Giving a second opportunity to a person who could not prove his majority on the floor of the House earlier may seem unusual. And when one remembers that B.S. Yediyurappa’s last term lasted only three days , it may even seem amusing. However, Governor Vajubhai Vala’s invitation to Mr. Yediyurappa to form a government in Karnataka is understandable. A coalition regime has just been voted out. In a House that is only 14 months old, it was to be expected that the Governor would again ask the leader of the largest party to explore the possibility of forming an alternative regime. Yet, questions abound on whether Mr. Yediyurappa should have been in such haste to stake his claim, given that there is profound uncertainty over the status of at least 13 of the legislators, and consequently, about the strength of the House. Consider the situation: one government has been voted out only because of the absence of 15 legislators who were given an unusual exemption by the Supreme Court from the constitutional bar on defying the party’s whip; the Speaker is yet to accept their resignations, but has disqualified three dissident MLAs under the anti-defection law, and the strength of the State Assembly stands at 222, including a nominated member. No one can dispute that the fall of the Congress-Janata Dal (Secular) coalition was supposed to be caused by a set of tactical resignations, but the move was stalled when it became a question of possible disqualification. One would presume that the Governor would have wanted to be doubly sure about the ability of the appointee to form a durable government. The BJP has the support of 106 MLAs, while the majority mark is 112. This means that when the Governor formed his opinion that Mr. Yediyurappa is in a position to command a majority, he was either counting on the remaining 13 rebel legislators vacating their seats soon, or was assured of their support to the incoming regime.
The Assembly election of May 2018 threw up a hung Assembly , and resulted in the second- and third-placed parties forming a post-poll coalition. Now that the coalition has unravelled, the Speaker’s decision becomes crucial to determining the strength of the House. The BJP, for its part, ought to have exercised restraint rather than rushing in to fill the power vacuum. After all, three seats are now vacant, and the figure may go up to 16. The new Chief Minister may win the trust vote, but to remain in power for the current Assembly’s term the party would have to win eight more seats in the resulting by-elections. The party has to live down the image of having engineered the fall of the H.D. Kumaraswamy government by getting Congress and JD(S) MLAs to resign. However, its leaders ran into an unusual roadblock when the two parties and the Speaker took the view that they were quitting only with the intent of defecting to the BJP. Speaker K.R. Ramesh Kumar reminded them that they could be disqualified, rather than be allowed to resign. He asserted that he was empowered to examine whether their resignations were voluntary or induced. And sensing that some of them may become Ministers in the next regime even without being members of the House, he reminded them that under Article 164(1B) of the Constitution, a person who is disqualified for defection could not become a minister without being re-elected to the House.
Regardless of the amoral politics and skulduggery behind the toppling of the regime, the role of the Speaker has been no less questionable. As a means of blocking moves to bring down the government some tactical decisions are understandable, but the manner in which the Speaker has used the law poses a threat to the autonomy of legislators in a general sense. First, can a legislator intending to quit his seat be accused of defection at all, when the penalty for crossing over to another party is the loss of that very seat? Given the propensity of presiding officers in the country to avoid deciding matters within a time frame, it is perilous to allow them to delay the acceptance of resignations until a point when the members concerned are seen as “voluntarily giving up their party membership”, which is the first ground on which a member can be disqualified for defection. This is precisely what has happened in the current case. Secondly, does the power to scrutinise a resignation letter for its voluntary nature extend to rejecting it even if it is in the correct format and is handed over in person?
Even the disqualification of the three MLAs does not appear to be in order. Two of them, Ramesh Jarkhiholi and Mahesh Kumathalli, have been disqualified on a petition seeking action against them that was submitted in February. It was not acted on for months, but revived in the wake of the resignation controversy. Secondly, it is a moot question whether sufficient opportunity was given to them, as the matter was decided after they were absent on the day they were due to appear. Further, the Speaker appears to have assumed the power to fix a period during which a member will remain disqualified, and barred the three MLAs for the remainder of the current Assembly’s term. No such power is conferred on the Speaker by the 10th Schedule to the Constitution. Under the law, the Speaker may only declare a person as having incurred disqualification. Unlike other forms of disqualification, the one under the anti-defection provisions is not accompanied by any ineligibility to contest. One who is disqualified may contest in the very by-election caused by one’s own disqualification. All in all, the goings-on in Karnataka show that the Constitution can be twisted and misread to suit anyone’s political interests. In an atmosphere in which political loyalties swing like a pendulum, constitutional functionaries appear to be inclined to give self-serving interpretations to the founding law and let the web of confusion be disentangled by the judiciary.
