It is just a coincidence that former Samajwadi Party leader Amar Singh died on Saturday, when the Tenth Schedule to the Constitution – dealing with the disqualification of legislators on grounds of defection – is under intense scrutiny by commentators, thanks to the Congress’s internal revolt in Rajasthan.
Singh, along with his former colleague Jaya Prada, deserve credit for urging the Supreme Court’s scrutiny of the Tenth Schedule in light of their own political experience. And the Supreme Court, as a result of their urging, did concede that the case law on the subject required a hard look. The court refrained from doing so, though, because of the absence of an exigency.
Amar Singh I
The first case arose in 2010 when Singh, then a Rajya Sabha MP belonging to the Samajwadi Party, was expelled from the party on February 2, 2010. Singh had admittedly resigned from the posts of general secretary and national spokesman of the Samajwadi Party on January 6, 2010 citing medical reasons and other personal difficulties. After his expulsion from the party, he was treated as an independent member, also called “unattached”, to distinguish such members from other independent members, who contested and won as independent candidates.
Singh was joined in his petition by his party colleague, Jaya Prada, who was then elected to the Lok Sabha as a member of the Samajwadi Party for a second term. She too became an independent member of the Lok Sabha, following her expulsion from the party.
Both Singh and Prada contended that they faced an imminent threat to their continuance as members in view of the Supreme Court’s decision in the case of G. Viswanathan v Hon’ble Speaker Tamil Nadu Legislative Assembly (1996). In this case, the court held that the members, expelled from their parties, will continue to be members of their former parties, for the purposes of the Tenth Schedule.
Both Singh and Prada called upon the court to consider the effect of paragraph 2(1)(a) and explanation (a) in the Tenth Schedule to the Constitution with regard to members of political parties who are expelled and have not voluntarily given up their membership of such political party. Explanation (a) provides that for the purposes of paragraph 2(1), 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.
In G. Viswanathan, the Supreme Court held that in view of this explanation to paragraph 2(1), even if a member is expelled from his party, for the purposes of the Tenth Schedule, he would not cease to be a member of the political party that had set him up as a candidate for the election and he would continue to remain attached to that political party even if he is treated as “unattached”.
The court also held in that case that when a person who has been expelled from the party which set him up as a candidate and was ultimately elected, joins another party, it would certainly amount to his voluntary abandonment of the membership of the political party which had set him up as a candidate.
In other words, the action of a political party in relation to its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule. This deemed fiction in explanation (a) to paragraph (2), therefore, would consider a member, elected on the symbol of the party which fielded him as a candidate at an election, to be the member of that party for the entire tenure as the House until he suffers disqualification on the ground of defection, as envisaged under the Schedule.
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In G. Viswanathan, the court concluded that the deeming fiction has to be given full effect as otherwise the expelled member would escape the rigour of the law which was intended to curb the evil of defections.
Harish Salve, who now represents the Congress rebels in Rajasthan, was also the counsel for Singh in the Supreme Court. Citing parliamentary debates while enacting the Tenth Schedule, Salve told the court that it was not the legislative intent to bring persons who are expelled from their political party within the ambit of the Tenth Schedule. He relied on the parliament’s decision to drop paragraph 2(1)(c) of the Bill, which considered expulsion from the party as a ground of defection, from the Tenth Schedule. According to Salve, in G. Viswanathan, the Supreme Court erred in not taking note of the parliamentary debate on the bill, and the dropping of Paragraph 2(1)(c) from the Schedule.
Salve also articulated the view that G. Viswanathan ruling would have dangerous portents if a member, properly elected by the voters of a particular constituency, could be deprived on the whims and fancies of the leaders of his party even though he may not have voluntarily resigned from the party which would then have attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the constitution.
The current Attorney General, K.K.Venugopal, who had then appeared as counsel for Prada, submitted that on account of the decision in G.vViswanathan, even an expelled member stood exposed to the party whip in the house, if he was to be deemed to be, for all practical purposes, a member of the party which had expelled him, in the House.
The Supreme Court bench of Justices Altamas Kabir and Cyriac Joseph agreed in Amar Singh on November 15, 2010 that what was sought to be excluded by the legislature had been introduced into the Tenth Schedule by virtue of the decision in G.Viswanathan. But the bench could not have set aside that decision because judicial propriety required that it should be left to a larger bench to reconsider a decision rendered by a two-judge bench.
While making a reference for reconsideration of that decision by a larger bench of three judges, the Kabir-Joseph bench ruled that it should not be applied to Amar Singh and Jaya Prada during its pendency.
On August 3, 2016, the three-judge bench comprising Justices Ranjan Gogoi, Arun Mishra and Prafulla C. Pant, after hearing the arguments on both the sides for a number of days, decided not to answer any of the issues referred to them in view of the completion of their tenures in Parliament by the petitioners in the meantime. “Naturally, the questions referred are kept open for decision in an appropriate case,” the bench said while parting.
Supreme Court. Photo: PTI
The arguments before the three-judge bench revealed where the parties stood in terms of their contentions.
A member of parliament or assembly cannot be automatically disqualified after his or her expulsion from the party but may invite action by the speaker for any overt act, the Centre told the Supreme Court through then Additional Solicitor General P.S. Narasimha.
The Centre also maintained that a member can continue as an unattached member as per the direction of the speaker. However, if there is any overt act of either joining any other political party voluntarily or defies any whip of any political party, then he will attract the Tenth schedule, and action can be taken against him by the speaker, the Centre had stated.
