Friday, August 01, 2008

The Speaker has spoken

The Lok Sabha Speaker, Somnath Chatterjee has at last spoken through a press release explaining his anguish and also giving an account of the happenings.

He said:

"In view of the controversies that are now being raised based on a Party's contention that while as Speaker, a Member of Parliament should continue to be under the direction and control of the Party, a convention should start now that during his/her tenure as Speaker, a Member should temporarily resign from the membership of the Party and not face a situation which compromises the position of the Speaker vis-a-vis his or her Party."

Is he thus admitting that the situation today has compromised his position as Speaker? Why did he not use the option given by Paragraph 5 of Tenth Schedule in 2004?

Some questions which remain unanswered by him:

1. What about the convention of Speaker belonging to the ruling party/coalition/or supporting party? Is he not violating that convention? Mere unanimous election by all parties does not make any difference to the situation. A Speaker, elected after a contest, is also supposed to act impartially. Contest is envisaged in the election of the Speaker, so absence of it –because there are no other contenders - cannot be cited as a reason for not following a binding convention.

2. Selective reference to his June 4, 2004 speech: Why did he omit this part of his speech in today's press release?
"As a Leftist, as one belonging to the Left Party, friends on my left may be rest assured that I have a natural leaning towards the left."

38 comments:

Dilip said...

Dear VV,

In every instance where some differences may have arisen between a member and his party, there will be some media speculation of a rift between the two at some point either before or following the expulsion. And no expulsion order of a party will ever carry any kind words about the expelled MP – ‘anti-party activities’, ‘seriously compromised the party’, ‘injurious to the party’s welfare’ are all standard templates of any expulsion order, well-reasoned or otherwise. If we take the view that these two pieces put together are sufficient to infer the remainder of the story, it will in effect imply that expulsion in virtually every instance automatically means disqualification – you will never have any instance where the media will not piece together a story about the reasons the break came about. The standard from G.Vishwanath regarding inference of ‘voluntary’ departure of a member based upon his/her conduct, as far as I can tell, does not go that far. Even with the deeming provision, I would argue that ‘voluntary’ is better understood as the member’s own affirmative actions, properly documented, lending itself to such a deduction and not solely the party’s conduct towards him/her with the benefit of doubt going to the member, not the party.

The CPI(M)’s claim of following convention is not all that persuasive. The party’s own interpretation of the existing convention is not the only one that can be made from the facts as we know them. A better way of looking at it is that the convention is of electing a speaker from the ruling side when the Lok Sabha first convenes. It has so happened that the ruling party has never had to lose power before the end of the term of that Lok Sabha mostly because the House itself has ended up being dissolved in that instance (the other instance is when the ruling coalition imploded but a fraction of it continued in office and the speaker never happened to be from a party which changed sides). There is also no convention of a party directing its own member to resign from the speakership after having been elected or any convention of a speaker voluntarily relinquishing office in view of a political realignment. The only precedent that comes to mind is of the UP assembly where the convention set was exactly the opposite – Speaker Kesri Nath Tripathi of the BJP continued in office after the BJP withdrew support to the Mayawathi government and moved to the Opposition benches in 2003. Besides, if the CPI(M) felt that its view of the prevailing convention was not being honored by the Speaker, nothing prevented the party from moving a motion for his removal during the proceedings and seeking to persuade other parties of its understanding of the requirements of convention. An alternative explanation that sounds plausible is that the party wanted to consolidate its numbers for the vote by adding the speaker to its list – it feared that he might resign his seat from the House if pushed too hard which would be worse and defeat the objective entirely, hence all the pussyfooting over the issue until the vote was over. If that is so, the convention claim was only a facade to hide its true considerations that lay in realpolitik.

Dilip said...
This comment has been removed by the author.
Dilip said...

I just saw the Speaker's version of the events in The Hindu today:

"On July 9 Mr. Karat “telephonically conveyed [to me] that a section of the party felt that my continuation as Speaker may be untenable. However, it was stated that the final decision would be taken by me,” Mr. Chatterjee noted. The same day he “was surprised to learn from the media” that his name had been included by the CPI(M) in the list of its MPs given to the President of India while communicating to her that the party had withdrawn its support to the United Progressive Alliance.

However, on “several occasions since July 9,” Mr. Chatterjee said, Mr. Karat and other important members of the CPI(M) reiterated that it was for the Speaker alone to take a decision regarding his resignation."

Perhaps the Speaker is not being fully candid and this is just ex post justification for his actions. If not and what he is saying is indeed true, it certainly gives cause to doubt that the tune the party was singing before was the vote is the same as the one it sang afterwards. If he was repeatedly assured that it was him alone to make the decision and the suggestion was only from a 'section of the party', the obvious inference that any reasonable person would have drawn is that this was a suggestion of some people but whatever his decision, the party would accept it. The decision to expel him soon after the vote is obviously very different from this deferential view it had taken earlier. So what changed? Was the party being deceitful having already made the decision before the vote but telling him something else or was it a change of heart in the party after the vote? Either way, the outcome would seem to have more to do with the party's own internal machinations and not owing to the speaker's own conduct; a direct and clear causal relationship between his failure to resign and his expulsion is very much in doubt. Under the circumstances, it is difficult to believe any case can be made from his conduct of his 'voluntary' departure from the party.

V.Venkatesan said...

Dear Dilip,
Thanks for your detailed analysis of the events.

I am still unconvinced of the following:

1. From the Speaker's own version of the events, why can't we conclude that he voluntarily gave up his membership of the party on July 19/20 when he says he was officially conveyed the party decision by a PB member, and he refused to resign as Speaker. Even if the preceding events are debatable, whether the party in fact wanted him to resign, etc. this part of his version clearly shows he is admitting that he attracted Para 2(1)(a). For this purpose, the politicking within the party which you referred to may not be relevant (thought it may well be true).

2. Worse, the Speaker himself is admitting that Para 5 protection will not be available when he says in future Speakers should set up a convention of quitting the party at the time of assuming office. Nothing prevented him from following the precedent set by Sanjeeva Reddy before the Tenth Schedule was enacted. Clearly, he now regrets that he did not do so in 2004, thus depriving himself the Para 5 immunity from disqualification.

3.And he also admits that the situation has compromised his position as the Speaker. So why continue in office?

Dilip said...

VV,

I found the full text of Chatterjee's remarks in the Indian Express. Here is the relevant extract:

"In the afternoon of 20 July, 2008, for the first time I was verbally told by a member of the Politburo that it was the decision of the Party that I should resign and vote against the Motion and when I refused, subsequently it was suggested that I should resign as Speaker and may not attend the House to cast my vote."

The fact that the party was willing to show flexibility says that the two sides were still very much involved in negotiations on the 20th, so this 'decision' of the party was anything but final and it is not unreasonable for Chatterjee to think that the party would come around to a compromise short of his resignation. It was reported a while ago in the HT (and I do not know how true this is) that he offered as a compromise at some point that as a compromise, he would vote with the CPI(M) in the event of a trust vote (Chatterjee has not admitted this and is unlikely to do so now given that it would undermine his claims of standing upon high constitutional principles if it comes out that he was indeed very much willing to factor party considerations into his calculations). Did this occur and if so, on the 20th/21st (this of course leads to the problem of relying on private conversations where we are unlikely to ever hear the full story)? We do not know but the point is we do not have good reason to believe that anything had been concluded between the two sides one way or the other at this time. Perhaps he did make the proposal and the party maintained silence thereby going along for the time being while reserving its options until after the vote or perhaps signaled something short of rejection. Again, we do not know enough to judge but since these things were happening until the last minute, one cannot infer from his conduct at this time that he had already departed from the party.

