The Congress-JD(S) alliance in Karnataka is insisting on disqualifying rebel MLAs instead of the Speaker accepting their resignations. The reason is simple – a disqualified MLA cannot become a minister until he or she is reelected.
A government can make anyone a minister, irrespective of whether they are a member of the House or not. The Constitution stipulates that a person made a minister in such a manner must become a member of the Assembly within six months of their appointment. This is how Manmohan Singh was made the Prime Minister of India in 2004, and how Yogi Adityanath was made the Chief Minister of Uttar Pradesh in 2017.
However, Article 164 (1B) of the Constitution says that a member who has been disqualified cannot be made a minister till the expiry of his or her term, or till he or she is reelected.
This means that the rebel MLAs, if disqualified, cannot be given ministries in case the BJP manages to form the next government following a trust vote.
The Congress and JD(S) are working under the assumption that the BJP has promised ministerial berths to these MLAs. They are using this clause to dissuade the MLAs from resigning, claiming that there is no guarantee that the BJP would keep such a promise once they are in power. And if the MLAs do decide not to come back to the Congress-JD(S) fold, this would be their punishment.
However, there is a precedent that the Congress-JD(S) needs to keep in mind. In 2015, Kerala Congress (M) MLA PC George was disqualified by the Assembly Speaker for anti-party activities under the Tenth Schedule of the Constitution. However, in 2016, Kerala High Court quashed this disqualification and said that when PC George had already submitted his resignation, the Speaker should have accepted that instead of disqualifying him.
The other game plan of the Congress is to convince at least a few BJP MLAs to cross vote during the confidence motion in the Assembly.
Both these game plans however seem to be last minute attempts to save the government from toppling. The first is dependent on the assumption that the rebel MLAs are unwilling to wait for the bye-election to get their promised ministerial berths. As for the second – it is unlikely that BJP MLAs will cross vote at a time when their party is at an advantage.
The Congress, which had earlier petitioned the Supreme Court on disqualification of defector MLAs in Goa, is hoping that the apex court will rule in their favour – which will also help their situation in Karnataka. In their petition to the SC, the Congress has sought that the disqualification of MLAs should stop them from holding ministries for five years, instead of until the next election.