oppn parties Karnataka MLAs Case: Lacuna In Anti-Defection Law Allows Them To Contest Bypolls

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Karnataka MLAs Case: Lacuna In Anti-Defection Law Allows Them To Contest Bypolls

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Writes for a number of publications.

The Supreme Court has upheld the disqualification of the 18 Karnataka MLAs by the Speaker of the assembly but has said that he had no powers to specify the term of their disqualification. It bears reminding that the Speaker had disqualified the MLAs till the end of the term of the current assembly. But the Supreme Court said that the Tenth Schedule of the Constitution did not give this power to the Speaker. This in effect means that although the MLAs stand disqualified from the assembly, they are free to contest the elections which will be held as a result of their disqualification.

The Court observed that nowhere in the law was it specified that disqualification will result in a bar on reelection. It said, "neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting reelections". It also elaborated that the Speaker cannot act as if he has the inherent power to specify additional punishment. The Court said "when the express provisions of the Constitution provide for a specific eventuality, it is not appropriate to read an "inherent" power to confer additional penal consequences". The Court was of the opinion that any such additional punishment would have a "chilling effect on legitimate dissent".

The Court was also scathing in its remarks against the rising cases where Speakers do not act neutrally. It said "Speaker, being a neutral person, is expected to act independently while conducting the proceedings of the house or adjudication of any petitions. The constitutional responsibility endowed upon him has to be scrupulously followed. His political affiliations cannot come in the way of adjudication. If Speaker is not able to disassociate from his political party and behaves contrary to the spirit of the neutrality and independence, such person does not deserve to be reposed with public trust and confidence."

While the apex court has given its verdict as per the provisions of the law as it stands, the very fact that the MLAs can contest elections necessitated by their disqualification dilutes the so-called anti-defection law. The case for legitimate dissent falls flat when one knows that the MLAs who resigned did so with the express knowledge that they will be given plum posts in the new government. If there was any doubt, it disappeared the moment the BJP gave tickets to all the disqualified MLAs from their old constituencies. It is now upon the electorate to decide whether these turncoats deserve to be in the assembly.

The political parties must, however, address this issue. They must find ways of strengthening the anti-defection law so that turncoats cannot contest reelections for a certain period of time. One understands that this will stifle genuine dissent to a large extent, but given that most defections in India happen for gain, the chilling effect will be on unscrupulous politicians more than on honest ones. But since almost all political parties benefit from this lacuna in the law, one does not think it will ever be set right.