The political turmoil in Karnataka witnessed a new twist on Thursday after the Supreme Court directed the state assembly speaker Ramesh Kumar to decide on the resignations of 14 Congress and Janata Dal (Secular) MLAs by midnight. The MLAs are expected to meet the speaker at 6 pm, when their resignations will be scrutinised.

The Congress and Janata Dal (Secular) contested separately during state elections in 2018, but decided to come together to form the government that year, even though the Bharatiya Janata Party won the most seats. The coalition has been volatile ever since, with even more pressure on it after the BJP won the bulk of the Lok Sabha seats in Parliamentary elections earlier this year.

Fourteen MLAs of the coalition submitted their resignations to the speaker of the state assembly in the first week of July. If all the resignations were accepted, the Congress-JD(S) government would be in danger, since it would no longer have a majority. With the size of the assembly shrinking, the BJP would easily cross the half-way mark.

The speaker, however, said he would only accept the resignations after meeting the legislators individually. Ten of the MLAs are currently staying in a hotel in Mumbai. All 14 have refused to take their resignations back despite the offer of ministerial berths.

Kumar moved a petition against the Supreme Court order on Thursday afternoon, claiming that it would be impossible to go through all the resignations within a few hours and determine if they were submitted voluntarily. But the court refused to grant an urgent hearing to the petition and said it will hear the matter on Friday as per schedule.

The court’s intervention has raised key legal questions. Currently, a Constitution bench of the Supreme Court is hearing a petition filed by a Telangana Congress leader which revolves around the question of whether the courts can direct the speaker of an assembly to take a decision on the disqualification of MLAs within a fixed time period. When elected representatives switch political parties, violating the anti-defection law, the speaker can disqualify them, which means they lose their membership of the house.

In 2014, when several Congress MLAs shifted loyalties to the Telangana Rashtra Samithi, the speaker ignored a notice to disqualify them under the anti-defection law. They continued to function in the house. The Congress leader had challenged this inertia of the speaker in the Supreme Court.

With the Supreme Court still to rule on whether the speaker is bound to decide on the disqualification of MLAs within a fixed period, the question arises: can the court direct the speaker to decide on their resignations within a set period?

While this is a legal conundrum, a question on political strategy remains unanswered. The Congress alleges the rebellion has been orchestrated by the Bharatiya Janata Party. If this is indeed the case, it is not clear why the BJP would ask the MLAs to resign rather than simply getting them to vote against the coalition government in a no-confidence motion in the assembly. Cross-voting would lead to a disqualification of the MLAs. But it would have the same effect on overall numbers in the house and result in the fall of the government.

Instead of crossing sides, why have the Karnataka MLAs chosen to resign?

Fresh strategy

Under India’s anti-defection law, unless two-thirds of a legislative party breaks away, the individual MLAs face disqualification for violating the party whip.

For long, political parties have used the threat of disqualification to put down any dissent in their legislative party. There have been multiple instances in the past where speakers have disqualified MLAs to ensure that a government does not fall.

The latest of such cases was in Tamil Nadu. In 2017, 18 MLAs of the All India Anna Dravida Munnetra Kazhagam loyal to the TTV Dinakaran-led rebel faction met the governor and expressed their lack of confidence in chief minister Edappadi K Palaniswamy. Given the close numbers in the assembly, there was a possibility that the government could fall if a no-confidence motion had been moved and these MLAs voted against the AIADMK.

To avoid this situation, the speaker disqualified them, stating that they had indulged in anti-party activities. This ensured the AIADMK government was secure.

In contrast, the speaker failed to take any action against 11 MLAs belonging to the O Panneerselvam group, who voted against the government in the assembly during a confidence motion in 2017. This was because Panneerselvam and his loyalists buried their differences with Palaniswamy and returned to the party. The Opposition Dravida Munnetra Kazhagam had moved the Supreme Court against the speaker’s silence in this matter, a case that is still pending.

The difference between the situation in Tamil Nadu and Karnataka is that the attempt to artificially reduce the assembly’s strength is allegedly being orchestrated by the Opposition and not by the ruling party.

If the strength of the Karnataka assembly comes down, the BJP has a chance to form a new government. But why make the MLAs resign and not cross-vote?

In terms of numbers in the assembly, both resignations and disqualifications will have the same effect. In both cases, the MLAs would have a chance to recontest elections on another ticket. Unlike disqualification emerging from criminal offences like corruption, defection does not lead to a five-year bar on contesting elections.

The difference, however, could lie in the political calculations of the BJP.

A Karnataka Congress official told that the BJP may have adopted the resignation route since it is unsure of whether the legislators will keep their word and cross-vote when the time comes. “Resignation gives you a sure picture of the numbers in the assembly,” the official said. This strategy could have emerged from the lessons the BJP learnt in 2018, when it was unable to get engineer defections in the rival camp to form the government.

The problem with moving a no-confidence motion is also the fact that it will depend on the speaker’s decision to allow it. Though the governor, a Centre’s representative, could also order the chief minister to take a confidence vote, all this will take time. “Resignations are much quicker,” the official said.

However, the BJP would have surely anticipated that the speaker will try to delay acting on the resignations, especially given the legal uncertainty over whether the courts can direct the speaker to act within a fixed time-frame.

A decision on the petition moved by the Telangana Congress leader in 2014 is still pending.

When it comes to disqualification, the speaker functions as a quasi-judicial office, which creates doubts over whether the courts can intervene in any manner before he makes his decision. Whether the same argument of quasi-judicial jurisdiction applies to speaker’s decisions on resignations is something that has not been tested legally.

The BJP seems to have taken a gamble in this resignation ploy, assuming that the party is behind the rebellion.