Also if the sequence of events as recorded is correct, the member's stand remained relatively the same whereas the party's stand shifted over time. It is therefore open to question whether an adverse inference can be made from the member's own conduct. Think of a more extreme hypothetical situation where the same principle is still at play - if a party like say the old Janata Party filled with a bunch of squabbling leaders constantly shifts its position in a show of factional one-upmanship, are everyone else including MPs having little say in formulating these sudden reversals expected to exhibit the same degree of ficklemindedness? In such cases, I would say that there is no clear case of the member having dissociated himself from the party to apply 2(1)(a) and the benefit of doubt ought to go to the member. If I think about it, I see no reason not to apply the same principle in a similar manner here.

On your second point, he certainly appears to regret the fact that he did not resign at that time but this seems to be more for moral reasons. I did not see him dwell upon the issues of Para 5 immunity anywhere.

As for the third point, I think what he is saying is that had he acted in line with the diktat, his position as speaker would have been compromised, not that it has already done so (he is trying to showcase that he is the hero who stopped such a thing from happening). This is post-hoc justification, an effort to cast his refusal in the mould of a custodian of constitutional morality. In terms of what it means legally, I would say not much. What really matters is where everyone involved stood at the time of the events concerned, not afterwards when each side will inevitably justify what it did. Neither side is likely to reveal fully the compromise formulas discussed at that time simply because it will weaken their moral contentions now being made in the aftermath.

V.Venkatesan said...

Dilip,
I am not convinced from the sequence of events that CPI(M) was vacillating on the question of Speaker's resignation on July 20/21. The fact remains that he refused to resign as Speaker, and rejected the party's request conveyed to him unambiguously. The party did not get back to him on his alternative proposal of voting with the party in the event of a tie (even if it is true) because it did not appeal to the party. Between July 9 and 20, clearly a section of the party which wanted him to resign managed to secure overwhelming support to its stand, and influenced the party's decision by July 20th. There is clearly an admission in his statement that he voluntarily departed from the party line by 20th, before the vote.

Moral pleas have no place while considering the applicability of the legal provisions. Otherwise, every member who defects can claim that he was confronted with a moral choice. Therefore, having not chosen to avail the Para 5 exemption in 2004, he cannot do so now, and therefore has to suffer the consequences.

In your earlier comment, you referred to the U.P. precedent of BJP Speaker continuing after BSP came to power. That was an aberration, and the BJP speaker's conduct subsequently became the subject of litigation, under the Tenth Schedule. It cannot be considered a convention.

V.Venkatesan said...

Here is the CPI(M)'s detailed version of what caused his expulsion:
http://pd.cpim.org/2008/0803_pd/08032008_6.htm

Dilip said...

VV,

From what I remember, Kesri Nath Tripathi’s position as speaker of the UP assembly was never questioned in any court. Only his decision to accord recognition to the BSP defectors was challenged in court. That issue does not pertain to the question here.

V.Venkatesan said...

Dilip,
You are correct. It was not challenged. But the fact that his rulings were considered as biased by the Government led by the BSP shows that there could be unhealthy consequences if well-established conventions (like the Speaker belonging to the ruling party or a supporting party) are not followed.

Suresh said...

But the fact that his rulings were considered as biased by the Government led by the BSP shows that there could be unhealthy consequences if well-established conventions (like the Speaker belonging to the ruling party or a supporting party) are not followed.

So far as I can figure out, Kesri Nath Tripathi has been involved in at least two controversial actions. I reproduce the relevant part from Jayaprakash Narayan's article which appears at indiatogether.com:

The 1997 case of defections from BSP in UP proved how partisan speakers could actually create new arithmetic while applying anti-defection provisions! Twelve of the 69 legislators of BSP violated party whip, and in a perverse order, speaker Kesari Nath Triapthi refused to disqualify them, though they clearly constituted less than a third of the legislature party. The matter went to courts, and died a natural death as their lordships could not come to conclusion before the expiry of the term of the house on the weighty issue of what number constituted a third of 69! Recently in January 2003, the roles were reversed, and Mayavathi (sic) engineered the defection of 8 MLAs in the 23 member Congress legislature party, and the same speaker Kesari Nath Tripathi recognized them as a separate party instead of disqualifying them!

At least the 1997 case illustrates that "strict adherence to conventions" (note that the BJP was in power at the time the BSP left the coalition) is no protection against "unhealthy consequences." And if one goes through the history of speakers in state assemblies, I am sure one can come up with many more such instances.

For what it's worth, I don't think having a speaker from the ruling party is anything like a convention. This is because the ruling party could always have won the vote if one had been held. This is simply my opinion, though.

You are welcome to your views, Venkatesan, but in this instance, it seems to me that you are stretching to defend your case. I don't think much of the middle class myself even though I myself am a member of it, but in this instance I think "they" got it right!

V.Venkatesan said...

Dear Suresh,
Thanks for the response. I could not access Jayaprakash narain article in india together through the link provided.

I would like you to elaborate why you think having a Speaker from the ruling party/supporting party cannot be considered a convention. I agree that there is need for greater clarity on this convention, especially because of U.P.-type examples.

Even in U.P., I don't think Mayawati would have willingly accepted BJP leader as the Speaker, especially after BJP withdrew support. Because the Speaker did not resign immediately, and probably she was not sure of her strength to remove him as the Speaker, she would have let Tripathi to continue.

It is this, I believe, would make this precedent ineligible to be called a convention. Agreement among parties and a justification are the tests of a valid convention. Somnath chatterjee's continuance as Speaker fails to pass both these tests.

Dilip said...

VV, Suresh,

The question we need to ask is not whether Tripathi continuing as speaker was acceptable to Mayawati but to Mulayam Singh. Mayawati’s government fell as soon as the BJP withdrew support. The succeeding government led by Mulayam did not object to Tripathi remaining as speaker. In that sense the speaker enjoyed the confidence of the government of the day (led by whichever dispensation) throughout his tenure.

His rulings are another story. As I understand it, the question was whether the BSP defectors ought to have been disqualified or not. Tripathi chose to recognize them as a rebel group under the anti-defection law. I remember reading that the BSP, for reasons that are not clear, chose to challenge the decision in Court long after these events (something like two years after the event and nearly a year or so after the speaker’s decision). The court challenge, it appears, was mainly a political move.

Of course none of this really changed the facts about the Speaker’s status. The only difference between that and the current instance is that the Speaker in that case unlike here continued to remain in good standing with his party which if circumstances warranted would very likely have stood by him. With the support of the government (Mulayam’s SP) and the main opposition (BJP), his position was assured for the entire term.

Suresh said...

Dear Venkatesan,

I found Jayaprakash Narayan's article here:

http://www.indiatogether.org/2003/aug/gov-whips.htm

The question of defining what is or is not a convention is tricky and probably incorporates a lot of personal bias. Anyway, here's my take on it. Let's look at the UK example with respect to the speaker -- no party whips with regard to the election of speaker [if there are more than one candidate], allowing existing speaker to continue if he/she wins re-election etc. -- I would call it a convention because it is followed by the ruling party even when the party is in a position to do something else. (For instance, the ruling party, say, Labour, may be in a position to throw out the existing speaker. But, by convention, they choose not to do so.)

