The Supreme Court will deliver judgment on aspects of the Tenth Schedule of the Constitution, popularly known as the anti-defection law, on Wednesday in the context of the disqualification of 17 MLAs of the Congress and Janata Dal-Secular (JD-S) in Karnataka.
The MLAs were disqualified from the 16th Karnataka Legislative Assembly by the then Speaker on July 25 and 28 this year under the anti-defection law, and were barred from contesting elections during the tenure of the current Assembly (which is until 2023).
The judgment will have a bearing on the December 5 byelections to 15 of the 17 vacant seats in the Assembly, and on the future of the BJP government headed by Chief Minister B S Yediyurappa.
Under what circumstances were the MLAs disqualified?
The 2018 state elections produced a hung Assembly — the BJP won 104 seats, Congress 80, and JD-S 37 in the 224-member House. Three seats went to others. When the BJP failed to muster a majority after three days of Yediyurappa being Chief Minister, the Congress and JD-S, whose leaders had forged an alliance soon after the results, formed the government with H D Kumaraswamy of the JD-S as CM.
In July 2019, 14 MLAs from the Congress and three from the JD-S quit the Assembly, ostensibly because they were unhappy with the coalition government. The resignations were seen as linked to a BJP attempt to topple the government, and the Congress and JD-S sought the MLAs’ disqualification, and a bar on their contesting elections.
As the 17 rebels stayed away from the Assembly, the Congress-JD-S government collapsed during a trust vote on July 23, paving the way for the BJP to stake claim to form a new government under Yediyurappa on July 26.
In the interim, however, on July 25 and 28, then Speaker K R Ramesh Kumar issued two separate orders under the anti-defection law, disqualifying the 17 MLAs from the House and barring them from contesting elections during the tenure of the current Assembly.
The MLAs subsequently moved the Supreme Court asking that the Speaker’s orders be quashed. The Congress and JD-S too approached the court, seeking enforcement of the disqualifications.
How will the court’s verdict impact the December 5 bypolls?
In its order on Wednesday, the Supreme Court will essentially decide whether the Congress and JD-S MLAs who were disqualified from the Assembly in July can contest the December 5 bypolls. Elections will not take place at two out of the 17 vacant seats — Rajarajeshwari Nagar and Maski — where separate election petitions challenging the results of the 2018 elections are pending in Karnataka High Court.
Nearly all the disqualified MLAs are hoping to contest the bypolls as BJP candidates. And the BJP is awaiting the outcome of the SC verdict to decide on its nominees. When the MLAs resigned from the Assembly in July to topple the Kumaraswamy government, they had been assured they would be returned to the House on BJP tickets and given important positions in the government.
The 15 MLAs are hoping the Supreme Court will either quash their disqualification entirely, or set aside the ban imposed on them by the Speaker from contesting elections during the tenure of the current Assembly.
The bypolls were originally scheduled to be held with the elections to the Maharashtra and Haryana Assemblies on October 21, but were pushed to December 5 after the Election Commission told the Supreme Court that it was willing to wait for the outcome of the pleas made by the 17 rebel MLAs.
What impact can the verdict and bypolls have on Yediyurappa’s government?
Yediyurappa currently has the support of 106 MLAs in the Assembly, including one Independent, while the Opposition combine of the Congress and JD-S has 101. The Karnataka House has 224 seats, with 17 vacancies. The BJP will have to win a minimum six out of 15 seats, and seven out of 17 to keep its majority. (It will, however, still be dependent on the support of the Independent — and would like to win at least one extra seat in both situations for a clear majority of its own.)
There are 14 vacancies in the council of ministers, which Yediyurappa intends to use to accomodate the rebels if they contest the bypolls and win. However, there is opposition within the BJP — including from many in the party’s central leadership — over the kind of leeway being offered to the Congress and JD-S turncoats in order to save the Yediyurappa government.
With frictions between the Congress and JD-S rising after the collapse of their coalition government, the BJP could have the alternative choice of tying up with the JD-S in case it needs the numbers. The JD-S, whose leaders face CBI cases, has in recent days shown the inclination to back the BJP if necessary.
What larger questions could the Supreme Court answer today?
The major question the court could answer is whether lawmakers who are disqualified under the anti-defection law can also be barred from contesting elections during the tenure of the incumbent legislative Assembly.
It could also decide whether disqualification proceedings under the Tenth Schedule gains precedence over acceptance of resignations of MLAs in a situation where the Speaker is simultaneously processing the resignations of MLAs, and pleas for their disqualification. A great deal of ambiguity exists on these issues, often leading to confusion and gamesmanship in the use of the anti-defection law, which was inserted in the Constitution in 1985 by the 52nd Amendment Act with the intention of curbing horsetrading in Assemblies and Parliament.
There is also the question of whether the MLAs who resigned could have been subjected to the disqualification process under the anti-defection law, given that the Supreme Court had, in an order passed on July 17, said that the MLAs must not be compelled (through a whip) to attend the Assembly or the trust vote.
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