April 6, 1998

A controversial interpretation of the Anti-defection Act by the Speaker of the state Assembly comes to the aid of the party hoppers--and could set a dangerous precedent.

By Farzand Ahmed

As a senior lawyer of the Allahabad High Court, Kesri Nath Tripathi authored Commentary on the Representation of the People's Act. The book is still seen as the last word on the subject. However, in an astounding verdict last week on the split in the BSP, Tripathi, now Speaker of the Uttar Pradesh Assembly, virtually redefined the Anti-defection Act and, to quote Ramesh Dixit, state Congress spokesman, "revived the aya Ram-gaya Ram culture".

The ruling related to the alleged defection of 12 BSP MLAs to the BJP during the vote on the confidence motion moved by Chief Minister Kalyan Singh on October 21, 1997. Tripathi kept postponing his decision -- much to the ire of the BSP, led by Mayawati. During this time, its MLAs denounced the Speaker as "partisan" and a "BJP agent". Now that Tripathi has dismissed the 24 petitions against the 12 MLAs -- all of whom were later made ministers by Kalyan -- Mayawati is seething all the more.

There are a number of points of law which Tripathi's 148-page ruling does not quite make clear. On the morning of October 21, 1997, the strength of the BSP in the Assembly was 67. For a split to be recognised under the Anti-defection Act, a third of the MLAs -- 23 in the BSP's case -- would have had to break away. Tripathi's contention is that there was a "split" in the BSP just before the House met on October 21 "as a result of which a group consisting of 26 BSP MLAs was constituted". This group, he says, later came to be called the "Jantantrik BSP".

Then, says Tripathi, the Jantantrik BSP itself split on January 15. Of its 26 MLAs, 19 remained in the Jantantrik BSP. Seven formed a new group, and merged with Mayawati's BSP. It was around this time that Kalyan offered ministerial posts to five more BSP MLAs.

There are some unexplained gaps in Tripathi's sequencing of events. During the assembly session between January 27 and 29, the Speaker allotted separate seats to the 12 (former) BSP MLAs terming them "disputed" MLAs. There was no mention of any group of 26 or 19 MLAs. At no stage did Tripathi physically verify the identity of the "26 MLAs who split the BSP", say BSP leaders.

Tripathi's ruling seems to arrive at some unorthodox legal conclusions. This is what he says:

• It is not proved that Mayawati was authorised to issue a whip on October 20, 1997, asking all BSP MLAs to oppose the confidence vote. There were no rules, regulations, by-laws in the party constitution or a resolution to indicate that she was authorised to do so.
  
• In the absence of such rules, regulations, by-laws or resolutions, the leader of the legislature party does not automatically get any authority to issue a whip.
  
• The whip ought to have given fore-knowledge of the consequences of defying it. As such, it violated the 10th Schedule of the Constitution.
  
• In any case, Mayawati's whip was "superseded or withdrawn" and made "ineffective and meaningless" by her direction to BSP MLAs to violently disturb the Assembly's proceedings on October 21. Evidence to this effect was provided by Sardar Singh, one of the MLAs, on the floor of the House.
  
• A written whip can be overruled by an oral whip.
  
• A whip has to be formally served. Mere knowledge of it is not enough.
  
• Breathtaking as his conclusions may be, Tripathi is unfazed: "Those who are criticising me today will realise the significance of my efforts tomorrow. There is no automatic disqualification under the Anti-defection Act."

This final sentence perhaps provides a clue to why Tripathi has not disqualified the seven MLAs who, he claims, left the Jantantrik BSP and rejoined the BSP. After all, if the Jantantrik BSP had 26 MLAs -- Tripathi says it did -- it would take at least nine to split it as per the law. Thus, these mysterious -- even unknown -- seven defectors become the real villains in the polity, says Tripathi.

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