Court of defection justice

Vidhan Soudha

By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi

The architect of Vidhan Soudha, the iconic building that houses Karnataka legislature in Bengaluru, K. Hanumanthaiah and his team would not have foreseen that the construction they were erecting would not remain just the most beautiful structure of bricks and mortar in India to house post-independence law-making body, but become the venue for nationally significant political/constitutional decisions.
The reference is to determination of majority and formation of government and particularly to the impact of the Anti-Defection law, which is an addition to the original Constitution as 10th Schedule in 1985. This law has received a very crucial judicial interpretation in a verdict in the Supreme Court on the proceedings held in this august Assembly in the famous S R Bommai case that the test of majority should be conducted on the floor of the House. Vidhan Soudha has come to be linked with the law and politics of defection.
The disputes under the Anti-Defection Law have also centred round the powers of the Speaker and the Governor who are the key concerned constitutional authorities.
From Bommai case in 1994 to the triangular politics between JD(S), Congress, and the BJP presently going on in Karnataka, several issues surrounding government formation and its continuance, proceedings in the Assembly, role of political parties and their members, powers of the Speaker, Governor, and the Supreme Court, and the rights of the MLAs have arisen in the precincts of Vidhan Soudha.
The moves and counter-moves by members and parties expose the weakness of the Anti-Defection Law and the immense possibilities for manipulating and dodging the law by parties. Recent political events in Karnataka are a naked struggle for power totally eliminating ethics in politics. They prove that law alone cannot shape institutions and individuals in the absence of the will of individuals to honour the letter and spirit of the law.
Karnataka government formed in 2018 was itself a weak formation of a coalition of two parties that bitterly fought each other in the election and joined hands after the election — Congress with 78 members and JD(S) with 37 members — claiming majority in a House of 224 members. The BJP winning highest number of seats had 105 members and was first invited to form the government. Since it failed to get majority support, the rivals turned partners got the chance with the smaller of the two as the head. However, 14 months later, the Opposition BJP tasted success and defeated the confidence motion moved by the CM on Tuesday last.
The current episode started with the resignations of 13 MLAs (10 Congress and 3 JDS) on 6th July, and the Speaker wanted at least six days to decide whether they were voluntary and genuine. Speaker also raised a question about the format of the resignation letters of eight of them. The Congress party filed a petition to disqualify the rebel members who stayed away from the Legislature Party meeting convened by the party.
Number of resignations increased and some members moved the Supreme Court seeking its direction to the Speaker to accept the resignations.
Two issues were before the Speaker – resignations and disqualification of the members by their parties. The Supreme Court gave time till 11th July to the Speaker to decide on the resignations which raised the first constitutional issue in the episode whether the Speaker – a constitutional authority – could be given a time frame by the court to decide the matter of resignation. The court asked the Speaker to maintain status quo till 16th July. No decision could be taken by the Speaker on questions of disqualification or resignation. The Speaker asked the rebel members to appear before him in two batches on July 12 and 15.
Converting resignation into disqualification issue virtually denies concerned legislators the right to quit their seats in the legislature. A disqualified member cannot hold a parliamentary office or become a minister without getting reelected – a situation that would prevent the rebels from joining opposition for positions whereas a person who resigns may be inducted into an alternative ministry. But, disqualification cannot be effected without establishing its ground while resignation is a simple question of acceptance by the competent authority.
The power of the Speaker is quite substantial in applying Anti-Defection law, but Speakers are generally reluctant to disqualify a member. The question whether the Speaker’s inaction can be challenged in a court is already pending before a Constitution bench. Such inaction happened in Telangana, Andhra Pradesh, and Tamil Nadu. Karnataka is now exposing another dimension of the problem.
Meanwhile, further resignations followed and five more of the rebels moved the Supreme Court complaining of threat and intimidation by their party. Their contention is that the right to resign from their office is a “fundamental right of a citizen as well as a public representative”. They disputed the need to verify the genuineness of their resignations as they submitted letters personally to the Speaker and also submitted sworn affidavits in the apex court.
Supreme Court order while upholding the Speaker’s right to decide issues of disqualification and resignation, provided exemption to the 15 rebels from attending the on-going Assembly session where a trust vote was in process. It was to “strike a balance’ as the Speaker was delaying acceptance of their resignations. Both JD(S) and the Congress filed a petition seeking clarification of the Supreme Court on this order.
On 23rd July the game was finally over for the coalition. When the trust vote was taken, the coalition government had 99 members against BJP’s 105. The reason to prolong the debate and gain time for negotiations with the rebels, simply didn’t work for it and the government fell.
In this story that is rather confusing and boring to onlookers, the Governor set “deadlines” for trust vote thrice, but they were not complied with. On the contrary, the CM asked the Speaker to decide whether the Governor can give a deadline. Thus, every move of Constitutional functionaries is being subjected to questioning by the affected making the tale one of mutual check to fix limits of authorities.
Obviously, there are many defects in the existing system and procedures which can lead to collapse of orderly governance in the hands of politicians. The country is going through a testing time and requires cleaning of institutions by well-meaning politicians.
Faced with possibilities of more resignations rather than return of the rebels, the CM moved Trust Vote on 18th July. However, parliamentary practices permit enormous delay in ending the suspense despite fixing of time frame by the Speaker several times.
A Trust Vote is different from a No-Confidence Motion. The former is for proving majority – a question of simple arithmetic and needs no arguments to carry conviction. The latter needs speeches to establish the grounds for loss of confidence in the government.
Members of any party are free to move from one party to another, but only have to take the consequences of their move. When they want to move without any adverse consequences to their career, trouble starts if they clash with an existing law or established precedent.
Vidhan Soudha has earned unenviable distinction of being the venue for the play of defection politics for too long. It must come out of its preoccupation with making and breaking governments and settle down for more serious function of governance.— INFA