The split verdict delivered by the Madras High Court on Thursday in the disqualification case has become a hot topic of discussion in the State, with many keen to know what exactly led to the divide in the Division Bench.
A careful analysis of the verdict would show that the two judges on the Bench had to decide the case solely on the basis of inferences that could be drawn from the actions of the MLAs before their disqualification, and not on the basis of hard facts or empirical data.
When Assembly Speaker P. Dhanapal passed the disqualification order on September 18, 2017, a popular question that arose was how an act committed by the MLAs outside the House would amount to incurring disqualification on the ground of defection.
The general impression was that the anti-defection law could be invoked only if the MLAs had voted in the House against a whip issued by their political party, as contemplated under Para 2(b) of the Tenth Schedule to the Constitution, commonly known as the anti-defection law, and not for having merely given a representation to the Governor.
This view fails to take into account Para 2(1)(a), which provides for disqualification even if an MLA has “voluntarily given up membership of the political party” to which he/she belonged, and a catena of decisions rendered by the Supreme Court that say giving up membership of a party voluntarily need not necessarily mean tendering resignation. The apex court has time and again ruled that the voluntary action could also be deduced from the conduct of the MLAs.
Therefore, the Speaker had disqualified the 18 AIADMK MLAs under Para 2(1)(a) of the Tenth Schedule by drawing an adverse inference from their conduct of having approached the Governor on August 22, 2017 to withdraw their support to Chief Minister ‘Edappadi’ K. Palaniswami.
Challenging the Speaker’s decision in court, the MLAs argued that their intention was only to get Mr. Palaniswami replaced with some other person in their party and not to topple their party in power as it had been presumed by the Speaker.
However, penning the main judgment, Chief Justice Indira Banerjee refused to accept the argument because the Governor had no role to play in intra-party affairs of changing the Chief Minister and was expected to stay away from the political thicket.
She pointed out that the 18 MLAs, in their separate but identical representations, had not stopped short of expressing no confidence in the Chief Minister and had gone a step ahead and called upon the Governor to “initiate the constitutional process.”
“The question is what does this mean? What is that the Governor could do?” Chief Justice Banerjee asked and went on to state that the Governor could have had two options — either to recommend imposition of President’s rule in the State or order a floor test — and the government would have toppled in both the cases.
Interestingly, her companion judge on the Division Bench, Justice M. Sundar too, in his dissenting judgment, said: “That the writ petitioners wanted the Governor to change the CM definitely does not appeal to this court… It is not for the Governor to change the CM.”
Nevertheless, the judge went on to hold that the 18 MLAs had actually approached the wrong forum to get the chief minister changed, and going to the wrong forum would not per se amount to defection unless there was buttressing material.
Move backfires
The rebel legislators in the Tamil Nadu Assembly thought the phrase “initiate the constitutional process”, used in the memorandum to the Governor expressing lack of confidence in Chief Minister Palaniswami, would protect them from disqualification. However, it might prove to be their undoing, if the final verdict in the 18 MLAs’ disqualification case goes against them.
The words “initiate the constitutional process” were drawn from the contents of a letter that some Karnataka dissident legislators had written in 2010 against the then Chief Minister B.S. Yeddyurappa. As the disqualification of those MLAs had been set aside by the Supreme Court, it is possible that the MLAs thought using the Karnataka template in their attempt to unseat Mr. Palaniswami would protect them from possible disqualification. In the ultimate analysis, the Karnataka precedent they relied on did not help them.
The question before the court was whether a representation to the Governor to “initiate the constitutional process” could be construed as an act of defection. Justice Banerjee said she would not interfere with the Speaker P. Dhanapal’s ruling that it did amount to defection, as the court was not sitting in appeal on the decision, but only examining the decision-making process.
Interestingly, Justice Sundar came to his conclusion that the Speaker’s order was vitiated by mala fides, perversity, violation of natural justice and in breach of the constitutional mandate without relying on the Karnataka case.
He posed a question to Senior Counsel Abhishek Manu Singhvi as to whether the MLAs would have voted against the government led by Mr. Palaniswami if the Governor had called for a floor test and recorded the counsel’s reply to the effect that they would not have done so if a whip had been issued by their party.
It was the argument of the MLAs that their act of approaching the Governor was a final attempt after all their efforts to resolve the issue within the party failed. Denying it in toto, the Speaker had contended that the sole stimulus for the MLAs to meet the Governor was a letter written to them by sidelined leader T.T.V. Dhinakaran on August 21, 2017.
Role of the Governor
According to Justice Sundar, the factual controversy as to whether the meeting was a final attempt or whether it was the result of the supposed sole stimulus could have been put to rest if the Speaker had afforded an opportunity to the 18 MLAs to present oral evidence and also cross-examined witnesses.
“There was no impediment in permitting the writ petitioners to bring their witnesses and let in oral evidence even if the witnesses (Chief Minister and Chief Government Whip S. Rajendiran) they had sought for had not been summoned for cross-examination,” the judge said.
On the contrary, the Chief Justice, in her verdict, said: “It is not the case of the writ petitioners that any evidence adduced by them had been disallowed by the Speaker. The writ petitioners did not produce their witnesses before the Speaker for examination. It was not for the Speaker to collect evidence on behalf of the writ petitioners.”
Pointing out that the Speaker had not withheld any document from the petitioners, the Chief Justice said that the Tenth Schedule to the Constitution read with the Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules of 1986 do not confer on the Speaker powers similar to those of law courts to summon witnesses or documents.
The disqualification proceedings before the Speaker were in-house proceedings in the nature of domestic enquiries for disciplinary action, she said and added that failure to cross-examine the Chief Minister could not have caused any prejudice to the petitioner.
Even if the MLAs had cross-examined the Chief Minister or his secretaries and succeeded in proving their assertion that they did meet him to get their grievances redressed before approaching the Governor, it would not save them from disqualification, if their conduct showed that they had relinquished their membership, Chief Justice Banerjee said.
Did AIADMK exist?
Apart from these differing points of view expressed by the two judges in their split verdict, one more crucial issue raised by Justice Sundar, but not dealt with by the Chief Justice in her judgement, was the question whether the AIADMK as an entity existed when the MLAs met the Governor on August 22, 2017.
Since the Election Commission of India was seized of a dispute between two factions in the party and had recognised them as AIADMK (Puratchi Thalaivi Amma) and AIADMK (Amma) between March 16, 2017 and November 23, 2017, the judge ruled that the question of defection from AIADMK as such could not have been answered conclusively by the Speaker during that period.
Now, when the matter gets heard by a third judge, the two pivotal questions that he/she would have to answer would be: Did AIADMK as an entity exist on the day when the 18 MLAs gave their representations to the Governor? If yes, would their insistence on him to “initiate the constitutional process” amount to defection?
And if the answer to the second question is also positive, the third judge would have to answer a third and crucial question: Would the Speaker's decision to spare the 19th MLA, S.T.K. Jakkaiyan, from disqualification, just because he made a volte face and claimed to have been pressured to submit a representation to the Governor, render the disqualification of the 18 MLAs liable to be set aside on the ground of mala fide?