On Wednesday, 13 November, the Supreme Court upheld the disqualification of 17 rebel MLAs by former Karnataka Assembly Speaker KR Ramesh Kumar.
However, while doing so, the judges struck down the part of the former speaker’s orders which said the MLAs were disqualified for the term of the current Assembly (till 2023). As a result, the Congress and JD(S) rebels, who brought down the coalition government in the state, will be able to stand for the upcoming bypolls – which are being held as a result of their own resignations.
But what’s the backstory?
Back in July, these MLAs (three from the JD(S) and 14 from the Congress), had offered to resign and skipped a crucial trust vote for the then Chief Minister HD Kumaraswamy, leading to the fall of the coalition government in the state.
Following this, the then Speaker Ramesh Kumar disqualified all 17 MLAs under the anti-defection law for the entire term of the ongoing Assembly in the state. The MLAs, in turn, filed appeals against their disqualification in the Supreme Court.
On 21 September, the Election Commission announced bypolls to various state Assembly seats across the country, including in 15 of the 17 rebels’ constituencies in Karnataka. At the request of the rebel MLAs, the apex court stayed the bypolls in Karnataka till it delivered its verdict.
Karnataka Rebel MLAs Can Fight Bypolls: What You Need to Know
1. Why Were the Rebel MLAs Disqualified?
Earlier this year, the Supreme Court saw several days of high-stakes drama after several MLAs from the Congress and JD(S) in Karnataka approached the apex court, arguing that the Speaker KR Ramesh Kumar had failed to make a decision on their resignations.
This came in the middle of a public spectacle of the MLAs going to Mumbai to avoid being influenced by Congress leader DK Shivakumar and rumours of an ‘Operation Kamal’ by the BJP to have the government fall.
The ‘rebel’ MLAs claimed that they had offered their resignations in writing, following the correct procedure, but the Speaker was delaying his decision without justification. If the resignations were accepted, it would have meant the end of the Congress-JD(S) coalition government, as it would no longer command a majority in the Assembly.
The Speaker argued at the time that he had to conduct an inquiry into whether or not the resignations were genuine under Article 190 of the Constitution, and that he also had to take a call on the disqualification of some of them for the alleged violation of the anti-defection law.
The rebel MLAs approached the Supreme Court back in July to challenge the delay in deciding their resignations. The apex court held then that the Speaker could not be forced to deliver a decision on the resignations within a set timeframe as the Constitution indeed allowed him to conduct an inquiry.
However, the Bench headed by CJI Ranjan Gogoi also held that while the Speaker decided on the resignations, the MLAs could not be forced to take part in any Assembly proceedings, including a trust vote in HD Kumaraswamy’s government, which was to take place in the subsequent days.
The rebel MLAs were therefore able to skip the crucial trust vote, leading to the end of the coalition government, consequently allowing BJP leader BS Yeddiyurappa to form the government.
By the end of July, Kumar had disqualified the 17 rebel MLAs under para 2(1)(a) of the Tenth Schedule of the Constitution of India – the dreaded anti-defection law. He expressly clarified it meant they would cease to be members of the Karnataka Legislative Assembly “till the term of the incumbent Assembly of Karnataka”.
Expand2. What Does the Anti-Defection Law Say About Such Disqualifications?
Paragraph 2 of the Tenth Schedule of the Constitution deals with the disqualification of legislators for “defection”.
Paragraph 2(1)(a) deals with defection where a legislator “voluntarily gives up” membership of their political party.
Paragraph 2(1)(b) deals with defection where a legislator “votes or abstains from voting ... contrary to any direction issued by the political party to which he belongs” without permission.
Under normal circumstances, the 17 rebel MLAs could have been disqualified based on the second option, however, this wasn’t possible in light of the Supreme Court’s order. Instead, the Speaker construed the MLAs resignation not just from the Assembly but from their respective political parties as well – thereby violating paragraph 2(1)(a).
The Supreme Court has previously held that such a disqualification can happen even if the legislator hasn’t submitted an express resignation from their party in so many words. Voluntarily giving up membership can also be inferred from the legislator’s conduct, therefore Speaker Ramesh Kumar was well within his rights to disqualify the MLAs based on his assessment of the resignations.
The Tenth Schedule says that the decision of the Speaker in such cases will be final, and till 1992, included a provision which said that no court would have jurisdiction over any cases regarding disqualification.
