Legal failsafe leaves parties with few options

The decision on whether to disqualify the nine MLAs who have rebelled against the Uttarakhand Congress leadership has the party in a Catch-22 situation.

If the Congress does not get the rebel MLAs declared disqualified under the antidefection law, they will vote against the Harish Rawat government during the trial of strength called by the Governor for March 28. And if it does, the party runs the risk of being reduced to a minority in the 70-member assembly.

According to paragraph 2(1) (a) of the 10th Schedule of the Constitution, a member would incur a disqualification when he “voluntarily gives up his membership of a party” and under paragraph 2(1)(b) when he/she votes (or abstains from voting) contrary to the directive issued by the party.

In 1994, in the Ravi Naik vs. Union of India, the Supreme Court said: “Even in the absence of a formal resignation from membership, 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.”

The Congress — which has 36 members (including the nine rebels) in the House — enjoys the support of three independent MLAs, two of BSP and one from the Uttarakhand Kranti Dal. The BJP has 28 MLAs. If the nine rebel MLAs led by former chief minister Vijay Bahuguna support the BJP, Rawat can be dislodged.

The saffron party has claimed support of a BSP MLA as well.

From the rebels’ point of view, their expulsion is unlikely to make things easier for them. They will still be required to follow the Congress party’s whip and vote for the Rawat government during the floor test, thanks to a Supreme Court ruling.

In the Viswanathan case (1996), the Supreme Court had ruled that an expelled member was bound by the party’s whip even after expulsion and the failure to adhere to such whip would result in disqualification of the expelled member from the House.

But in 2010, the SC said that Samajwadi Party leaders Amar Singh and Jaya Prada could not be disqualified from Parliament under the anti-defection law in case they defied the whip of their former party. The matter was referred to a larger bench and remains pending.

The BJP, as keen as it is to form the government, will need more support. Even if the house is reduced from 70 to 61 with the disqualification of the Congress rebels, the party will need at least four more MLAs to touch the magic figure of 32.