The notice issued by the Speaker of the Karnataka Legislative Assembly to 11 Bharatiya Janata Party legislators, who had joined the revolt against Chief Minister Yeddyurappa and given letters to the Governor withdrawing their support to the government, raises interesting constitutional issues regarding the operation of the anti-defection law. The anti-defection provisions of the Tenth Schedule of the Constitution specify two grounds on which a member of the legislature would lose his membership on the ground. The first is “if he has voluntarily given up his membership” of the political party that set him up as a candidate in the election. And secondly, if he votes or abstains from voting “contrary to any direction” issued by the political party. If the members who declared their withdrawal of support were to go ahead and vote against the government when the motion of confidence comes up on Monday, they would clearly incur the disqualification except in the unlikely circumstances of the party either permitting them to vote that way or condoning their vote later. The Speaker's notice to the MLAs has sought their reply by Sunday, even before they would have voted, and the question arises if they would have incurred any disqualification by then.
Desperate governments and obliging Speakers in the past had sought to shore up their prospects through anticipatory disqualification before any voting had taken place, using the provision dealing with a legislator voluntarily giving up the membership of his political party. The question arises as to what would be the type of conduct that would amount to a legislator voluntarily giving up his membership. It is clearly not necessary for the legislator to formally resign but if by his conduct he has obviously severed the link with his party, it can be inferred that he has voluntarily given up his membership. The Supreme Court's decisions on this area are not very specific on what type of conduct could lead to such an inference. On the one hand, it let stand the disqualification of legislators in Goa who, after being elected, had gone with members of another political party to the Governor to express support for the formation of a government with that party. Again, in Bihar, members elected on the ticket of one party to the legislative council were deemed to have given up their membership of the party when they contested elections to Parliament on the ticket of another party. However, in the Bihar Assembly dissolution case, the court held that the Governor could not anticipate that the Lok Janshakti Party legislators who had expressed support for the formation of a Janata Dal(United)-led government would incur disqualification and act on that supposition.
At this stage in Karnataka, the notice seems to be another way of exerting pressure on the legislators who in any case cannot be unaware of the consequences of their revolt. The fluidity of the situation in the State with some members first revolting and then being persuaded to change their minds makes it all the more difficult to assert with certainty that any of the legislators has firmly and finally cut off their links with the BJP. Even after the vote, there is the possibility, however unlikely it might seem now, of the party condoning their vote against the government. It is thus debatable if the dissident BJP legislators can be disqualified at this stage of the unfolding drama. It is also impossible for the Speaker to hold and complete a proper enquiry within just one day before the vote. Any hurried disqualification of legislators on the eve of the confidence motion would be constitutionally suspect, and one would hope the BJP government would not resort to that stratagem even in a situation such as the present. Karnataka can certainly do without a constitutional dispute on top of the political crisis triggered by the quest for ministerial office.
