Eleven MLAs of Tamil Nadu assembly, led by the Deputy Chief Minister, O.Panneer Selvam, whose disqualification on the ground of defection is awaiting the decision of the Speaker for several months, told the Supreme Court on Thursday that issue of whip is mandatory for a motion on the vote of confidence, to be taken up by the assembly.
Relying on paragraph 120 of the Supreme Court’s Constitution bench decision in Kihoto Hollohan v Zachillhu and others (1992), their senior counsel, C.S.Vaidyanathan, told the Supreme Court bench of Justices A.K.Sikri, Ashok Bhushan and S.Abdul Nazeer, that disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented.  For this purpose, the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under Paragraph 2(1)(b) of the Tenth Schedule to the Constitution, would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate.
The Constitution bench had held in that judgment as follows:
“The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.”
As the party whip was not issued to the 11 members of the OPS faction, prior to the voting on the confidence motion, it was argued by Vaidyanathan that they could not be disqualified on this ground.
Vaidyanathan further argued that disqualification on the ground of defection is the exclusive authority of the Speaker, and therefore, the argument of the other side that the court could exercise this power is not consistent with the judgment in Kihoto Hollohan.
Vaidyanathan also contended that the Speaker cannot exercise suo motu power to disqualify a member on the ground of defection.  A petition is mandatory.  “Neither the Chief Minister, nor the Chief Whip of the ruling party made a complaint to the Speaker.  Sakkrapani, who filed the present petition, is a member of the Opposition DMK, and did not file the complaint before the Speaker.  The Speaker gets his jurisdiction under the Tenth Schedule, only after a complaint is filed”, he suggested.
Referring to the Supreme Court Constitution bench’s judgment in Rajendra Singh Rana and others v Swami Prasad Maurya and others (2007), on which the other side has placed much reliance, Vaidyanathan said it was not a case where the Speaker did not decide the petition on disqualification on the ground of defection, and therefore, the principle of judicial review, justified in that case, is not applicable in the case before the bench.
At the outset, Vaidyanathan disagreed with senior counsel, Abhishek Manu Singhvi, who argued on behalf of the T.T.V.Dhinakaran faction, that the disqualification of the 11 members of the OPS faction would have reduced  the present Government to a minority in the assembly.   Singhvi admitted that his projection of the majority support required in the assembly in the event of disqualification of the 11 members may be erroneous, but that does not mean the Speaker need not decide the petitions submitted to him, seeking their disqualification.   Justice Sikri agreed that the issue needed to be resolved, even if the argument that a government which does not command majority continues in power, is erroneous.
Senior counsel, Kapil Sibal quipped: “Everything is fluid in politics.  My learned friend knows it.  All of us know it.”