Karnataka trust vote: Supreme Court's order on political crisis in contradiction to 10th Schedule, writes constitutional lawyer
Critiquing the Supreme Court's order on Karnataka political crisis, lawyer Gautam Bhatia argued that it is in violation of the Tenth Schedule. 'The Court’s attempted 'balance' is to give both parties freedom to act: the Speaker has the freedom to decide on the petitions, while the rebel MLAs have the freedom not to attend the proceedings of the House. However, on closer scrutiny, this balance is not a balance at all, as the second part of the order – on the issue of attending the proceedings of the House – effectively and presumptively holds the resignations to be valid until and unless the Speaker decides otherwise.'
Critiquing Supreme Court's order, lawyer Gautam Bhatia, who specialises in constitutional law, argued that the Wednesday order is in violation of the Tenth Schedule
Bhatia writes: However, on closer scrutiny, this balance is not a balance at all, as the second part of the order – on the issue of attending the proceedings of the House – effectively and presumptively holds the resignations to be valid until and unless the Speaker decides otherwise
Calling the Supreme Court order 'problematic', Bhatia argues that the judgment was 'not a balance at all' 'because it is only if the resignations were valid would the party whip – and thereby the Tenth Schedule – cease to apply'
The Karnataka political crisis appears to have reached its final leg (at least for now). The ruling Congress-JD(S) coalition is fighting tooth-and-nail to keep its 14-month-old government from disintegrating. The Karnataka Assembly is currently in session where Chief Minister HD Kumaraswamy and the Congress' Siddaramaiah are warring with BJP's BS Yeddyurappa over the confidence motion.
Facing a truncated strength caused by the en masse resignation of 16 ruling coalition MLAs, Kumaraswamy moved a one-line motion, saying the House expressed confidence in the 14-month old ministry headed by him. Seeking the trust vote, Kumaraswamy said the rebel MLAs had cast doubts about the coalition government across the country and "we have to tell the truth".
The Supreme Court on Wednesday had said that 15 rebel Congress-JD(S) MLAs "ought not" to be compelled to participate in the proceedings of the ongoing session of the state Assembly and an option should be given to them as to whether they wanted to take part or stay out of it. A bench headed by Chief Justice Ranjan Gogoi said Karnataka Assembly Speaker KR Ramesh Kumar will decide on the resignation of the 15 MLAs within such time-frame as considered appropriate by him.
Critiquing the Supreme Court's order, lawyer Gautam Bhatia, who specialises in constitutional law, argued that the Wednesday order is in violation of the Tenth Schedule. In his personal blog Indian Constitutional Law and Philosophy, Bhatia writes, "The Court’s attempted 'balance' is to give both parties freedom to act: the Speaker has the freedom to decide on the petitions, while the rebel MLAs have the freedom not to attend the proceedings of the House. However, on closer scrutiny, this balance is not a balance at all, as the second part of the order – on the issue of attending the proceedings of the House – effectively and presumptively holds the resignations to be valid until and unless the Speaker decides otherwise. "
Calling the Supreme Court order 'problematic', Bhatia argues that the judgment was "not a balance at all" "because it is only if the resignations were valid would the party whip – and thereby the Tenth Schedule – cease to apply. In all other circumstances, the rebel MLAs defiance of the whip would be subject to disqualification under the Tenth Schedule."
What is the Tenth Schedule?
The Tenth Schedule, which was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985, popularly known as the "anti-defection law", provides for the disqualification of Members of Parliament and state legislatures who defect.
Paragraph 2 of the Schedule says that “a member of a House belonging to any political party shall be disqualified from being a member of the House… if he has voluntarily given up his membership of such political party; or if he votes or abstains from voting in such House contrary to any direction issued by the political party… without obtaining… prior permission…"
'Matter grows murkier'
Bhatia goes on to further explain how the apex court granting freedom to Speaker KR Ramesh "becomes effectively chimerical". "...the whole point is that the ruling combine is likely to lose its majority in the circumstances that the rebel MLAs are able to defy the party whip without being disqualified – which is precisely what the Court’s order allows. In effect, therefore, the Order – while purporting to grant the Speaker unlimited time – effectively grants the Speaker time until the trust vote to decide, after which any decision the Speaker makes will, for all practical purposes, be infructuous."
