BJP may offer rebel K’taka MLAs cabinet berths, but Constitution doesn’t

Karnataka, The Federal, English news website
With the resignation of Congress-JD(S) MLAs, the effective strength of the House gets reduced and the BJP’s strength is enough to be the magic figure required to form government. Photo: iStock

In 2019 February the Karnataka Speaker disqualified then Congress legislator from Chincholi, Umesh Jadhav for defecting to the BJP as per the 10th schedule of the Constitution. But, recently Jadhav became a member of the Lok Sabha after contesting the Gulbarga Lok Sabha seat on a BJP ticket. What could be more ironical than the fact that a disqualified MLA just needs to switch parties to enter the Lok Sabha, despite the 10th schedule.

Audio tapes expose BJP’s ploy

In February this year, Karnataka Chief Minister HD Kumaraswamy, released audio tapes of a ‘sting operation’, allegedly exposing BJP leader BS Yeddyurappa trying to poach a JD(S) MLA by offering him a ₹10 crore bribe and claiming that he has offered ₹ 50 crore to the speaker of the Legislative Assembly.  In another audio recording, Yeddyurappa allegedly claims that his party’s top brass will manage the judiciary, in a conversation with the son of a JD(S) MLA.  There was no follow up on the sting operation, not even to verify the authenticity of the audio tapes that exposed the conspiracy to topple the Karnataka coalition government. No steps were taken to prosecute the accused for attempting to bribe the people’s representatives.

The Karnataka Congress has also made allegations about Yeddyurappa offering bribe to its MLA BC Patil. In an audio clip, a man sounding like Yeddyurappa, can be heard offering a ministerial position to Patil. He also asks Patil to not go to Kochi and come back instead. “Once you go to Cochin, the matter is closed because we won’t be able to catch you,” Yeddyurappa tells Patil.

One of four audios released by the Congress party shows that the BJP was ready to offer minister position to MLAs defecting from Congress or JD(S) and assuring that the speaker would never act on disqualification petitions/complaints by their original parties, citing examples of defected legislators holding cabinet berths in Andhra Pradesh and Telangana.

The exposure of the BJP through these audios helped the coalition to survive for some more months, but the BJP’s winning of 25 of 28 Lok Sabha seats in the state has created fresh troubles. The BJP changed their strategy after the sting operation exposing their inducement plan. Instead of engineering defections, Congress- JD(S) MLAs were instead asked to resign from the House. An MLAs resignation cannot be questioned and there will be no petitions seeking disqualification as he has already relinquished the seat. The BJP assumed that if a legislator resigns, he is free to defect and re-contest elections. This, however, is a wrong perception about disqualification under anti-defection law (explained in the last part of this article).

With the resignation of Congress-JD(S) MLAs, the effective strength of the House gets reduced and the BJP’s strength is enough to be the magic figure required to form government.

BJP’s strategy unconstitutional 

The Congress-JD(S) coalition of 118 will fall into a minority of 104, with the resignation of 14 legislators.  The BJP with their numbers intact, will become the majority party in the house with the help of those “present and voting”. The statute facilitates a government to survive if it can gain the confidence of the majority of MLAs present and voting; they need have full strength of the House.

They can fulfil the promise of inducting the defected legislator in the Cabinet as promised, because Constitution provided six months for getting the minister elected to either of the Houses. If such a defector is disqualified, can he/she contest byelection and get re-elected?  Is that the meaning of ‘disqualification’?

The BJP’s strategy appears perfectly constitutional, but it is not. Section 2 of Tenth Schedule under title “Provisions as to disqualification on ground of defection”, says ‘a member of the House belonging to any political party shall be “disqualified for being a member of the House” (a) if he has voluntarily given up his membership of such political party…”.

Decoding disqualification

In Karnataka, Congress and the JD(S) legislators were openly declaring that they would quit and join BJP, which, according to judicial interpretation amounts to voluntarily giving up the membership of their original party. This is enough ground for disqualification and the speaker has every power to take such action. As per law such a defector should be “disqualified for being a member of the House”. If the Karnataka speaker disqualifies these members, who openly declared their intention to quit the party, with a specific bar from entering the House until its term, they cannot enter as ministers in the new government. With such action, the speaker may still not save the coalition government, but can prevent defectors from entering the House.

The proper meaning of “disqualification for being a member of the House” is that the member should quit the house as he cannot continue till end of the term of that House, which means he cannot contest the byelection to re-enter the House. Eminent attorney and former legal advisor to Karnataka Governor Vikas Bansode said, “the House literally means its ‘term’ i.e., five years. Hence a member disqualified for defection is disqualified for the rest of the term and he shall stand debarred from contesting elections again to the seat that fell vacant due to his defection”.

Article 83 and Article 172 of Constitution explains the duration of the House as five years. But the speakers/chairmen, courts and legal experts haven’t properly understood and implemented the expression “disqualified for being a member of the House in its true spirit. Once disqualified, a legislator must wait not for just the by-election, but until the next elections to the new House. Vikas said the lawmakers in 1985 have laid down unambiguous provision to disqualify for entire term, but the political parties interpreted to suit their vested interests.

With purposive interpretation of Section 2 of the 10th Schedule, a disqualified MLA should be debarred specifically from re-contesting.  Extending the legal logic further, the legislators who resigned their membership in the House and the Congress and JD(S) parties cannot even be offered ministerial berths.

Unfortunately, the speakers were not told that they have every authority to disqualify the legislator if the latter voluntarily gave up the membership of the original party, after due process of hearing, even if complaints or petitions were not filed. It amounts to abdication of constitutional responsibility by sitting over the petitions till House is dissolved.

Vikas Bansode further suggested that a defector should be debarred from contesting any election for six years from the end of the term of the house wherefrom he was disqualified.

Crisis of leadership in Congress

The present government in Karnataka is suffering from its inherent weakness of not being a pre-election coalition and that its major partner, the Congress is facing crisis of leadership at national level. The post-election ‘gathbandhan’ of convenience between these two parties was weakened further, because they lost miserably in the Lok Sabha polls though they contested together.  The age-old national party does not know whether it has a full-time president, whether resignation of the president is accepted, or how long the uncertainty continues. In the absence of a strong leader, the party appears to have lost direction and will try to protect its coalition government. On the other hand, the BJP with substantial victories, has grown strong enough to overthrow this government. Apart from the temptation of money and the power of ministerial berths, corrupt legislators change sides when the wooing party offers them offers to protect their ill-gotten-wealth and protect them against IT/ED raids. These provide strong opportunities to rivals to increase their strength without the voter’s support.

The anti-defection law suffers from inherent defects like lack of time frame for speakers and chairpersons to decide on complaints among other flaws. But the main issue is the improper understanding of ‘disqualification’ provided in 10th Schedule, because of which the defections are increasing in various forms defeating the democratic norms and voter’s will.

Does defeat delegitimise K’taka govt?

It is also not correct to say that defeat of the Congress-JD(S) gathbandhan in the Lok Sabha polls has delegitimised the government in Karnataka. It is because, the Supreme Court in Bommai case rightly declared that once voters elected a government, it is for a term and that should be allowed to be completed. The Supreme Court disapproved dissolution of nine state governments claiming their parties lost Lok Sabha elections. Supreme Court held that such an “en masse” dissolution of state governments by both Janata Party and Congress during 1970s and 1980s was unconstitutional. Such actions by the Centre will destroy the federal spirit of the Constitution and reduce the state governments to subordinates rather than sovereigns.

(The writer is a former Central Information Commissioner and professor of Constitutional Law at Bennett University)