UNION INTERPARLEMENTAIRE / / INTER-PARLIAMENTARY UNION

Association of Secretaries General of Parliaments

COMMUNICATION

from

DR V.K. AGNIHOTRI

Secretary General of the Rajya Sabha (Upper House) of India

on

IMPLICATIONS OF THE EXPULSION OF A MEMBER
FROM HIS OR HER POLITICAL PARTY

Panama Session

April 2011

1

I

Introduction

  1. A strong party system is the hallmark of a vibrant democracy and political parties are among the most crucial institutions that determine and consolidate democratic processes.They not only represent citizens through elections, but also mobilize the social forces through their political programmes and ideologies that energize democracy, on a continuing basis.Because of their organizational base, pool of resources, and legal and constitutional standing, political parties provide distinct advantages to their members vis-à-vis others to represent their constituents.Regardless of the nature and character of the political system, all democracies – presidential as well as parliamentary-accord due importance and role to political parties to sustain and deepen the values of representative democracy.In spite of the shortcomings of political parties, without them, citizenshave few genuine democratic alternatives and a member of a party representing the people in the legislature has to function withinthe parameters set by such parties.
  2. Given the importance of political parties in a democracy, the party leadership holds enormous sway over their members, subjecting them to the rigour of party discipline, which includes complete adherence to the party's policies, programmes and ideologies.A member of a party is required to further the interests of the party to which he/she belongs.The obligation is all the more on those who are elected to a Legislature on a party ticket and hold several important positions on behalf of the party.Any deviation on the part of a member is considered a breach of party discipline, which invites thewrath of the party leadership resulting in the expulsion of the concerned member from the party.The concomitant implications of expulsion of a Member from the party on the membership of the House as also other official positions can be derived from a careful analysis of the law of the land, judicial pronouncements and practice and precedents of the House.

II

Impact of Expulsion of a Member from his/her party on his/herMembership of the House

  1. This issue has a direct link withIndia’s Anti-defection law, which came into operation by the Constitution (52nd Amendment) Act, 1985. This Act added a new schedule (Tenth Schedule) to the Constitution setting out certain provisions as to disqualification from membership of Parliament and State Legislatures on the ground of defection from the political party to which a member belongs. But this Schedule does not make any provision for meeting a situation when a member is expelled by his party. When the Constitution (52nd Amendment) Bill was introduced in the Lok Sabha, it had a provision for disqualifying an expelled member.However, on reconsideration, it was felt that expulsion being a political matter should be left out of the scope of the proposed law.Hence, that provision was deleted at the passing stage of the Bill in the Lok Sabha.Thus, there is no direct impact on the status and position of a Member of Parliament in the House after he/she is expelled by the political party of which he/she was a member.
  2. The issue relating to the effect of expulsion of a Member fromhis/her political party or parties was dealt by Shri Shivraj V. Patil, the then Speaker, Lok Sabha (House of the People) in a Janata Dal Case in his decision given on 1June, 1993 during the Tenth Lok Sabha.He observed that “It is not correct and legal to hold that if a member of a party is expelled from its primary membership, he loses his membership of Legislature Party… As there are no provisions in the Tenth Schedule or any other part of the Constitution, the expulsion of the members for Parliamentary purposes is not legal and cannot be allowed”.Subsequently, Presiding Officers of Lok Sabhahave reiterated this position in similar cases.As per the procedure followed in the Lok Sabha, an expelled member is seated separately in the same party block in the Lok Sabha Chamber. However, no change is made in his/her party affiliation in the party position in Lok Sabha and other records.The position is clarified by way of a footnote in the party position to the effect that the concerned Member has been seated separately in Lok Sabha consequent upon intimation of his/her expulsion from his/her party.
  3. There is, on the other hand, another related concept, namely ‘unattached’ Member in relation to an expelled Member. This term is used in some of the State Legislatures. In case of Rajya Sabha (Council of States) the term ‘Member without Party Affiliation’ is used. These terms have become a matter of great political and judicial contention. There were several occasions in the past when a Member of a political party, after being expelled byhis/her party, was treated as an ‘unattached’ Member in the House, even though the Anti-defection law does not make any provision for treating an expelled Member as unattached in the House.The question whether a Member of a political party, who was expelled from the party, can continue to belong to that political party even if he was treated as unattached was consideredby the Supreme Court of India in G. Viswanathan v. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras.[1]
  4. The Supreme Court,in the aforesaid case, held that,in view of explanation to para 2(1) of the Tenth Schedule,“Even if a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election.He will continue to belong to that political party even if he is treated as ‘unattached’.”The Court has held that labeling of a Member as ‘unattached’ finds no place nor has any recognition in the Tenth Schedule. But if he joins another party, it will certainly amount to his voluntarily giving up the membership of the political party, which had set him up as a candidate for election as such Member and thus, subjects himself to disqualification.[2]The Court observed, “It appears to us that the classification of the members in the Tenth Schedule proceeds only on the manner of their entry into the House - (1) one who has been elected on his being set up by a political party as a candidate for election as such member; (2) one who has been elected as a member otherwise than as a candidate set up by any political party - usually referred to as an ‘independent’ candidate in an election; and (3) one who has been nominated.The categories mentioned are exhaustive... Being treated as ‘unattached’ is a matter of mere convenience outside the Tenth Schedule and does not alter the fact to be assumed under the explanation to paragraph 2(1).Such an arrangement and labeling has no legal bearing so far as the Tenth Schedule is concerned.”
  5. As mentioned earlier, in the Rajya Sabha, for the limited purpose of functioning in the House and also for purposes of record, a member, who is expelled from his original political party,is treated as “Member without Party Affiliation”, to avoid any confusion between such a Member and the ‘Independent’ Members. Such a Member is shown in the records of the Rajya Sabha Secretariat as “Member without Party Affiliation” under the heading (Independent and Others). The concerned member and the Leader of his/her political partyare also informed accordingly, and this arrangement has stood the test of time.
  6. In the context of the non-existence of any provision in the Tenth Schedule with regard to such members, especially in the light of the judgment of the Supreme Court, an anomalous situation prevails in as much as the expelled member continues to be subject to the discipline and whips etc. of the party but may no longer enjoy any right under the party constitution.In other words, there exitsa piquant situation where a Member who has involuntarilyceased to be a member of a political party outside the legislature is treated as a member of the same political party, subject to the rigour of party discipline,inside the legislature.
  7. The issues related to the status, rights and obligations of expelled members are at present under the consideration of the Supreme Court of India.[3] The petition pending in the Supreme Court in this regard has been referred by a two judge bench to the Chief Justice of India for placing it before a largerconstitution bench to adjudicatethe fundamental questions of law and constitution. The referral to a larger constitution bench became imperative as the Supreme Court’s earlier judgment in the Viswanathan case was not clear on certain aspects of anti-defection law having a bearing on the expelled members.

