The Supreme Court’s decision to ask the parties to the political crisis in Karnataka to maintain the status quo until it examines the questions of law involved, is pragmatic and expedient. The Speaker has been asked not to decide the issue of MLAs’ resignation or disqualification. An order has been passed when one of the questions to be decided is whether the court can give such a direction to the Speaker. It now transpires that legislators can be prevented from resigning by claiming that they have incurred disqualification. It was argued in court that “the rebel MLAs are trying to avoid disqualification by tendering resignations.” This is astounding, as the penalty for defection is loss of legislative office. Quitting the current post before joining another party is a legal and moral obligation. Defection is condemnable, especially if it is to bring down one regime and form another. But politicians cannot be tied down to parties against their will by not letting them leave even their legislative positions. Even if it can be argued that two MLAs had pending disqualification proceedings against them, what about the rest? They say they tried to meet the Speaker, but could not. They may have been wrong to rush to the court without getting an appointment with the Speaker, but in the few intervening days, their parties issued a whip to all MLAs to be present in the House and vote for the government.
Converting resignation into a disqualification matter is an attempt to deny a member’s right to quit his seat in the legislature before joining another party, even if the crossing-over is a politically expedient measure. The logic seems to be that a disqualified member cannot become a Minister without getting elected again, whereas one who resigns can be inducted into an alternative Cabinet without being a member. Accepting a resignation is a simple function of being satisfied if it is voluntary, while disqualification is decided on evidence and inquiry. The two should not be mixed up. The ongoing proceedings represent an increasingly common trend in litigation on constitutional issues: the propensity of the political class to twist and stretch the law in their favour and leave it to the court to set things right. The Speaker already enjoys extraordinary powers under the Constitution. In addition to immunity from judicial scrutiny for legislative matters, such as whether a Bill is a money bill, presiding officers get to decide whether a member has incurred disqualification under the anti-defection law. Though the decision is subject to judicial review, many Speakers have evaded judicial scrutiny by merely not acting on disqualification matters. The question whether the Speaker’s inaction can be challenged in court is pending before another Constitution Bench. Telangana, Andhra Pradesh and Tamil Nadu have instances of Speakers not acting on disqualification questions for years. The current crisis in Karnataka has exposed a new dimension to such partisan action.