In our case, the speaker being from the ruling party is simply a reflection of the fact that the ruling party has the numbers in Parliament. Comparing it to the UK, we do not see a situation where the ruling party follows a convention even though it might want to violate it and actually have the numbers to do so. This is why I do not call it a convention. As I said, this is my personal take and you might well disagree. (I think the decision to have the deputy speaker from the opposition benches could be called a convention, though.)

It seems to me that our situation, as it currently exists, is closer to the American House of Representatives where the Speaker is openly partisan. In the US House, the Speaker does not sever ties to the party to which he/she belongs, and is indeed, a very powerful figure within that party. (If I remember right, as soon as the power shifts from one party to the other in the House, the existing Speaker resigns and allows the other party to elect its own leader as the Speaker. I may be wrong.)

I have no problems with following either the British or American practice. We sort of seem to do neither. And I wonder what the CPI(M) would make of the fact that it is effectively advocating that we follow American practice :-)

Suresh said...

Dilip,

You are referring to the 2003 incident where indeed Mulayam Singh was the concerned party. In 1997, I think there was some deal between the BSP and BJP to share power. I think Mayawati was in power for six months after which she was supposed to hand over to the BJP. When the BJP took over, Mayawati withdrew support, the BJP engineered [to use an euphemism] the defection of 12 BSP MLAs who should have been disqualified but were not by the speaker.

Both the 1997 and 2003 incidents were controversial, to say the least. However, Mr. Tripathi list among his many achievements [if one can call them that] "IN 1997 & 1998 SAVE PARLIAMENTARY DIGNITY FROM VIOLENT AND UNPARLIAMENTARILY (sic) INCIDENTS UTTAR PRADESH LEGISLATIVE ASSEMBLY." See here:

http://www.upvp.com/knt.htm

Dilip said...

Suresh,

Correct. I was referring to the 2003 incident. In the 1997 incident, the BJP remained in power throughout the concerned period (you are right that there was a power-sharing agreement with the BSP but the BSP, soon after Mayawati demitted office, withdrew support triggering the events that followed). So that incident is not analogous to the current situation.

But in the 2003 instance, Tripathi continued in office after both the BJP and BSP moved to the opposition and Mulayam managed to come to power by splitting the BSP. Tripathi recognized the defection as valid and not attracting the penalty of disqualification of the anti-defection law.

See here for the SC judgment in the UP defection case and here is Rajeev Dhavan's criticism of that decision (wherein he claims that the BSP questioned the split two years later).

V.Venkatesan said...

I find Suresh's position on conventions very persuasive. As the U.P. example shows, however, the tacit consent of the Speaker's party to Spaker's continuance in office, even after the party's adversary comes to power is perhaps a test. If the Speaker's party opposes his continuance, as in the Somnath's case, then probably the Speaker has no choice but to quit. Will I be correct if I infer from this fruitful discussion that all three of us, Suresh, Dilip and I agree on this?

Leaving alone conventions, which are debatable, do we agree that if we go strictly by the provisions of 10th Schedule, then Somnath does invite disqualification?:

A. on the ground that he cannot enjoy Para 5 immunity;

B. He did attract Para 2(1)(a) when he refused to quit as Speaker on July 20 when a PB member officially conveyed the party's decision seeking his resignation prior to vote of confidence to him.[Somnath himself admits to this in his press release)

Dilip said...

Suresh, VV,

The American system is very different from the Indian one. For one thing, the Speaker of the US House of Representatives is also the leader of the majority party in the House which is not the case in our country. He/she gets to nominate other party leaders including the whip and chairpersons of the various house committees who are all usually senior party leaders having served in those committees for many years; together, they push the party's agenda during the term of that Congress. Our own speaker has far more limited power to persuade any party let alone control them. The power of our own parliamentary standing committees which are appointed by the speaker are nothing comparable to their American counterparts; besides, appointments are across party lines - even opposition MPs get chairmanships of the different committees which are mostly advisory in nature.

Secondly, members routinely vote at variance from the party's position on various issues. Cross voting is not an exception but very often the rule. The Speaker is expected to use her power to negotiate with members for their votes on any issue to sew up a majority. Many times, the party does not even have a single position with different members speaking in different voices. There is no legal penalty for defection though in a few exceptional instances, the party may penalize defectors by removing them from positions of power. Even the party leaders themselves dissent from the party line in some cases. All this is virtually unheard of in our system.

Thirdly, the convention as Suresh correctly notes is that the Speaker usually resigns only when his party loses power in a Congressional election, i.e. when a new Congress is formed. There being only two political parties, there is not much of a problem. It is similar to our system in the sense that the Speaker is officially elected at the beginning of every Congress but also different because if the party retains power, the Speaker normally does so as well (of course if the party loses a significant number of seats, the Speaker might be forced to resign by his own party like it happened to Newt Gingrich) whereas in our country, the odds of a speaker returning to office are not good. As for independent members, they are free to take any side on any given issue (like all other members) but their loyalty to a particular party is judged by who they choose to caucus with. In the Senate currently, the Democrats are in control only because in addition to the 50 senators from their side, the one independent member (Joe Lieberman) has chosen to caucus with them even though he often votes with the Republicans on some issues. In India, such dissent would constitute disloyalty and be cause for expulsion from the ruling coalition.

For the most part, our own parliamentary system is designed along the lines of the House of Commons. So it would be quite unusual to be following an American tradition in this respect.

I agree with VV that the UP example, being a single one, is not enough to constitute a convention. The only inference I would draw from that example is that a speaker is better off demitting office when he ceases to enjoy the support of the majority in the House. Tripathi continued because he probably had the support of a majority in the UP assembly. Rabi Ray continued when the VP Singh government fell because neither Chandrasekhar nor Rajiv Gandhi sought his removal. If Chatterjee were to loose the support of the majority, he too is better off quitting.

On para 5 immunity, I agree with VV that if two months is too long, four years certainly is and the provision cannot apply.

On para 2(1)(a), VV, I am going to argue about this with you one more time. We have been debating the meaning of what the Court said in Ravi Naik, i.e. 'even in the absence of formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.' I looked up G.Viswanathan and here is what the Court observed (you quoted a part of this para in The Hindu article):

"It appears that since the explanation to paragraph 2(1) of the Tenth Schedule provides that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as 'unattached'. The further question is when does a person `voluntarily give up his membership of such political party, as provided in paragraph 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member."

The court reiterated this again towards the end:

"If he of his own volition joins another political party, as the appellants did in the present case, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged or must be deemed to have belonged under the explanation to paragraph 2(1)of the Tenth schedule. Of course, courts would insist on evidence which is positive, reliable and unequivocal."

My take from this (the standard laid down in Ravi Naik construed in light of G.Viswanathan) is that for the purpose of drawing an inference from the conduct of a member that he/she has 'voluntarily' given up membership of the political party, something more than expulsion from the party is warranted. In this instance, it was the fact that the petitioner had joined another political party. What is there besides the expulsion in case of Somnath Chatterjee? There is nothing at all. He has been expelled and therefore continues as an unattached member. He has not joined any other party nor has he expressed any desire or intention of doing so. The court also explained the legal position regarding expulsions:

"Paragraph 2(1) read with the explanation clearly points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party. That is a matter between the member and his party and has nothing to do so far as deeming clause in the Tenth Schedule is concerned. The action of a political party qua its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule."

In other words, mere expulsion from the party does not change the member's status vis-a-vis his party. For legal purposes, he continues to remain associated with the party and the deeming provision will not affect him. Expulsion alone, it appears, is clearly not enough. Disqualification under para 2(1)(a) cannot therefore be applied.

