For the second time in two years, the Supreme Court of India was called upon to adjudicate in a complex and messy political situation in Karnataka arising out of the indecisive verdict of the 2018 Assembly elections. For the second time in two years, the Supreme Court has managed to uphold constitutional morality and values, and delivered carefully reasoned verdicts.
Last year in G Parameshwara v Union of India, the court intervened to ensure fairness between claimants for the chief minister’s position, this year, in Shrimanth Balasaheb Patil v Speaker, Legislative Assembly, the court intervened to ensure that MLAs who tried to get around the prohibitions of the anti-defection laws will not enjoy the fruits of their labours. But in reducing the period of their disqualification, the court ensured that Speaker K R Ramesh Kumar’s decision stuck to the letter of the Constitution without going overboard.
The court was called on to decide whether the Speaker had validly disqualified the 17 MLAs of the Congress and Janata Dal (Secular) who had defied the respective whips of the parties, resulting in the collapse of the H D Kumaraswamy led government. The Supreme Court was not sitting in appeal on the decision of the Speaker -- rather the court was concerned with whether the Speaker’s decision is a legally plausible one based on the material before him.
The conduct of the MLAs, which has been examined in detail in this newspaper, made it quite clear that they intended to give up membership of the party and merely because they sought to resign from their membership of the Assembly would not mean that the law was supposed to be blind to the facts of the case. The court has ruled that the Speaker’s decision-making suffered from no flaws (save for extending the disqualification beyond the limit prescribed in the Constitution) and upheld the disqualification itself.
As the Supreme Court itself notes, such unprincipled defections have become fairly common (across political parties) and more distressingly, the same has been facilitated by Speakers who refuse to disqualify or worse, refuse to take a decision in the matter. The latter phenomenon was recently witnessed in Telangana where individual MLAs have crossed party lines with no consequences as the Speaker has refused to take any action against them. This is not even counting the “merger” of parties -- a major loophole in the Tenth Schedule -- which has been used by all and sundry, and recently by the Bharatiya Janata Party to increase its numbers in smaller states such as Goa and Sikkim.
Part of the blame for incentivising such unethical behaviour lies in the fundamental flaw in the design of the Tenth Schedule. It unnecessarily politicised the office of the Speaker by giving her the power of disqualification. Such a provision gives ruling parties an incentive to choose partisan Speakers who will do their bidding to engineer defections. Part of the blame also lies with the Supreme Court which has kept pending the key issue of whether a Speaker can be directed by the court to take a decision. Referred to a Constitution Bench in 2016 in the context of Telangana, the issue is no closer to being heard, giving free rein to Speakers to do as they please in the meantime.
Even if the Constitution is amended and the Supreme Court acts promptly to stem the evil of unprincipled defections, the ultimate solution lies only in the hands of voters, or specifically their fingers. When voters are firm about rejecting unprincipled candidates who have changed parties for power or pelf, the practice will perish.
(The writer is Senior Resident Fellow, Vidhi Centre for Legal Policy)
(Disclaimer: The views expressed above are the author’s own. They do not necessarily reflect the views of DH.)