The Congress feels the Supreme Court order on the Karnataka political crisis nullifying the whip and providing ‘blanket protection’ to the rebel MLAs sets a ‘terrible judicial precedent’. The party cannot be faulted for thinking so. A political party has power to direct its member to be present in voting in house, and non-compliance of such a direction is liable to lead to the member’s disqualification on ground of defection.
As per Clause 2(b) of Schedule 10 of the Constitution, abstaining from voting in House contrary to any direction issued by the political party to which the legislator belongs to will cause disqualification on the ground of defection.
So, it is clear that in the process of maintaining ‘constitutional balance’, the Supreme Court has effectively passed an order on Wednesday that negates the effect of Clause 2(b) of Schedule 10 of the Constitution, enabling the rebel MLAs to escape the consequences of defying party whips.
Seen in that light, the SC order has selectively suppressed the rights of the Congress and the JD(S) in Karnataka to issue a whip to their MLAs just a day before the coalition government faced a trust vote in the Assembly. It has effectively struck down the Anti-Defection Act.
But even before the Supreme Court order, the Apex Court’s sheer willingness to hear the case of the rebel legislators had endangered Article 190 of the Constitution that stipulates that MLA resignations are to be offered to the Speaker. Article 190 also allows the Speaker the discretion to reject the resignations if, in his or her view, they are not “voluntary or genuine”.
The court seems to have encroached upon the role and powers of the Speaker, and broadly the Legislature, just by agreeing to hear the case. While the alleged impartiality of a Speaker is certainly not above scrutiny, the role of money, lure of ministry, threats and coercion in political horse trading are also something that can hardly be lost sight of.
So, the Supreme Court order seems to protect the defectors and may be seen as an encouragement to horse trading in Indian politics. Constitutional experts have already commented on the court order giving the rebel MLAs extraordinary liberty to defy the Act while providing the Speaker little or no option to follow established rules.
While the innocuous looking ruling will invite a longer and critical look, what is clear is that the Anti-defection Act has been all but buried. The larger question of violating the doctrine of separation of powers invariably creeps up as well.
At a time when nearly every institution in the country, ranging from the Central Bureau of Investigation to the Enforcement Directorate, from the Central Vigilance Commission to the Reserve Bank of India, from the Election Commission of India to educational institutions, is in the iron grip of the Narendra Modi and Amit Shah-led BJP government, the judiciary and, specifically, the Supreme Court is possibly the last hope of those who believe in India’s Constitution and the country’s tolerant and pluralistic democratic ethos. Such orders from the Supreme Court betrays and belies this trust.