How do you solve a problem like the Karnataka rebel MLA crisis? If you're the Supreme Court of India, you present a solution that ostensibly keeps all parties happy, that ostensibly balances all the competing interests, that ostensibly respects the Constitutional authority of the Speaker as well as the rights of the MLAs.
But is that really what happened?
On Wednesday, 17 July, the Supreme Court permitted Karnataka Assembly Speaker KR Ramesh Kumar to decide on the resignations of 15 rebel MLAs within such time-frame as deemed appropriate by him. The apex court also said that the 15 rebel MLAs should not be compelled to take part in the proceedings of the Karnataka Assembly.
WHAT DID EVERYONE WANT HERE?
- The rebels wanted to be able to resign, so that they don't have to support the HD Kumaraswamy government any more, without facing the possibility of disqualification under the anti-defection law.
- The JD(S)-Congress coalition wanted to stop these resignations, to have the power of a whip plus the threat of disqualification under the anti-defection law to make sure the rebels couldn't run away without voting in their favour in the crucial trust vote.
- The BJP wanted the rebel MLAs to be off the board by the time any trust vote happened, and that they were not disqualified so that they could promptly stand for re-election on BJP tickets.
Catch all the live updates on the Karnataka Crisis here.
WHAT DID THE APEX COURT DO?
- It said the Speaker's discretion to decide on the resignations was unfettered.
- It said the rebel MLAs couldn't be compelled to take part in any Assembly proceedings till the Speaker made this decision, including the trust vote.
And therein lies the rub. While the SC order appears to offer both sides a bit of everything, it is the BJP who will be the most delighted, as the rebel MLAs can now disobey any whip issued by the Karnataka government without any consequences.
There would be no disqualification for not supporting the trust vote, with its attendant six -year disqualification from standing for election. And this was the last card the JD(S)-Congress coalition had to play.
OPTIONS BEFORE THE SPEAKER
The Supreme Court's full order is extremely important to properly understand what happened here.
First, the court also accepted the impleadment applications filed by five additional rebel MLAs – which was why it talks about 15 of them, not the 10 who filed the original petition.
Secondly, the Speaker's power has been left undisturbed (though obviously any eventual decision is subject to judicial review on grounds of perversity) which is important in the long run for Indian democracy. Of course, with the government set to fall after this trust vote, this will not benefit KR Ramesh Kumar.
Thirdly, the language used to say that the MLAs can’t be compelled to vote is interesting. Some lawyers will no doubt find a way to interpret words like “ought” and “should” to say that these are not binding directions, that the MLAs could still be issued a whip for the trust vote.
But even if such an interpretation were arguable, it would not be decided in time for the trust vote tomorrow. The Speaker could perhaps order disqualification on the basis of a failure to attend the vote, as a parting gift to the MLAs, and take his chances on the interpretation of the order later, but the rebel MLAs will also be confident they can get any consequent disqualification overturned.
Fourthly, the interim order says nothing about the disqualification proceedings against some of these MLAs pending with the Speaker. We may, therefore, see the nuclear option taken there, and these MLAs disqualified by the Speaker for those earlier alleged violations of the anti-defection law, though of course these decisions could also then be challenged as perverse by the MLAs.