The Supreme Court’s vacation bench on Friday declined to entertain rebel Aam Admi Party (AAP) MLA Devinder Sehrawat’s plea challenging the disqualification notice against him for joining the BJP. He had reasoned that his action of joining another political party should not mean ‘voluntarily giving up membership’ of AAP – on whose symbol he was elected to the Delhi assembly.
The bench comprised Justices Sanjiv Khanna and B.R. Gavai.
Paragraph 2(1)(a) of the Tenth Schedule – also known as the anti-defection law – seeks to disqualify a member of a House belonging to any political party if he or she has “voluntarily given up his membership of such political party”. Paragraph 2(1)(b) seeks to disqualify a member for voting or abstaining “in such House contrary to any direction issued by the political party to which he or she belongs”.
The speaker of the Delhi assembly issued notices to Sehrawat and another AAP rebel MLA, Anil Bajpai, on the basis of the petition seeking their disqualification from AAP under the anti-defection law for joining the BJP. The speaker gave a week’s time to Sehrawat and Bajpai to explain why they should not be disqualified.
Sehrawat represents Bijwasan while Bajpai has been elected from Gandhinagar constituency.
Sehrawat’s counsel, Rahul Raj Malik argued on Friday that his client was yet to officially join the BJP by becoming its primary member. AAP, on the other hand, he said, was continuing to sideline him and was not inviting him for any of its meetings. Malik was assisting Soli J. Sorabjee, the senior counsel for Sehrawat.
Sehrawat was suspended from the primary membership of AAP in September 2016 for publicly alleging that the party’s members in Punjab were “exploiting women” in lieu of tickets to contest the state elections. Sehrawat was also quoted as having said that he “decided” to join the BJP after being “inspired by Prime Minister Narendra Modi’s vision for the nation and national security”.
Comparison with Amar Singh and Jaya Pradha cases
Malik also sought to equate Sehrawat’s status to that of the expelled Samajwadi Party MPs Amar Singh and Jaya Prada who secured Supreme Court’s protection from being disqualified under the anti-defection law in the event of their defying a party whip.
Amar Singh had sought Supreme Court’s intervention to declare Paragraph 2 of the Tenth Schedule inapplicable to members who are expelled by the parent party. Both Amar Singh and Jaya Prada became “unattached” members of the Rajya Sabha following their expulsion from the Samajwadi Party.
Also read: India’s Politicians Have Turned the Anti-Defection Law on Its Head
In 2011, a two-judge bench of the Supreme Court found Singh’s plea reasonable, as it felt that members of the House who are expelled from their parties on whose banner they had been elected to the House would be left completely vulnerable to the whims and fancy of the leader of their parties if they are subjected to the rigour of the anti-defection law.
The apex court considered the fact that during the debate in parliament when the Anti-Defection Bill was being enacted in 1985, members had opposed the inclusion of expelled members within the ambit of disqualification in view of the “dangerous effects of such inclusion”. The bench, therefore, referred the case to a larger bench after framing relevant questions for determination.
On August 3, 2016, a three-judge bench, which heard the matter at length, strangely decided not to answer any of the issues referred to it by the two-judge bench as the Rajya Sabha tenures of Singh and his co-petitioners had ended in the meantime.
On April 17, 2017, another two-judge bench of the Supreme Court issued a notice to the Centre on the interim relief sought by Singh and Jaya Pradha that they should not be disqualified pending the reference of their plea to a larger bench. Both approached the Supreme Court afresh as their new terms as Rajya Sabha MPs are to last till July 4, 2022.
The CJI is yet to constitute a larger bench to hear their pleas for interim relief, and the substantial remedy. With both Singh and Pradha already in the BJP camp, their cases do appear substantially similar to that of Sehrawat. Although Singh has not yet formally joined the BJP, he has declared his support for the party and its leadership, while Pradha was fielded as a BJP candidate from Rampur, Uttar Pradesh, where she lost to the SP candidate, Azam Khan.
The vacation bench, however, refused to accept that Sehrawat’s case and those of Singh and Prada were similar. It pointed out that while the former was only “suspended” from his party, the latter were “expelled”. The bench, therefore, asked Sehrawat to answer the speaker’s notice and later challenge his decision if he was aggrieved.
But the subtle distinction between suspension and expulsion from the party, to many, is not entirely convincing, as the consequences in both the situations are the same.
There is a considerable force in Sehrawat’s plea that as he is a “suspended” member of AAP, the Supreme Court’s protection given to Singh and Pradha from disqualification on the ground of their “expulsion” from Samajwadi Party should also apply to him.