'Two Leaves' case highlights need for updated law on party splits

The ‘AIADMK symbol issue’ may be a fit case for the courts and the legislature to provide for a new law for application in similar fluid, dynamic political situations, says N Sathiya Moorthy.

Now that the Election Commission has found a quick-fix ahead of the pending court case over the ‘Two Leaves’ symbol involving the ruling AIADMK in Tamil Nadu, it may be time for appropriate authorities at all levels to put their heads and come up with a relevant law on party splits and defections, it would seem.

This is because the yardstick applied by the EC in this case, and also to the ruling Janata Dal-United case in Bihar and the Samajwadi Party in UP, which the TN order has cited, has its roots in a Supreme Court verdict belonging to a different era.

It was an era of vertical splits in the ruling Congress at the Centre (1969) when no anti-defection law existed, at least as far as legislative majorities were concerned, which encouraged further defections in furtherance of the ‘ruling’ faction within the party that is in power, mostly in one state.

Such an approach to law-making and application should be considered ab initio flawed. Despite the Supreme Court verdict in the ‘Congress symbol case’ of the early ’70s, the ‘majority’ in the legislative group and general council of a split party has not been tested for a party not in power, or does not have any legislative presence.

Two, the anti-defection law came into force under the Rajiv Gandhi regime at the Centre, years after the ‘Congress symbol case’. The law itself has gone through major modifications and amendments, both at the hands of Parliament and the Supreme Court of India, since.

Three, long after the ‘Congress symbol case’ and the anti-defection law of the mid-’80s, the EC in its wisdom has been insisting on political parties registered under the law holding periodic organisational elections, based on their bylaws or the constitution that such political parties have given unto them. Defaulters are punished with ‘derecognition’, and the threat has worked.

Therein is the ‘crux of the problem’, as applicable to the AIADMK in particular. It is possibly the only party whose by-laws provide for direct elections to the party chief, named the ‘general secretary’.

Jayalalithaa was the last general secretary elected to the post thus, or supposedly through overall acclamation at a party rally (and not through direct election per se), as there was no contest for the post during her long years at the helm.

Hence, for the EC to have applied a Supreme Court verdict from the past when the situation prevailing in the AIADMK was/is pertinently different from those existing in the Samajwadi Party and the JD-U may need a review, too.

In doing so, the EC may also have to ask itself, how it allowed the AIADMK to continue with an ‘unworkable’ process as ‘direct election’ to general secretary without verifying if the party had the mechanism to undertake such an arduous task.

Such a task as conducting ‘direct elections’ to the party post may have been divined by the break-away AIADMK founder M G Ramachandran, MGR, who had betted on his own personal charisma while much of the party remained with then DMK Chief Minister M Karunanidhi.

But such direct elections always involve all processes and elements which only the EC and state election commissions are known to possess and/or command -- that too by involving government, bank and other PSU employees, so to say.

Thus the question arises if the EC could have applied a court ruling not entirely relevant to the case on hand and thus grant the ‘Two Leaves’ symbol, the party and the name, to the ruling EPS-OPS faction within the AIADMK.

It remains to be seen if the losing ‘faction’ identified with jailed V K Sasikala Natarajan and her nephew and deputy, T T V Dinakaran, would actually appeal the EC order in the Supreme Court, as the latter had declared soon after the ‘Two Leaves’ went to the other side last week, and would flag basic questions of law.

Truth be acknowledged, the EC did not fix a reference date to the ‘Two Leaves’ symbol case while disposing of it. The facts on the ground had taken an 180-degree turn between the time the case first came before the EC and mid-way through the process when it was being heard.

Originally, the Dinakaran and EPS factions were one and the same, going by the facts and circumstances of the case at the time.

If legislative majority was/is a factor for deciding the ‘symbol issue’, then incumbent Edappadi K Palaniswami became chief minister at a legislative group meeting presided over by Sasikala.

Incidentally, Dhinakaran handed over to Tamil Nadu’s then acting governor, Ch Vidyasagar Rao, the legislative party’s decision (or, of what was then the Sasikala faction’s) choice of EPS as chief minister.

Both camps were together on the same side, and it was the other faction, then under ‘three-time’ chief minister O Panneerselvam (OPS), which had moved the EC in the first place, with only 11 MLAs on its side from a total of 135 that the AIADMK had after Jayalalithaa’s death.

As the immediately preceding election of Sasikala as party general secretary showed, the candidature incidentally proposed by OPS as then chief minister, and its instant acceptance by the general council, were all proof that the Sasi-TTV faction obviously had the majority in that forum.

The situation changed later, when EPS came to lead the ‘ministerial faction’, patched up with the rival OPS faction, and became one, and together they contested Dinakaran’s ‘hegemony’.

The character of the case pending before the EC also changed, and new affidavits were filed, new hearings scheduled, and a ‘new’ order relevant to the prevalent ground situation ordered, now.

The question thus arises as to the way the EC should handle a ‘dynamic situation’ such as the one that prevailed in the AIADMK between the original split post-Jaya and the EPS-OPS ‘re-union’ to the exclusion of the Dinakaran faction.

