Aam Aadmi Party MPs and Change of Stance : What Does the Law Says on their Eligibility

Aam Aadmi Party MPs and Change of Stance : What Does the Law Says on their Eligibility

Introduction

What news reports say is that Raghav Chadha, Sandeep Pathak and Ashok Mittal, Harbhajan Singh, Swati Maliwal, Vikram Sahney and Rajinder Gupta are planning to quit AAP. [Source : https://www.newsonair.gov.in/rajya-sabha-mps-raghav-chadha-sandeep-pathak-and-ashok-mittal-quit-aam-aadmi-party/] 

Raghav Chadha, Sandeep Pathak, Dr. Ashok Kumar Mittal, Harbhajan Singh, Swati Maliwal, Dr. Vikramjit Singh Sawhney, Rajinder Gupta are members of Council of States. [Source : https://sansad.in/rs/members]

Legal Postion

A.75 (1B) of Constitution and Tenth Schedule are relevant. 

Also relevant will be A.102 (2). Point 1 (b) of Schedule is in context of that House. There is an original political party. Point 4 of Schedule is relevant. There should be merger of original political party with another party. Point 4 (2) is about deemed merger and at least 2/3rd of members of legislature party should agree to such merger. 

Ravi S. Naik v. Union of India [1994] GCtR 6658 (SC) has explained the law on burden of proof in cases of disqualifications. 

Jagjit Singh Vs. State of Haryana [2006] GCtR 6657 (SC) where the disqualification was held justified. In that case, Z contested as NCP Candidate ; Speaker found that Z had joined INC. It was held that to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. The aspect of Z joining INC after winning election as NCP candidate was not in dispute. Ordinarily, the adverse inference can be drawn in respect of allegations not traversed, but there is no general rule that adverse inference must always be drawn, whatever the facts and circumstances may be.

Rajendra Singh Rana v. Swami Prasad Maurya [2007] GCtR 9099 (SC) is a 5 Judges' Bench Judgment. Article 191 of the Constitution of India deals with the disqualification for membership of legislative assemblies just like Article 102 deals with disqualification for membership to the Houses of Parliament. Article 102 and Article 191 came to be amended by the Constitution (Fifty-second Amendment) Act, 1985 with effect from 1.3.1985 providing that a person shall be disqualified for being a member of either Houses of Parliament or of Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule to the Constitution of India. In this case, split was declared in BSP. After forming new party the new party merged with ruling party SP. 

In the context of the introduction of sub-Article (2) of Article 102 and Article 191 of the Constitution, a proceeding under the Tenth Schedule to the Constitution is one to decide whether a Member has become disqualified to hold his position as a Member of the Parliament or of the Assembly on the ground of defection. The Tenth Schedule cannot be read or construed independent of Articles 102 and 191 of the Constitution and the object of those Articles. A defection is added as a disqualification and the Tenth Schedule contains the provisions as to disqualification on the ground of defection. A proceeding under the Tenth Schedule gets started before the Speaker only on a complaint being made that certain persons belonging to a political party had incurred disqualification on the ground of defection. To meet the claim so raised, the Members of the Parliament or Assembly against whom the proceedings are initiated have the right to show that there has been a split in the original political party and they form one-third of the Members of the legislature of that party, or that the party has merged with another political party and hence paragraph 2 is not attracted. On the scheme of Articles 102 and 191 and the Tenth Schedule, the determination of the question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members concerned. Therefore, in a case where a Speaker is moved by a legislature party or the leader of a legislature party to declare certain persons disqualified on the ground that they have defected, it is certainly open to them to plead that they are not guilty of defection in view of the fact that there has been a split in the original political party and they constitute the requisite number of legislators or that there has been a merger. In that context, the Speaker cannot say that he will first decide whether there has been a split or merger as an authority and thereafter decide the question whether disqualification has been incurred by the members, by way of a judicial adjudication sitting as a Tribunal. It is part and parcel of his jurisdiction as a Tribunal while considering a claim for disqualification of a member or members to decide that question not only in the context of the plea raised by the complainant but also in the context of the pleas raised by those who are sought to be disqualified that they have not incurred disqualification in view of a split in the party or in view of a merger.

It may be true that collective dissent is not intended to be stifled by the enactment of sub-article (2) of Articles 102 and 191 of the Tenth Schedule. But at the same time, it is clear that the object is to discourage defection which has assumed menacing proportions undermining the very basis of democracy. Therefore, a purposive interpretation of paragraph 2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called for. One thing is clear that defection is a ground for disqualifying a member from the House. He incurs that disqualification if he has voluntarily given up his membership of his original political party, meaning the party on whose ticket he had got elected himself to the House. In the case of defiance of a whip, the party concerned is given an option either of condoning the defiance or seeking disqualification of the member concerned. But, the decision to condone must be taken within 15 days of the defiance of the whip.