V.Venkatesan said...

Dilip,
You seem to infer from G.Viswanathan that a member who voluntarily gave up membership of a pol.party must join another party to complete the ground for disqualification. The Court did not say so. It only meant that this is one way of reading implied defection under 2(1)(a). The Court did not mean to suggest that joining any other party is exhaustive of implied defection under 2(1)(a). Imagine, for instance, a member who otherwise voluntarily gave up membership, but does not join any other party. But he is assured a huge sum for doing so, and posts in the Govt. at a later date or help in fighting the next election, or some other post, which is lucrative enough, but does not involve joining any other party. So, obviously, the immediate post-defection conduct of a defector cannot be an absolute guide to derive the implied meaning of 2(1)(a).

The defector may voluntarily give up membership of the party, by defying the party line, but still pretend that he is independent, but waiting for the right opportunity later, in order to circumvent the law.

Take the recent vote of confidence. There were 23 MPs who defied the party whip, and attracted 2(1)(b). Obviously, they were not scared of losing their seats under 10th Schedule, and are looking forward to something more lucrative. Imagine the same 23 attracting 2(1)(a). Can there be different standards to determine their defection, because they did not immediately join any other party? I think G.Viswanathan judgment should not be read too narrowly at arrive at the law, which you seem to infer.

V.Venkatesan said...

Dilip,
To add, I was also not suggesting that expulsion alone is sufficient to attract 2(1)(a). That is why I draw your attention to Somnath's pre-expulsion conduct.

Dilip said...

Dear VV,

In Ravi Naik the court said that ‘voluntary’ is not synonymous with resignation but has a wider connotation. In G.Viswanathan, the court explained what this wider connotation meant. The reason it did that is because the explanation to para 2 laid down the grounds for expulsion (including joining another political party) which could not be given effect to without construing ‘voluntary’ to include those grounds even if they did not ordinarily fall within the meaning of the word as understood in routine usage (i.e. as resignation). Thus ‘voluntary’ in 2(1)(a) ought to be understood as its ordinary meaning, i.e., ‘resignation’ + grounds for disqualification cited in explanation to paragraph 2 (in provisions (2), (3) and (4)).

Having thus defined the meaning of ‘voluntary’, the court in G. Viswanathan had no trouble in concluding that in accordance with provision (2) of that explanation, the candidate, by joining another party, had ‘voluntarily’ given up his membership of his original party.

Let us apply the same definition to Chatterjee’s case. The two possible grounds are that he defied the party line and he was expelled by the party. As for the latter, the court clearly said (as I pointed out in the previous comment) that expulsion of a member from his/her own party has no significance in the eyes of the law. That leaves only Chatterjee’s defiance of the party line to talk about. None of the provisions of the explanation to para 2 mention anything about following or violating the party line. Unless his defiance of the party line goes so far as to meet the criteria set out in the explanation to para 2 (or alternatively 2(1)(b) which is a different issue), he cannot be disqualified. There can be no other reason for disqualification because the court also clearly said that these categories are exhaustive and in its view, it is impermissible to invent a new category or clause other than those envisaged or provided in the tenth schedule.

In the first example you cite above of a person accepting money/post/something else in exchange for voluntarily giving up his membership, his act of resignation automatically disqualifies him in accordance with the above definition of ‘voluntary’. If he accepts all those gifts/offers from a rival party but does not resign from his own party, he still gets to keep his seat but his ability to return that favor is very limited (thereby diminishing the likelihood that he will be offered any of that in the first place). So he is not involuntarily removed from the party, he cannot vote against it (or even abstain in violation of the whip) in return for the gifts and that limits his ability to maneuver in violation of the party line. If he were to accept a ministership offered to him (very unlikely to happen but hypothetically speaking) by the rival party which happens to be in government, he would be forced to vote against his own government (otherwise he risks falling foul of 2(1)(b)) rendering his own status in the cabinet untenable. Thus, even a defiant member who is unwilling to risk his own seat is in general, unlikely to be of a lot of value to a different party thereby reducing the incentive to offer him/her any inducements.

You also argue that ‘The defector may voluntarily give up membership of the party, by defying the party line, but still pretend that he is independent, but waiting for the right opportunity later, in order to circumvent the law.’ If the party fails to expel him/her, what other opportunity does he/she have? So long as he/she remains under the party umbrella, there is very little he/she can do besides talk. He/she can make statements against the party leadership and embarrass them in public or parliament but otherwise, not much. If they are expelled of course, the party whip would not apply and they get the best of both worlds. This system has both merits and demerits – it prevents conscientious MPs from being penalized the party for honest dissent (Chatterjee perhaps) but also allows more ‘business minded’ MPs to freely offer themselves to the highest bidder without compunction.

I did not fully follow what you mean by the 23 MPs in the confidence vote attracting 2(1)(a). As I explained, if they had attracted 2(1)(a), they would not have been worth anything at all let alone 25 crores. The UPA (and for that matter, the opposition as well) would have had no reason to offer them anything if it did not need to avail of their ‘service’.

V.Venkatesan said...

Dilip,

Your interpretation is compelling, but still unsatisfactory. In a few cases, the Court had held that if a Member simply sits at a meeting organised by rebels, or even participates at a rebels’ rally to Raj Bhavan, he would attract 2(1)(a). That is why the Court suggested that 2(1)(a) can be inferred or even implied from the defector’s conduct.

2(2) is about an independent joining a pol.party after election. Explanation to para 2 (1) has only two provisions: one, the deemed clause and another about the nominated member.

You have said: “Thus ‘voluntary’ in 2(1)(a) ought to be understood as its ordinary meaning, i.e., ‘resignation’ + grounds for disqualification cited in explanation to paragraph 2 (in provisions (2), (3) and (4)).

2(2) (3) and (4) are distinct grounds of disqualification, dealing with different types of members, namely, independent, nominated, and the status of those at the commencement of the Amendment Act, 1985 respectively. You seem to have added (mixed up?) these distinct grounds dealing with different aspects with the Explanation to 2(1). 2(1)(a) is distinct by itself, and does not need 2(2)(3)or (4) for amplification.

You have said: Having thus defined the meaning of ‘voluntary’, the court in G. Viswanathan had no trouble in concluding that in accordance with provision (2) of that explanation, the candidate, by joining another party, had ‘voluntarily’ given up his membership of his original party.

I think you are referring to 2(2) which deals with independent members. Explanation (b) to 2(1) also deals with nominated. The Court could not have invoked these two in support of its conclusion. True, in G.Viswanathan, the defectors left tell-tale evidence by joining another party. So, it became easier for the court to conclude that. But it is not necessary that in every case of 2(1)(a) without resignation, there must be defection to another party. Conduct short of defection to another party also can be construed as 2(1)(a) provided the main ingredient is satisfied. In Chatterjee’s case, he clearly suggested, rather admitted in the press release that he was no longer a member of the party to be bound by the party discipline. This is just resignation without calling it so in the form of a resignation letter. The defector need not join another party to complete 2(1)(a). I don’t understand how you reached the conclusion that in G.Viswanathan, the Court made this mandatory.

You have said:

None of the provisions of the explanation to para 2 mention anything about following or violating the party line. Unless his defiance of the party line goes so far as to meet the criteria set out in the explanation to para 2 (or alternatively 2(1)(b) which is a different issue), he cannot be disqualified. There can be no other reason for disqualification because the court also clearly said that these categories are exhaustive and in its view, it is impermissible to invent a new category or clause other than those envisaged or provided in the tenth schedule.

