Gehlot Vs Pilot – a fit case of Anti defection Law Vs Right to dissent & Right to freedom of speech & expression.

The unprecedented political movements in Rajasthan once again paved to anti-defection law.

Prediction was made that Pilot would join the hands with the saffron party, BJP leaders also boosted & welcomed the joining, however, Pilot washed out all predictions & the rebel Congress leader made it clear he would have no truck with the saffron party, the BJP went back into its shell, indicating it preferred prudence to bravado. 

However, looking at the means of possibilities, why pilot did not join the BJP remained uncleared or is there any political play undergoing, is the matter of discussion.

On 13th of July, Rajasthan Speaker C P Joshi has issued notices to Sachin Pilot and other rebel Congress MLAs after the party sought their disqualification from the state assembly for the wants of non-joining of party meeting even after issuance of a whip. Now the notice has been challenged before Hon'ble Rajasthan High Court.

Looking at averment made in the petition by Pilot, can assist to understand the legal barriers in joining the BJP party. The Legal barriers could be another reason why pilot has not joined the BJP because joining the BJP, the team pilot would certainly face anti defection & the act of rebel would qualify for the disqualification of MLA.

Hence playing a smart move, to avoid disqualification, pilot did not join or may be” legally advised “not to join directly.

Because to disqualify a legislative member, the member must submit his resignation by expression or in writing, the phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation

The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.

However, failure to attend a party meeting or expression of disagreement with certain policies of the party cannot be a ground to disqualify under para (a) or 2(b) of tenth schedule of the Constitution.

The Pilot think tank must have taken the shelter of this provision, because the entire act of Pilot led team shows that neither pilot expressed anything against the party or acted against the party.

Further, since the Gehlot led Rajasthan Government has majority & the act of rebel congress leader Pilot has not aid to dis- Stabled the government does not fall under the “act against the party”.

Dissent as Right to freedom of Speech & expression –

The Constitution (Fifty-Second Amendment) Act, 1985 which has since popularly come to be known as the Anti-Defection law, has been the subject matter of controversy from the very beginning. It has been questioned on several grounds viz, that it is violative of the basic structure of the Constitution, that it is violative of the fundamental principles of parliamentary democracy, its violate democratic rights of the elected members of parliament and the legislatures of the State, and is destructive of the freedom of speech, right to dissent, freedom of vote and conscience, it violates the freedom under Articles 105 and 194 of the Constitution.

Now considering the act of rebel Congress leader, Pilot neither left the party at his will nor talked against the party.

Because, the act of Pilot, Certain disagreements with Party Policy does not amount to Anti defection or all the dissent does not amount to anti-defection same was observed in the case of In Balchandra L. Jarkiholi Vs B.S. Yeddyurappa.

Delivering the dissenting judgement, Mr. Justice N. Kumar of the High Court set aside the impugned disqualification order of the Speaker and held that an act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up the membership of the political party. Similarly, the act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to voluntary act of giving up the membership of the political party. Deserting the leader and deserting the Government is not synonymous with deserting the party. Dissent is not defection and the Tenth Schedule while recognizing dissent prohibits defection. Right to dissent is the essence of democracy, for the success of democracy and democratic institutions honest dissent has to be respected by persons in authority. which was later confirmed by Hon'ble Supreme Court.

Hence even after above-mentioned observation, whenever, there is a political move most of all cases, face the disqualification of the members but in due course, the “reasonable right to dissent” is forgotten to apricate. In Short, dissent is not defection 

The Author is a practising advocate at Bombay High Court.