Where is the license to two-thirds?

Of late there has been a flood of defections of elected members of political parties to other parties. These defections are beneficial only if they chose to join the party in power. That is what is happening now both at the state and national levels. As our political structure is based on political parties, this kind of defection has played havoc leading to destabilization of governments. Anti-defection law was brought in to prevent that menace in the form of tenth schedule to the constitution. For the first time the political parties got recognition under the constitution because of this amendment.

The law intends to curb this menace by depriving the defecting member of his membership in the legislature, because it is his behavior in the legislature that has an effect on the government and legislation. Naturally the law moves around the behavior of the member in the legislature to whichever party he belongs. Para 6(1) of the tenth schedule states “If any question arises as to whether a member of a House has become subject to disqualification under this schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.

It is obvious that the law treats the two houses of legislature as two independent units, both at the center and states. Usually the parties select a leader of their legislature party covering their members in both the houses and also a leader separately for each house. It has also to be remembered that the law has not prescribed any time limit for the Chairman or Speaker to take a decision on the applicability of defection law in regard to each of the members. The intention is to see that a member who defects from his original party loses his membership of the House.

This was felt to be harsh perhaps by members of political parties and they inserted a saving clause in para 3 of the Schedule saying that the defections will not lead to disqualification if one-third of the members of that party in that House shift their loyalty. After some bitter experiences that clause was deleted from the Schedule effective from 1st January, 2004. As the law stands now any member of the legislature who shifts his loyalty from the party under the banner of which he is elected can be disqualified from membership of the legislature irrespective of the numbers involved. Again it has to be remembered that the disqualification is not automatic. In all matters related to the House the Speaker or the Chairman is the final authority. It is for him to decide whether the member shall be disqualified from the House.

Even in the background of this situation, the menace of defections goes on searching for loopholes in the law. There has been a notion prevailing that the defection would not lead to disqualification for membership of the legislature if two-thirds of the members of that party in that House leave the party together. In the tenth Schedule the word ‘two-thirds’ was mentioned under para 4 with a particular purpose but not to license the members to defect. It encourages the members to stick to their original party. But this is being used to validate the defections which it wants to prevent.

Para 4 refers to a situation where two political parties decide to merge into one party. It is a decision to be made by the highest authority of the parties. Naturally all the units of those parties are bound to follow that decision, including the legislature unit of each party. They will be treated as members of the new party that forms after merger.

But para 4(2) of the Schedule states that “…the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.”

The grandeur of this clause would be known only when we remember that the tenth Schedule was enacted to prevent defections and this clause encourages retention of membership of the House even by defying the authority of the party in the name of which they are elected to the House.  The emphasis given indicates it is a deliberate decision, not inadvertent. Usually in the context of party politics, the elected members are treated as representatives of the party rather than of the people who elected them. That is the basis on which the anti-defection law is framed. But this clause recognises the fact that they are representatives of the people as well and can claim that right even against the whims of the party which helped them get elected.  The clause states that the merger approved by the High Command of the party is not valid as against the members of the party in the House, unless it is accepted by at least two-thirds of the members of that party in the House. In practice, it means that if more than one-third of the members do not agree to the merger, it cannot be made applicable to the legislature party. That is because the remaining members do not constitute two-thirds and their consent to merger would not be effective.

The point is that the members of the legislature party are given a right to ignore or even defy the order of the high command as far as mergers are concerned. They can disagree with the merger and demand to stay as members of the original party as elected. But the party might have lost its existence due to merger. In such a case, they can demand for recognition as a separate group or under a different name and continue as members of the House. When two-thirds of members agree to the merger, the remaining one-third of the members have their own choice whether to agree to merger or to stay as a new group continuing as members of the House..

It has to be remembered that the mention of two-thirds of members arises only when there is merger at the top level. The members of legislature party have no right under any circumstances to effect merger of legislature party with any other legislature party. They can only change party on individual basis.

Unfortunately, this mention of two-thirds in the Schedule is being misinterpreted as a license to defections if two-thirds of the members form a group and walk out. It has to be remembered that as the law stands now, even if all the members of a legislature party in the House decide to leave the party en masse, they will be subjected to disqualification. Whether they want to join any other party makes no difference. The very fact that they ‘voluntarily give up the membership of that parry’ is enough to disqualify their membership of the House under para 2(1)(a) of the tenth Schedule. In spite of the law being so clear, it has to be remembered that the disqualification is not automatic. It is subject to discretion of the presiding officer of the House concerned. The member of the House may be doing so many things and making so many statements outside the House. But the presiding officer is not supposed to act on such media reports. He has to get official information for himself, straight from the horse’s mouth, so to say, to act. Even if the party officials allege that the member is expelled from the party itis no basis for disqualification of membership of the House. It is for the member to inform the Speaker that he has voluntarily relinquished the membership of the party. It is again for the Speaker to decide on disqualification. He may take his own time.

The question of defying the official whip by a member of the legislature party is dealt with under para 2(1)(b) of the Schedule. Defying the whip happens within the House and the presiding officer takes note of it. But the para gives a right to the party to condone the defiance within fifteen days of the event. It is only after that, that the presiding officer can consider disqualification of the member. He has his own time for it.

The Hon’ble Vice-President, as Chairman of the Rajya Sabha, is reported to have stated that the presiding officer must take a decision on the issue within a maximum period of three months after the problem comes to his notice officially. Now the Rajya Sabha members of the Telugu Desam Party have created such a situation for him. There are six members of that party in the Rajya Sabha. Four of them declared that they leave the party and want to join the Bharatiya Janata Party of their own accord. They claim that they do not face disqualification as they constitute two-thirds of the total members of that party in the Rajya Sabha. Is it a valid argument? The Chairman has to decide.

Similar is the case with the Congress Party members in the Telangana State Assembly. There were nineteen members elected on Congress party ticket. One of them resigned as he is elected to the Lok Sabha. Out of the remaining eighteen members twelve members, constituting two-thirds,  declared that they leave the Congress Party and join the Telangana Rastra Samiti (TRS). They claim that disqualification shall not be applied as they constitute two-thirds of the total members of that party in the Assembly. The Hon’ble Speaker is reported to have accepted their contention. The party has gone to court. The decision is awaited.