Defection of MPs expelled from party: Supreme Court to reconsider

The law of defection keeps the elected members of the Parliament and State Assemblies within the decision-making realms of their Parties. The Tenth Schedule of the Constitution of India , also understood as the Anti-Defection law, provides that a Member can be expelled from the Parliament or the State Assembly if he/she acts in violation of the command issued by the Party on whose ticket the Member stood for election and won the seat. 

In the case of G. Viswanathan vs. Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353] the Supreme Court had inter alia held that "in view of the Explanation to Paragraph 2(1)of the Tenth Schedule, even if a member is expelled from his party, for the purposes of the Tenth Schedule, he/she would not cease to be a member of the political party that had set him up as a candidate for the election and he would continue to remain attached to that political party even if he is treated as 'unattached'.

Holding that the said decision required reconsideration, a bench comprising of Justice Altamas Kabir referred the cases filed by Amar Singh and Jaya Pradha to the Chief Justice of India for constituting a larger bench to settle the issue in the following terms;

15. We are also convinced that in the background of the legislative history of the introduction of the Tenth Schedule in the Constitution, in which it was initially intended to include expelled Members within the ambit of the provisions relating to disqualification, the same was dropped after the debate in Parliament in which the dangerous effects of the inclusion of such a sub-clause were pointed out by many of the Members in the House. If it was the intention of the legislature not to include expelled members of a political party within the category of persons who could be clubbed with the category of persons who voluntarily resigned from membership of their parties, the same could not have been imported into the Tenth Schedule by virtue of the judicial pronouncement in the said case. In fact, what was sought to be excluded by the legislature has now been introduced into the Tenth Schedule by virtue of the said decision.

16. We are also convinced that the decision in G. Viswanathan’s case (supra) merits another look as far as the Members of the House who are expelled from their parties on whose banner they had been elected to the House, are concerned, as they would be left completely vulnerable to the whims andfancies of the leaders of their parties. We, therefore, issue Rule in the two Writ Petitions and request Hon’ble the Chief Justice of India to refer the matter to a larger Bench on the following questions :- 

1. What is the status in either House of Parliament or the State Legislatures of a Member who is expelled from the party which set him/ her up as a candidate for election ? 

2. Will the provisions of the Tenth Schedule to the Constitution apply to such Member? 

3. Was the view taken in G. Viswanathan’s case [(1996) 2 SCC 353], with regard to the status of Members in either House of Parliament who had not voluntarily resigned from their party but had been expelled therefrom, in harmony with the provisions of the Tenth Schedule to the Constitution ? 

4. In view of the fact that Members of the two Houses of Parliament, who are expelled from the membership of the parties which had set them up as candidates in the election, are not referred to in the Tenth Schedule to the Constitution, was the decision in G. Viswanathan’s case that they must be deemed to continue to belong to such party in view of Explanation (a) to paragraph 2(1) of the Tenth Schedule, a correct interpretation of the said provisions, having regard to the Parliamentary debates on the Bill which became the Tenth Schedule ? 

5. Can Explanation (a) to paragraph 2(1) of the Tenth Schedule to the Constitution be extended to include Members of the two Houses of Parliament who are expelled from their parties? 

6. When a Member of either House of Parliament is expelled by the party which had set him up as a candidate for election and he either joins another political party or forms his own party, can it be said that he had voluntarily given up his membership of the party in view of the legal fiction created by Explanation (a) to paragraph 2 (1) of the Tenth Schedule ? 

7. What is the status of an ”unattached” Member in either House of Parliament or in the State Legislatures ?  

17. Pending the reference, the decision in G. Viswanathan’s case (Supra) shall not be applied to the two writ petitioners, Shri Amar Singh and Ms. Jaya Pradha.

Have a look at the decision.