Did our judges miss a chance to stem the rot in the system?

Unfortunately, the learned judges missed out on a precious opportunity to discourage and put a check on such undemocratic practices.

In their judgment on the Karnataka MLAs disqualification case, the three judge bench of the Supreme Court comprising of Justices Ramana, Sanjeev Khanna, and Krishna Murari observed: “horse-trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”

Unfortunately, the learned judges missed out on a precious opportunity to discourage and put a check on such undemocratic practices. They agreed with the Speaker’s decision to disqualify the MLAs but did not validate his decision to disqualify the MLAs from contesting further elections to the Karnataka Legislative Assembly in its current term. However, if they had accepted this decision of then-Speaker Ramesh Kumar, they would have strengthened the Anti-Defection Law and fulfilled their stated goal.

Clearly, the Speaker was innovating when he extended the MLAs disqualification till the end of the tenure of the Assembly. Such a provision is not provided under Article 191 (2) of the Constitution which contemplates removal of members of a State Legislature when disqualified under the 10th Schedule. But, in the light of the realpolitik of defections in India, this was an innovation that would have achieved the goals of the Anti-Defection law in letter and spirit.

The purpose of the anti-defection law is to prevent the MLA from negating the voter’s faith. When a voter casts a vote for an MLA candidate, that vote is both for the person and for the party. We are not in a position to separate the two. When the Speaker, acting in a quasi-judicial capacity, determines that an elected candidate has left a party because of inducements rather than a point of principle, then a suitable penalty needs to be devised. In this instance, the Yediyurappa tapes have revealed horse trading, and he is the inventor of the infamous “Operation Kamala.” Judicial activism would have helped counter these egregious violations of democratic verdicts. In other contexts, the Supreme Court has framed rules to strengthen laws. It could have done the same here as well.

After all, the Speaker is the custodian of the propriety of the House and should be entrusted with powers which can allow him to effectively discharge his duties. An election is a social contract between the voters and the elected representative. The voters elect an individual to be their representative for five years. Any resignation by an MLA in the absence of cogent and lawful reasons violates that social contract. Elected representatives will have no incentive to honour their part of the contract if the punishment is not punitive enough. Allowing a disqualified MLA to immediately seek re-election does little to deter defections aimed at blackmailing or toppling governments.

Thus, the Speaker, who already has tremendous power under the Anti Defection Law, must be empowered to take necessary actions where constitutional and moral violations have taken place, as per his discretion. Such was the need of the hour. Clearly, in this instance, the learned judges have missed out an opportunity to stem the continuing rot in the domain of electoral politics.

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