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Above: Congress and JD(S) MLAs after submitting their resignations to the Karnataka governor/Photo: UNI

While the latest judgment of the apex court on disqualification of legislators in Karnataka sets many doubts to rest, it also flags a fundamental issue which has been hanging fire for quite some time—a reform in the anti-defection law itself

By Vivek K Agnihotri

On November 13, 2019, the Supreme Court, while upholding the order of the former Speaker of the Karnataka legislative assembly disqualifying 17 MLAs under the anti-defection law (the Tenth Schedule of the Constitution of India), struck down that part of the order which specified that the disqualification will last from the date of the order until the expiry of the term of the 15th Legislative Assembly in 2023. The Tenth Schedule was added to the Constitution of India in 1985 to combat the evil of political defections on account of offers of office or other inducements. It lays down the process by which legislators may be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House. The law applies to both parliament and state assemblies.

Consequent to this provision, Articles 75 (1B), 164 (1B) and 361B were also inserted in the Constitution which inter alia prescribe that if a legislator (MP or MLA/MLC) is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule, he shall also be disqualified for appointment as a minister for the duration of the period commencing from the date of his disqualification till the date on which his term would expire or, when he contests any election, till the date on which he is declared elected, whichever is earlier. He is also disqualified for appointment to a remunerative political post (Article 361B).

The Tenth Schedule lists two grounds on which a legislator can be disqualified for defection. One, if he voluntarily gives up membership of his political party; and two, if he votes or abstains from voting in the House contrary to any direction issued by his party.

Further, the Supreme Court in several judgments, particularly in Zachillu Khusantho vs State of Nagaland (1993), has held that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party. Thus the act of voluntarily giving up the membership of a political party may be either express or implied. The Tenth Schedule, however, provides an exception to this too. As of now, if two-thirds of the members of a political party decide to merge with another party, the disqualification on the ground of defection is inoperative.

Moreover, paragraph 7 of the Tenth Schedule originally barred the jurisdiction of courts in respect of any matter connected with the disqualification of a member of a House. However, the Supreme Court, in its judgment in Kihoto Hollohan vs Zachilhu and Ors (1992) struck down this provision as unconstitutional on the ground that it affected the power of the judicial review of the Supreme Court and High Courts under Articles 136, 226 and 227. The Court held that the order of the Speaker under the Tenth Schedule can be subject to judicial review on grounds of mala fide, perversity, violation of constitutional mandate and violation of the principle of natural justice.

Against the legal framework aforementioned, let us take a look at the relevant facts of the present case. The results of the 15th Karnataka assembly elections were declared on May 15, 2018, wherein the petitioners were elected as MLAs. Since no single party had a majority, a coalition government was formed, which had a short life of 14 months, ending with the resignation of the chief minister after losing the trust vote on July 23, 2019. In the meanwhile, applications for disqualification of the petitioners were filed with the Speaker in February 2019 and later. In early July 2019, the petitioners submitted their resignations to the Speaker. However, the Speaker, instead of taking a call on the resignation letters, proceeded to finalise the disqualification case and passed the impugned order.  The petitioners then approached the SC.

Mainly, there were two issues to be decided by the Supreme Court: (1): Whether the order of the Speaker rejecting the resignations and disqualifying the petitioners was in accordance with the Constitution (2). Even if the Speaker’s order of disqualification is valid, does the Speaker have the power to disqualify the members for the rest of the term?

The Supreme Court found that disqualification relates back to the date when the act of defection takes place. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter. On the second issue, the finding was: In light of the existing Constitutional mandate, the Speaker is not empowered to disqualify any member till the end of the term. However, a member disqualified under the Tenth Schedule shall be subjected to sanction provided under Article 164 (1B) and 361B of the Constitution, which provide for a bar from being appointed as a minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re-elected to the legislature, whichever is earlier.

While this judgment of the Supreme Courts sets many doubts to rest, it also flags a fundamental issue which has been hanging fire for quite some time, namely, reform in the anti-defection law (the Tenth Schedule) itself. The Court observed: “There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”

The need to take a fresh look at the anti-defection law was also highlighted in the 16-point programme of M Venkaiah Naidu, the vice-president of India, while delivering the first Arun Jaitley Memorial Lecture, organised by Delhi University on October 29, 2019, as follows: “To review the functioning of the Anti-Defection Law to address grey areas like incentivising members to resort to activities that invite expulsion from the parties besides stipulating specific timeframe for deciding on defection matters by the Presiding Officers of Legislatures.”

On the issue of neutrality of the Speaker, it would be for consideration whether the power to disqualify the legislators should be vested with the president, as in the case of disqualification for holding an office of profit. Alternatively, the Speaker may be mandated to consult the Election Commission before taking a decision.

The other issue is of delay in the competent authority taking a decision on the petitions filed for disqualification. The Supreme Court has, from time to time, commented on the unnecessary delay in deciding such petitions by the presiding officers of the state legislatures. Naidu, in his capacity as the chairman of the Rajya Sabha, while deciding the case of disqualification for defection of Sharad Yadav and Another in 2017, had observed that all such petitions should be decided by the presiding officers within a period of two to three months.

Disqualification for defection is a doubled-edged weapon. On the one hand, it has been argued that if its validity flows from the right to recall, Kihoto Hollohan (supra), why should there be exemption for a merger of political parties? On the other hand, the law, while deterring defections, also leads to suppression of healthy intra-party debate and dissent. It restricts representatives from voicing the concerns of their voters in opposition to the official party line.

—The writer is a former Secretary-General of the Rajya Sabha

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