When no party gets a majority in an election there is unbridled enthusiasm among some legislators, individually or in small groups to help a party form the government. They cannot be faulted for this, elections are held to form a government, This leads to party hopping, the easiest way to create a majority when the electorates did not help is to put a majority in party in place.
The recently held elections to the five state assemblies produced hung assemblies in Manipur and Goa. So political parties got into the act of creating a majority in these states. In this exercise, the legislators who help the political parties form a government often forget or conveniently ignore the dangers posed by the anti-defection law. So without in any way dampening the enthusiasm or ambitions of the new legislators who are trying to help the process of government making, this article is attempting to spell out those dangers which can queer their pitch for them and the newly formed government.
Support of “independents” has been enlisted in Manipur and Goa to form governments. In both the states “independents” have been made ministers. True, independents have supported governments in the past in some states to keep them in office and governments have in fact survived on the support of independents from outside. But after the Supreme Court’s judgement in Jagjeet Singh Vs. Sate of Haryana (2006(2)SCC1)) wherein the court has held that even if the independents have not formally joined the political party whose government they support, they can be disqualified on the ground that they have joined a political party if the facts and the circumstances strongly suggest they have.
Para 2(2) of the 10th Schedule to the Constitution of India says that an independent who is elected as such will be disqualified if he joins any political party. The Supreme Court has made it clear in the above case that it is not necessary to fill up the membership form and formally join a party to prove the fact of joining and hence to attract the law of anti-defection. The conduct of the legislator, the attendant circumstances etc. are sufficient for holding the legislators have joined a political party, and hence guilty of defection. So there is a danger lurking in Para 2(2) of the 10th Schedule which the independent legislators will do well to beware of. There is a rational principle in the exposition of law declared by the Supreme Court in this regard. An independent wins the election after fighting against the political parties.
If after winning the election s/he joins hands with any of those political parties and starts supporting the government led by the party or becomes a minister in that government he is betraying the mandate of the people who chose him in preference to the political parties.
Becoming a Minster is clinching evidence of having joined a party. if an independent legislator becomes a minister he is bound by the decision of the council of ministers and bound to vote for the government at all times. His freedom of choice in decision making on political issues is taken away and thus he loses his independent status completely. That is precisely what the anti-defection law (Para 2 (2)) is trying to stop. Thus, an independent can be assumed to have joined the party which leads the formation of the government. The principle laid down in Jagjeet Singh’s case would apply to such a case.
For party-hoppers, there is an area of concern in the anti-defection law which cannot be explained away. Many believe that if two third of the members of a legislature party break away from the parent party and merge with another party (the party which forms the government) they are safe. This is not necessarily true. Para 4 of 10th Schedule require more than a two thirds breakaway to establish a merger. The original political party itself has to merge with another party. Suppose two third of the members of a national party elected to the Assembly in Manipur merge with the party in power in that state, in the absence of a decision by the national party to merge there is no merger in the eyes of law. The result is that all the two third members will be liable to be disqualified. This point has been made absolutely clear by the Supreme Court in Rajender Singh Rana Vs. Swami Prasad Maurya (AIR 2007 SC 1305) and Jagjit Singh Vs. State of Haryana ( 2006(2) SCC 1). The Supreme Court in Jagjit Singh’s case held that in case a member is put up by a national political party it is split in that national party which is relevant consideration and not in that party at the state level.
What the provisions relating to a “split” have been deleted, what applied to a split applies equally to merger of a party. So the independents and party-hoppers have much to fear in the days to come.
“We are of the view that to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. At the same time, non- fulfillment of formalities with a view to defeat the intent of paragraph 2(2) is also of no consequence. The question of fact that a member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur disqualification provided in paragraph 2(2) is to be determined on appreciation of the material on record.”
They are liable to be disqualified and the Governments reduced to a minority. Mysteriously, opposition parties who won a substantial number of seats and could have formed the Government have chosen not to challenge the appointment of Independent ministers and apply for their disqualification so far.
Published in collaboration with The Invisible Lawyer/Lawyers Collective