With its two differing opinions on Thursday, the Madras High Court has given rise to more questions instead of providing answers on the legitimacy of the disqualification of 18 MLAs of the All India Anna Dravida Munnetra Kazhagam in Tamil Nadu last year. While Chief Justice Indira Banerjee upheld the disqualification, stating that there was no violation of the principle of natural justice, Justice M Sundar differed. The matter will now go to a third judge whose opinion will be decisive.

The 18 legislators are supporters of TTV Dinakaran, the nephew of jailed leader VK Sasikala and now leader of the newly formed Amma Makkal Munnetra Kazhagam. In August, 19 MLAs owing allegiance to Dinakaran had met the governor and sought the removal of Chief Minister Edappadi K Palaniswami. This was in response to Palaniswami, initially a supporter of Dinakaran and Sasikala, deciding to bury his differences with O Panneerselvam – whom he had replaced as chief minister in February 2017 – and join hands with him.

After the 19 MLAs met the governor, a disqualification petition was moved and Speaker P Dhanapal issued notices to the legislators. In the meantime, one of the 19 MLAs retracted his petition to the governor and he was let off. On September 18, the speaker disqualified the other 18 MLAs on charges of voluntarily giving up party membership by revolting against the chief minister.

The 18 MLAs moved the High Court days later challenging the speaker’s decision. Arguments ensued and the judgement was reserved in January. After a delay of over five months, a two-member division bench of the court delivered a split verdict on Thursday, leaving the matter to be decided by a third judge.

Apart from whether the speaker acted with malafide intentions and whether the 18 MLAs were given an adequate opportunity to defend themselves, one question that could determine the fate of this case is this: did the All India Anna Dravida Munnetra Kazhagam exist in its original form when the speaker disqualified the legislators?

The AIADMK dispute

This question came to the fore during the court arguments because of an order passed by the Election Commission of India in March 2017.

After he went against Sasikala and voted against the Palaniswami government in a confidence vote last year, Panneerselvam had petitioned the commission, claiming that his faction was the legitimate All India Anna Dravida Munnetra Kazhagam and that the party’s “two leaves” symbol should be given to him. The Sasikala side, which included Palaniswami at the time, disputed this claim. In March, the poll panel froze the symbol and barred either faction from claiming to be the original All India Anna Dravida Munnetra Kazhagam as it was under former Chief Minister J Jayalalithaa – whose death in December 2016 had split the party. The faction led by Panneerselvam called itself the AIADMK (Puratchi Thalaivi Amma) while the one led by Sasikala was named the AIADMK (Amma).

Matters took a dramatic turn in August. Palaniswami, who had by then slowly moved away from Sasikala and Dinakaran, joined hands with Panneerselvam and appointed him deputy chief minister. The 19 MLAs then met the Speaker on August 22, alleging corruption in the government and seeking Palaniswami’s removal. They stated that they were withdrawing support. They, however, said they had not relinquished membership of the party.

Three weeks later, 18 of them were disqualified under the Tenth Schedule of the Constitution, popularly known as the anti-defection law, for voluntarily giving up party membership by withdrawing support to the chief minister.

Differing views

In their arguments before the High Court, the 18 MLAs said that on the date of the disqualification order, the All India Anna Dravida Munnetra Kazhagam did not exist in its original form for them to have given up its membership voluntarily.

Lawyers representing the speaker and the chief minister countered by saying that the definition of a “political party” should be the definition available under Section 2 (1) (f) of the Representation of the People Act, 1951. This provision says that a political party is an association of citizens recognised by the Election Commission of India.

Chief Justice Banerjee concurred with the speaker that the Election Commission order had no bearing on the proceedings in the disqualification case. The order read:

“The proceedings before the Election Commission under Paragraph 15 of the Symbols Order was rightly found by the Speaker to be inconsequential, since a split in the political party does not save disqualification after omission of Paragraph 3 of the Tenth Schedule by the Constitution 91st Amendment Act, 2003 with effect from 1.1.2004.”

Paragraph 3 provided immunity from disqualification in the event of a split in the party. This was removed in 2004.

But Justice Sundar differed strongly with this position. He asserted that there was no way to ascertain who was really a member of the original All India Anna Dravida Munnetra Kazhagam at the time the poll panel was seized of the matter and had yet to pronounce its final decision. He said:

“To add further clarity and specificity, in this period of 16.03.2017 to 23.11.2017, if a MLA had done something or had not done something, it would be completely untenable to apply an inferential process to say that such action or inaction of the MLA tantamounts to voluntarily giving up the membership of AIADMK political party [on whose ticket he was elected] until ECI gave its final verdict on 23.11.2017. To be noted, impugned order of Speaker is dated 18.9.2017. A question of voluntarily giving up membership of AIADMK political party in whose ticket a legislator was elected could not at all have been answered conclusively in this period.”

Announcing its final decision on November 23, the Election Commission had allotted the “two leaves” symbol to the Palaniswami-Panneerselvam combine.

Given this fundamental contradiction between the two judges’ opinions, the third judge may well have to decide the validity of the disqualification process when the Election Commission proceedings were in motion. But this gives rise to another crucial point. Do proceedings in the Election Commission on claims over a party effectively put on hold a constitutional provision under the Tenth Schedule? In other words, could it be claimed that a constitutional provision will lie in suspension when a dispute arises before the poll panel?

Interestingly, this dispute came up because of the insistence of the speaker and the chief minister that the definition of a political party used in the dispute be that provided in the Representation of the People Act.