III

Implication of Expulsion of Member from his/her Party on various Official Positions, including Chairmanship of a Parliamentary Committee

  1. As per the present legal position, aMember’s expulsion from his political party cannot take away his membership in the legislature, if he does not attract the provisions of the anti-defection law. In this scenario, the basic issue is whether a Member, who has been expelled from his party, continues to hold various official positions, including Chairmanship of a Parliamentary Committee/Legislative Committee.
  2. The Rulesof Procedure and Conduct of Business in the Council of States do not provide any rule for removal of any Member, who has been expelled from his party, from Chairmanship/membership of a Parliamentary Committee/Legislative Committee.
  3. However, the following provisions exist in the Rajya Sabha Rules for removal of a Chairman/member of a Parliamentary Committee:-

(i)Rule 73(2) of the said Rules relating to the Select Committees on Bills, which applies mutatis mutandis to the Department-related Parliamentary Standing Committees states:

“If the Chairman of the Committee is for any reason unable to act, the Chairman may similarly appoint another Chairman of the Committee in his place.”

(ii)Rule 75 regarding discharge of absent members provides that “If a member is absent from two or more consecutive meetings of the Select Committee, without the permission of the Chairman of the Committee, a motion may be moved in the Councilfor the discharge of such Member from the Committee”.

  1. As per well established practice, Members of Rajya Sabha belonging to the major parties,i.e.parties having a strength of five or more Members in the House, are nominated to various Committees on the basis of the quotas of their respective parties in these Committees. Similarly, the Chairmenship of these Committees are also allocated based on the respective party quotas, decided at the time of re-constitution of these Committees. Therefore, the natural question is whether a Member, who was initially nominated as a member/appointed as Chairman of a Committee, loses that position following his/her expulsion from that party.
  2. Since the Rules are silent in this regard, it, therefore, seems that until and unless the concerned Member/Chairman comes under the purview of the above provisions, he/she cannot be removed from the membership/Chairmanship of a Committee merely on the ground that he no longer belongs to the party quota against which he/she was nominated/appointed.The member may, however, voluntarily relinquish his position by submitting his resignation to the Presiding Officer.
  3. Alternatively, the party will have to wait for the expiry of the term of the Committees, which are generally reconstituted every year, to get an opportunity to make changes in the nomination of its party Members/Chairpersons in various Parliamentary Committees.
  4. There have been instances in both the Houses when political parties sought the removal of their expelled Members from the membership/Chairmanship of Parliamentary Committees they held.
  5. The first case pertains to Lok Sabha, where a Member,[4] who had been appointed as Chairman of the Committee on Public Accounts when he was in Bharatiya Janata Party (BJP), was subsequently expelled from that party. He, however, refused to resign from that Committee despite being asked by the BJP to do so. At that time, Hon'ble Speaker took the stand that the Member concernedcan be removed only in accordance with the Rules. The case was finally resolved when the said Memberresigned from the chairmanship of that Committee and another Member was appointed as the new Chairman of the Committee.
  6. Another case arose in Rajya Sabha when a Member,[5] who was nominated to various Committees and also appointed as the Chairman of the Department-related Standing Committee on Health and Family Welfare against the quota of Samajwadi Party, was expelled from that party.The party sought his removal from the various positions he held in several Committees.It was decided that the Chairman of a Committee can be removed only in case he is for any reason unable to act as provided in Rule 73(2) of the Rules of Procedure and Conduct of Business in the Council of States.Unless the concerned Member voluntarily resigns from the chairmanship of the Committee on Health and Family Welfare as well as membership of other committee(s), he cannot be removed from these Committees. The situation was finally resolved at the time of the annual reconstitution of the Committee.