Ans: Explanation to 2(1) is not listing grounds for 2(1)(a). So there is no point in saying violating party line is not a ground.
When the Court said these categories are exhaustive in nature, it did not mean the grounds for disqualification, but the categories, that is, independent, party member, and nominated. The Court said so, to rule out a separate category like unattached. On this also, I believe, you have mixed up.

Dilip said...

VV,

You are correct - I inadvertently misread the numbering of the provisions and apologize for mixing up 2(2), 2(3) and 2(4) along with explanation for 2(1). The point I was trying to make was that though 2(2), 2(3) and 2(4) all deal with different categories of members, the underlying theme is the same - in all of the cases for any member, changing party status amounts to disqualification. Thus, reading 2(1)(a) in light of these provisions, the court's view that joining another party could be construed as 'voluntarily leaving' the party was a reasonable position to take.

You are also right that in G.Viswanathan, the court only said that joining another political party is sufficient to infer voluntary departure from the party. The question of addressing whether it is also a necessary condition did not arise as both counsel agreed that expulsion per se did not attract para 2(1)(a) (the Court of course took the view that expulsion is irrelevant under the law as I pointed out previously). Only the events following expulsion were in dispute in that case.

When the meaning of statutory provisions is in doubt, they are normally to be construed harmoniously with one another which inter alia means that the interpretation of one is not expected to render redundant a different provision. Yet interpreting defiance of the party line as violating 2(1)(a) would do precisely that. Defiance of the party line is already a reason for disqualification under 2(1)(b) in so far as it relates to members voting in the legislature. If defiance of the party line is also implicitly barred by 2(1)(a), it would not only be a much broader bar against the practice extending even outside of voting but would render 2(1)(b) utterly redundant and therefore wholly unnecessary. Such a construction cannot therefore be correct. (Could you kindly indicate which cases these are where the court invokes 2(1)(a) for participating in a meeting with rebels or in a rebel rally?)

One other clarification. Chatterjee's indication that he is no longer bound by the party line was stated after he was expelled and no longer bound by it. Does defiance of the party always amount to unofficial resignation? It depends to some extent on whether defiance leads to estrangement. In some cases, defiance is dismissed as 'differences' within the party and glossed over; in others, it leads to estrangement ending up in expulsion or voluntary resignation. On occasion, estranged people return to the good books of the party over time. There is in general no rule as to how these events will play out as they depend on the internal dynamics of every party, political events and how these issues are handled by the people involved.

V.Venkatesan said...

True, Chatterjee made public that he is no longer bound by the party line after he was expelled and no longer bound by it. But look at chronology of events as outlined by himself. The crucial date is July 20 when he admittedly told the party PB member that he would not resign as Speaker before the conf. vote, because he was not bound by the party view. This was before the expulsion.

There are many cases when the Court adopted a liberal view on 2(1)(a), using even newspaper clippings as evidence to the participation of a defector in rebel meetings and rallies. I will give you the citation later. May be reading Ravi Naik will help, or even the latest BSP disqualification judg. of the SC. In this case, Chatterjee's press release is evidence enough.

2(1)(a) and 2(1)(b) are distinct, and there is no scope for confusion. Chatterjee's conduct cannot fall under 2(1)(b) because there was no whip which he violated. The party wanted him to resign following withdrawal of support and on the eve of the conf. vote. The whip would have applied to him only if he had resigned as Speaker before conf. vote. Not all defiance of party line would fall under 2(1)(b) - only whip violation would qualify, in which case there is no need for further evidence, whereas for 2(1)(a), you need hard evidence of the defector's conduct outside the House. In this case, Chatterjee's tacit refusal to resign after July 9, his refusal to answer questions from the media, and finally his refusal to the PB member to resign on July 20 which he admitted later are clear evidences why he attracts 2(1)(a).

Dilip said...

VV,

I think the cases you are referring to involve splits in the original party leading to the formation of a separate party by the rebel group. Correct? The issue there is quite different from what we have here. There, there is no dispute that the members have joined a separate party – their letter to the governor stating this and their letter to the Speaker asking for recognition of a new party says as much. Having migrated to a new party, they would normally be disqualified under 2(1)(a). The question was whether they could avoid this fate by qualifying for the exception under para 3 (now deleted by the 91st amendment). For this the court examined whether > 1/3rd of legislators formed part of the defecting group. The court’s use of circumstantial evidence of who was associated with which group at what time became relevant for this purpose there being no formal distinction between the two parties at that time. If the court decided that the members satisfied the requirement of para 3, they got to keep their seats or else, they fell under the axe of 2(1)(a) (which they would normally have but for this provision). Note that this is not simply a case of defying the party line but of migrating to an altogether new outfit. For example, in the BSP defectors case that you pointed to, the legislators admitted to the governor that they were now part of the Lok Tantrik Bahujan Dal, a new entity. No further evidence is needed that they had changed their party status.

Chatterjee’s case is not remotely similar to this. There is no split in the party. He did not change his party status. He only opposed the party line on the question of speakership. These precedents cannot therefore be applied.

I understand that 2(1)(a) and 2(1)(b) were meant to be distinct with separate requirements. But I think you missed my point that if 2(1)(a) can be invoked merely by violating the party line, what is left of this distinction? Violating party line includes everything from speaking out against the party’s position on an issue in public to having dinner with members of a rival party to voting in breach of the party whip in the House. That view of 2(1)(a) is so broad that it entirely subsumes 2(1)(b) within its fold. Assume for a moment that 2(1)(b) never existed – can there be any dispute at all that voting in defiance of the party whip is a violation of the party line? Absolutely not. I therefore reiterate that this view of 2(1)(a) is so liberal that it renders 2(1)(b) entirely redundant. It is thus an untenably broad reading of the provision that cannot be subscribed to.

V.Venkatesan said...

Dilip,
The fact that legislature did not see merit in the continuance of Para 3 shows that the distinction between an individual defection, and the defection to join another party is not at all convincing. Therefore, I am surprised you subscribe to the merits of this distinction, when the legislature has already consigned para 3 to history. The primary thing is defection by an individual. After para 3 deletion, joining another pol.party as part of one-third group, is immaterial (and unnecessary) to consider whether 2(1)(a) is attracted.

Secondly, (and it follows and has a bearing on the first) I am not at all convinced that giving effect to 2(1)(a) on the ground of open defiance of party line can render 2(1)(b) redundant. A distinction can always be drawn between a simple disagreement with party leadership, which is generally condoned, and a serious one, when the party aims to bring down a Govt. but its speaker not cooperating. The latter can attract 2(1)(a), without leaving 2(1)(b) redundant, because it is confined to a specific circumstance within the House.

Dilip said...

VV,

My point was that circumstantial evidence of the kind you suggested was used to determine eligibility of the defector for the para 3 exception (para 2 used to read ‘Subject to the provisions of para 3, 4, and 5). Now that para 3 is no longer present, it means that grounds for considering that sort of evidence in the event of a split no longer exists. If someone were to split today and form a new party and give a notice to the speaker asking for recognition, they would automatically face disqualification under para 2. That does not however mean that requirements for para 2 have diminished – for one thing, evidence for para 2 disqualification was never in question in those cases. For another, if someone were to petition the courts in the event of a merger, the same sort of circumstantial evidence would be examined for qualification under the para 4 exception which has not been deleted. The conclusion that the requirements for disqualification under para 2 have been reduced owing to the deletion of para 3 is therefore not correct because evidence for para 2 was never in question in those cases (the existence of a separate party constituted of rebels was undisputed).

