New Delhi: There was confusion as the Supreme Court ruled Wednesday that Karnataka’s rebel MLAs could not be “compelled” to participate in the ongoing monsoon session of the assembly, where a trust vote is scheduled for Thursday.
Under the Anti-Defection Law (10th schedule of the Constitution), legislators are expected to act in line with the directives or “whips” issued by their party, or face disqualification.
A disqualified legislator cannot contest a byelection to re-enter the House in the same term, or join the council of ministers.
If the rebel legislators of the Congress-JD(S) alliance don’t attend the trust vote — as the Supreme Court has allowed them to do–they won’t vote either. To understand whether this could be seen as grounds for their disqualification, ThePrint spoke to two constitutional experts.
According to former Lok Sabha secretary general Subhash C. Kashyap, a constitutional expert, attendance is not a condition for disqualification under the anti-defection law.
“Anti-defection law applies only to voting against party directive or abstaining from voting against the party directive or willfully giving up the membership of the party,” said Kashyap.
“If that happens, then a petition has to be filed with the speaker and then the speaker will decide if he has done any of these things,” he added.
“No one can be compelled not to attend or attend the proceedings of the House. If the party issues a whip against attending or not attending, the party can take disciplinary action, but it does not violate the anti-defection law,” he said.
Congress troubleshooter D.K. Shivakumar, who has been trying to win back the rebel MLAs holed up in Mumbai, said after the Supreme Court verdict that the anti-defection law would indeed apply to MLAs who do not attend the session or defy the whip.
However, Kashyap told ThePrint that “whip” as a word finds no mention in either the Act or in the court order, which was issued by Chief Justice of India Ranjan Gogoi, Justice Deepak Gupta and Justice Aniruddha Bose.
“They use the word ‘party directive’,” he said, “This directive is for voting or abstaining from the same. The directive has nothing to do with attendance.”
Also read: Karnataka rebel MLA’s won’t withdraw resignations & say won’t attend Assembly
‘Can be disqualified for skipping vote’
Another former Lok Sabha secretary general, PDT Achary, disagreed, saying abiding by the whip of the party was the “crux” of the 10th Schedule.
“If the MLAs do not follow the whip, they will be guilty under the anti-defection law. They (most of them) are members of the Congress party and they are bound by the whip issued by the party,” he added.
Achary said the liberty to skip the proceedings granted to the MLAs by the SC would ultimately result in their violating the whip.
“If they don’t attend the house proceedings, they will not take part in the vote,” he added, saying, however, that a “clarification will only come when an MLA is disqualified and he approaches the court again”.
As many as 16 of the Congress-JD(S) coalition’s 115 MLAs have resigned from the House, with 15 moving the Supreme Court against the speaker’s delay in taking a call on them.
Their resignations, if accepted, would render the coalition a minority while also bringing down the strength of the House from 224 (excluding the Anglo-Indian nominee) to 208, making 105 the halfway mark. This would give the BJP, which emerged as the single-biggest player in the 2018 assembly election with 105 seats, a clear majority, as it also has the support of two independents.
In its order Wednesday, the Supreme Court said the Karnataka assembly speaker was free to take a decision on the resignations at an “appropriate time”.
Also read: Will follow the Constitution, says Karnataka Speaker after SC ruling on MLA resignations