The Madras High Court judgment of 27 April that dismissed a petition seeking disqualification of O Panneerselvam, Deputy Chief Minister of Tamil Nadu, and 10 other MLAs of the ruling AIADMK owing allegiance to him for defying the party whip and voting against Chief Minister Edappadi Palanaswami in a vote of confidence in the government on 17 February 2017 mainly on the ground that a petition on the powers of the court to issue directions to the Speaker of a Legislative Assembly is pending before the Supreme Court suggests an abdication of duty.
A minority AIADMK has been installed in Fort St George by the Union government through the good offices of the Governor who consistently refused to ask the Chief Minister to seek a fresh vote of confidence.
Though the Palanaswami government might have succeeded in winning over Panneerselvam’s XI by distributing ministerial berths and other perks, 18 other AIADMK MLAs have written to the Governor expressing their lack of confidence in the Palaniswami government. The Governor refused to take cognizance of the situation. Disqualification of the 11 MLAs belonging to the Panneerselvan faction would put an end to the undemocratic government of Tamil Nadu propped up by the BJP with a view to increasing its clout in Tamil Nadu.
Article 191(2) of the Constitution says, “A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.” The anti-defection law is included in the Tenth Schedule. Panneerselvam’s defence that a whip was not issued to his group because it was not part of the 122 MLAs held “captive” in a beach resort does not hold water. A whip is a directive to all party MLAs elected on its symbol.
The anti-defection law does not provide for exempting any group from it except when there is a split in the party. Panneerselvam is very much part of the ruling AIADMK. Having defied the whip and fearing they would be disqualified, Semmalai, one of the rebel MLAs, moved the Supreme Court to stay the Madras High Court proceedings and sought the case to be tagged on to a 2016 Telangana case to examine whether a High Court can direct the Speaker of an Assembly to disqualify a member of the Assembly.
It is quite irrelevant to the Tamil Nadu Assembly disqualification case. Just as the final authority to remove a judge of the Supreme Court or High Court lies outside the judiciary and in Parliament under Article 124(4) of the Constitution, the ultimate authority to decide the disqualification of an MLA lies outside the Assembly as a Constitution Bench of the Supreme Court ruled in 1992. The Madras High Court should have decided the case on merits.