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Chinmoy Pradip Sharma
The political scenario in Karnataka has unfolded like a thriller movie plot replete with dramatic twists, nail-biting suspense, high-voltage action with a healthy dose of comic relief interspersed. The imbroglio has also posed serious questions touching upon the entire Constitutional machinery right from the Speaker to the Governor going all the way up to the Supreme Court. On the one hand lies the debate on the Speaker’s powers to decide upon resignation of members and on the other hand is the role of the Governor in a politically volatile situation. The centre of the debate, however, is the overarching issue of control exercised by a political party over its members in the House in the backdrop of the Tenth Schedule of the Constitution.
The validity of the resignations tendered by MLAs has to be decided by the Speaker of the Legislative Assembly in terms of Article 190(3)(b) of the Constitution which stipulates that resignation by a member of the House has to be accepted by the Speaker to come into effect. Before accepting such resignation, the Speaker has to conduct an inquiry based upon information received regarding the resignation in question or otherwise to reach a conclusion that the resignation is voluntary or genuine. In case, the Speaker concludes to the contrary, the resignation can be rejected. The provision envisages the Speaker to be the final arbiter of voluntary and genuine nature of resignation by a member of the House. Indisputably, the Speaker’s decision will be amenable to judicial review on the well-established grounds of jurisdictional errors viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.
Article 190(3)(b) in its original form was worded differently. Resignation of a member of the House was complete as soon as the letter of resignation reached the Speaker. There was no requirement of acceptance by the Speaker for making it effective. However, the provision was amended by the Constitution (Thirty-Third) Amendment Act, 1974 creating the present-day phraseology. The Statement of Objects and Reasons accompanying the Amendment Act highlights that the amendment was warranted owing to cases of ‘coercive resignations’ which were becoming rampant at the relevant time.
The inquiry process at the level of the Speaker was brought about as the safety mechanism to check its misuse. The rationale behind such a move is obvious. A political party sets up a candidate and put its organisation into motion to get him elected as a member of the House. The electorate votes in support of such a candidate and elects him as its representative in the House. The election machinery at the cost of the exchequer is put into place to facilitate the election. The member who is elected after such an elaborate route as the representative of the people cannot be permitted to resign without justifiable reason and without ruling out the possibility that the resignation was motivated by extraneous considerations or coercion.
The MLAs in question have refused to take back their resignations despite being covertly and overtly called upon to do so by their respective political parties. They have also expressly declined to participate in the floor test which has been conducted to prove the majority of their political parties in the House. Such conduct begs the obvious question whether Paragraph 2 of Tenth Schedule of the Constitution becomes applicable and the MLAs stand to be disqualified on the ground of defection. Paragraph 2 of Tenth Schedule postulates the following two scenarios which incurs disqualification on the ground of defection:
The Supreme Court, while dealing with the expression’ voluntarily given up the membership’ appearing in Paragraph 2 (1) (a) in the case of Ravi S. Naik v. Union of India, concluded that the term is not synonymous with resignation and has a wider conversation. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. Subsequently, in the case of Rajendra Singh Rana v. Swami Prasad Maurya, the Supreme Court elaborated that the conduct of a member which runs contrary to the stand his political party can be construed to be evidence of ‘voluntarily giving up membership’. Viewed from this standpoint, the inevitable conclusion in the present scenario is that the act of resignation by the MLAs by itself coupled with their refusal to withdraw them will bring their cases within the purview of Paragraph 2 (1) (a) of the Tenth Schedule leading to their disqualification.
The refusal of the MLAs to participate in the floor test brings the spotlight to the aforementioned second scenario envisaged by Paragraph 2 of the Tenth Schedule. The Supreme Court, in the case of Kihoto Hollohan v. Zachillhu, has decided that the direction to vote or abstain from voting appearing in Paragraph 2 (1) (b) of the Tenth Schedule encompasses a vote on motion of confidence or no confidence. Consequently, voting or abstinence from voting by a member against the direction of his political party on such a motion will result in incurring disqualification under Paragraph 2(1)(b).
In the present case, though the Supreme Court has declared that the MLAs cannot be compelled to vote, a reading of Paragraph 2(1)(b) leads to the inevitable conclusion that these MLAs will incur disqualification in case they fail to participate in the floor test. The Indian National Congress (INC) and the Janata Dal (S) have already filed petitions before the Supreme Court raising this issue.
The resultant scenario arising out of disqualification on the ground of defection in terms of Paragraph 2 of the Tenth Schedule is extremely significant. The dust is yet to settle on the judicial debate with respect to the period for which a member remains disqualified. In the disqualification case initiated by the INC against Vishwajeet Rane, the Bombay High Court has taken the view that the disqualification does not operate for a period of five years as sought to be argued by the INC and there is no restriction upon a disqualified member to seek re-election. This decision has been challenged before the Supreme Court by the INC and is pending consideration.
The issuance of repeated directives by Governor of Karnataka fixing the time for completion the floor test has also added to Constitutional conundrum. The Governor of a State, under Article 175 of the Constitution, has the right to send message to the House for consideration of any matter. The Constitution does not spell out the nature of matters upon which a Governor can seek consideration by sending a message. Use of the words ‘any matter’ suggests that the right to send message will extend to a myriad of matters of public importance. The question that comes to mind is whether the right under Article 175 extends to issuing directives of the present nature. The most plausible answer is in the negative. Conduct of business in the Legislature is within the exclusive domain of the House and members. The Speaker is responsible for conducting the proceedings in the House which at times include debate and voting on motions of confidence and no confidence. Voting on a motion is preceded by debate in the House by the members and is regulated by the Speaker. Under the Constitution, the Governor is not a part of the Legislature. As per convention, the Governor can call upon the Chief Minister to hold a confidence motion and prove majority. The right under Article 175 cannot be given such a wide and expansive interpretation so as to include a right to issue directive touching upon a motion moved in the House and also regulating the manner in which business is to be conducted in the House. In other words, right to send ‘message’ to the House under Article 175 cannot be invoked to send ‘directive’ to conduct business in the House in a particular manner.
Just as every cloud has a silver lining, every political crisis churns judicial thought-process. Numerous landmark judgments of the Supreme Court have resulted from such crises. With several petitions revolving around the issues discussed above having reached the Supreme Court’s doorstep, extensive (and heated) debates on these issues are predicted in the days ahead.
The author is a lawyer practising in the Supreme Court and is a keen observer of law, polity, and judicial process.