tenth Schedule, can the Viswathan ruling force them to remain under the control of their party? If an expelled lawmaker joins another party or forms his own party — can it be said that he has voluntarily given up his membership of the party that had set him up, and therefore liable for disqualification? These complications prove that the law is rarely a completely finished entity. It too evolves with time as unforeseen situations challenge it again and again. Though ected with good intentions to stop the comings and goings of Ayarams and Gayarams, the anti-defection law is being circumvented by parties employing new stratagems. So much so that even Speakers are getting drawn into such controversies. This in turn is making some legal experts wonder whether the Election Commission would do better if vested with disqualification powers.