The author expresses his regret for going beyond the word limit; however, the exigency of the matter compelled him to do so.
The ongoing political outcry in the State of Karnataka has stunned the whole nation and the vibes of this political deadlock has brought the constitutional issues regarding the authority of the Speaker of the assembly and Anti defection law at the forefront. The disqualification of 16 MLAs (11 BJP and 5 independents) by the Speaker K.G. Bopaiah ahead of the trust vote on October 11, 2010 has taken the legal and political community aback. Eminent politicians, jurists and commentators posit themselves on opposing extremes of the academic spectrum on this point, and recent split judicial pronouncements by Karnataka High Court add to the confusion. Being students of Constitutional Law, it is imperative as well as essential for us to gauge the validity of these political actions on the touch stone of the Constitution. This post would delve into the contentious issue of law regarding the disqualification of MLAs. In doing so, the first part would provide a brief background to the present controversy and then it moves to trace the constitutional provisions with regards to the disqualification of MLAs. The next part would examine the case law jurisprudence revolving around the same issue.
Part I: Background of the Controversy
The saga begins on October 6, 2010 when 16 MLAs approached the Governor H.R. Bhardwaj whereby they expressed their lack of confidence in the government on being aggrieved by the alleged disillusion with the functioning of the government headed by B.S. Yediyurappa. It was alleged that the government was responsible for widespread corruption, nepotism, favourism, abuse of power and misuse of government machinery. With these reasons they asserted that they have withdrawn their support to this government in their letter on the same date. Taking note of this dissatisfaction, the Governor addressed a letter to Chief Minister on the same date wherein he requested the CM to prove his majority on the floor of the house. At this juncture, it is pertinent to note that the said floor test has been laid down by the Supreme Court in S.R. Bommai Case which was subsequently followed in Rameshwar Case. Subsequently, the CM filed a petition under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on grounds of Defection) Rules, 1986 praying for the disqualification of 13 MLAs. The Speaker accepted this petition and passed the impugned order dated October 10, 2010 whereby 11 MLAs were disqualified. The story took an interesting turn when the questions arose as regards to the said disqualification wherein it was alleged in various media reports that the sole purpose of such disqualification before the trust vote was to bring down the strength of the house to 208 and thus it was aimed at facilitating the comfortable win for Yediyurappa’s government. Aggrieved by this, the MLAs challenged their disqualification in the Karnataka High Court. The court pronounced a split verdict on the issue on October 18. Chief Justice J.S. Khehar upheld the action of the speaker and Justice N. Kumar set aside the order of the speaker calling it unconstitutional. The matter has now been listed for hearing before a third Judge on October 20.
Having dealt with the factual background leading up to the passing of the split decision by High Court, I shall now venture to deal with the law on disqualification.
Part II: Constitutional Provision Regarding Disqualification Of Members
The 16 MLAs were disqualified by the speaker under the 10th schedule of the Constitution on grounds of defection. Article 191 read with the paragraph 2 of 10th schedule of the constitution lists two grounds on which a member of a house “belonging to any political party” can be disqualified. First, “if he has voluntarily give up his membership of such political party”, Second, “if he votes or abstains from voting contrary to any direction issued by the political party.” In the present context, it can be very well argued on behalf of the MLAs that their action of approaching the governor to express their grievance against the government did not amount to voluntarily giving up their membership. As Justice J.S. Khehar put forth, the MLAs merely “dissented”, it was not “dissidence.” The right to dissent has an enormous bearing on democracy. Democracy is not about “who is ruling” but “who is in the opposition.” Merely on grounds of dissenting it would indeed be unjust to remove the rebel MLAs.
Part III: Judicial Pronouncements On Disqualification of Members
Similar issue had plagued and perplexed the judicial minds in the case of Ravi S. Naik & Sanjay Bandekar v. Union of India & others wherein the Court held that the words “voluntarily giving up membership” do not mean “resignation”. The court had categorically clarified that “A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. 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 to which he belongs.” An inference has to be made by the speaker on the basis of evidence supporting the same. In the present case Mr. Bopaiah had send show cause notices to all the MLAs asking them to explain why action should not be taken against them. Here the procedure was duly followed as envisaged by Rule 6 and 7 of KLA Rules, 1986. The MLAs were given a chance to explain their positions by adducing documents. However, the MLAs were given just 4 days to file their replies, whereas the Rule 7(3) of Karnataka Assembly provide for seven days time. Therefore it would indeed be difficult for the Court to classify the action of the speaker as unconstitutional. The speaker was well within the ambit of the law when he passed the order of disqualification. Further in the case of Sri Rajendra Singh Rana & Ors. V. Swami Prasad Maurya & Ors, the Supreme Court took a liberal view of what constitutes “voluntary giving up” by laying down that “the act of giving a letter requesting the Governor to call upon the leader of the other party to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected”. Hence the fact of defection can be implied as well express.
Even after a scrutiny of constitutional literature ranging from bare provision to the judicial interpretation, the dispute rests with the judiciary standing at the forefront as the torchbearer. The author awaits the reasoning of the Court coming up on October 20 which would further provide me the chance to analyze the approach of judiciary in such matters.
The Kihoto Hollohan case conclusively established judicial review in case of disqualification of members form the house as it struck down para 7 of the tenth schedule.