By Devanshi Pandey from Class 12th student from Maharani Gayatri Devi Girls’ School, Jaipur
On 12 July 2020, the then Deputy Chief Minister of Rajasthan, Sachin Pilot and 18 loyalist MLAs went to Delhi from Jaipur, claiming that they have support of a total of 30 MLAs and can topple the Ashok Gehlot led government in Rajasthan. This created a new wave of tension and led to a series of confrontations in the state government. The crisis lasted for almost over a month. Chief Minister Ashoke Gehlot accused the BJP for trying to destabilise their government. The most fundamental of cases of defections in India have had the BJP’s involvement in most of them. Not surprisingly, it wasn’t wrong on Gehlot’s part to envisage his ministers switching to the BJP. However, the other side claims that BJP is being used as scapegoat to hide the internal disturbances and within the Congress Party as a whole. The undemocratic and nepotistic climate within the Congress party is well known, and could be the cause of a young leader such as Pilot’s frustration as was clear when he stated that he wanted the position of the Chief Minister that had been denied to him. The BJP just took the opportunity over, and hit the iron while it was hot. However, nothing had been exactly confirmed and so far, all of these are mere assumptions. Moreover, Sachin Pilot made it clear that he didn’t wish to join the BJP. The Congress Legislature Party issued a whip to all its MLAs to be present in the meeting which was scheduled to be held at the Chief Minister’s House to discuss the issue or strict action would be taken against them. However, the MLA’s didn’t turn up. Not soon after that, Sachin Pilot was sacked from his positions of deputy chief minister of Rajasthan and the President of the Rajasthan Congress.
In the legal field, this crisis set in motion a series of events seen for the first time in the Indian Judicial history where Sachin Pilot challenged the constitutionality of Anti-defection laws. This was when Sachin Pilot and the 18 other MLA’s were given disqualification notices by the Rajasthan Assembly speaker on grounds of defection. It’s interesting to note the ambiguity in the application of this law.
What does the Anti-Defection law state?
The anti-defection law, enshrined in the Tenth Schedule of the Constitution of India, was inserted in 1985 to prevent such political defections. The MLA’s hadn’t changed their party, however, A 1994 judgement stated that defection can be construed by the conduct of the legislators as well and a clear switch to another party isn’t the sole basis for its determination. Although, it isn’t clearly defined as to what might amount to such an unlawful ‘conduct’.
On the other hand, the court in many instances has made clear the fact that losing confidence in a government leader and expressing dissatisfaction against the party doesn’t amount to defection. The landmark case supporting this was case in Karnataka in 2011. the Supreme Court had set aside Karnataka speaker’s order disqualifying 11 BJP MLAs. These MLAs had approached the Governor, saying that they had withdrawn their support to the government led by Yeddyurappa because he was corrupt and had lost the confidence of the people.
This is exactly the argument that was brought up by Pilot and the MLAs when they challenged the constitutionality of the Anti-defection law. It is the first ground under clause 2(1)(a) that they challenged in the high court, asserting that the provision cannot be so widely construed that the very same fundamental freedom of speech and expression of a member of the House is jeopardised.
“Mere expression of dissatisfaction or even disillusionment against the party leadership cannot be treated to be conduct falling within the clause 2(1)(a) of the 10th Schedule of the Constitution of India,” their petition had said.
They also stated that they cannot be disqualified under the Anti-Defection Law as a whip cannot be issued when a State Assembly is not in session.
In my view, it is unfair for the individual Members to absolutely conform to every order of the party that’s brought a person to power. The same was strongly pointed out by Pilot. This notion in itself is responsible for promoting a culture of undemocratic principles within Indian political parties. And these are the same principles that right now, make Congress an extremely fragile political party. Intra-party disagreements should not amount to defection. An explicit public expression of a clear intention of betraying one’s party would be a different case altogether. The way ‘conduct’ is construed is very necessary to be cleared by the courts, and a separation of private and public expression is to be made. Points are also made about the speaker having the power to decide who’s disqualified as he can act in a partisan manner. However, I believe that’s covered by the judgement that stated that the speaker’s decision can be subject to judicial review. Although, if an independent dispute resolving mechanism can be put in place, it’d democratise the whole process of disqualification, an opinion which was also advanced by dissenting Justice Lalit Mohan Sharma and J S Verma (minority view on the bench) in the Kihoto Hollohan vs Zachillhu.
The crisis was eventually resolved. The Rajasthan came to an end with the Ashok Gehlot-led government winning the vote of confidence. Pilot returned to Congress and marked an end to this turbulent phase for the party in Rajasthan.
The issue may have been resolved but it brought forth the fact that it’s imperative for the Indian judiciary to fix the loopholes in the law, and clear the ambiguity that a review of the past judgements taken together fosters.