Monday, November 1, 2010

Men of same letter flock together

(Published in The Pioneer on November 1, 2010)

Rajesh Singh

“I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Shri B S Yeddyurappa. There have been widespread corruption, nepotism, favouritism, abuse of power, misusing of government machinery in the functioning of the government headed by Shri B S Yeddyurappa and a situation has arisen that the governance of the state cannot be carried on in accordance with the provisions of the Constitution…I hereby withdraw my support to the government headed by Shri B S Yeddyurappa. I request you to intervene and institute the constitutional process as constitutional head of the State”.

These lines, written by 11 rebel legislators of the BJP as part of separate letters to Governor H R Bhadwaj, were supposed to bring the Yeddyurappa government crumbling down. Instead, they ended up sealing the fate of their authors. The letters eventually proved to be the most damning evidence before the Karnataka High Court that the rebels had defected from the party they were elected as legislators, and thus attracted the provisions of the Tenth Schedule of the Constitution. Indeed, it is now evident that even if the rebels had done nothing else after submitting the letters to the Governor – though they did do a lot more thereafter, like being closeted for several days with Congress and JD(S) leaders in resorts outside the state and plotting the government’s downfall, none of which helped their cause – they would still have been a fit case for disqualification. Because, what the rebels had been led by their handlers to believe was a master stroke turned out to be in fact a foolish and suicidal move.

The rebels were secure in the belief that their actions would at most amount to dissent, but could never qualify as defection as they had done nothing to attract the provisions of the anti-defection laws. Here, they sought relief in Para 2 (1) (a) of the Tenth Schedule of the Constitution that deals with defection by parliamentarians or legislators by voluntarily giving up membership of a party on whose symbol they have been elected. It reads: “…a member of a House belonging to any political party shall be disqualified for being a member of the House – if he voluntarily gives up his membership of such political party”.

This explains why the rebels insisted all throughout – and do so even now, anticipating a battle in the Supreme Court – that they had not voluntarily given up membership of the BJP and that they continued to be in the party. It is as part of this strategy that they recently told the media that they would like to thrash out the issue with “our party president Nitin Gadkari”. They banked on the premise that they had not submitted any letter of resignation to the party that would amount to be voluntarily surrendering membership. But that ploy has failed to work, at least until now. Justice V G Sabhahit, the ‘third’ judge called upon to settle the issue after an earlier two-judge bench gave a split verdict, noted in his ruling that voluntarily giving up membership did not necessarily mean that the legislators had to “expressly submit their resignation, as the fact of voluntarily giving up membership may be express or implied”.

And so, what got implied were the letters the rebels had written to the Governor. Justice Sabhahit referred to them and said the rebels were liable to get disqualified ‘on the basis of the letters dated October 6, 2010”. In a scathing observation that ripped through the rebels’ defence, the judge noted that the letters called for the Governor’s intervention in changing the Chief Minister, which the Governor had no powers to do. What the Governor could do though was to intervene through Article 356 of the Constitution that provided for imposition of President’s Rule. Since that could happen if the elected government were to be dismissed, in effect the rebels were seeking the dismissal of a government led by a party on whose name they had been elected to the House.

Referring to the rebels’ letter to the Governor for change of Chief Minister, Justice Sabhahit said, “The Governor has no power to direct legislative party to change the Chief Minister. Though the contents of the letter would show that the petitioners were disillusioned by the conduct of Shri Yeddyurappa as Chief Minister… the averment made in the letter would clearly show that it is in consonance with the wordings of Article 356”.

Holding the contents of the letter as “voluntary and unequivocal”, Justice Sabhahit said the conduct of the authors of the letter (s) “is incompatible with the contention (of the rebels) that they still continue to be members of the Bharatiya Janata Party and the said conduct would only lead to the inference that the petitioners (rebels) have incurred disqualification under Para 2 (1) (a) of the Tenth Schedule”.

The fact that the ‘conduct’ of rebels indicates whether they have voluntarily relinquished the membership of their party, even if they have not formally submitted their resignations, was recognized by Karnataka High Court Chief Justice J S Khehar in his October 18 verdict in the case. Chief Justice Khehar was a member of the two-judge bench that gave the split verdict, and had upheld the disqualification on grounds similar to what Justice Sabhahit was to later agree upon. Both the Chief Justice and Justice Sabhahit concurred that (1) voluntarily giving up membership can also be implied (2) the contents of the letter were voluntary and unequivocal (3) the letter to the Governor was in itself a fit case for disqualification.

Chief Justice Khehar said an elected legislator could demand a change in the leadership of his party’s government contrary to the collective wisdom of his political party only at the risk of voluntarily giving up membership of that party. Therefore, “the letter dated October 6, 2010, addressed by the petitioners (rebel legislators) to the Governor, was by itself sufficient to conclude that the petitioners had suffered the disqualification under Para 2 (1) (a) of the Tenth Schedule of the Constitution of India”.

Both the learned judges were, of course, on track with an earlier Supreme Court verdict in Swami Prasad Maurya versus Rajendra Singh Rana & Others case, that enhanced the scope of the provisions mentioned above, and brought it on a par with not only the aspirations of the people but also the spirit of the Tenth Schedule. Upholding the disqualification of 37 BSP legislators in Uttar Pradesh who had written to the Governor, the apex court judges had said, “A person may voluntarily give up his membership of an original party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation, 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”.

And, in words that were pronounced some two years ago and have found an echo in the Karnataka case, the apex court judges added, “The Act of giving a (rebellious) letter to the Governor … itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected”. It’s the letter, thus, that did the 11 rebels in.

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