In the Karnataka case, the unanimous ruling of a three-judge Supreme Court bench on Wednesday upheld the decision of the Assembly Speaker to disqualify 14 Congress MLAs and three JD(S) legislators under the Tenth Schedule — the anti-defection law — but struck down the Speaker’s order to disqualify them for the remainder of the Assembly’s term, which ends in 2023. The judgment may stick to the letter of the law, but not its spirit.
As such, upon incurring disqualification, the members are not debarred from contesting the coming byelections for 15 Assembly seats. These MLAs let down their parties, leading to the Congress-JD(S) coalition government’s fall and the induction of a minority BJP government in Karnataka.
The BJP has indicated the disqualified MLAs will soon join the saffron party. Some may be given party tickets for the byelections. If they win, the BJP’s minority status may be converted into a majority. In effect, their disqualification (by the former Speaker) will be negated. The question naturally arises that the Tenth Schedule is a faultily-drafted law.
The court pointed out, rightly, that under the Tenth Schedule the Speaker’s decision to disqualify a legislator on the ground of defection is not subject to judicial review. But it also noted the same law doesn’t give the Speaker power to lay down the period of disqualification, or to prevent a disqualified MLA from seeking re-election. The law only stipulates that upon re-entering the House, a disqualified member should not be made a minister.
If the idea is to avoid rewarding defections to uphold the party system in our democracy, then it fails to consider that for an MLA who stands disqualified following an act of defection (as defined in the Tenth Schedule), re-election as a member of the House is reward enough.
The judgment in the Karnataka case is likely to make defection easier rather than more difficult — and attractive, to boot — provided the party to which an MLA defects can throw in enough incentives to induce defection — even at the cost of incurring disqualification. This appears to be the case with the 17 disqualified Karnataka MLAs. The “taint” of defection — to use the language of the judgment — is thus rendered meaningless. The Supreme Court’s verdict is apt to attract emulation of the Karnataka defectors by unscrupulous elements in other states as well as Parliament.
Since the Tenth Schedule permits the Speaker to disqualify a defector from membership of the House without granting the presiding officer latitude to lay down the period of disqualification, the Speaker’s authority is rendered a joke.
In the present case, the Supreme Court remained insensitive to the fact that MLAs of two different parties acted in tandem in order to achieve a certain political end and were, for that reason, entitled to be punished as they had let down those who voted for them in the first place....