Disqualified Karnataka MLAs Shouldn’t Be Surprised They Can’t Contest By-Polls

If a disqualified MLA is allowed to contest the seat which s/he vacated because of defection, it will not only be unethical but a mockery of the anti-defection law.

Dhobi ka kutta: Na ghar ka, na ghat ka.
The washerman’s dog roams between the house and the ghat, but belongs to neither.”
∼ An Urdu maxim

The honourable MLAs of Karnataka were first lured to defect, then induced to resign. By the time they resigned, petitions for their disqualification had been filed. It was clear that the resignations were a strategy to dislodge the government – and hence not genuine. An induced resignation cannot be voluntary.

Ramesh Kumar, as the speaker of the Karnataka assembly, showed how a constitutional authority should act. He adjudicated the complaints as per the constitutional norms. The chronology of events Kumar recorded in his 12-page order reflect the fact that the MLAs’ resignations were not ‘genuine’ or ‘voluntary’, while their statements proved that they had ‘voluntarily’ deserted their original parties.

Whether their resignations are accepted or they are disqualified, the impact may appear to be the same – their seats are vacated. But there is also a substantive difference: the disqualified member cannot contest by-elections and re-enter the house.

The Congress speaker’s order was appreciated by both the fallen Congress-Janata Dal (Secular) coalition and resurrected Bharatiya Janara Party government. Yedyurappa does not need to bother about commitments made, if any, either by him or his party to the rebel ex-legislators.

The tenth schedule

The Constitution (Fifty Second Amendment) Act, 1985 inserted the tenth schedule in our constitution to curb defections, a cancer that is eating away at our democracy and reducing the rule book to nothing but a ruler’s handbook. This law was criticised for facilitating the defection of two-thirds of a party’s legislators by “merging” with another party, and of one-third of a party’s legislators by “splitting” from the original party.

Also read: India’s Politicians Have Turned the Anti-Defection Law on Its Head

An isolated legislator will lose his or her seat after defecting, but a larger group of legislators enjoy immunity under the guise of split or merger. Besides encouraging wholesale horse trading, this law has proved ineffective because it allows defectors to be awarded with highly remunerative public positions like chairman of a corporation under the government, equivalent to cabinet berth in rank and privileges.

The anti-defection law suffers from inherent defects like the lack of a timeframe for speakers and chairpersons to decide on complaints, which is exploited by ruling parties to destroy other parties.

Defects exposed

Three major committees recommended the deletion of the clause legitimising “splits”, though they supported the “merger” clause.

The Dinesh Goswami Committee on electoral reforms in May 1990, the Law Commission of India report on ‘Reform of Electoral Laws‘ in 1999 and the National Commission to Review the Working of the Constitution in March 2002 strongly recommended the deletion of the split provision. On disqualification as punishment, these committees recommended, “…a defector should be penalised for his action by debarring him from holding any public office as a Minister or any other remunerative political post for at least the duration of the remaining term of the existing Legislature or until, the next fresh elections whichever is earlier” (NCRWC report).

Atal Bihari Vajpayee’s National Democratic Alliance government enacted the 91st amendment in 2003, incorporating these recommendations. It has very significant provisions: first, it limits the strength of ministers to avoid jumbo cabinets by distributing cabinet berths to too many loyalists; second, it deletes the “split” exemption (defection by one-third members of the legislature party). Two more clauses were inserted in Articles 164 and 361:

“(1-B) A member of Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.

361B. ….. shall also be disqualified to hold any remunerative political post for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier.”

Section 361B is also coached in similar terms to prohibit disqualified members from securing ministerial posts or corporation chairpersonships. It is clear now that unless there is a mid-term poll for the legislature, the disqualified member cannot contest before the term’s expiry\.

Karnataka speaker’s order

The former Karnataka speaker left no ambiguity in his verdict, saying that a legislator of a constituency has “incurred disqualification for being a member of the Karnataka Legislative Assembly in terms of paragraph 2(1)(a) of the Tenth Schedule read with Article 191(2) of the Constitution of India” and “cease to be the member of the Karnataka Legislative Assembly with immediate effect from the date i.e., 25.7.2029 till the expiry of the term of this 15th Legislative Assembly”.

Also read: Karnataka Offers Lesson in Subversion of Democracy

The disqualification clause in paragraph 2 of the tenth schedule says, “…a member of a House belonging to any political party shall be disqualified for being a member of the House”. Articles 83 and 172 of the constitution say the duration of the House is five years. The expression “disqualified for being a member of the House” should be properly understood as saying that the member is not only sent out of the House, but also not allowed to re-enter till the end of its term.

If a disqualified MLA is allowed to contest the seat which s/he vacated because of defection, it will not only be unethical but a mockery of the anti-defection law. As per the tenth schedule, the disqualified Karnataka MLAs have no case at all. The legislators should have studied this legal position before succumbing to inducements or pressures and deserting their original parties. Now, they are ‘na Congress-JD(S) ka, na BJP ka’.

M. Sridhar Acharyulu is a professor of constitutional law at Bennett University and formerly a central information commissioner, and Vikas Bansode is an advocate in the Supreme Court and former advisor to the governor of Karnataka.