LESSONS FROM
2010 KARNATAKA DEFECTION DRAMA
By Amba Charan Vashishth
Three
years ago the then BJP government of Mr. B. S. Yeddyurappa was rocked by
defection by 16 MLAs. The rebels brought the fact of withdrawal of support to
the government to the notice of the Governor H. R. Bhardwaj.
Realising
that he cannot expect Mr. Bhardwaj to be "friend and guide" of his
government, Mr. Yedyurappa voluntarily fixed the date for trial of strength in
the house at the earliest opportunity. A day before the House was to vote on
the confidence motion Mr. Bhardwaj went out of his way to write a letter to the
Assembly Speaker: “In the interest of a free and fair floor test, it is
required that no attempt should be made to change the character/configuration
of the House after the House has been summoned for this purpose.” In a veiled
warning to the Speaker he went out: “Any attempt to change the
character/configuration of the House in the run up to the vote of confidence
motion “is bound to vitiate the proceedings” and further that any result
“obtained by such vitiated proceedings will not be acceptable”. Clearly, Mr. Bhardwaj wanted the government to
fall under the weight of defections and Speaker take action against defectors only
after that.
Till the MLAs gave to the governor their letter
of withdrawal of support, the Yeddyurappa government was in majority. Doubts
arose with the change of loyalty by MLAs. So what is the first — the act of
defection? The government losing or not losing the majority in the house is
secondary and consequential. Therefore, in all fairness the first thing should
come first and addressed first. The moment the governor took cognizance of the
act of defection and notified the same to the chief minister to seek a vote of
confidence on the floor of the house, he threw the ball in speaker's court. The
Supreme Court has repeatedly stressed that the test of majority of any
government is on the floor of the house and nowhere else. It, therefore,
becomes incumbent on the part of the Speaker to first determine and decide whether
it is an act of split in the ruling party or an act of defection punishable
with disqualification from the house as per the provisions of what now is known
as the Anti-defection law. It is only after this issue is settled that
everything else can follow.
The intention of law and objective of a
governor is to ensure stability and continuity of a government and not to
destabilize it. While it is all right if a government falls on the floor of the
house because of a split in the ruling party but, at the same time, it is equally
incumbent on the part of a speaker and a governor to frustrate all attempts at
destabilizing a government with the back stab of defections as per the spirit
of the anti-defection law. The law has been enacted with the noble objective of
defeating the designs of defectors and not be aid and abet their crime. We need
to distinguish between a split and defection — first, a normal process and the
other, a curse in a parliamentary democracy.
In
the instant case the Karnataka High Court upheld the disqualification of the 16
MLAs but later, on appeal, the Supreme Court set aside the
Karnataka Speaker's action of disqualifying them on the eve of the floor test as
"illegal" as the Speaker's action on the chief minister's complaint
failed to adhere to principles of natural justice and constitutional
provisions.
Authoring the twin judgments, Justice Kabir said the MLAs were
disqualified without giving them adequate opportunity to defend themselves as
Yeddyurappa's affidavit setting out charges against them was served minutes
before the hearing before the Speaker.
Criticising the Speaker for not respecting the cardinal
principles for a fair trial, the bench said, "Extraneous consideration is
writ large in the face of the Speaker's order disqualifying the MLAs. In the
result, we dismiss Yeddyurappa's complaint against the MLAs, set aside the
Speaker's order as well as the Karnataka High Court order upholding
disqualification of the MLAs."
The bench said a Speaker must rise above party affiliations
while adjudicating applications seeking disqualification of MLAs. The HC had
upheld the Speaker's order disqualifying MLAs and said, "We are of the
view that the impugned order passed by the Speaker (on October 29, 2010) is not
in violation of constitutional mandate nor is there any infirmity based on
malafides or perversity." (http://articles.timesofindia.indiatimes.com/2011-05-14/india/29542872_1_m-p-narendraswamy-karnataka-mlas-order-disqualifying)
Setting
aside of the speaker's order "for not adhering to te principle of natural
justice" was understandable but how could Mr. Yeddyurappa's complaint
against MLAs be "dismissed" as their act under the law was sheer
defection and nothing else as they lacked to command the support of one-third
of the membership of BJP legislature party.
Despite
the court decision, the cradle of Yeddyurappa government could not be shaken.
Regrettably,
during the last 28 years since the Anti-defection law was enacted in 1985, our
government and the presiding officers in the State assemblies and Central
legislatures have failed to iron out a uniform code that should be adopted in
such situations like the one that erupted in Karnataka. Some speakers have
taken instant and summary decisions while others have dragged the consideration
of action against recalcitrant legislators for years together. Sometimes the
motions have lapsed with the tenure of the legislature coming to an end.
On
technical grounds of non-adherence to the "principles of natural
justice" the Supreme Court may be right in setting aside the Speaker's
order yet it does not absolve the defectors of the charge committed by them.
What
amounts to a split in a party and what constitutes the abominable act of
defection is clearly spelt out in the statute. A split is caused when at least
one-third of the party's membership part company on any excuse or ground.
Similarly defection takes place when less than one-third of the members commit
murder — and in this case, of parliamentary democracy — which cannot be
condoned for any noble or ignoble cause whatsoever under any circumstances. All
that a speaker has to consider is whether it is a split or defection as defined
in the law. Explanation of the individual or a group is of no consequence in
such a situation.
Unfortunately,
during the last 61 years of the functioning of parliamentary democracy in the
country, we have failed to evolve a healthy and ethical tradition to be
followed whenever the majority of an incumbent government is challenged.
Different governors have adopted different yardsticks. Some have demanded the
chief minister to go in for a vote of confidence in the house within 48 hours
and others as long as three weeks.
In
all fairness, to meet the ends of justice in keeping with the spirit of the
Anti-defection law, whenever a split or defection takes place the Speaker
should take a decision pretty soon and any vote of confidence should be taken up
only after that. First allowing the recalcitrant defectors to bring down a
government and then taking action against them is just putting horse before the
cart. ***
This article was published in SOUTH ASIA POLITICS monthly in its December 2013 issue.
