Karnataka Crisis: An error of judgement

The interim order of the Supreme Court on the resignation of 15 Congress and JD(S) MLAs in Karnataka is ambiguous and can at best be described as a patch-work judgement aimed at tiding over the present political imbroglio, without addressing important constitutional questions that have arisen and could again arise in the future. The court seems to have tried to perform a balancing act by upholding the powers of the Speaker under the Constitution to accept or reject resignations while also protecting the rights of the rebel legislators by ruling that they cannot be compelled to be present in the Assembly and vote during the confidence motion. In the instant case, the court has passed three contradictory orders in the past few days, which is unfortunate as constitutional issues are involved.

The court’s order that a whip cannot be issued to rebel MLAs defeats the very purpose of the anti-defection law and may be cited as a precedent, making it easier to poach lawmakers in the future. What the order has done is to render the anti-defection law useless in the present case without formally ruling the law invalid or unconstitutional. It is quite another matter whether the anti-defection law itself is democratic and should exist. But since it’s the law today, this aspect of the court’s order needs to be challenged. It may be argued that a person who contests an election on the basis of the B-Form provided by a political party and becomes an MLA is bound to follow party discipline both within and outside the Assembly. Moreover, even if a whip was issued to the rebel MLAs, they have the option of abstaining from voting, thus bringing down the government, which could then lead to their disqualification. But since the MLAs have already decided to give up membership of the House by resigning, we must assume that the prospect of disqualification would not deter them. Thus, in any case, the court’s intervention will have no bearing on whether or not the Kumaraswamy government survives.

At present, Article 190(3)(b) of the Constitution is vague and gives sweeping powers to the Speaker with respect to resignations. The court should read down the law and evolve a clear set of guidelines so that these discretionary powers are not misused. It is also imperative to lay down checks and balances to ensure that MLAs who are elected for a five-year period do not resign in a cavalier manner, negating the will and mandate of the people. The Supreme Court order has only scratched the surface, raising more questions than it has answered. The order definitely deserves a comprehensive re-consideration so that important aspects of constitutional law are settled once and for all.