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Saturday, September 25, 2021

Defection & dissent

Apex court verdict on disqualified Karnataka MLAs recognises that severe penalties for defection can be double-edged

By: Editorial |
November 20, 2019 2:15:47 am
Maharashtra government news, Maharashtra politics, Sharad Pawar Uddhav Thackeray, Sonia Gandhi maharashtra, Maharashtra crisis, bjp vs shiv sena, congress shiv sena, indian express Last week, the Supreme Court upheld the disqualification of 17 Karnataka legislators by then speaker, KR Ramesh, but permitted them to contest the by-polls which are around the corner.

Last week, the Supreme Court upheld the disqualification of 17 Karnataka legislators by then speaker, KR Ramesh, but permitted them to contest the by-polls which are around the corner. This is the second political case that landed before the Supreme Court, following the uncertain mandate in the 2018 Karnataka assembly polls. The court validated the speaker’s decision to disqualify the MLAs. However, it set aside the speaker’s order barring the disqualified MLAs from contesting elections for the remainder of the assembly’s term.

At first glance, the decision appears to be a balancing act, allowing a win for both sides. However, the verdict by a three-judge bench headed by Justice NV Ramana stays with the letter of the law. The Representation of the People Act, 1951, and the Tenth Schedule of the Constitution, which deals with anti-defection, do not give the Speaker “the power to indicate the period for which a person is disqualified.” On the other hand, Article 164(1)(B), which deals with the consequences of disqualification of an MLA, states that an MLA disqualified under the Tenth Schedule is also disqualified from being a minister “for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.” By implication, this provision permits an MLA disqualified under the Tenth Schedule to be re-elected to the House.

The question that remains even after the verdict is whether a strict legal reading takes away the force of the anti-defection law. The 17 MLAs defected with a clear intention of triggering the collapse of the HD Kumaraswamy-led Congress-JD(U) government but can now contest unabashedly on a BJP ticket. The court, cognisant of this question, also bats in favour of a stronger anti-defection law. However, once the political colours are stripped from the issue, the legal questions become fairly simple. Can the speaker or the court subsequently pass orders that are punitive against the disqualified legislators when the letter of the Constitution does not prescribe such penalties for their actions? Such a punishment could be a double-edged sword. Disqualification for the entire term can be used by ruling parties to manufacture a majority or by Opposition parties to punish dissent. The court decision is based on this precise fear that “such extreme stand could have a chilling effect on legitimate dissent.”

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