Legal question

Supreme Court dithering on defectors: Anti-Defection Act

Print edition : August 16, 2019
As the Supreme Court vacillates on responding to defectors exploiting the loopholes in the Anti-Defection Act, political morality takes a beating.

The Anti-Defection Act, 1985, was enacted with the objective of ending the phenomenon of legislators changing their political colours overnight in pursuit of office and perks, thus playing havoc with the electoral mandate. But the working of the Act over the years has made defectors ingenious and rather ingenuous. The crisis in Karnataka shows how the defector MLAs, who find themselves on the wrong side of the law, could resign from the Assembly and avoid disqualification which entails defection. At the same time, they sought to mask their real intention of resigning from the Assembly with the quest for a renewed mandate from the people because they have lost confidence in their party leadership. The fraud being played on the Constitution by the rebel MLAs of the ruling coalition in Karnataka is obvious to everyone.

But the Supreme Court, whose intervention the rebel MLAs sought in their favour, gave them a long rope, first by directing Speaker K.R. Ramesh Kumar to decide on the resignations on the same day they approached the court, that is, on July 11. When the Speaker refused to yield citing his constitutional responsibility of accepting or rejecting their resignations after following due process, the Supreme Court on June 17 swung to the other extreme by permitting the Speaker to take a decision on the rebel MLAs’ resignations within an appropriate time frame.

The bench, comprising Chief Justice of India Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose, postponed for later consideration the question of whether the Speaker ought to decide the resignations of the rebel MLAs before the disqualification petitions filed against them for voluntarily quitting their parties. It cited the reason that constitutional principles should not receive an exhaustive enumeration by the court unless such an exercise is inevitable and unavoidable to resolve the issues that may have arisen in any judicial proceeding. The Speaker and Chief Minister H.D. Kumaraswamy maintained that the Constitution allowed the Speaker to consider the twin issues of resignation and disqualification of MLAs holistically. The rebel MLAs, however, insisted that their resignations must be accepted by the Speaker first, thereby leaving the question of their disqualification infructuous.

But this did not stop the bench from directing that the 15 rebel MLAs, who resigned and were camping in Mumbai, could not be compelled to attend the proceedings of the House. Again, although this impinged on the power of the party whips to issue directives to the MLAs to attend the Assembly proceedings to vote in favour of or against the motion moved by the Chief Minister, the bench did not clarify what its order meant even after Kumaraswamy and Karnataka Congress chief Dinesh Gundu Rao sought such clarification from it. If the rebel MLAs violated the whips issued by their respective parties, they would be liable for disqualification on that ground too besides that of voluntarily quitting their parties, which was pending before the Speaker.

The Supreme Court’s protection to the rebel MLAs who were liable to be disqualified under the Anti-Defection Act dismayed observers. There was, however, a silver lining in that the bench did not say that whips could not be issued to the rebel MLAs or that the rebel MLAs could not defy whips if they wanted. The bench was silent on the consequences of their defiance, though. But the court’s muddled thinking on the issue was enough to confuse the Karnataka Assembly which was debating the Chief Minister’s confidence motion.

Meanwhile, the delay in holding the trust vote in the Assembly made two MLAs, R. Shankar and Nagesh, approach the Supreme Court seeking a directive to the Speaker to hold the vote forthwith. Conscious of the adverse reaction to its earlier directive to the Speaker to decide the resignations of the rebel MLAs within a time frame, the bench refused an immediate hearing to the MLAs and let the situation unfold itself. In the vote subsequently held, the Kumaraswamy government lost, making their prayer infructuous. But the Supreme Court was inclined to postpone the consideration of the larger issues arising out of the Karnataka crisis to sometime after the Speaker decided the resignations of the rebel MLAs.

An indication of how the Speaker is likely to decide the question was available in the aftermath of the fall of the Kumaraswamy government in the trust vote. As the Kumaraswamy government resigned following its defeat in the vote, the BJP initially appeared to be in no hurry to assume power as it might involve taking the help of the rebel MLAs whose status the Speaker had not decided.

The Speaker, on July 25, disqualified three MLAs, R. Shankar, Ramesh Jharkiholi and Mahesh Kumthahalli. The Speaker also announced that the disqualified MLAs could not contest elections until the expiry of the term of the 15th Assembly, in May 2023.

Shankar pledged his support to the BJP after voluntarily merging his party, the Karnataka Pragnyavantha Janatha Party, with the Congress. The Speaker held him guilty of defection and disqualified him. Jharkiholi and Kumthahalli, both Congress MLAs, were disqualified for speaking out against the party. Under Paragraph 2(1)(a) of the Tenth Schedule to the Constitution, by doing so a member can be deemed to have voluntarily quit his party and such an action can be inferred from his conduct inside or outside the Assembly. Besides, the Speaker found the resignations of these three MLAs not voluntary or genuine, as required under the proviso to Article 190(3)(b) of the Constitution.

Acceptance of their resignations by the Speaker would have enabled these rebel MLAs to be inducted as Ministers in the BJP-led government, which succeeds the Kumaraswamy government, for six months. Within this time they could have hoped to get reelected to the Assembly in a byelection. Their disqualification, on the other hand, would make them ineligible to become Ministers in view of the constitutional bar under Article 164(1B] of the Constitution.

With the Speaker’s announcement that he would take a decision on the remaining 14 cases of disqualification of MLAs in a couple of days, political instability is likely to plague the BJP-led government that has succeeded the Kumaraswamy government.

Goa and Telangana defections

While the Karnataka defections which brought down the Kumaraswamy government promise to unravel themselves in the coming days, the defections in Goa and Telangana fall under a different category. In Goa, 10 of the Congress’ 15 legislators merged with the BJP, while in Telangana, 12 of the 18 Congress MLAs merged with the ruling Telangana Rashtra Samithi (TRS). The Tenth Schedule seemingly permits merger by two-third members of the legislature party with another party. But Paragraph 4 of the Schedule also insists that the merger of the legislature party must be preceded by the merger of two-thirds of the “original” political party, that is, the organisational wing of the party. By no stretch of imagination can one argue that the mergers of two-thirds of the Congress Legislature Party (CLP) in Goa with the BJP and that of the CLP in Telangana with the ruling TRS were preceded by mergers of two-thirds of the Congress party at the organisational level.

The Congress, which could have legally challenged both these mergers as being inconsistent with the letter and spirit of the Tenth Schedule, however, has so far not done so. An interpretation of the Tenth Schedule in terms of its objectives alone can prevent the farce of mergers of two-third members of legislature parties of the opposition with the BJP, making a mockery of multiparty democracy.

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