The Centre was not in favour of expelled party members being treated as nomads joining any political party they wished to without attracting the Tenth Schedule. According to the Centre, the Schedule contemplated an “overarching principle” that “a legislator who is born into a House through a political party or as a nominated member or even as an independent candidate shall retain his birth mark and shall continue as such till the dissolution of the House”. “This is the principle contemplated under the Tenth Schedule by operation of deeming fiction. This is a constitutional morality contemplated under the Tenth Schedule,” Narasimha had submitted.
Amar Singh, on the contrary, argued that since he had been expelled, he should now be entitled to vote against the party whip, or join another political party, without being disqualified from membership under the Tenth Schedule.
Amar Singh II
And the appropriate case, which the three-judge bench envisaged in 2016, arose within a year. In Amar Singh II, Amar Singh successfully revived his original petition, because the Samajwadi Party which took him back as a member and fielded him as a candidate in the Rajya Sabha expelled him again after his re-election for anti-party activities.
With history repeating itself, a two-judge bench comprising Justices Deepak Misra and A.M.Khanwilkar considered the matter afresh on April 17, 2017.
C.U. Singh, senior counsel for Amar Singh, asked the bench to declare the provisions of Tenth Schedule, to the extent that paragraph 2 applies to an expelled member, to be violative of the basic structure of the Constitution. The Misra-Khanwilkar bench, while declining this prayer, however, agreed to refer the other issues for consideration by a larger bench.
Amar Singh’s two remaining prayers include either declaring Paragraph 2 of the Tenth Schedule inapplicable to an expelled member or declare that his conduct, in view of his expulsion, would no longer fall within the acts that constitute disqualification under Paragraph 2.
Amar Singh’s current tenure as Rajya Sabha member was to expire on July 4, 2022 before his untimely death on Saturday. “Thus, the reference that was made in the case of Amar Singh (supra), the present petitioner, remains to be dealt with as the same has not been answered with the efflux of time,” the two-judge bench noted in its order.
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As in 2011, Amar Singh again sought interim protection from the Supreme Court during the pendency of the case, so that the chairman of the Rajya Sabha does not take any adverse action against him in pursuit of the Supreme Court’s decision in G.Viswanathan. The two-Judge bench issued notice to the respondents on April 17, 2017 on the question of interim relief to Amar Singh.
While court was yet to consider grant of interim relief to him, the matter was listed before a three-judge bench (of Justices Arun Mishra, Vineet Saran and M.R. Shah) on January 22 and 29 this year, when it was adjourned on account of non-appearance of parties.
The legacy
With Amar Singh’s passing away on Saturday, it is likely that the pending case before the three-judge bench will again become infructuous. But that should not prevent us from asking relevant questions about the case’s legacy for the current and the future. One such legacy is the status of expulsion from the party itself or the threat of expulsion from the party, as we see in the turmoil within the Congress in Rajasthan.
Singh, in his own way, legally articulated through his counsel the dilemma of an expelled member, desirous of fulfilling his responsibilities as a legislator, irrespective of the party membership.
In a sense, he raised the larger issue of whether there exists in Indian democracy a direct nexus between the voters who choose him as their representative, and the member, and what this nexus demands in terms of the member’s responsibilities. After all, the Supreme Court has recognised the right of the voter to know, and the obligation of a candidate to furnish, the educational and financial status, besides criminal antecedents of a candidate at an election, thus recognising a direct relationship between the candidate and the voter, irrespective of the party which fields him or her. Can this be stretched to include an obligation on the part of a member to his voter to also question the party leadership, and insist on internal democracy, if required, when democracy as envisaged under the Constitution itself is at stake?
Jaya Prada. Photo: PTI
An expulsion from the party which fielded him as the candidate for his perceived “anti-party activities” left him “unattached” for the remainder of his tenure of membership, thanks to omission of Paragraph 2(1)(c) of the Bill from the Tenth Schedule. If resignation is the only option open to him, parliament would have retained Paragraph 2(1)(c) in the Schedule, as in terms of outcome, it would make little difference.
Therefore, Singh was correct in asking why, after expulsion from the party, he should be prevented from floating a new party or joining a new party. By not taking a timely decision on his prayer, the Supreme Court left him vulnerable to the prospect of losing his seat in the Rajya Sabha. The fact that he did not lose his seat despite the absence of Supreme Court’s protection during the pendency of his case second time may perhaps have to do with his stature across the political spectrum.
As expulsion is something that takes place outside the House, the Amar Singh case also raises the question whether jurisdiction of the speaker could be extended to activities outside the legislature. If parliament did not intend to let the speaker decide issues of expulsion on this ground, how could it have envisaged speaker’s authority to decide whether a member, in terms of his conduct outside the House, incurred disqualification under paragraph 2 (1) (a)?
Needless to add, the pending issue before the Supreme Court has profound implications for the Congress rebels in Rajasthan too. But Amar Singh’s premature death has deprived the Supreme Court an opportunity to address this issue judicially within the scope of his pending petition.
Rajasthan high court’s indefinite stay on the speaker’s action in the disqualification proceedings against the 19 Congress rebels has come under intense criticism because of the restraint on such interim intervention in the Supreme Court’s Kihoto Hollahan judgment (1992). A similar restraint on the chairman of the Rajya Sabha in applying Supreme Court’s decision in G. Viswanathan to Amar Singh and Jaya Prada, as implied in the November 15, 2010 decision of Kabir-Joseph bench (referred to earlier in this article) has gone unnoticed by observers.
If the high court’s intervention in Rajasthan at the notice stage is impermissible, the question of how the Supreme Court thought it fit to intervene at the pre-notice stage to protect Amar Singh and Jaya Prada from disqualification proceedings – which were not even initiated then – needs to be answered by its critics. The Supreme Court had not even invoked its Article 142 power to do so, suggesting that even high courts have similar jurisdiction to intervene.