Turncoats in Cabinet

The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it Constitution (Fifty-Second Amendment) Act, 1985

A person is deemed to be belonging to that political party which gave him the candidature for the election. Thus, those who were elected as YSR Congress candidates and now inducted into the TDP government stand disqualified from the membership of the legislature from the day on which they were sworn in as ministers in the State Cabinet

Fresh politico-constitutional row erupts now in Andhra Pradesh over the induction of YSR Congress legislators, who defected to the ruling party, into the Cabinet. In fact, the Telugu Desam Party (TDP) challenged then induction of a defected legislator into the Telangana Cabinet.

However, in the Indian political system, ethics and morals are for preaching rather than for practice. The TDP is not a rule or an exception to this peculiar political behaviour.

The Supreme Court in Kihoto Hollohin vs Zachillhu (1992) expressed concern that there is real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well-recognised political proprieties and morality.

The inclusion of members elected on the opposition party symbol into the Cabinet is in utter disregard of political ‘proprieties and morality’ and, therefore, poses a serious threat to democracy, whether it is practised by TRS or TDP or for that matter by any political party.

Whatever may be the political cacophony over the issue, the Constitutional provisions governing the controversy are worth analysing. In 1985, the Constitutional 52nd Amendment Act added Tenth Schedule to the Constitution. This provides ground for disqualification on the basis of defection.

The relevant Constitutional provisions clearly state that a member belonging to a political party shall be disqualified from the membership of the house if he has voluntarily given up his membership of the party or if he votes or abstains from voting in the house, contrary to any direction issued by the political party to which he or she belongs, without taking permission, or if his or her action is not condoned by the party within 15 days.

A person is deemed to be belonging to that political party which gave him the candidature for the election. Thus, those who were elected as YSR Congress candidates and now inducted into the TDP government stand disqualified from the membership of the legislature from the day on which they were sworn in as ministers in the State Cabinet.

It’s worth noting here that the Parliament enactment states that a member attracts disqualification on the grounds of defection if he “voluntarily gives up the membership of the political party.” The law-makers deliberately used the phrase ‘voluntarily giving up the membership’ in lieu of resignation. What does it mean by voluntarily giving up the membership of the party? The apex court in Ravi S Naik vs Union of India (1994) has clarified this. It held that the phrase ‘voluntarily giving up his membership’ can have wider connotation than ‘resignation.’

The court said, “… A person may voluntarily give up his 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 from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

The apex court also said that the Speaker could draw an inference based on the photographs published in newspapers and statements made by member. The Speaker of Lok Sabha disqualified a member belonging to Bahujan Samaj Party (BSP) based on reports in newspapers that he had taken part in a public meeting of the SP in which he had exhorted people to vote for the SP (Lok Sabha bulletin –Part II, No. 4424, dated 28 January, 2008)

In fact, the Speaker was a witness to the swearing in ceremony of YSR Congress members as ministers in the TDP cabinet. These members have not resigned to the membership of the house. Therefore, it’s clear by the Constitutional provisions and the Indian jurisprudence that the said members should be considered as voluntarily giving up the membership of the party and should, therefore, be disqualified from their membership.

The Constitution did not mention the term ‘political parties’ for the first 35 years of the Republic. The existence of political parties was not only recognised but accorded a central role in 1985 with the inclusion of the anti-defection law. M R Madhavan in a chapter, ‘Legislature: Composition, Qualifications and Disqualifications in The Oxford Handbook of the Indian Constitution,’ edited by Sujit Choudhry and et al, states that this law has fundamentally changed the way of functioning of our parliamentary democracy by shifting power away from the individual legislator to the leadership of political parties.

Justice Venkatachaliah speaking for the majority in Kihoto Hollohan case held, “political party functions on strengths of shared beliefs … Any freedom of its members to vote as they please independently of the political parties declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance –nay its very survival.”

The law provides for only two exemptions from disqualification. The member should either take prior permission or the party has to condone his action. But, the YSR Congress has neither permitted them to be the members of TDP cabinet nor condoned their action and therefore it tantamounts to giving up the membership of the party, thereby inviting disqualification under the Anti-Defection Law.

Indian jurisprudence made it clear that if a member of a party meets the Governor to express support to a government led by another party or if he accompanies leader of other party to Governor for formation of government, he stands disqualified as it means voluntarily giving up the membership of the party on which he was elected. Thus it is beyond imagination to believe that a member becomes a minister in a government headed by other party could remain above disqualification provisions.

The apex court in G Viswanathan vs The Speaker of Tamil Nadu (1996) held that 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. In this case the members set up as candidates by YSR Congress simply announced that they were leaving the party to join the TDP. For the sake of legislative records, they remain YSR Congress members only.

The apex court stated in Kihoto Hollohan, as under:
"These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party.”

How can a member elected on the programme of YSR Congress implement the programme of a TDP government as a minister in it? Similar is the case with the TDP member and the TRS government.

One has to understand the philosophy of Tenth Schedule of the Constitution. What impelled the Parliament to insert the Tenth Schedule can be seen from the Statement of Objects and Reasons appended to the Bill which ultimately resulted in the Constitution (Fifty-Second Amendment) Act, 1985.

The statement of the act said, "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.”