The defection of a people’s representative from a party that fielded him to another is illegal. But it is not justified to ignore the dynamic political reality. Roots of ‘defection’ lie in total lack of inner democracy and complete absence of freedom to dissent.

Every political party will file an affidavit before Election Commission for Registration and then for Recognition to be ‘democratic’ and vow allegiance to the Constitution of India. The root cause of the origin of the YSRC Party is the lack of inner-party democracy.

The ruling YSRCP in Andhra Pradesh is seeking disqualification of its MP Raghurama Krishnam Raju on the allegation that he criticized the policies, programs, and the leader. Two Constitutional issues arise from the war of words between the YSRCP and its MP Raghurama Krishnam Raju.

Raju, the owner of a big power plant in Uttarakhand, was first with YSRCP -then traveled to BJP, where from he joined TDP. And then it was re-entry into BJP. Before elections in 2019, he was invited to join YSRCP again. He has won the Narsapur seat. Self-ascertaining Raju was vocal when he demanded the party not to divide leaders based on caste. He commented that the Chief Minister is surrounded by some persons encouraging caste politics. He raised critical issues against certain policies such as the sale of Tirumala Tirupati Devasthanams (TTD) properties donated by the devotees in certain districts, corruption in the sand sale and house-site distribution schemes. Raju claimed that he was talking about these issues because they pertain to the people and he is their representative. He said he wanted to discuss these issues with CM, but he was denied the appointment.

In a TV debate, Raju alleged that the Christian missionaries were pumping money for widespread religious conversions in Andhra Pradesh before and after Jagan Mohan Reddy assumed power.

Raju also said that funded conversions were rampant across the country. Another serious allegation was that party leaders are forcibly collecting funds as contributions to CM Relief Fund and some of the cash was being diverted while leaders were posing for photos with CM with the money given by others.

He also opposed the proposal of TTD to sell some of the properties donated by devotees on the pretext that they are not manageable.

There was no meeting point between him. Washing dirty linens in public was hitting headlines. One MLA Prasada Raju said Raju could become MP only because of Jagan, though he joined the party just 25 days before the elections. Raju spilled beans saying that party begged him to contest from Narsapuram, which was known to be a bastion of TDP in West Godavari district.

The Youth Shramic and Rytu Congress Party leader Vijayasai Reddy issued a show-cause notice to Raju starting “in recent times, you have shown disinclination of being a primary member of the party that is discernible from various statements made by you at many parties and governmental programmes in the state. You have publicly adopted a stand discordant with the party line”.

Reddy cited the statements of the MP against the government’s move to convert all schools to English medium and allegations against MLAs of looting sand etc. He objected to comments that he won an election on his own and not because of symbol and photo of Jaganmohan Reddy alone. Raju’s description of himself as lion and others in the party as pigs is also the subject matter of 18-page show-cause notice.

Denying allegations, Raju maintained that he was critically analyzing the polices without directed anything against CM, and sadly his suggestions were misinterpreted as an attack. He justified media bashing on the ground that he was denied meeting with CM.

Party was peeved when Raju wrote to Om Birla, Speaker of Lok Sabha, and Home Minister Amit Shah seeking protection from threatening leaders of his party. Raju alleged in that letter that MLAs of his Constituency were attacking him, burning his effigies, and openly threatening to burn him to death if he visited his constituency.

The party has sent a delegation seeking disqualification of Ramakrishna Raju, instead of completing the disciplinary action initiated by the show cause notice.

Is it ‘voluntary giving up of membership’?

The question before the speaker is whether Raju by his conduct or comments, voluntarily gave up the membership of YSRCP? Paragraph 2 of Tenth Schedule to the Constitution of India added by 52nd Amendment in 1985, says a member of House can be disqualified for being a member of the House if (i) he ‘voluntarily gives up his membership’ or (ii) votes or abstains from voting contrary to the direction of the party. What is voluntarily giving up membership’? Tenth Schedule does not say ‘resignation’. This phrase was analyzed and interpreted by the Supreme Court in Ravi Naikcase, saying in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. (Ravi Naik vs Union of India, 1994, https://indiankanoon.org/doc/554446/)

MP’s freedom to speak

Article 105 says “(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote was given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings”.

This Article primarily empowers MPs with absolute freedom of speech, more than that of a citizen under Article 19(1)(a). Any critical expression made under Article 19(1)(a) is subject to exceptions in 19(2) which means a comment could lead to criminal prosecution. Article 105(2) ensures the MPs not to fear of those consequences. They are free. Whether that freedom extends to say or vote against the party’s directive, which may even amount to defection from the party? In this context. the Tenth Schedule comes in aid of the party’s discipline and restricts the freedom of MP. Thus, within the House, though MPs can say anything, they cannot defy the directive of the party. The legislature party (or Parliamentary Party) can formulate a policy to support a bill or not or vote in favor of a government, etc and issue a direction to its members, which will be binding and disrespect of it would incur the wrath of party leadership and lead to petition to the speaker for disqualification. In the absence of such direction, MP is free. The MP’s freedom is the rule and to obey the party’s direction is ‘exception’ as per the Tenth Schedule.

The Tenth Schedule does not operate outside the purview of House as far as ‘direction’ called ‘whip’ is concerned. But the first part of Paragraph 2 of Tenth Schedule controls his conduct which might amount to defection. A non-member of a House is free to defect. That is his general freedom under Article 19(1)(a).

