SC not to answer: Can expelled MPs defy whip?

New Delhi: The Supreme Court on Wednesday refused to answer an important question of law, whether an expelled MP/MLA can be disqualified by the party if he or she defies the whip issued to its members.

A three-judge Bench of Justices Ranjan Gogoi, Arun Mishra and Prafulla C Pant disposed of a petition filed by expelled Samajwadi Party leaders Amar Singh and Jayaprada, challenging the anti-defection law, which lays down rules for disqualification of MPs or state assemblies for disobeying the whip during voting on any issue.

The Supreme Court in its 1996 judgment in G. Viswanathan’s case had held that when a person who had been thrown out or expelled from the party set up by him as a candidate and was ultimately elected, joined another party, it would certainly amount to his voluntary abandonment of the membership of the political party which had set him up as a candidate for election as such Member.

Mr. Amar Singh and Ms. Jayaprada wanted the court to re-visit the judgment and this issue was referred in 2010 to a three-judge bench. Disposing of the petition, the Bench in its brief order said “though we have heard the matter at length, since the petitioners’ tenure is over, the situation does not demand that the referred questions need to be answered. The issues raised in this petition are kept  open.”

The three-judge Bench’s refusal to answer the issues will mean that an elected or nominated member of a party remains attached to the party even after expulsion if a whip is issued during voting. To cite an instance if the expelled AIADMK MP Sasikala Pushpa, defies party whip the party can take action against her under the anti-defection law.

In 2010, the following questions were referred to a three-judge Bench, viz what is the status in either House or Parliament or the State Legislature of a Member who is expelled from the party which set him/her up as a candidate for election; will the provisions of Tenth Schedule apply to such Member; was the view taken by the Supreme Court in G. Viswanthan’s case in harmony with the provisions of Tenth Schedule; since expelled members are not referred in Tenth Schedule, was the decision in Viswanathan’s case a correct interpretation, viz that the Members continue to belong to such a party which had set them up as candidates in the election; can it be said that when a Member of either House of Parliament is expelled joins another political party or forms his own party, that he had voluntarily given up his membership of the party and what is the status of
unattached member in either House of Parliament.