As many as 25 of the All India Anna Dravida Munnetra Kazhagam (AIADMK)’s 47 legislators voted in favour of the Tamilaga Vettri Kazhagam (TVK) government in the confidence vote moved by Chief Minister C. Joseph Vijay. This has further deepened the crisis within the party that finished third in the recent Assembly election. The party’s general secretary, Edappadi K. Palaniswami, and 21 of his supporters voted against the TVK government.
A key question is whether the dissidents have incurred disqualification under the anti-defection law. Mr. Palaniswami is in an unenviable position. If he seeks the rebels’ disqualification, the move may lead to a formal split in the party, and may result in byelections that would lead to further marginalisation. On the other hand, even if he doesn’t, the other faction, led by former ministers S.P. Velumani and C. V. Shanmugam, may gain the upper hand within the party structure. However, what stands in his favour is that the dissidents are in no position to save themselves from disqualification, as they do not have the requisite two-thirds’ strength to claim that they have merged with another party. The 2023 judgment of a Constitution Bench on related questions arising from the anti-defection law is also not in their favour.
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The verdict in Subash Desai vs. Principal Secretary to the Governor, delivered in May 2023, deals squarely with the fate of dissident legislators who are numerically larger than the MLAs loyal to the original party leadership. A key ruling in the judgment is that it is the political party and not the legislature party that appoints its whip and gives the direction to vote in a particular manner or abstain. Therefore, any claim by another faction that it has its own whip and its own direction to vote cannot be countenanced by the Speaker. The second principle in the judgment is that the numerical strength of respective factions is irrelevant. “The percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out,” the five-judge Bench said. However, the Court also recognised that the Speaker may have to determine which of the two factions constitutes the original party and he may examine the party’s own constitution and other regulations that spell out its structure. “The Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly,” it said. The structure of leadership outside the House is also a relevant consideration.
The Speaker’s determination on which group constitutes the party is only a prima facie finding, and would not have any impact on the Election Commission’s power to adjudicate the question under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, which deals with recognition to parties and allotment of symbols.
Mr. Palaniswami will have to decide whether to seek the disqualification of those who voted against him. The 10th Schedule gives a political party the option of condoning such a vote within 15 days. In 2017, he did not seek action against 11 AIADMK legislators of the O. Panneerselvam faction when they voted against him. A related question is whether a whip was issued and received by all members of the AIADMK. In the 2017 example, Mr. Panneerselvam and his supporters claimed that they had not received it as they were not part of the group of MLAs housed in a resort by the party leadership. Under the rules governing the question of disqualification in the Assembly, each party has to submit a list of its members and designations within 30 days of the first sitting of the House. It is not known whether this was done. The appointment of a member as the Whip, as well as the existence of a ‘direction’ to the members on manner of voting (the word ‘whip’ is not used in the Tenth Schedule) and its communication to all members will all be questions of facts that may require adjudication.
The AIADMK members who voted for the TVK have rendered themselves vulnerable to disqualification by violating a party direction. However, they may depend on the Speaker’s indulgence in not acting on disqualification petitions, if any, and may raise disputes on facts such as which of them is the authority and whether one was issued at all. The Speaker will have to bear in mind the law laid down by the Court while deciding these questions.
K. Venkataramanan is a senior journalist.