Conduct of Legislators

There are instances where the Supreme Court interpreted the conduct of members in blaming their party and praising the rival as ‘defection’ through voluntary giving up of membership of party which fielded him to win the election. The SC said that members who have publicly expressed opposition to their party and support for another party were deemed to have resigned. (G.Viswanathan Vs. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras& Another, 1996, https://indiankanoon.org/doc/1093980/)

As per the present Constitutional position, the speaker is the only and final arbiter to decide the question of whether Raju’s comments will end his membership in Parliament. It is obvious that any speaker of Lok Sabha or Legislative Assembly or Chairman of Rajya Sabha or Legislative Council is affiliated to a political party and will subserve the interests of that party, in which case it will be impossible to decide the issues in an objective manner.

Supreme Court in KihotoHollohancase established two postulates – judiciary cannot interfere until the speaker discharges his responsibility and review power of judiciary can be invoked only after the speaker adjudicated the ‘defection’ petition. Secondly – only authority entrusted to decide the question of defection is the speaker and there is no scrutiny provided against the decision of the speaker except to be challenged before Constitutional Courts. The anti-defection law did not provide any time limit for the speaker to decide the question. Whenever there is no prescribed time limit, the authority is expected to decide in a reasonable time. But it is not binding.

The political bias of the Presiding Officer

In KihotoHollohan, Justice JS Varma in his dissent judgment said:

“The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a Member has the adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, the rule against bias is a necessary concomitant; and basic postulates of the rule against bias are nemo judex in causa sua — ‘A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and ‘it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.” [Paragraph 181]

It is hope against hope to expect that the speaker will decide the petition of YSRCP about alleged ‘defection’ of Raju within a ‘reasonable time’.

Naidu’s Order

Some political pandits are trying to say that criticism of the party and its leader itself amounts to defection through ‘voluntary giving up of membership’ citing precedent created by Vice President M. Venkaiah Naidu, in his capacity as Chairman Rajya Sabha. Naidu disqualified Sharad Yadav, who is the original president of Janata Dal U, Nitish was his important colleague. (See order of M Venkaiah Naidu, dated 4th December 2017 in Parliamentary Bulletin – II).

There was a pre-election alliance of JDU and RJD who fought electoral battle against the BJP plus its allies and formed the Government. Later, the JDU separated from Mahaghatbandhan and aligned with the rival party- BJP. Nitish resigned as CM of earlier Mahaghatbandhan and sworn in as leader of the post-election alliance with BJP. Sharad Yadav questioned this ‘defection’ from the alliance. Both Sharad and Nitish claimed their wing as the original party. Nitish filed a disqualification petition against Sharad Yadav and another MP.

Venkaiah Naidu adjudicated the petition quickly and agreed with the contention of BJP’s new partner Nitish Kumar and disqualified two MPs. It has reduced the strength of BJP rivals in Rajya Sabha. The BJP government in Bihar and at Centre gained a political benefit from this order. Naidu was earlier President of BJP, and Union Minister in Modi Government till he was chosen as Vice President of India.

Naidu’s adjudication is against constitutional morality and the objective of the anti-defection law. The Tenth Schedule’s definition of ‘political party’ does not include ‘pre-poll alliance’. This means the elected members of two parties who fought together, can separate which is not considered as defection. Naidu validated defection of a section of a political party from a pre-election alliance, based on this technical defect which was deliberately not corrected by any ruler.

Every Bihar voter knows that BJP was defeated by an alliance of JD(U) and RJD. A section headed by Nitish decided to align with BJP and continued in power. While another section of JDU of Sharad Yadav questioned the Nitish Kumar’s for acting against people’s verdict. The rule that justice should not only be done but should manifestly and undoubtedly be seen to be done was not cared for. Venkaiah Naidu’sjudgment does not appear to be justified because of his political roots. Thus, interpreting the opposition of Sharad Yadav as ‘voluntary giving up of membership’ equal to ‘resignation’. This order is now under challenge before the High Court. The verdict will have no consequence as Bihar is going to polls now.

The Tenth Schedule discourages defections and not to stifle dissent or debate. If the criticism or conduct of legislators is not intended or connected to defection, this law cannot be invoked.

Inner party democracy

The Raju-YSRCP conflict reflects deteriorating inner-party democracy in political parties. Most of the political parties today appear to be single family-owned groups. Jagan’s family has complete control over YSRCP, as K Chandra Sekhar Rao’s family runs TRS in Telangana are two examples. How a party which cannot allow dissent, debate, and discussion within, cannot encourage democracy. Disqualifying one from being a member of a legislative house, for criticizing the policies is against the spirit of democracy.

M Sridhar Acharyulu

Madabhushi Sridhar Acharyulu was the Central Information Commissioner (2013-18) of Union of India, who delivered thousands of landmark judgments on Right to Information. Earlier, Madabhushi Sridhar served as Professor and Registrar at NALSAR University, Hyderabad . With double post-graduate degrees (LLM & MCJ) Ph.D. and LL.D., Sridhar continues as a columnist on socio-political happenings and policies of the state. He has written and published 40 books on Law and Journalism in both Telugu and English, 100 plus research articles and thousands of newspaper articles. Sridhar anchored a live phone-in TV weekly program to answer doubts on land records in 60 episodes of a TV channel in Hyderabad.

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