In an unprecedented order, the Supreme Court on Wednesday issued two significant directions in the Karnataka rebel MLAs case, both of which could have a profound effect on the anti-defection law enshrined in the 10th schedule of the Constitution.

First, the court refused to order the speaker of the Karnataka Assembly Ramesh Kumar to decide on the resignation of the 15 MLAs within a fixed time period. The MLAs of the ruling Janata Dal (Secular)-Congress coalition submitted their resignations to the speaker in the first week of July. If all the resignations from the house are accepted, the Congress-JD(S) government would no longer have a majority. With the size of the assembly shrinking, the BJP would easily cross the half-way mark.

The legislators had filed two petitions last week against the speaker’s delay in accepting their resignations.

But the court on Wednesday said given the competing claims and the current situation in which the case stands, it would not be appropriate to decide on larger constitutional questions the proceedings have opened. This primarily refers to the controversy over whether the court can ask the speaker to decide on resignations within a set time frame and whether, if disqualification proceedings against legislators are pending, the speaker should first decide on the resignation or the disqualification.

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, whose job it is to maintain party discipline..

The court said:

“In these circumstances, the competing claims have to be balanced by an appropriate interim order, which according to us, should be to permit the Hon’ble Speaker of the House to decide on the request for resignations by the 15 Members of the House within such time frame as the Hon’ble Speaker may consider appropriate. We also take the view that in the present case the discretion of the Hon’ble Speaker while deciding the above issue should not be fettered by any direction or observation of this Court and the Hon’ble Speaker should be left free to decide the issue in accordance with Article 190 read with Rule 202 of the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly framed in exercise of the powers under Article 208 of the Constitution.”

However, in an attempt to balance the rights of the competing parties ahead of Thursday’s trust vote, in this case the speaker, the chief minister and the rebel MLAs, the Supreme Court said that they should not be compelled to attend Assembly proceedings; it should left to them to decide.

This second intervention raises serious questions about the role of the anti-defection law and the rights of the legislative party to which the dissident MLAs belong. In its attempt to issue a balanced order, has the court undermined a Constitutional provision ?

Anti-defection law

The anti-defection law is enshrined in the 10th schedule of the Constitution. Under the law, if a legislator violates the whip of his party or voluntarily gives up the membership of the party, he or she is liable to be disqualified.

The law has assumed great significance for political parties that have only a thin majority in the house. It has made cross voting extremely difficult as the threat of disqualification hangs over the MLAs.

What the Supreme Court order does in the Karnataka context is that it completely negates the anti-defection law by giving the MLAs an option not to be part of Thursday’s trust vote. The court said:

“We also make it clear that until further orders the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same. We order accordingly.” 

This essentially means that the Congress and the Janata Dal (Secular) will not be in a position to issue their whips to ensure the presence of the rebel MLAs on the floor. Without a whip, there is no question of the anti-defection law applying to this trust vote when it comes to the 15 dissident MLAs.

Without these MLAs, the total number in the Assembly will drop to 209 from 224. Minus the rebel MLAs, the ruling coalition’s strength would drop to 103 and it would lose its majority. As per the law, to win the trust vote, the chief minister needs the support of more than half of the legislators present and voting.

There is a further problem. As per the existing laws, when legislators are disqualified under the 10th schedule provision, they cannot become part of a new council of ministers until they are elected again. But now, the question remains open of whether these rebel MLAs could be inducted into the Cabinet in case the coalition government falls and the BJP manages to form the new government since the whip will not apply and it could be difficult to initiate the disqualification process. (Unless of course the apex court intervenes and stops this.)

The larger legal conundrum is whether the Supreme Court should have issued an interim order that essentially suspends the anti-defection law after having recognised that the case requires serious constitutional interpretation.