After all, laws and rules, while being flexible for application to specific situations, should have an element of standardisation and precedent-setting character to be able to provide a pre-determined guideline of sorts for contesting factions to go by.

Such laws, including those laid down by the Supreme Court or Parliament or both, cannot be overly flexible to be able to absorb situations that are not relevant to the existing one, or become irrelevant, given the dynamism of the existing and emerging situation(s).

The ‘AIADMK symbol issue’ may still be a fit case for the courts and the legislature to agitate the possibilities and provide for a new law that could be considered for application in similar or such other dynamic political situations.

In doing so, the authorities concerned should also consider the way the much-hoped-for anti-defection law has been used, abused and misused by all stake-holders, despite the Supreme Court having to intervene in almost all instances of such mal-application over the past three decades.

It is another matter that the EC, in its wisdom, ordered the cancelled by-election to the R K Nagar assembly seat (held by Jayalalithaa) for December 21, less than 24 hours after passing the order in the ‘AIADMK symbols case’, leading to avoidable criticism against itself.

If nothing else, it could still have advanced the former, or delayed the notification of the latter, by a few more days, to avoid the kind of embarrassment that no constitutional authority in the country should suffer or entertain, if only to uphold the credibility and integrity of the system.

There can be no denying the fact that the Madras high court had more than once in the past directed the EC to conduct the much-delayed R K Nagar by-poll by December 31, and the EC thus had little choice in the matter.

But by delaying the by-election notification by a couple of days and still having the polling any day before December 31, the EC could have abided by the HC order.

By advancing the polling day before Christmas and thus possibly arguing that the EC wanted to have it all before the New Year holiday mood set in, among the voters.

After all, in elections 2011 to the Tamil Nadu and Kerala assemblies, the EC ordered polling on April 13, on the very eve of the Tamil New Year and the ‘Vishu’ festivities in Kerala.

The poll percentage on that occasion was a high 78.12 per cent in Tamil Nadu, and 75.12 per cent in Kerala.

As against this, now after the by-poll notification, it remains to be seen if the SC or the HC would want to ‘interfere’ in the ‘election process’ already set in motion by the EC until after the declaration of the results on December 24 (as notified now), citing constitutional directions in the matter.

This would imply that for the by-election at the very least, the Sasi-Dinakaran faction cannot contest the issue in the SC and take an interim stay of the EC ‘symbol order’, for granted.

In effect, it would mean that the Dinakaran faction would have to look around for a new identity and symbol, and cannot claim to be a faction of the AIADMK, either in letter or spirit, while the same the ‘ministerial faction’ can claim as a right.

There is a glitch, however, but not insurmountable. Post-EC order, the inherent differences within the EPS-OPS faction are seen as coming out in the open more frequently than earlier.

OPS himself stayed away from the instant ‘victory rally’ organised by the EPS faction at Madurai even while he was in the temple town.

Though second-line ministers in the EPS faction held that OPS’s ‘boycott was no boycott’ and they had actually informed/invited him but he had to stay away owing to personal commitments, the OPS faction itself has not said anything to the effect in the matter.

One after the other, starting with parliamentarian V Maithreyan, once an office-bearer in the state BJP who was/is close to the powers-that-be at the Centre, leaders from the OPS faction have been talking/tweeting about the ‘non-meeting of minds’ between the two groups even three months after the reunion.

More to the point, the EC order has handed over the title and symbol of the AIADMK to one-time presidium chairman E Madhusudhanan, who was holding the position when Jaya was around and stayed on with the OPS faction, and was its original candidate for the R K Nagar by-poll.

Over the past weeks, EPS faction minister and spokesman, D Jayakumar, has been stalling septuagenarian Madhu’s return to the centre-stage in the party’s local affairs in the spread-out North Chennai neighbourhood, but the EC order creates a new situation of sorts for the re-united faction leadership.

At Monday’s forenoon meeting of what was considered to be a routine affair, the party presidium ended up putting off a decision on the candidate until Wednesday, reflecting the continuance of the post-merger convulsions between the EPS and OPS factions, clearly indicating that Madhu is not exactly an automatic choice, even despite his long years in the party.

It is another matter that even sections within the original OPS faction feel left out by the boss, who seems to be feeling uncomfortable in EPS’s company yet does not feel encouraged to rebel a second time, if only to protect the political interests of all those that had stood by him -- now, possibly including Madhusudhanan.

Yet, the question would remain as to what all did the EC achieve by extending the cooling-off period for the by-poll after cancelling it, citing large-scale money-play at the instance of Dinakaran, and involving EPS and his ministers, as known from a tax raid on one of them, to make it fool-proof.

That need not be the issue before the SC, if moved on the ‘symbol issue’, now or later, but could become one, post-poll, and more so for the media and the people at large -- as events and episodes unfold between now and the polling day.

Last but not the least, the EC order now confers greater legitimacy on the OPS faction, represented only by Madhu when they had only 11 MLAs, and when a series of ‘defection cases’ referred by the Dinakaran faction with 18 MLAs and the Opposition DMK against the the OPS-Madhu faction are all still pending before the Madras high court.

N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation, Chennai Chapter.