However, the Supreme Court struck off that paragraph in the landmark Kihoto Hollohan case, and said that there could be judicial review of a Speaker’s order. This doesn’t mean the court can overturn any order by the Speaker – this can only be done where there is some ‘perversity’ or ‘illegality’ to the decision of the Speaker, as opposed to an examination of whether the Speaker was right to consider whether the legislator had resigned or not.
Expand3. Deferment of ByPolls
The case was not taken up for some time and even after it was listed, there was a further delay when Justice Shantanagoudar decided to recuse himself from the case on 17 September, on the grounds that he is from the state and could not, in good conscience, continue hearing it.
A new bench of Justices NV Ramana, Sanjiv Khanna and Krishna Murari conducted a brief hearing of the matter on Monday, 23 September, and then issued notice to the respondents in the case, including the former Speaker, the leaders of the Karnataka Congress and JD(S) and the state government.
Senior advocate Mukul Rohatgi, appearing for the disqualified MLAs, sought a stay on the by-polls while the case was heard, as it was clear that the case would not be decided by the time of the final date for filing nominations.
The Congress opposed the plea, while the Election Commission stated through its counsel Rakesh Dwivedi, that the by-polls could not be stayed. “I have no say on the issue of disqualification. The gist of the matter is that the Speaker has disqualified them and vacancy is there. The election should not be stayed,” Dwivedi told the court.
Controversially, while the EC acknowledged that it did not have a say on the issue of disqualification, it also stated in court that the Speaker’s order could not deprive the disqualified MLAs of the right to stand for election.
After other parties eventually came around, the Supreme Court agreed that the by-polls should be deferred and the Election Commission eventually agreed to postpone the by-polls to 5 December. Last week, some of the MLAs filed an application to defer them even further as the apex court’s judgment had not yet been delivered, but this should now be rendered infructuous.
Expand4. What Were the Issues Before the Court?
After hearing arguments from both sides, the apex court reserved its judgment on 25 October. The judges refused a request after this date to issue notice on the tapes that recently surfaced which allegedly indicated BS Yeddiyurappa had acknowledged the role the BJP played in getting the rebel MLAs to resign.
The judgment delivered on 13 November addresses the following two issues.
1. Was the Speaker Right to Disqualify the MLAs?
The court said the Speaker has the power under Article 190 to conduct an inquiry and assess whether the resignations of the MLAs were genuine. The Speaker also has the power to disqualify MLAs if they deem the resignations are not genuine – resignation does not mean the MLAs are no longer subject to the Speaker’s jurisdiction, as this would defeat the very purpose of the anti-defection law.
The court also had to see to what extent it could conduct a judicial review of a decision of the Speaker – and whether on this basis there was a reason to overturn Ramesh Kumar’s orders.
The judges noted that the relevant law on this issue has been clarified in the Kihoto Hollohan vs Zachillhu case from 1992. In that case, the Supreme Court had held the courts can only overturn a decision of the Speaker if there is some perversity or illegality in the order they have given – otherwise, the Speaker has to be allowed to use their discretion as given to them under the law.
In the case of the Karnataka MLAs, the judges said the rebels hadn’t been able to show any perversity or illegality in the Speaker’s orders disqualifying them. The court observed that Kumar had examined enough material before arriving at the decision to disqualify the MLAs. Therefore, the SC couldn’t interfere with the decision.
2. Did the Speaker Have the Power to Disqualify the MLAs Till 2023?
The judges then examined whether the Speaker had the authority to decide till when the disqualification would apply.
They observed that there was no basis for the Speaker to disqualify the rebel MLAs for the entire term of the current Assembly, and so this part of his orders had to be struck down.
They noted the difference between the language used in Article 191(1) of the Constitution (which deals with disqualification for convictions and other conditions under the Representation of People Act) and Article 191(2) (which specifically deals with disqualification under the Tenth Schedule), and the corresponding language in provisions of the Representation of People Act 1951.
When it comes to anti-defection disqualifications, the language clearly indicates that the person is disqualified till the expiry of the term of the Assembly OR they are re-elected, whichever is earlier.
The judges expressly rejected the arguments by senior advocate Kapil Sibal on behalf of the Speaker, who said that this interpretation would render the anti-defection law ineffective, saying that they could not allow constitutional morality to be trumped by political morality.
They then laid down the following conclusions which will be important in any such case going forward:
“Therefore, neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections.”
“It is clear that nothing can be added to the grounds of disqualification based on convenience, equity, logic or perceived political intentions.”
