Politics
There have multiple cases of legislators jumping ship and of being disqualified under the anti-defection law, but the BJP, JD(S) and the Congress will want to remember what happened in neighbouring Tamil Nadu.

Defection, horse trading and poaching has threatened the stability of the eight-month-old coalition government in Karnataka. This, after two independent MLAs withdrew support to the JD(S)-Congress combine, while at least three Congress MLAs have reportedly promised support to the BJP.

If the BJP does manage to poach enough MLAs, Governor Vajubhai Vala will have to convene the Karnataka Assembly and order the HD Kumaraswamy-led government to take a floor test. While the two independent MLAs, who withdrew support to the coalition, can vote for or against the confidence motion, anti-defection laws apply to Congress MLAs who jump to the BJP.

Anti-Defection Law

The Tenth Schedule of the Constitution, also known as Anti-Defection Law, came into effect in 1985 to prevent poaching of MLAs or MPs and to ensure the stability of governments. There are two grounds under which a legislator can be disqualified.

  1. When the member “voluntarily gives up his/her membership”
  2. When the member votes or abstains from voting, contrary to the directions of the political party to which he/she belongs.  

While there have been multiple cases of legislators jumping ship and of being disqualified under the anti-defection law, the BJP, JD(S) and the Congress will want to remember what happened in neighbouring Tamil Nadu.

Disqualification of 18 AIADMK MLAs case

In August 2017, 19 rebel AIADMK MLAs met then-TN Governor Vidyasagar Rao and filed individual petitions, expressing a lack of confidence in Chief Minister Edappadi K Palaniswami. Following this, based on the complaint made by the AIADMK party whip S Rajendran, the Speaker P Dhanapal passed the disqualification order in September against all of them, save one, who switched allegiance to the ruling party.

The 18 AIADMK MLAs were disqualified on September 18, 2017 and a gazette notification was issued, declaring that vacancies to their seats have arisen due to the Anti-Defection Act. The MLAs, who were supporting ousted AIADMK Deputy General Secretary, now AMMK leader and RK Nagar MLA TTV Dhinakaran, were disqualified on the grounds that they had “voluntarily given up their party membership.”

The disqualified MLAs approached the Madras High Court seeking the quashing of the Speaker’s order, calling it unauthorised, illegal and is without jurisdiction. In June 2018, a Madras High Court bench comprising former Chief Justice Indira Banerjee and Justice Sundar delivered a split verdict in the case.

Justice Banerjee's observations

Then Chief Justice of Madras High Court Indira Banerjee held that there is no scope for judicial interference in the decision of the Speaker P Dhanapal to disqualify the 18 MLAs. In her judgement, she further pointed out that there was no violation of natural justice, as the MLAs had been issued notices and they had filed three interim replies. Justice Indira Banerjee stated that they had been given ample opportunities to be heard.

“If the effect of withdrawal of support and calling for initiation of constitutional process meant fall of the Government constituted by the party, that, in my view, would tantamount to implied relinquishment of membership of the party and would attract disqualification...” observed Justice Banerjee.

Justice Sundar's observations

Justice Sundar, meanwhile, was of the opinion that the Speaker’s decision was liable to be set aside. He wanted all petitions preferred by the 18 MLAs to be allowed.

Justice Sundar noted that the Speaker's order hit four grounds for judicial review. He first pointed that the request of the MLAs for oral evidence and cross examination was not granted and under which of the two factions (E Madhusudhan or VK Sasikala) the MLAs were elected, was still a matter pending before the Election Commission, as part of the two leaves symbol case. He noted that at the time of the order, the question on which entity was actually 'AIADMK' was not ascertained and therefore the decision violated the constitutional mandate.

The judge also pointed out that the Speaker's allegation that the MLAs were colluding with the DMK had no evidence in support of it and alleged perversity in this scenario. Justice Sundar also highlighted violation of principles of natural justice and mala fides as a separate yardstick was used for MLA STK Jakkaiyan and for the 18 MLAs. Jakkaiyan had been part of the rebel group that approached the Governor but he switched to the ruling camp just ahead of the disqualification. This stopped the Speaker from disqualifying him as well.

The two judges then acknowledged the difference in opinion within the bench they ordered that the writ petitions regarding the disqualification of the 18 MLAs be referred to a third judge.

On October 24, the third judge, Justice M Sathyanarayana delivered his verdict after studying both opinions of the bench and he concurred with Justice Banerjee's decision on the matter.

Disqualification of OPS and 10 AIADMK MLAs case

But the BJP in Karnataka may also look to another Madras High Court verdict involving AIADMK MLAs including Tamil Nadu Deputy Chief Minister O Panneerselvam.

Following former Tamil Nadu Chief Minister Jayalalithaa’s demise in December 2016, O Panneerselvam was sworn in as CM. He, however, rebelled against VK Sasikala’s leadership in the AIADMK and tendered his resignation as Chief Minister in February 2017.

Days later, the Supreme Court delivered the final verdict in Jayalalithaa’s Disproportionate Assets case, where Sasikala was convicted and sentenced to four years in jail. Edappadi Palaniswami was then named as Chief Minister.

On February 18, 2017 a floor test was ordered in the Tamil Nadu Assembly. Chief Minister EPS passed a motion of confidence in the House, which he won comfortably with 122 votes. This after the strength of the House as reduced following the eviction of DMK and Congress’ MLAs.  However, 11 rebel AIADMK led by O Panneerselvam went on to vote against the motion – meaning they voted against their party’s Chief Minister.

In September 2017, the Whip of the DMK, the main opposition party in the state, approached the Madras High Court seeking to disqualify O Panneerselvam and 10 other AIADMK MLAs on the grounds that they had defied their party whip.

Significantly, several political developments had taken place between February and September that year. OPS and the 10 other MLAs were back in the AIADMK. Sasikala and her nephew TTV Dhinakaran were thrown out. And 18 AIADMK MLAs who had expressed lack of confidence in EPS as Chief Minister had been disqualified by Speaker P Dhanapal.

In its petition before the High Court, the DMK argued that the Speaker had acted in a mala fide manner – having disqualified 18 AIADMK MLAs, while no action had been taken against OPS and the other 10 MLAs following their vote against EPS. The DMK Whip sought the court to issue a directive to the Speaker to order disqualification proceedings against OPS and the others.

The Madras High Court, however, went on to dismiss the petition in April 2018. In its 57-page order, the first bench comprising of then Chief Justice Indira Banerjee and Justice Abdul Quddhose held that the court could not take over the functions of the Speaker given that separation of powers is an important feature of the Constitution. The High Court observed that it could not issue directions to the Speaker as this “would only not amount to judicial overreach, it would also amount to gross breach of judicial discipline, if not contempt”. This as the question of issuing a mandamus (directive) to the Speaker is pending before the Supreme Court.

The High Court pointed out that in the case of the disqualification of 18 AIADMK MLAS, the Chief Party Whip had filed the application of disqualification before the Speaker and this was supported by the Chief Minister. However, in the case of OPS and the 10 other MLAs, the application of disqualification was filed not by the AIADMK party whip or by a majority of AIADMK MLAs but by a few individual MLAs.

So what are the lessons for the BJP, Congress and JD(S) in Karnataka?

If rebel Congress MLAs go on to abstain or vote against the party whip, what’s certain is that unlike in the OPS case, the Congress whip will in all likelihood seek their disqualification, which will probably be confirmed by Speaker KR Ramesh Kumar. Disqualification will then necessitate bye-elections to the respective constituencies.