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UP speaker dismisses BSP's petition against rebels, rules whip 'unconstitutional'

Uttar Pradesh assembly Speaker Kesri Nath Tripathi today dismissed all the 23 petitions filed against 13 Bahujan Samaj Party legislators seeking their disqualification under the anti-defection law, saying the whip issued was ''unconstitutional''.

The petitions were filed by then BSP legislature group leader Mayawati and senior colleague R K Chaudhary before the speaker, after the rebel MLAs, violating the whip, voted in favour of Bharatiya Janata Party leader Kalyan Singh on the floor of the Vidhan Sabha on October 20, 1997.

In the jam-packed old cabinet room, Tripathi announced that his order dealt with eight points in detail which were raised in the course of the hearing. The hearing had lasted a total of 50 hours over a period of five months. The speaker's report runs into 148 pages.

As per the speaker's ruling, which is open to judicial scrutiny, no legislator who had voted in favour of the confidence vote sought by Kalyan Singh would face disqualification as the BSP whip did not fall under the provisions of the rule.

The speaker's ruling, which ended the five-month-long suspense over the issue, formalised a split within the 67-member BSP and recognised the 19 member Jantantrik BSP as a separate entity.

All the Jantantrik BSP members are ministers in the Kalyan Singh ministry.

Daya Ram Pal, state BSP president, former BSP speaker Barkhuram Verma, BSP legislature group leader Swami Prasad Mourya and former advocate-general Umesh Chandra were also present when the speaker announced his ruling.

The speaker, in his ruling, said Mayawati failed to prove through material facts that the whip issued by her was as per the requirement of the provisions of the anti-defection law.

Mere election to the post of legislature group leader did not automatically authorise someone to issue a whip, he declared. The party should have made some by-laws which would then be instructed to be followed, he observed.

Tripathi, a lawyer, ruled, ''Since the anti-defection law is a penal provision, strict implementation of its rules is a must.''

He also maintained that the whip could be both written or oral. He also took note of the oral whip issued on October 21 as stated by one of the defectors. Following this, the earlier whip issued a day earlier, that is on October 20, by the BSP legislature group leader, was rendered infructuous.

According to the speaker, it was not proved that Mayawati was authorised to issue the whip dated October 20, 1997, as no rules, regulations, by-laws, constitution or resolution of the Bahujan Samaj Party was filed to show that she was authorised by the party to issue directions for the purpose of paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India.

The doctrine of implied power or authority cannot be invoked for the purpose of this paragraph. Besides, the whip ought to have given fore-knowledge of the consequences for acting contrary to it, as laid down by the Supreme Court, and as such was not in accordance with the Tenth Schedule.

The speaker also held that ''the doctrine of acquiescence of estoppel cannot be applied against law, and as such the respondents cannot be prohibited from challenging the validity of the whip and the authority of the leader to issue whip''.

About the split, the speaker held that ''in one series of act, there could be a split in the political party and also the legislature party, and the new group formed out of the split becomes the original political party of the group from the time of the split''.

There was a split in the Jantantrik Bahujan Samaj Party also on January 15,1998 due to which only 19 MLAs remained in the JBSP legislature party.

Citing 19 points in his conclusion, the speaker dismissed all the 24 petitions and ordered that the 19 erstwhile BSP MLAs be treated as JBSP MLAs in the state legislature.

UNI

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