Under the standard for 2(1)(a) you propose, you would disqualify someone in the event of ‘serious’ defiance which is constituted of a violation of the party line that was not condoned. Assuming 2(1)(b) did not exist, would you not consider voting in violation of the party whip in the House (which was not condoned by the party) a serious violation by any stretch? Of course it is. Even this standard of 2(1)(a) is therefore so broad as to encompass the entire domain of 2(1)(b) rendering it completely redundant.

V.Venkatesan said...

Dilip,
You have argued your case very well. But I still feel the disagreements remain. Hopefully, we can continue this later.

V.Venkatesan said...

Dilip,

The words of a statute must be read and understood as they are - that is, their meanings must be plain and simple. If you read 2(1)(a), how do you read a limitation in this that it must apply only to cases where the defector joins another pol.party? If the legislators wanted it to convey such a meaning, nothing prevented them to add an explanation or a proviso to that effect.

Secondly, both 2(1)(a) and (b) must be read harmoniously. As long as 2(1)(b) is there to provide additional clarity, we need not assume what would be the consequence if it is not there. Both can co-exist and cater to different situations as understood by the plain reading of these provisions.

V.Venkatesan said...

Dilip,
To point out one more reason. Tenth schedule itself envisages a category like independent. Supposing a defector voluntarily gives up membership of his original party, and does not join another party, but wants to remain independent or unattached, should he not invite 2(1)(a).

Chatterjee's position is exactly this today. He voluntarily gave up membership of his party, and being the Speaker, sees virtue in remaining unattached/independent, though he does not enjoy para 5 immunity.

Dilip said...

VV,

I asked you to assume the non-existence of 2(1)(b) only to illustrate a point. Let me explain in some detail what I am trying to say.

The basic idea is simply that in interpreting the scope of an provision, one assumes that the legislature does not intend redundancy, i.e., there would not be two provisions if one sufficed. This is really a form of the noscitur a sociis argument routinely employed in statutory interpretation.

Let me give you a hypothetical example to buttress the point. Suppose a public university campus has traffic rules that read as follows:
(1) Vehicles are not allowed on campus.
(2) Bicycles are not allowed to be parked on the sports complex ground from 9AM – 1 PM from Monday-Friday. (the sports complex is on campus).

An overzealous campus security officer decides to prohibit bicycles on campus under rule (1) and an aggrieved student decides to take the matter to court. The judge must then decide whether the word ‘vehicles’ refers only to cars, buses and other motor vehicles or is broad enough in scope to include bicycles within its ambit. In doing so, he asks the obvious question: why would there be a separate provision saying that bicycles cannot be parked if they were intended to be disallowed from the campus in the first place? If rule (1) includes ‘bicycles’, it renders rule (2) entirely redundant. He therefore rules that ‘vehicles’ does not include bicycles and lifts the ban.

Our case is similar. In deciding the scope of the word ‘voluntary’ in 2(1)(a), we must take care not to interpret it so expansively as to render 2(1)(b) unnecessary. If the standard for ‘voluntary’ departure was meant to include all serious violations of the party line that are not condoned by the party, it would include all of the following:
(1) criticizing the party leadership in public both within and outside the legislature
(2) taking positions in a public debate contrary to those of the party
(3) refusing to give up political office in accordance with party directives
(4) voting (or abstaining from voting) contrary to the direction of the party

There can be doubt that all of the above constitute serious violations of the party line. That begs the question: if 2(1)(a) were meant to include all of the above offenses in the first place, why have a separate provision under 2(1)(b) only for instances of voting in violation of the party whip? It does not make any sense at all.

As for the plain meaning of the text, we would not be debating this if the dictionary meaning of ‘voluntary’ lent itself so obviously to such a view. If violation of party line was meant to be prevented even for purposes outside of voting, 2(1)(a) ought to have read something along the lines of 2(1)(b) such as : ‘…if he has voluntarily given up his membership of such political party or has acted in any manner contrary to the direction of such party.’

Nothing prevented parliament from writing such a sweeping provision. And if it had been written, surely 2(1)(b) would not have been incorporated at all. Instead it chose to write a separate provision that it specifically limited to issues of voting in the House. Why do that if it was supposed to enforce adherence to the party fiat anywhere and everywhere?

One consequence of the tenth schedule has been that estranged members leaving the party on their own get treated differently from those who refuse to take that final step. Hence you have folks like Natwar Singh, S.S.Ahluwalia and others who persisted in their own parties while constantly provoking their leadership to get themselves expelled so that they could be rid of the weight of the party while getting to keep their seats. This kabuki dance would have been quite useless were it not for the limited reach of 2(1)(a) – they would perhaps have been expelled right away and lost their seats soon after the spat.

V.Venkatesan said...

Dilip,

The bicycle example only strengthens my argument. If vehicles do not include bicycle, so I will be correct in saying that voluntarily giving up membership will not include defiance of party directive within House. Voluntary giving up of membership must be taken to mean every conduct of voluntary giving up of membership, including voluntarily dissociating from a party decision (not direction, which would I agree would fall under 2(1)(b).).

The CPI(M) was not directing Somnath to quit as Speaker, it only conveyed him the party decision, first when it included his name in the list to the President, and later, specifically when it said party decided that he must quit before the vote.

The Speaker clearly indicated that he was not a party to the withdrawal decision, thus dissociating himself, that is voluntarily giving up his membership.

True, Congress expelled Natwar Singh. Natwar joined the BSP only today, after his RS term expired. But nothing prevented Congress from filing a complaint for his disqualification, before his term ended. If a party does not want to pursue a disqualification case, then the defector is safe. Similarly, CPI(M) may not want to pursue the case against Somnath. But that does not mean the ground for disqualification does not exist.

In the G.Viswanath case, the defector joined another party after expulsion. Imagine, if he had not joined, but chose to remain as an independent/unattached. Joining another party was considered as an additional proof.

In the Goa case, too, Dr.Barbosa could have remained as an independent, and others could have rallied behind him to be chosen as the chief minister. Still he would have attracted disqualification. Dr.Jhalmi in that case invoked Para 5 for disqualification, and used his joining another party only as an additional proof. Remember, the Jharkhand chief minister is an independent.

Similarly, in Somnath’s case if you remove para 5 protection, he must be treated as an ordinary member. What defence he has? If you read his press release, he invokes the para 5 rationale for his conduct, which would be completely impermissible. Does he deny that he did not voluntarily give up the membership, by distancing himself the party decision? No, he doesn’t. He is only confirming it.

Dilip said...

VV,

1. You said: “in Somnath’s case if you remove para 5 protection, he must be treated as an ordinary member. What defence he has? If you read his press release, he invokes the para 5 rationale for his conduct, which would be completely impermissible. Does he deny that he did not voluntarily give up the membership, by distancing himself the party decision? No, he doesn’t. He is only confirming it.”

I agree that bereft of para 5 protection, he must be treated as an ordinary member. His press statement (I suppose this is the same one that appeared in the Indian Express) did not dwell on the para 5 protection at all as far as I can tell. He simply narrated the sequence of events and suggested that in future, speakers ought to resign soon after election to avoid such hassles. This is not a defense of anything, just advice to future speakers.

