SC scan on defection escape hatch

The Supreme Court. File picture

New Delhi: The Supreme Court on Friday agreed to examine the constitutional question whether a legislator can resign to circumvent the process of disqualification under the anti-defection law.

In Goa, MLA Vishwajit Pratapsingh Rane had resorted to the tactic after defying the Congress whip to vote against the confidence motion brought by BJP chief minister Manohar Parrikar on March 16, 2017.

The BJP had won 13 seats in the 40-member Assembly in election results declared on March 11, 2017. The Congress had emerged the single largest party, winning 17 seats. The rest went to regional parties and two Independents.

However, the BJP mustered the numbers to stake claim and formed the government. It had to face a floor test on March 16, 2017.

The Congress has told the Supreme Court that it had issued a whip directing its MLAs to vote against the motion of confidence. Rane, who was elected on a Congress ticket, signed the whip at 11am and was administered the oath as a member of the Goa Assembly by the pro-tem Speaker.

However, before the floor test was moved, Rane walked out of the House. Thereby, he abstained from voting on the confidence motion in defiance of the party whip. After the floor test, Rane returned to the House around 3.05pm and handed his resignation as MLA, which was accepted without any inquiry by the pro-tem Speaker. On the same day, he also resigned from the Congress. On April 6, 2017, he joined the BJP and six days later was inducted as a minister for health in the Parrikar cabinet.

In August that year, Rane contested the bypoll on a BJP ticket and won, thereby continuing as member of the Assembly. The Congress challenged Rane's action but Bombay High Court on October 11 dismissed the party's petition, following which it has approached the apex court.

The Supreme Court on Friday issued notices to the Election Commission of India, the Goa government and the Assembly Speaker for a response within four weeks.

A bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud brushed aside opposition from senior advocate Mukul Rohatgi, appearing for the Goa government, that the court cannot look into the issue as Rane had resigned from the Congress and was subsequently elected on a BJP ticket.

Rohatgi's argument was that disqualification under the anti-defection law prescribed under the 10th Schedule would not apply to Rane.

However, the CJI said: "No, we have to examine as to what happens when the person or legislator resigns, the person does not obey the whip, he remains absent, whether such a matter comes under the 10th Schedule, whether an absentee legislator can derail the process of the 10th Schedule by resigning."

Senior advocate Abhishek Manu Singhvi and advocate Amit Bhandari, appearing for the Congress, submitted that Bombay High Court had failed to take into consideration the apex court ruling in the Kihoto Hollohan Vs Zachillhu (1992) case in which it was held that a judicial review shall be available if infirmities based on violation of constitutional mandate, malafides, non-compliance with the rules of natural justice and perversity are brought to the fore and have grave, immediate and irreversible repercussions and consequences.


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