Laxman Rekha for free speech , dissent and defection?

Laxman Rekha for free speech , dissent and  defection?

 Merger of the break away group of TMC  into NCPI has raised number of legal, constitutional, statutory as well as questions of political morality. One school of thought says, what constitution allows: can that be questioned on the issues of political morality? Answer lies in the simple reply that in politics choice is not between good  and  bad. Choice is to be made on the measure of  what is lesser evil. Also, an important aspect in this debate is the positioning of accountability in democracy .

 Legally there is  distinction  between original political party and legislature party to the effect that constitutional scheme of the 10th schedule inserted by Constitution (52nd Amendment) Act, 1985  explicitly recognizes separate identity and existence  for original political under  party para 1(b) and legislature party under  para 1 (c). The debate on free speech , dissent and  defection will be  incomplete and can not be   appreciated in the right manner if all the relevant laws like schedule tenth of the constitution is not read with The  Representation of People Act, Legislative Assembly rules, Parliament rules,  The Election Symbols (Reservation & Allotment) Order, 1968 as well as the role  of the speaker, chairman, as the case may be  and  Election Commission of India .Thereafter judicial review of the impugned order  through writ jurisdiction  under article 226 and article 32 before the  High Court and the  Supreme Court respectively. Since the 10th schedule coming into force, various judgments and committee reports cannot be ignored. Role of whip is the pivotal to the effect that he acts like a umbilical chord between political party and legislature asmuch as role of  leader of the party of the legislature party  needs close examination.

 Para three of schedule ten of the constitution  warrants discussion to the effect that it has eclipsed  the true scheme of schedule 10 despite having being deleted in the year by Ninety First Amendment  Act 2003 .This is on account of the erstwhile  provision of split and recognition of the splinter group  as per the body of Para three as it existed earlier. Para three having been deleted defence of a split is no longer available to members who face disqualification proceedings.

 Para  2 of Schedule ten sets forth  disqualification on grounds of defections on the other hand there are some exceptions in para 4 on the ground of merger.

There is a proclamation of democracy in the  preamble of  Constitution of India. Further body of  Fundamental rights under article 19 guarantees freedom of speech and expression . This right is available only to the citizens of India but subject to reasonable restriction .Political parties are expected to allow free speech and dissent in the functioning of the party structure. Whether a member of legislature can be deprived of his membership of legislature on account of expulsion by original party on the grounds of dissent such member.The Supreme Court in Amar Singh Vs. Union of India, (2011), has referred the matter to larger bench on the question of member of either House of Parliament having been  expelled by the party which had set him up as a candidate for election and he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to  paragraph 2(1) of the Tenth Schedule.

 The report of the committee on electoral reforms popularly known as the Dinesh Goswami Report, 1990 had recommended that the anti-defection law in the Tenth Schedule should be changed with respect to the following aspects:-

“(i) Disqualification provisions should be made specifically limited to cases of (a) voluntarily giving up of membership of a political party by an elected member and (b) voting or abstention from voting by a member contrary to his party direction or whip only in respect of a motion of  vote of confidence or a motion amounting to no-confidence or money bill or motion of vote of thanks to the President’s address.”

 Having regard to the controversy which faction of the political party  represents original political party,speaker plays  dual role of Tribunal while adjudicating the petition under  schedule, 10 and act like the highest officer of the legislature while conducting the house proceedings. Splinter group  of the TMC has announced its merger into less known political party NCPI.This is permissible under para 4(1)(a)  to be read with 4(2) of the schedule 10 since it claims to be representing the original political party

 The moot question is whether now the faction having been merged can lay claim that it is the original political party that is TMC with the party symbol not to be used by the faction led by Mamata Benerjee who represents the faction not in support of the merger as per para 4 (1)(b).The   answer is in affirmation .This being so  because of two factors. One, two third members of the  legislature party have  announced merger with the NCPI .Secondly, in case  Mamta opposes the merger, in that eventuality the claim by the Mamta led group needs to be adjudicated by Election Commission of India as per the Sadiq Ali case 1972 .Three conditions have been suggested to  ECI  for the purpose of resolving the controversy under Para 15(Power of Commission in relation to splinter groups or rival sections of a recognised political party) with the liberty to frame other parameters to decide the controversy  .The  three conditions are : one aim and  objects of the political party , Second party constitution and  third is the test of majority.

 As per media reports, the splinter group enjoys the majority in the legislature party of  Lok Sabha, and in the TMC  party. Also  before ECI  the test of the majority for the adjudication need not to have two third majority but simple majority would be sufficient. Hence splitter group is confident to win the case before election commission of India .Having regard to other two parameters, they don't hold substantial value on the account of the reason that the both shall claim  allegiance  to the aims and objects of the party constitution.

Adverting to the  democratic functioning within the party constitution, Mamta style functioning does not allow space for functional democracy. Hence this test cannot be considered. This has been the trend  in the past  controversies on  cases like Shiv Sena , NCP etc .Therefore, only the third test of the majority will decide the fate of the present controversy. Hence breakaway group shall get the recognition of the original political party known as TMC.Therefore as per the scheme of the constitution under para 4 (a) break away section, having been recognized as original party and also support of  two third members of the legislature party in Loksabha  , as discussed herein above  will not face any anti defection proceedings.

 Now, under para 4 (1)(b)Mamta led group who has opposed the merger  shall be  allowed to function as a  separate group . Consequences are clear that such separate group to make  an application under section 29A of the Representation of the People Act 1951for recognition as new political party.

 

Surya Pratap Singh Rajawat

Advocate

Rajasthan High Court Jaipur