SUMAN K SHRIVASTAVA
Ranchi, June 25: The ongoing political crisis in Maharashtra has thrown open debate on the anti-defection law under the 10th Schedule of the Constitution and brought into focus the role of Jharkhand Speaker Rabindra Nath Mahto who has been hearing a case to disqualify BJP legislature party leader Babulal Marandi for the last two and half years.
The case in Jharkhand, in a nutshell, is unique and simple too. Unique because there is no political party named Jharkhand Vikas Morcha (Prajatantrik), or JVM (P), is in existence in Jharkhand now. Apparently, there is no precedence in the country where the Speaker was seized with a case of the ‘merger’ in which the Election Commission of India already approved the merger of a political party with another one.
The JVM (P) had won three seats in the 2019 assembly elections. Apart from Marandi, the other two winners were Pradeep Yadav and Bandhu Tirkey. However, Pradeep and Bandhu were expelled from the party for anti-party activities. Marandi’s JVM(P) merged with the BJP after its Central Working Committee (CWC), which was attended by more than 130 members—gave its approval.
Also, there was no one from the JVM (P) to complain that Marandi should be disqualified under the anti-defection law. First, the Speaker himself took up cognizance and launched the case. When the Court rejected it some MLAs from the Congress and the JMM petitioned the Speaker, which he is hearing.
There is precedence in Jharkhand as to who will ideally complain in case there is a lone MLA of a party. When Anosh Ekka, the lone MLA of the Jharkhand Party supported the NDA in 2005 going against the instruction of then party chief N E Horo, one of the party office bearers had lodged a complaint with the Speaker.
According to a legal expert, the Speaker has to judge the validity of the split and the merger of the legislative party and not what the political party does under its bylaws. For example, the JD (U) has no member in the Assembly, so the Speaker will not interfere when it splits or merges with any other party.
Here the case is that after the Assembly elections were over, three MLAs were elected. Marandi showed his inclination to the BJP and Pradeep and Bandhu openly criticized the JVM (P) move and joined the programmes organised by the Congress. By simple logic, Pradeep and Bandhu formed two thirds of the legislative members of the party, but they had been expelled separately. So, when one was expelled, two MLAs remained in the party. Again the other MLA was expelled. So, when one of them ‘joined’ the Congress he did not form the 2/3rd majority. So, their merger with the Congress will not be valid, experts pointed out.
By this logic, they can be said to have voluntarily quit the party and thus face disqualification. The conduct of members outside the house can also be taken into account to decide whether they have given up the membership of the party.
What amounts to voluntary giving up of membership?
As per paragraph 2 of the Tenth Schedule, a member will be disqualified on the ground of defection if : he has voluntarily given up his membership of the political party or he has voted or abstained from voting in violation of whip issued by the party.
The Supreme Court has given a wider connotation to the phrase ‘voluntarily given up his party membership’ and has held that it is not synonymous with giving a resignation letter.
In Ravi S Naik vs Union of India, the SC held that “A person may voluntarily give up membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn that he has voluntarily given up membership of the political party to which belongs.”
In the case of Pradeep and Bandhu, both had openly supported the policies espoused by the Congress contrary to the JVM (P) view. It implied that both had voluntarily given up membership of the party and thus a fit case for disqualification, a legislative expert said.
“So, there was no split in the JVM. The JVM left with the lone MLA Babulal Marandi merged with the BJP and so he cant be disqualified by any logic,” he added.
“But then, it has to be proved that Bandhu and Pradeep were expelled separately as they were found indulging in anti-party activities at different dates leaving Marandi alone in the party,” said a legislative expert.
“The reason is that if an MLA is expelled from the party, he continues to be the member of the party and the symbol of the party on which he had been elected remains with him even after expulsion from the party. In case Bandhu and Pradeep are considered expelled from the party, Marandi will not be considered the lone MLA of the JVM. In that case, the three MLAs will face disqualification,” he added.
Conditions for escaping from Disqualification:
The first condition to escape from disqualification is that the original party should merge with another political party. The merger will be deemed valid only if at least 2/3rd members of the legislative party have agreed to it.
In such a scenario, the members who have merged in the other political party, or have formed a new political party by merger with another party will not get disqualified. Also, the remaining group of the original party (less than 2/3rd), who have not accepted the merger and have opted to remain as a separate group, are also not liable for disqualification (this is the impact of sub-clause(b) of clause (1) of Para 4).
So, had Pradeep and Bandhu not accepted the merger and opted to remain as a separate group, they would not have been able to face disqualification, an expert pointed out.
“So, first the Speaker should first disqualify Bandhu and Pradeep for voluntarily quitting the party membership and then judge whether the JVM (P) with lone MLA in Babulal Marandi (two-third members of the legislative party) merged with the BJP or not,” pointed out an expert.
According to Marandi’s counsel R N Sahay, when Pradeep and Bandhu were openly showing inclination to the Congress they had been served a showcause. “They did not reply. Thereafter, they were expelled one by one. They had no role in the inner party decision. So, it was the party under the leadership of Babulal Marandi which decided to merge with the BJP and it was valid under the Constitution. There was no split in the party,” he added.
