Playing Musical Chairs

Rajeev Dhavan / Apr 5, 2006, 00:00 IST

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UP Speaker got it right on BSP split

Defections are generally bad because they defraud the electorate, but they are not always evil or unconstitutional. But leaders have to be prevented from becoming dictators in their own cause.
Unfortunately, reactions to the Allahabad high court's judgment in the Uttar Pradesh's defection case seem more concerned with Mulayam Singh's tactics to save his government than the background to the defections.
On September 6, 2003, the UP Speaker accepted the split in Mayawati's BSP and allowed the merger with Mulayam's Samajwadi Party. On February 28, 2006, the high court reversed the Speaker's decision and asked him to re-decide the matter.
On March 24, 2006, the Supreme Court stayed the proceedings before the Speaker and, meanwhile, accepted the split but not the merger. Now the 37 'split' MLAs do not have to recognise either Mayawati or Mulayam's whip in the House.

Although such a status quo helps Mulayam, the problem was created by Mayawati who became chief minister after the elections of February 2002.
On August 25, 2003, after 15 months in office, she called a party meeting to announce her resignation to call fresh elections. On August 26, she resigned and recommended dissolution.
Three and a half years of the assembly's life were left. There is ample authority to suggest that a governor should not cut short an assembly's life if an alternative exists.

Frequent elections are expensive �� more so in a 150 million, populous state like UP. Mayawati had left her own legislators high and dry. Surely, her BSP legislators were not dumb cattle playing 'follow the leader' into self-imposed exile.
Responding to this situation 40 of the 109 BSP MLAs rebelled and at the Darulshafa meeting on August 26, 2003 in Lucknow decided to split from the BSP under the then permissible, one-third defection rule.
On August 27, 13 of these 40 MLAs told the governor not to dissolve the House. On September 4, BSP targeted the 13 MLAs for meeting the governor seeking their disqualification.
Two days later, the 40 BSP MLAs asked for recognition of their earlier split. In 2003, at the request of BSP's representatives Barkhu Ram and Swamiprasad Maurya, the Speaker physically verified the signatures of the 37 'rebel' MLAs.
This laid to rest any doubt that there was an en masse defection within the one-third rule on August 26, 2003, which was not put in issue. In light of the Supreme Court's rulings, there was nothing left in this case.
The technical issue raised was that by meeting the president on August 27, 13 MLAs had left the party. But the defection had indisputably taken place the day before.
The point that the case against the 13 MLAs had to be decided before, flies in the face of the Constitution. In the Tenth Schedule, the disqualification clause specifically makes a defection subject to a split, merger or exemption.
A valid split is a total answer to a defection. Finally, the Speaker rightly refused to examine whether the overall non-parliamentary party had split on the basis that this would open Bhanumati's pitara or Pandora's box.
Unfortunately, the matter was stuck in the high court for two-and-a-half years. Two judges heard the matter inconclusively; and then a full bench of three judges.
Justices Bhalla and Kant (Chief Justice Ray dissenting) sent the matter back to the Speaker. We are back to worse than square one. First, the separate directions given by the two majority judges lack consensus and can only confuse the Speaker.
Second, the Speaker had earlier physically verified the valid defection of 37 MLAs as a finding of fact. This cannot be revisited three years later.
On February 27, this year, Mulayam Singh took the pre-emptive step of winning a confidence motion to quell uncertainty. This was both tactical as well as principled. The assembly has one year to run.
If something goes wrong, Mulayam can ask for a dissolution which was rightly denied to Mayawati in 2003 when the assembly had four years to run.
In the event of such dissolution, Mulayam will continue as chief minister during the dissolution period. The Congress demand for President's rule is a subversive request that they have perfected over the decades.
This gives the political edge to Mulayam which is based on a tolerably firm constitutional foundation. The entire controversy was created by Mayawati who resigned in 2003 and demanded the dissolution of a recently elected assembly.
What has emerged is the usual money-influenced farce. The anti-defection law was not designed to throttle legislators but to enable a moral discipline in politics. From January 1, 2004, even one-third splits are not allowed.
But this has not prevented Deve Gowda and his son, Kumaraswamy, from cheating the Constitution to align with the BJP and capture power in Karnataka.
The UP case pales before the Karnataka imbroglio. The Speaker decided correctly. The high court lost the wood for the trees and the Supreme Court has rightly intervened.
The writer is a senior Supreme Court advocate.

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