The high-voltage drama in the Karnataka Legislative Assembly that we witnessed this past month culminated on Wednesday, 17 July, in a three-page Supreme Court order.
Through its order, the court sought to “maintain the constitutional balance” between the “competing rights” of rebel MLAs, the Speaker of the Legislative Assembly and the chief minister. However, an analysis of the order reveals that instead of maintaining any such balance, it creates uncertainty that will eventually lead the issue back to court for another round of litigation.
The Factual Context
As we know by now, several MLAs belonging to the Congress-Janata Dal (Secular) alliance submitted their resignations to the Speaker. Practically speaking, if the resignations are accepted this would mean that the total strength of the Assembly would go down, thus jeopardising the majority of the alliance in the Assembly.
Soon thereafter, the Congress-JD(S) alliance called for a trust vote, and readied petitions for the disqualification of these MLAs. As the Speaker did not act on the resignations submitted by the MLAs, the MLAs moved the Supreme Court on 10 July seeking a direction to the Speaker to decide on their resignation. The counsel for the MLAs essentially argued that the Speaker had failed to fulfil his responsibilities under the Constitution, thus requiring the court to step in.
On 11 July, the court passed an order directing the Speaker to decide whether to accept the resignation letters by the end of the day.
In response, the Speaker asserted that the court had no power to direct him, a Constitutional functionary, to decide upon the resignations within a particular time-frame.
On 12 July, the court directed the Speaker not to take any action until the next hearing 16 July.
During the hearing on the 16th, the counsel for the chief minister argued that the resignation of the MLAs and disqualification proceedings of the MLAs under the anti-defection provisions of the Constitution were interlinked, and the resignations could not be considered in isolation.
This argument is important, because it highlights the possibility of resignations being an attempt by an MLA to jump ship, which is precisely what the disqualification provisions in the 10th Schedule of the Constitution were brought in to prevent.
The Court’s Approach
Perhaps recognising the importance of this argument, the court framed the main issue in its order as follows:
“The issue arising in the case is whether resignations submitted by members of the Legislative Assembly at a point of time earlier than petitions for their disqualification under the Tenth Schedule of the Constitution should have 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 request(s) for resignation.”
Interestingly, after identifying the question that lay at the heart of the issue, the court took the view that that question “should receive an answer only at a later stage of the proceedings”, because of the “time-frame exercise that is in the offing in the Karnataka Legislative Assembly, particularly, the no-trust motion against the present Government” which is slated for 18 July.
Thereafter, the court stated that “in these circumstances, the competing claims have to be balanced by an appropriate interim order,” and then it went on to make several observations about how the legislative procedure should be followed.
This structure is interesting, because it tells us that there is a central question and that the central question cannot be decided now because of the short timeline involved, but it does not further explain the basis upon which the interim order finally passed is considered an “appropriate” “balance” of the competing claims.
Nonetheless, even if this basis is not clearly laid out, it may still be identified by examining the substantive portion of the interim order. So let us do that.
Interim Order Pertains to Three Issues
The substantive portion of the interim order pertains to three issues: (1) By when the Speaker must decide upon the 15 resignation letters submitted to him; (2) On what basis the Speaker must decide whether to accept the resignation letters; and (3) Whether the rebel MLAs could “be compelled to participate” in the proceedings of the House.
With respect to Issue 1, the court stated that the appropriate interim order “should be to permit the Hon’ble Speaker of the House to decide on the request for resignations by the 15 Members of the House within such time frame as the Hon’ble Speaker may consider appropriate.”
On Issue 2, the court took the view “that in the present case the discretion of the Hon’ble Speaker while deciding [whether to accept the resignations] should not be fettered by any direction or observation of this Court and the Hon’ble Speaker should be left free to decide the issue” in accordance with the relevant provisions of the Constitution and the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly.
In answering Issues 1 and 2, the court has clearly stepped back from the position it took in its order passed on 11 July, where it had stated that the Speaker “shall take a decision” on the request for resignations by the end of that day.
The statements made by the court neither restrict the power of the Speaker nor grant him more discretion than he initially had under the relevant legal provisions.
However, they implicitly accepted, for the time being, the argument of the Speaker that the court had no power to direct him to decide the resignations within a particular time-frame and rejected the argument of the rebel MLAs that the Speaker was duty-bound under the Constitution to decide the resignations within a particular time-frame.
Extremely Confusing When We Come to Issue 3
The court’s order becomes extremely confusing when we come to Issue 3. In its penultimate sentence, the court rather cryptically cautions:
“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 said proceedings or to opt to remain out of the same.”
There are two possible ways of interpreting this statement especially the words “compelled to participate”.
Under the first interpretation, the phrase may be construed as signalling to the parties that either they ought to condone abstinence from the trust vote, or that abstaining from the trust vote shall not be considered a valid ground for disqualification from the House.
However, paragraph 2 of the 10th Schedules stipulates that a legislator shall be disqualified if he votes or abstains from voting in a House contrary to any direction issued by the political party to which he belongs. The court’s statement, if construed in this manner, would directly contradict the text and spirit of the 10th Schedule of the Constitution, which was meant to ensure that legislators would suffer consequences for not acting in accordance with the party whip.
It is unclear how the court can issue such a directive in the absence of any justification, that too in an interim order.
In theory, one could perhaps argue that the court sought to carve out an exception to the 10th Schedule because the Speaker failed in his constitutional duty to decide the resignations in a time-bound manner.
However, as we have seen, the court took the view, while determining Issues 1 and 2, that the Speaker has the discretion to decide upon resignation letters in “such time frame as the Hon’ble Speaker may consider appropriate.”
Thus, this interpretation is not only contrary to the Constitution but also contradictory to the Supreme Court’s previously expressed view in the same order.
A second interpretation would be that the court’s statement merely means that the rebel MLAs can do what they want, but that consequences as contemplated in the 10th Schedule may still follow. Indeed, this is the interpretation that is constitutionally sound.
Given the stakes involved, it is likely that both parties involved will try and take advantage of the uncertainty in the wording of the order to suit an interpretation favourable to their purpose, and will be back in court for another round. Thus, rather than settling the issue, the court’s order merely defers the battle by a few days.
(Jahnavi Sindhu and Vikram Aditya Narayan are advocates based in New Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)