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  Opinion   The Age Debate  16 Nov 2019  Age Debate: A win for BJP and the disqualified, really?

Age Debate: A win for BJP and the disqualified, really?

Published : Nov 16, 2019, 7:33 am IST
Updated : Nov 16, 2019, 7:33 am IST

The BJP is elated as it can look to their support - if they win the bypolls - to shore up their numbers.

A file photo of the disqualified MLAs at Raj Bhavan in Bengaluru.
 A file photo of the disqualified MLAs at Raj Bhavan in Bengaluru.

The anti-defection law, Tenth Schedule, the jurisdiction of the Speaker... Karnataka politics set off an intense discussion on all three aspects as the Supreme Court weighed in and gave the go-ahead to the 17 MLAs, disqualified by then speaker Ramesh Kumar, to contest the December 5 assembly bypolls. The BJP is elated as it can look to their support - if they win the bypolls - to shore up their numbers. The opposition Congress and JD(S) will be straining every sinew to wreck their poll prospects. The Asian Age taps political and legal experts on this momentous verdict, as our elected representatives look to the main chance with the winning party.

Sandeep Shastri,
PRO vice chancellor, Jain University

The Supreme Court stand on the status of the 17 disqualified Karnataka MLAs was on expected lines. While the Court upheld their disqualification it has lifted the ban on their contesting elections during the term of the current Assembly. This implies that they would be free to contest the by-elections due next month.

The verdict of the Supreme Court opens up a ‘world of possibilities’, which merit detailed attention.

In the first place, the 17 disqualified MLAs now being eligible to contest the by-elections would immediately place pressure on the BJP to accommodate those who are keen to enter the electoral fray. If the Supreme Court had upheld the Speaker’s decision, the BJP would have had a convenient excuse not to nominate them by taking shelter in the ban on their contesting. Now with that ‘pretext’ not available, the BJP would find it very difficult to deny them their ‘reward’ for helping bring down the Congress-JDS coalition government and come to power! Further, with these disqualified former MLAs likely to openly join the BJP, the factors that motivated their decision to invite disqualification become patently transparent. Will those disqualified be formally adopted and endorsed by the central leadership of the party or leave it to the state leadership to nurture and care for the new entrant will be an interesting to watch and see.

Secondly, the internal contradictions within the BJP would now clearly come out in the open. Many of those from the BJP who were defeated by the 17 disqualified MLAs have already been appeased and accommodated by being given plum posts by the BJP government. This of course does not guarantee that they would participate actively in the by-poll campaign of those who defeated them less than a year and a half ago.  Many others have not yet been rewarded and continue to put pressure for the BJP ticket in the constituencies going to the by-polls.   How does the BJP reconcile the claims of the old ‘loyalists’ with the new ‘converts’ will be keenly watched.

Thirdly, all the 17 seats that face by-polls were seats held by the Congress/JDS. Some of them were won by these parties by quite impressive margins. Many of those seats had not seen a strong BJP presence in previous elections. The by-elections would indicate whether the personality of the disqualified MLAs can actually swing the seat towards the BJP or did they win the last time around, simply because of the support that the party enjoyed in that constituency.

Fourthly, this set of by-elections will also help gauge the public mood on elected representatives switching political sides. The recent Satara Lok Sabha by-poll in Maharashtra showed that voters do not take kindly to party switching by their elected representatives. Would that trend be repeated in Karnataka or would those who switched political sides be able to convince the voters of the rationale behind their decision.

Finally, if past political history is any indication, the developments after the BJP came to power in the state in 2008 seems to be coming back to haunt the party. A decade ago, the BJP managed to hold on to power thanks to ‘Operation Kamala’ and the support of ‘new converts’ to the party. Will the same trend be repeated? Will the BJP retain its majority in the state on account of those who switched sides or will their presence be the factor that causes both internal turmoil within the party and push the party to a minority status? The by-elections – the choice of candidates, the cut and thrust of the campaign as well as the direction of the results will help address all these questions.  

K.V. Dhananjay
Supreme Court Advocate

Today’s Supreme Court Order says the obvious. That, when the Speaker disqualifies a legislator under the Tenth Schedule, the disqualified legislator is only disqualified for the time being; he could contest the upcoming by-poll and should he win, he could simply return to the balance term of the House from which he was disqualified. This case was unique in many ways and so, the Supreme Court must have found it easier to reach a decision.

For instance, in this case, the legislators had submitted their resignation and were keen to get out of the House. They were instead, disqualified by the Speaker and thrown out. In either scenario, they were out of the House. In most other cases, the MLAs had wanted to stick to their membership of the House while here, the disqualified MLAs were not legally aggrieved except by the differences between a resignation and disqualification. By the time this matter came up for judgment today, the bypoll itself was announced and scheduled and so, the Supreme Court did not find much of a complication once they saw that the Tenth Schedule does not impose disqualification for the rest of the term of the House. So, the Speaker’s Order to the effect that the disqualification will run until 2023 has been set aside.

Also, the Supreme Court has observed that the Speaker had enough material with him to find that those MLAs had indulged in anti-party activity and so, were covered by the clause 2(1)(a) of the Tenth Schedule – ‘voluntarily giving up membership of the House’. Though the Speaker gave lesser time to these MLAs to give their response, the Supreme Court has held that that alone is not a reason to interfere with the Speaker’s Order. Also, the Supreme Court has held that if a person is liable to be disqualified, he cannot escape it by simply submitting his resignation. Though the Supreme Court has said nothing at all about the Yediyurappa tapes that were submitted to it at the fag end, it appears that the Supreme Court was very strongly influenced by it. Yediyurappa is the Chief Minister of Karnataka; he is not some low-ranking politician gossiping in the corridors, he spoke in a closed-room public gathering of his party men and, he was, of course, the biggest beneficiary of those 17 MLAs defection. His own admissio
n of the BJP party engineering and managing the defection could not have gone unnoticed by the Supreme Court.

At this stage, it is reasonable for the public and concerned citizens to be disappointed with the fact that a MLA that is thrown out of the House for indulging in anti-party activity is given a fresh opportunity to contest in the by-poll and if elected, to go back to the same term of the House from which he was thrown out. That disappointment should not be directed towards the Supreme Court but should be directed towards the Parliament that did not express itself clearly while bringing in the Tenth Schedule. There are several other disqualifications under both the Constitution and the Representation of People Act, 1951 and they all specify the term of disqualification. Also, whereas the Tenth Schedule doesn’t specify the term, the Parliament is free to amend the Tenth Schedule if it wishes to.

Finally, soon after the Supreme Court’s judgment came out, most of the 17 MLAs greeted the judgment on Television and that alone would tell you that they are unbelievably foolish and God alone knows why such foolish people – who cannot even distinguish between winning or losing a critical case in the Court - are elected as our representatives. The Supreme Court had just said that the Speaker’s assessment that those MLAs have indulged in anti-party activity is based on sufficient material and yet, those very MLAs thought they were given a victory by the Supreme Court.

At this point, those MLAs are undoubtedly free to contest the polls as ‘damaged goods’ and whether the public will reward or shun them is to be seen now. At any rate, unlike a typical by-poll, these by-polls are equivalent to a general election itself, as the outcome in these by-polls will decide upon who forms or continues to run the State Government. Needless to say, the Speaker did what no other Speaker in India had done so far – expressly specify the end of the term as the period of disqualification. He overstepped his authority and it is good that the Supreme Court has set aside that part of his Order.

Tags: anti-defection law, karnataka mlas