Anti-Defection Law: Legislator Is The Servant, Not A Slave Of The People, Can't Take Away Their Right To Resign; Bombay HC Imposes Costs On Goa-Based Party [Read Judgment]

The Bombay High Court recently imposed a cost of Rs 1 lakh on the Maharashtrawadi Gomantak Party, an old Goa-based political party, while dismissing its petition challenging the decision of the Speaker, Goa Assembly, to accept the resignation of two MLAs from the Congress who later joined the ruling BJP.

Last month, a division bench of Justice RM Borde and Justice Prithviraj Chavan in Goa imposed the costs after concluding that the petition with political overtones was an abuse of the process of court.

Case Background

The petitioners also sought directions to the Election Commission of India to send appropriate recommendations to the government and the Law Commission to amend the anti-defection law wherein, legislators and Members of Parliament would be disqualified from contesting fresh elections for a period of 6 years if they resign without giving justifiable reasons.

According to the petitioners, the two MLAs, Subhash Shirodkar and Dayanand Sopte (Respondents 5 and 6, respectively), were lured to resign from the membership of the House. They were elected on the tickets issued by the Indian National Congress but were assured tickets of the Bharatiya Janata Party for membership during the next elections. In the meantime, they were also assured with the chairmanship of some government corporations.

It was also contended that on October 16, 2018, Respondents 5 and 6 met the national president of the Bharatiya Janata Party in New Delhi and submitted their resignation letters to him. The letters of resignation were forwarded to the Speaker by fax. The Office of the Speaker received the same at 12:55 hours and accepted both the resignations. The Speaker did not secure the presence of the concerned members before him and hurriedly accepted the resignations, though the original letters were not before him. It was contended that the acceptance of resignation letters of the concerned respondents by the Speaker is violative of the spirit of the Tenth Schedule of the Constitution of India.

Judgment

The court rejected the allegation that the resignation by these two MLAs was involuntary in any way.

"It is surprising to note as to how the petitioners can claim knowledge in respect of non-voluntary and non-genuineness of the resignation tendered by Respondents No.5 and 6. The fact as regards voluntary nature and genuineness of the resignation is within the personal knowledge of the concerned respondents who have never disputed or raised any grievance as regards the decision of the Honourable Speaker of acceptance of their resignation, till this date."

The bench observed that there was absolutely no material to establish the allegation that the two MLAs committed an act of defection as they were lured by the BJP and awarded by them. The court further observed-

"The act of tendering resignation by a Member of Legislative Assembly does not come within the purview of the Tenth Schedule to the Constitution of India and such an act cannot be construed as a defection. An eligible person has a right to contest the elections. It is for the electorate to make its choice. Once a candidate is elected, ordinarily he is expected to function as a Member of the Legislative Assembly for the requisite term.

There is nothing in the Constitution which takes away the right of an elected member to resign from his seat. Denial of such a right to an elected member would be destructive of principles of democracy. A legislator is the servant, but not the slave of the people. It is true that frequent resignations and frequent byelections are a drain on the finances of the State and may prove irksome. But that is no reason to compel an elected member who has no desire to continue his membership, to continue as such. A person, after getting elected, may, for variety of reasons, desire not to continue as a Member. His reasons may be good or bad, but that is his decision and his right."

The court concluded that the said petition had political overtones, was an abuse of process of law and dismissed it. 

Read the Judgment Here