A member of Parliament or assembly cannot be automatically disqualified after his or her expulsion from the party but may invite action by the Speaker for any overt act, the Centre today told the Supreme Court.
The submission in this regard was made by Additional Solicitor General (ASG) P S Narasimha before a bench comprising of Justices Ranjan Gogoi, Arun Mishra and Prafulla C Pant, which is hearing a plea seeking to revisit its two decade old verdict on the anti-defection law under the 10th Schedule of the Constitution.
The law states that a member elected or nominated by a political party continues to be under its control even after expulsion.
The contentious issue of anti-defection law had cropped up after Amar Singh and cine star Jaya Prada, members of Rajya Sabha and Lok Sabha respectively, had moved Supreme Court on their expulsion from the Samajwadi Party on February 2, 2010, anticipating ouster from Parliament.
Putting forth his arguments, the ASG said "upon expulsion from a political party, there is no automatic disqualification under the 10th Schedule of the Constitution from legislative assembly or Parliament and that member will continue as an unattached member as per the direction of the Speaker.
"However, if there is any overt act of either joining any other political party voluntarily or defies any whip of any political party then he will attract the provision of the 10th Schedule and action can be taken against him by the Speaker."
Narasimha further said the 10th Schedule contemplated an "overarching principle" that "a legislator who is born into a House through a political party or as a nominated member or even as an independent candidate shall retain his birth mark and shall continue as such till the dissolution of the House.
"This is the principle contemplated under 10th Schedule by operation of deeming fiction," he said, adding that "this is a constitutional morality contemplated under the 10th schedule".
He submitted that legislators, who are expelled from a party, do not operate in the House as "nomads" joining an existing political party at will without attracting 10th schedule.
Amar Singh and Jayaprada had contended that they have
landed in a piquant situation as expelled members and apprehended disqualification under the anti-defection law if they chose to defy party's whip on any issue in Parliament.
Earlier, counsel for the two former MPs, had submitted that interpretation of the anti-defection law, as per a 1996 ruling of the apex court, does not apply to them as they did not form their own party.
As per the interpretation of the anti-defection law by the Supreme Court in G Vishwanathan case in 1996, a member elected or nominated by a political party continues to be under its control even after his or her expulsion.
The apex court on November 15, 2010, had directed that no action shall be taken against Amar Singh and Jaya Prada under anti-defection law in the event of their defying a party whip.
The two-judge bench had also referred to a larger constitution bench the question whether an expelled member could be disqualified under the law, if he defies party whip.
The two leaders had then sought interim stay on any possible action against them in case they decided to vote in favour of Women's Reservation Bill, which was being fiercely opposed to by the SP.
The apex court had decided to make the reference while considering that the judgement in the Vishwanathan case was not clear on certain aspects of the anti-defection law.
Earlier, the two leaders had argued that anti-defection law could be invoked only against those who either defect from the party or defy its whip while being in the party.
However, they had contended that in a case like theirs, they did not defect from the party but were expelled, and as unattached members, they were not amenable to the party's whip.
The two sacked MPs had moved the apex court fearing they may be disqualified for not abiding by the party whip in Parliament in view of the apex court 1996 verdict.
They felt the apex court's interpretation of the 10th Schedule of the Constitution impinged upon fundamental rights of the expelled members, including their rights to equality, free speech and expression and life under articles 14, 19 and 21 respectively.