“From the above, it is clear that the Speaker, in exercise of his powers under the Tenth Schedule, does not have the power to either indicate the period for which a person is disqualified, nor to bar someone from contesting elections.”
Need to Amend Anti-Defection Law?
The judges also noted that there was a trend of Speakers making political decisions rather than doing their job as constitutional functionaries, and emphasised the need for those holding this position to act in a neutral manner.
They also recognised that “political parties are indulging in horse trading and corrupt practices, due to which the citizens are denied of stable governments.”
As a result, they suggested that Parliament should consider strengthening the anti-defection law in the Tenth Schedule “so that such undemocratic practices are discouraged.”
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
Why Were the Rebel MLAs Disqualified?
Earlier this year, the Supreme Court saw several days of high-stakes drama after several MLAs from the Congress and JD(S) in Karnataka approached the apex court, arguing that the Speaker KR Ramesh Kumar had failed to make a decision on their resignations.
This came in the middle of a public spectacle of the MLAs going to Mumbai to avoid being influenced by Congress leader DK Shivakumar and rumours of an ‘Operation Kamal’ by the BJP to have the government fall.
The ‘rebel’ MLAs claimed that they had offered their resignations in writing, following the correct procedure, but the Speaker was delaying his decision without justification. If the resignations were accepted, it would have meant the end of the Congress-JD(S) coalition government, as it would no longer command a majority in the Assembly.
The Speaker argued at the time that he had to conduct an inquiry into whether or not the resignations were genuine under Article 190 of the Constitution, and that he also had to take a call on the disqualification of some of them for the alleged violation of the anti-defection law.
The rebel MLAs approached the Supreme Court back in July to challenge the delay in deciding their resignations. The apex court held then that the Speaker could not be forced to deliver a decision on the resignations within a set timeframe as the Constitution indeed allowed him to conduct an inquiry.
However, the Bench headed by CJI Ranjan Gogoi also held that while the Speaker decided on the resignations, the MLAs could not be forced to take part in any Assembly proceedings, including a trust vote in HD Kumaraswamy’s government, which was to take place in the subsequent days.
The rebel MLAs were therefore able to skip the crucial trust vote, leading to the end of the coalition government, consequently allowing BJP leader BS Yeddiyurappa to form the government.
By the end of July, Kumar had disqualified the 17 rebel MLAs under para 2(1)(a) of the Tenth Schedule of the Constitution of India – the dreaded anti-defection law. He expressly clarified it meant they would cease to be members of the Karnataka Legislative Assembly “till the term of the incumbent Assembly of Karnataka”.
What Does the Anti-Defection Law Say About Such Disqualifications?
Paragraph 2 of the Tenth Schedule of the Constitution deals with the disqualification of legislators for “defection”.
Paragraph 2(1)(a) deals with defection where a legislator “voluntarily gives up” membership of their political party.
Paragraph 2(1)(b) deals with defection where a legislator “votes or abstains from voting ... contrary to any direction issued by the political party to which he belongs” without permission.
Under normal circumstances, the 17 rebel MLAs could have been disqualified based on the second option, however, this wasn’t possible in light of the Supreme Court’s order. Instead, the Speaker construed the MLAs resignation not just from the Assembly but from their respective political parties as well – thereby violating paragraph 2(1)(a).
The Supreme Court has previously held that such a disqualification can happen even if the legislator hasn’t submitted an express resignation from their party in so many words. Voluntarily giving up membership can also be inferred from the legislator’s conduct, therefore Speaker Ramesh Kumar was well within his rights to disqualify the MLAs based on his assessment of the resignations.
The Tenth Schedule says that the decision of the Speaker in such cases will be final, and till 1992, included a provision which said that no court would have jurisdiction over any cases regarding disqualification.
However, the Supreme Court struck off that paragraph in the landmark Kihoto Hollohan case, and said that there could be judicial review of a Speaker’s order. This doesn’t mean the court can overturn any order by the Speaker – this can only be done where there is some ‘perversity’ or ‘illegality’ to the decision of the Speaker, as opposed to an examination of whether the Speaker was right to consider whether the legislator had resigned or not.
Deferment of ByPolls
The case was not taken up for some time and even after it was listed, there was a further delay when Justice Shantanagoudar decided to recuse himself from the case on 17 September, on the grounds that he is from the state and could not, in good conscience, continue hearing it.
