Thursday, June 17, 2021

Anti-defection law

The Supreme Court verdict last month upholding the disqualification of 17 Karnataka legislators by the then Speaker K R Ramesh, but permitting them to contest the by-elections, which are round the corner is a serious issue. It signifies that the SC ruling also recognizes the fact that severe penalties imposed on the elected legislators for defection from one political party to the other can be doubled-edged. This is perhaps the second case that reached the SC following the uncertain mandate in the 2018 Karnataka Legislative Assembly elections. The court validated the decision of the Speaker to disqualify them from the House. But the apex court set aside the Speaker’s order barring the disqualified MLAs from contesting the elections for the remaining term of the Legislative Assembly. In the first instance, the SC decision appears to be a balancing act, allowing a win-win situation for both sides. However, the verdict by a three-judge bench headed by Justice N V Ramana stays with the rule of the law. The Representation of the Peoples Act, 1951, and the Tenth Schedule of the Constitution, which deals with anti-defection, do not give the Speaker ‘the power to indicate the period for which a person is disqualified’. On the other hand, Article 164(1)(B) of the Indian Constitution, which deals with the consequences of disqualification of an MLA, states that an MLA disqualified under the Tenth Schedule is also disqualified from being a minister ‘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 the legislator is declared elected, whichever is earlier.’ By implication, this provision permits an MLA disqualified under the Tenth Schedule to be re-elected to the House. Now the question that remains even after the verdict is whether a strict legal interpretation takes away the force of the Anti-defection law. The 17 MLAs defected with a clear intention of triggering the collapse of the HD Kumaraswamy-led Congress-JD(U) government but can now contest unabashedly on a BJP ticket, the party which engineered the defection. The apex court, cognisant of this question, also bats in favour of a stronger Anti-defection law. However, once the political colours are stripped from the issue, the legal questions become fairly simple. Can the speaker or the court subsequently pass orders that are punitive against the disqualified legislators when the letter of the Constitution does not prescribe such penalties for their actions? Such a punishment could be a double-edged sword. Disqualification for the entire term can be used by ruling parties to manufacture a majority or by Opposition parties to punish dissent. The court decision is based on this precise fear that “such extreme stand could have a chilling effect on legitimate dissent.” This is also to be seen in the light of the fact in the past many elected members of state assemblies or the parliament have been disqualified by the ruling party or the opposition to silence dissent on many issues including the question that challenged internal party democracy. In fact, both the ruling party and the opposition have been welcoming such a verdict by the apex court because both of them have been found involved in resorting to such actions against their own party men whenever the leadership has been challenged by legitimate dissent. Such challenges before the enactment of Anti-defection law have been confined to party meetings and never given the air outside the meeting venues. So some of the aspect of such a dissent was an accepted part of functional democracy.