2. You said: “In the Goa case, too, Dr.Barbosa could have remained as an independent, and others could have rallied behind him to be chosen as the chief minister. Still he would have attracted disqualification. Dr.Jhalmi in that case invoked Para 5 for disqualification, and used his joining another party only as an additional proof.”

Agreed. The question there was whether para 5 exception does or does not apply, not whether para 2(1)(a) applies or not because it clearly did as Barbosa had resigned from the Congress. If para 5 exception had applied, he would have been saved under this exception to 2(1)(a) but since it did not, he lost his seat.

3. You said: “In the G.Viswanath case, the defector joined another party after expulsion. Imagine, if he had not joined, but chose to remain as an independent/unattached. Joining another party was considered as an additional proof.”

No. In this case, the member would have retained his seat had he not joined a new party. 2(1)(a) applies only for voluntary departure and therefore excludes the alternative (applying the canon expressio unius est exclusio alterius), i.e., involuntary/coerced departure which normally manifests as expulsion from the party which is what happened in this case. 2(1)(a) therefore did not apply – the court made it clear that in such instances, the action of a party qua its member has no significance (I have quoted the actual words in a comment above).

4. You said: “True, Congress expelled Natwar Singh. Natwar joined the BSP only today, after his RS term expired. But nothing prevented Congress from filing a complaint for his disqualification, before his term ended. If a party does not want to pursue a disqualification case, then the defector is safe. Similarly, CPI(M) may not want to pursue the case against Somnath. But that does not mean the ground for disqualification does not exist.”

Agreed. My point was only that estranged members and their parent parties have been forced to play these games, the reason being to dodge punitive action under 2(1)(a). You are right that the Congress could have well filed a complaint and tested out the reach of 2(1)(a) but chose not to possibly because they did not believe that they could make a strong enough case.

5. You said: “The bicycle example only strengthens my argument. If vehicles do not include bicycle, so I will be correct in saying that voluntarily giving up membership will not include defiance of party directive within House. Voluntary giving up of membership must be taken to mean every conduct of voluntary giving up of membership, including voluntarily dissociating from a party decision (not direction, which would I agree would fall under 2(1)(b).).

The CPI(M) was not directing Somnath to quit as Speaker, it only conveyed him the party decision, first when it included his name in the list to the President, and later, specifically when it said party decided that he must quit before the vote.”

I take it you agree that defiance of a party directive does not come within the ambit of 2(1)(a). You appear to make a distinction between defiance of a decision and dissociation from it. In my view, there is no difference between the two - in either case, the individual refuses to accept or abide by the party’s decision. Also, 2(1)(a) deals with a member’s party status, not his view of any party decision (dissociation from a party, i.e., from people matters, not dissociation from a view/opinion which does not). It may well be that the consequence of his/her defiance/dissociation vis-à-vis a particular decision is his alienation from other party members or in other words, his own dissociation from the party. However, not all dissociations from the party attract 2(1)(a), only voluntary ones do.

The question then is how to tell the voluntary dissociations from the involuntary/coerced ones. It is impossible to make that distinction from only the consequence of an act of defiance of/dissociation from a particular decision – after all, once such a thing happens, the party is as likely to dissociate itself from the member as the member is to dissociate himself from the party. Indeed, who separated from whom which is entirely a matter of perception and cannot be relied upon to make a judgment. For legal purposes, what therefore matters is the final act of who leaves whom (which is also what the language of 2(1)(a) indicates), i.e. did the member leave the party or did the party fire the member? In the first instance, 2(1)(a) applies whereas in the second, it does not. Since Chatterjee was expelled, he does not come within its ambit.

V.Venkatesan said...

Dilip,
I think by continuing this debate, we tend to repeat what we said earlier. The whole thrust of Chatterjee's press release is to invoke para 5, without saying it explicitly. You have to read between the lines. Stil, I cite the relevant para:

"The Speaker of Lok Sabha, like Speakers of other elected Assemblies, while acting as such does not and cannot represent any political party and in the discharge of his or her duties and functions, the Speaker did not and does not owe allegiance to any political party and does not support any Party and consistent with that position, I have scrupulously kept myself away from all political activities whatsoever.

"It was made clear through a statement issued on my behalf on 10 July, 2008 that as Speaker I did not represent any political party in the discharge of my duties and functions nor l owed any allegiance to any political party and that my election was not only uncontested but was also unanimous and that I was not elected as the nominee of any Party.

"In the afternoon of 20 July, 2008, for the first time I was verbally told by a member of the Politburo that it was the decision of the Party that I should resign and vote against the Motion and when I refused, subsequently it was suggested that I should resign as Speaker and may not attend the House to cast my vote. I informed him of my inability to accept such decision or to act upon the same, as it will seriously compromise the constitutional position of the Speaker.

"The Party should have appreciated that as Speaker I did not represent it nor could it at all give any direction to me with regard to the discharge of my functions as Speaker. I reiterate this with all the emphasis at my command."

2. You did not answer my question why a defector could have remained an independent/unattached and enjoyed the fruits of defection, without joining or floating another party. By ignoring this distinction, you are ignoring the very object of this legislation.

3.You also seem to ignore the deemed clause - the legal fiction which I explained in the Hindu article, because of which expulsion does not matter at all. As almost all expulsions follow voluntary giving up, the Act does not refer to expulsions at all.

4.Parties do not take resort to disqualification proceedings for various reasons, not necessarily because they believe that thay may fail.

Dilip said...

VV,

1. On what Somnath said, we will perhaps have to agree to disagree. I think you are reading too much into it. To invoke para 5, he would have to explain why the 5(a) exception would apply four years after his election. He does not even attempt to do that. In fact, nowhere in the entire release does he even so much as mention disqualification. He is talking generally about how a speaker ought to discharge his duties and how he has tried to live up to the ideal. This is not a legal defense and should not be judged to be such.

2. At the heart of our dispute is the question of expulsion. You insist that because of the legal fiction, expulsion does not matter at all. This view cannot be squared with our understanding of the deeming provision as explained in G.Viswanathan: “An elected member shall continue to belong to that political party…. notwithstanding that he was thrown out or expelled from the party.” If all expulsions are preceded by voluntarily giving up membership as you insist, these words are meaningless for how would it be possible to give equal status to expelled members if they have already forfeited their seats under 2(1)(a)? The court ought to have then said quite the opposite: “An elected member shall be deemed to have lost his membership if he was thrown out or expelled from the party”. Thereafter, it concluded: “The action of a political party qua its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule.” Again, if expelled members are to be deemed to have 'voluntarily' give up their seats a priori, the action of a political party qua its member indeed ought to be ofgreat significance contrary to what the court said. These contradictions cannot be explained away unless you concede that manner of departure from the party does matter for the purpose of 2(1)(a). That is quite in accordance with the text as well – the key phrase is 'voluntarily leaves the membership', not simply 'leaves the membership'. If the word 'voluntary' is to have any meaning at all, it must exclude some categories of departure from within its ambit.

3. As for the other question, status of unattached members expelled from the party being the same as attached members, they cannot launch their own parties. If they can gather independents and rule with their support without launching their own parties, there is nothing in the schedule to prevent them from doing that. An unattached member gets to keep the benefits of membership which is why parties have a strong incentive not to resort to expulsion.
Barbosa's case is different - he was not expelled but resigned. So when Para 5 did not apply, he would have lost his seat anyway under 2(1)(a) regardless of whether he launched his own party or not. Things would have been different had he been expelled from the party.

V.Venkatesan said...