A new bench of Justices NV Ramana, Sanjiv Khanna and Krishna Murari conducted a brief hearing of the matter on Monday, 23 September, and then issued notice to the respondents in the case, including the former Speaker, the leaders of the Karnataka Congress and JD(S) and the state government.
Senior advocate Mukul Rohatgi, appearing for the disqualified MLAs, sought a stay on the by-polls while the case was heard, as it was clear that the case would not be decided by the time of the final date for filing nominations.
The Congress opposed the plea, while the Election Commission stated through its counsel Rakesh Dwivedi, that the by-polls could not be stayed. “I have no say on the issue of disqualification. The gist of the matter is that the Speaker has disqualified them and vacancy is there. The election should not be stayed,” Dwivedi told the court.
Controversially, while the EC acknowledged that it did not have a say on the issue of disqualification, it also stated in court that the Speaker’s order could not deprive the disqualified MLAs of the right to stand for election.
After other parties eventually came around, the Supreme Court agreed that the by-polls should be deferred and the Election Commission eventually agreed to postpone the by-polls to 5 December. Last week, some of the MLAs filed an application to defer them even further as the apex court’s judgment had not yet been delivered, but this should now be rendered infructuous.
What Were the Issues Before the Court?
After hearing arguments from both sides, the apex court reserved its judgment on 25 October. The judges refused a request after this date to issue notice on the tapes that recently surfaced which allegedly indicated BS Yeddiyurappa had acknowledged the role the BJP played in getting the rebel MLAs to resign.
The judgment delivered on 13 November addresses the following two issues.
1. Was the Speaker Right to Disqualify the MLAs?
The court said the Speaker has the power under Article 190 to conduct an inquiry and assess whether the resignations of the MLAs were genuine. The Speaker also has the power to disqualify MLAs if they deem the resignations are not genuine – resignation does not mean the MLAs are no longer subject to the Speaker’s jurisdiction, as this would defeat the very purpose of the anti-defection law.
The court also had to see to what extent it could conduct a judicial review of a decision of the Speaker – and whether on this basis there was a reason to overturn Ramesh Kumar’s orders.
The judges noted that the relevant law on this issue has been clarified in the Kihoto Hollohan vs Zachillhu case from 1992. In that case, the Supreme Court had held the courts can only overturn a decision of the Speaker if there is some perversity or illegality in the order they have given – otherwise, the Speaker has to be allowed to use their discretion as given to them under the law.
In the case of the Karnataka MLAs, the judges said the rebels hadn’t been able to show any perversity or illegality in the Speaker’s orders disqualifying them. The court observed that Kumar had examined enough material before arriving at the decision to disqualify the MLAs. Therefore, the SC couldn’t interfere with the decision.
2. Did the Speaker Have the Power to Disqualify the MLAs Till 2023?
The judges then examined whether the Speaker had the authority to decide till when the disqualification would apply.
They observed that there was no basis for the Speaker to disqualify the rebel MLAs for the entire term of the current Assembly, and so this part of his orders had to be struck down.
They noted the difference between the language used in Article 191(1) of the Constitution (which deals with disqualification for convictions and other conditions under the Representation of People Act) and Article 191(2) (which specifically deals with disqualification under the Tenth Schedule), and the corresponding language in provisions of the Representation of People Act 1951.
When it comes to anti-defection disqualifications, the language clearly indicates that the person is disqualified till the expiry of the term of the Assembly OR they are re-elected, whichever is earlier.
The judges expressly rejected the arguments by senior advocate Kapil Sibal on behalf of the Speaker, who said that this interpretation would render the anti-defection law ineffective, saying that they could not allow constitutional morality to be trumped by political morality.
They then laid down the following conclusions which will be important in any such case going forward:
“Therefore, neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections.”
“It is clear that nothing can be added to the grounds of disqualification based on convenience, equity, logic or perceived political intentions.”
“From the above, it is clear that the Speaker, in exercise of his powers under the Tenth Schedule, does not have the power to either indicate the period for which a person is disqualified, nor to bar someone from contesting elections.”
Need to Amend Anti-Defection Law?
The judges also noted that there was a trend of Speakers making political decisions rather than doing their job as constitutional functionaries, and emphasised the need for those holding this position to act in a neutral manner.
They also recognised that “political parties are indulging in horse trading and corrupt practices, due to which the citizens are denied of stable governments.”
As a result, they suggested that Parliament should consider strengthening the anti-defection law in the Tenth Schedule “so that such undemocratic practices are discouraged.”
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)