Concluding the post, Bhatia notes that the two subversions of constitutional conventions are the "Speaker abusing his powers on the one hand, and large-scale horse-trading on the other." The framing of the Supreme Court order, in fact, "makes the former far more difficult (in a similar manner to how the Supreme Court fettered the governor’s ability to abuse his powers the last time around), but at the same time, actively allows for the facilitation of the latter, by judicially noting that the rebel MLAs “ought not” to be subjected to the party whip."
While he agrees that there is a need for judicial intervention in the ongoing political crisis in the southern state, Bhatia cautions that the "space" is "fraught with risk for the court." "In fashioning a remedy, the Court ought to make it as difficult as possible for the warring political functionaries to subvert constitutional conventions, while leaving the final solution to the existing democratic processes."
What the Supreme Court said
The Supreme Court bench, also comprising Justice Deepak Gupta and Justice Aniruddha Bose, said the Speaker's discretion in deciding on the MLAs' resignations should not be fettered by the court's directions or observations and he should be left free to decide the issue.
The apex court also said the Speaker's decision be placed before it. "We also make it clear that until further orders, the 15 members of the Assembly ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the proceedings or opt to remain out of the same. We order accordingly," the bench said in its three-page order.
It also noted that the imperative necessity at this stage was to maintain the constitutional balance and the conflicting and competing rights canvassed before it.
"Such an interim exercise has become prudent in view of certain time-frame exercise(s) that is in the offing in the Karnataka Legislative Assembly, particularly, the no-trust motion against the present government, which we are told is due for being taken up on 18 July, 2019," it said.
The bench further said, "In these circumstances, the competing claims have to be balanced by an appropriate interim order, which according to us, should be to permit the speaker of the House to decide on the request for resignations by the 15 members of the House within such time-frame as the speaker may consider appropriate."
The apex court further said, "We also take the view that in the present case, the discretion of the speaker while deciding the issue should not be fettered by any direction or observation of this court and the speaker should be left free to decide the issue in accordance with Article 190, read with Rule 202 of the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly, framed in exercise of the powers under Article 208 of the Constitution."
The bench noted in its order that the issue before it was whether the resignations submitted by the MLAs prior to the petitions for their disqualification under the Tenth Schedule of the Constitution should be accorded priority in the decision-making process or whether both sets of proceedings should be taken up simultaneously or the disqualification proceedings should have precedence over the requests for resignation.
"Constitutional principles should not receive an exhaustive enumeration by the court unless such an exercise is inevitable and unavoidable to resolve the issues that may have arisen in any judicial proceeding," the bench said.
It further said, "In the present case, having regard to the stage at which the above issues are poised in the light of the facts and circumstances surrounding the same, we are of the view that the questions should receive an answer only at a later stage of the proceedings."
The court also allowed the intervention application of five rebel MLAs to be made as parties in the case, in which 10 MLAs have approached the apex court earlier. It also allowed the application filed by Anil Chacko Joseph, who, along with around 400 Congress workers, has approached the court for impleadment as a party in the matter.
With inputs from PTI
The apex court has asked the farmer unions to respond to the plea seeking removal of protesters from Delhi's borders and posted the matter for further hearing on 7 December
Lakhimpur Kheri: SC tells UP government to not 'drag feet', record statements of 40 remaining witnesses
The Uttar Pradesh government told the apex court that statements of only four out of 44 witnesses have been recorded by the judicial magistrate. The top court has posted the matter for hearing on 26 October
Ten people, including Union Minister of State for Home Ajay Mishra's son Ashish Mishra, have been arrested so far in connection with the case