Dilip,
1. Let the disagreement remain.

2. I am not saying all expulsions will necessarily follow voluntary giving up of membership. I would think most expulsions do. That is why independent of the fact of expulsions, one needs to find out whether voluntary giving up was established or not. I think we agree on this, only that you seem to have read my most as all, and suggested that if that was so, then 2(1)(a) would have been differently worded.

If a party without any reason, may be because of rivalry or insecurity expels a member, and there was no voluntary giving up, then 2(1)(a) will not obviously apply. That is why there is need for a reason and a proof. Both are present in Chatterjee case, but you probably think they are not sufficient. It is again a problem of perception.

3. I don't follow your analysis of Barbosa case. Supposing he did not resign from Congress, but became a rallying point of other parties, independents and groups, and became the CM with their support. Congress expels him in the mean time, because it was simply revolt, and hobnobbing with party's adversaries, without officially joining them. Why can't he attract 2(1)(a) only because he did not resign, or he was expelled?
Remember the Schedule seeks to remedy a mischief, so when you read a provision, you should keep this objective in mind.

Take another example. Natwar Singh was expelled, but not disqualified because Congress did not file a petition. Can we say the grounds did not exist, even if he was openly hobnobbing with the BSP all these days, (supposing BSP is a party opposed to Congress) only waiting for his RS term to be over. Or take an extreme possibility: Natwar after expulsion became the rallying point of all other non-Congress parties and became PM candidate, without officially joining any other party. Should we still say he did not attract 2(1)(a)? In short, 2(1)(a) has to be read considering the facts and circumstances of each case, and its mischief-removal objective. Anything short of mischief removal is permissible. If a conduct approaches the mischief targetted by the Schedule, then it is not.

Dilip said...

VV,

I think I understand your point: expulsion is immaterial whereas the circumstances preceding it are determine whether or not 2(1)(a) applies. Here, I am a little fuzzy - so long as there is a reason and proof, it applies. Is any reason good enough or are some more legitimate than others? There is almost always some reason for the expulsion, so 2(1)(a) would apply except occasionally. Correct? If that is so, both our views are consistent with G.Viswanathan.

The tenth schedule's goal was to raise the cost of defection where it truly mattered - jumping parties and voting in the House but beyond that, I do not think that the intent was to police all dissent. Parties used to be umbrella organizations (even more so in 1985 than now) with loyalists, gadflies and all sorts of elements in between; the objective was not to stifle internal dissent or even to intrude into matters of party machinations. Rebels earlier had an easy fight-or-flight option but this legislation limited their ability to fly leaving intact however the right to fight. The idea was not to create a tyranny of the party leadership; fomenting a revolt to oust their leaders was not sought to be prevented through legal coercion. While it is true that most parties in India do not practice internal democracy, stifling it was decidedly not an objective and preventing a minority from defying (/dissociating from) the majority (so long as the process itself did not involve violating the whip within the House) including inciting against the leadership from within - a 'palace coup' of sorts – was perfectly permissible. Minorities are entitled to refuse to accept the majority view and in seeking to upstage it, their actions even if it violates party discipline, cannot be viewed as defection.

Take for example the infighting in party units where the dissenters often have some grievances and challenge the mainstream party position on some issue. Many times, they take aim at the leadership of the party in the House. They are almost always initially a small band of people but over time, they may gain strength eventually succeeding in persuading the party to concede their demands or change the leadership or both. By challenging the leadership, they are certainly seen by the leadership as violating the party line on more than one occasion but their goal is alter the direction/leadership of the party, not to leave the party. Party leaders many times expel them on such occasions as a punitive measure but it is unfair to construe their dissent and their defiance/dissociation from party decisions as amounting to voluntarily leaving the party when their goal is only to try and bring change from within by winning over others to their cause (many times, you see expelled members rejoining the party once the leadership changes). Without this right to fight the party leadership, reject their decisions and campaign against it over extended periods of time starting from a position of isolation and weakness, you will end up with a dictatorship of the party leadership, unaccountable and unresponsive, imposing its views on members at will.

I remember the case from Bangarappa's tenure as Karnataka CM. A 'Save Congress' campaign started not long after he got the job and continued for a couple of years. Initially there were only a few people but gradually more and more MLAs joined their ranks. They had a litany of charges including, inter alia, that of corruption. In going against the party leadership, they were clearly violating party discipline but eventually their view gained sufficient strength and succeeded in getting the CM replaced. Such a campaign would be nearly impossible if the defection clause is sweeping in scope. At the first whiff of opposition to the party leadership, the party can simply throw them out causing them to lose membership and nipping all talk of resistance in the bud. That would make it impossible for anyone to so much as dare challenge the leadership. I do not think the tenth schedule was intended to go into such questions of party politics, to stifle all dissent or even insurgency against the party leadership. It was a modest effort to prevent people from party hopping and empower party leaders to enforce discipline in legislative matters. Outside of the House, for the most part, as long as they do not join any other party, they can do whatever they want including trying to get the leadership of their party/legislature party overthrown. The party too is free to run its own affairs as it sees fit including expelling those who challenge the status quo or violate its diktats however unfair and one-sided they may be – the tenth schedule cannot grant freedom to party members anymore than it can take it away - but it does not have the right to tar the legitimate dissent of members with the brush of defection and penalize them through disqualification.

My approach is that if a member is expelled, he keeps his seat; if he resigns, he loses it. If Barbosa was expelled because he revolted, he would keep his seat and could go on to try and become CM if he could gain the support. But first of all, that is an extremely unlikely thing to happen; secondly, in the anomalous instance that it did, nothing in law could prevent it. On his own, his revolt is relatively toothless: so long as he remained in the party, he could not be CM (and would therefore not be an attractive rallying point) because if the party did not expel him, he would be in the untenable position of losing his seat if he voted for his own government - even if he could, at the risk of disqualification, support someone outside, becoming the focal point for a revolt is all but out of the question. Earlier of course when para 3 was still there, he could have become a focal point not on his own but by gaining the support of a third of the party members thereby putting himself in a position to engineer a split but now that the option is no longer available, he could only acquire such a status if he can rally the whole party to his side - if he can achieve that and displace the current leadership, it would be a legitimate coup de grace but not only is that difficult and unlikely, it is unattractive as a proposition to any outsider for why would they rally to him hoping he will manage to accomplish such a feat when approaching the party leader in the House is instead the direct, more realistic and by far a superior alternative? If despite all these drawbacks and the looming prospect of disqualification under 2(1)(b), he somehow radiates such infectious magnetism as to draw all lovelorn turncoats from without, he could become CM regardless of the tenth schedule anyway by simply resigning and contesting a byelection as an independent. The party of course would have nothing to gain by expelling him at any point during the saga and is better off choosing not to do so - instead it is free to counter his efforts with his own through the ordinary democratic methods of persuasion.

V.Venkatesan said...

Dilip,
My approach is slightly different. We agree that the term voluntary in 2(1)(a) is ambiguous, and is prone to different interpretations. You would like to confine it to party hopping. But I wish to apply the Heydon's Rule to interpret it and see whether a Member who doesn't change the party still commits the mischief. I agree with most of what you say, but I don't know whether I can succeed in convincing you on this.

V.Venkatesan said...

Dilip,
I agree with most of what you say. We seem to disagree on only one thing - how to interpret 'voluntary' in 2(1)(a). You would like to confine it to party hopping, whereas I wish to use Heydon's rule to interpret it, and expand its use to situations where similar mischief could be there.