Disqualified, but qualified

The Supreme Court judgement upholding the disqualification of 17 Karnataka legislators by the then Speaker K R Ramesh Kumar, but permitting them to contest the ensuing by-elections, amounts to endorsing the conviction of the MLAs for committing a constitutional sin, yet allowing them to go scot free. The court was constrained to set aside a portion of the Speaker’s July order barring the disqualified MLAs from contesting elections for the remaining term of the Assembly as the Representation of the People Act, 1951, or the Tenth Schedule of the Constitution, popularly called the anti-defection law “do not have the power to indicate the period for which a person is disqualified.” On the contrary, Article 164 (1B), by implication,  permits a disqualified member to be re-elected to either house of the legislature. Though Ramesh Kumar stands partly vindicated, the court did not spare him some harsh words for exceeding the constitutional mandate, “If the Speaker is not able to disassociate himself from his political party and behaves contrary to the spirit of neutrality and independence, such a person does not deserve to be reposed with public trust and confidence.” At the same time, the MLAs in question have no reason to cheer, as the court by upholding their disqualification has shamed them for indulging in unethical behaviour, a taint that will stick to them for life.

While reiterating that the Speaker’s decision on the Tenth Schedule is subject to judicial review, the court has clarified that the Speaker can reject a resignation only if he is satisfied that it is not voluntary or genuine, and not based on any other extraneous consideration. It has also held that the process of disqualification can continue even if a member subsequently resigns.

With politicians discovering ingenious ways to circumvent the anti-defection law, the apex court, which often dons an activist role, should have used this opportunity to clean the stable and ensure that constitutional morality is defended. However, the court not only disagreed with the respondents’ counsel who sought strong penal consequences against defectors, contending that it would have a “chilling effect on legitimate dissent,” but also refused to refer the case to a larger bench on the ground that “no substantial question of law exists in the current matter”. While acknowledging that political parties are indulging in “horse-trading and corrupt practices” due to which citizens are denied a stable government, the court recommended that Parliament should consider strengthening the Tenth Schedule so that such undemocratic practices are discouraged. But with politicians themselves benefitting the most from the loopholes in the anti-defection law, it is naïve to expect that they will step in to fix it.

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