  7. From the above, the following conclusions can be drawn:

(i)The Rulesof Procedure and Conduct of Business in the Council of States do not provide for removal of any Member, who has been expelled from his/her party, from Chairmanship/ membership of a Parliamentary Committee/Legislative Committee;

(ii)the Chairman of a Department-related Parliamentary Standing Committee (DRPSC) and other Standing Committees can be removed only in case he/she is for any reason unable to act;

(iii)Similar provision exists in the Rules of Procedure and Conduct of Business in Lok Sabha {Rule 258(2)};

(iv)Rule 75 regarding discharge of absent members further states that if a member is absent from two or more consecutive meetings of the Select Committee without permission of the Chairman of the Committee, he or she may be discharged from the Committee on a motion moved in the Council in this regard;

(v)Until and unless the concerned member/Chairman comes under the purview of the above provisions, he/she cannot be removed from the membership/Chairmanship of a Committee merely on the ground that he no longer belongs to the party quota against which he/she was nominated/appointed; and

(vi)The concerned Member may voluntarily resign from the membership/Chairmanship of the Committee or, alternatively, the party has to wait for the expiry of the term of the Committees, which are generally reconstituted every year, and when it gets an opportunity to make changes in the nomination of their party Members in the Parliamentary Committees.

  1. In the light of the above, at present, a Member/Chairman of a Committee cannot be removed from the membership/Chairmanship of a Committee merely on the ground that he/she no longer belongs to the party against whose quota he/she was nominated/appointed.However, it is open to debate whether such a Member should continue to represent that party in the Committee even after he/she has been expelled from that party and a request from that party for his/her removal is received.This question, though applicable to all parties, assumes more importance in the context of certain Committees such as the Department-related Standing Committee on Home Affairs and the Committee on Public Accounts, where their Chairmanship is traditionally held by senior members of the main opposition party.While there may be strong moral grounds on which such Membersshould quit the position assigned to him/her in Committees upon their expulsion, there are not enough provisions enshrined in law and Constitution or in the rules of procedure by invoking which the Presiding Officer can ask the concerned Member to vacate the membership or chairmanship of the Committee(s), which he/she occupied as a member of a political party.

IV

Conclusion

In the event of expulsion of a Member from his party, though the expelled member loses the advantages and backing of the party, yet, at the same time, he can create avoidable embarrassment to his party as well.The Tenth Schedule to the Constitution does not at present have provisions to deal with many complications associated with the expulsion of a Memberfrom his party.Even the rules as well as the practice and precedents in the House seem to indicate that the wishes of an individual Member will prevail, in so far as relinquishing the membership of the House or that of the committeesis concerned.Parties, which are large in size and have greater representation in legislatures, are in anadvantageous position, both within and outside parliamentary institutions.There is a view that party discipline, therefore, must inform the activities of all those who seek the mandate of the people from a party platform.There is another view that parties might expel their Members, who represent them in legislatures, on political and other extraneous grounds.In such an eventuality, the concerned Member becomes a victim of whims and fancies of those who control the party. What is required is a harmonious approach which can blend the requirements of party discipline with mechanisms to protect its Members.Necessary changes in the law as well as in the rules will go a long way in reaffirming the harmonious construction of the two views toenrich parliamentary democracy.While stressing on the harmonious construction of the two views, we need to anchor it on the pronouncements of the highest court of the land, which is adjudicating on this matter.