Fourteen MLAs, a silent Speaker and the arithmetic of the Tenth Schedule
In a 200-member State Legislative Assembly, Party A holds 78 seats and Party B 36; together they form a coalition with 114 members, seven above the majority mark of 101. Party C, the Opposition, has 68 seats, and 18 members belong to smaller parties and independents. In March, 14 of Party B's 36 MLAs announce at a press conference that they will vote against the government on a no-confidence motion moved by Party C, and ask the Speaker to recognise them as a separate legislature party. Party B expels them the same week. The Speaker, who belongs to Party A, says he will decide after studying the constitutional position, and has not ruled by November. The 14 continue to attend the House and vote with Party C on two bills. Party C petitions the High Court asking for a direction to the Speaker to decide within a fixed period. Party B's state president argues that a group of 14 out of 36 is in any case a valid split and cannot be disqualified.
1. Is the 14-member group correct that 14 out of 36 is a valid split? Show the arithmetic and the state of the law.
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No. 14 divided by 36 is 38.9 per cent: above one-third, well below two-thirds.
- The one-third split defence existed in the Tenth Schedule as enacted in 1985. It was deleted by the 91st Amendment, and a legislature party is now protected only where at least two-thirds of its members agree to merge with another party in the legislature. The reason for the deletion is worth stating: with a one-third exit route, a party of 36 could legally be broken into three pieces, and the anti-defection law was supplying the licence.
- Under the current rule the group has two possible defences and neither is available. It has not merged with another party - forming a separate group is not a merger. Its members publicly declared they would vote against the government, which is a voluntary giving up of membership under paragraph 2(1)(a) as well as a breach of the whip under 2(1)(b).
- Party B's expulsion does not rescue them. The triggering act was theirs and preceded the expulsion; being expelled is not a defence.
Conclusion: all 14 are liable to disqualification, and the Speaker's arithmetic-free silence is not a finding that they are a valid split.
2. What should the High Court do about the Speaker's eight-month silence, and what should it decline to do?
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The court can order a decision; it should not make the decision itself.
- When deciding a disqualification the Speaker acts as a tribunal, and Kihoto Hollohan (1992) held that such a decision is subject to judicial review, though courts will not ordinarily intervene before it is made. The restraint is institutional: the Speaker sees the House, and premature interference would paralyse the process.
- Silence, however, is not a decision, and deliberate delay is itself reviewable. In Rajendra Singh Rana a Speaker's refusal to decide was held amenable to judicial review; in Keisham Meghachandra Singh the Supreme Court recommended a decision within about three months and accepted that a court may issue a writ of mandamus where the Speaker fails to act.
- Here the delay is not neutral in appearance: the Speaker belongs to Party A and eight months carries the matter past a budget session. A court should direct a decision within a fixed period, say four weeks, and record that the delay is unexplained.
What the court should decline to do is declare the 14 disqualified itself. That is the Speaker's power in the first instance, and substituting the court's finding would create a fresh constitutional problem.
3. If all 14 are disqualified, does the government lose its majority? Work the numbers and explain what the calculation reveals about the delay.
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Work the reduced House, not the original one.
- If all 14 are disqualified, effective membership falls to 186 and the majority mark falls with it, to 94 instead of 101.
- Party A (78) plus the remaining 22 of Party B gives 100. On a no-confidence division that is 100 against the 68 of Party C, so the government survives on these figures.
- Without disqualification the picture is barely different: 100 (A plus the loyal 22 of B) against 68 plus 14, that is 82. The government survives either way. The 14 votes are not what decides its fate.
- That is why the delay is better explained by something other than floor arithmetic. Disqualification triggers by-elections in 14 seats, and Party A may lose them. The temptation to leave the matter undecided concerns the next election, not the next division.
Two cautions: winning one division is not the same as commanding the House over time, and a Governor's assessment in a Bommai-type situation rests on the floor of the House, not on a Speaker's arithmetic.