Strategy of resignations to pull down government

For those in power it is easy to bribe and being bribed without any fear of legal action. Rulers need not worry about rule of law.

Defection-engineers in Karnataka no more ask MLAs to change the party but ask to resign with free will. Resign and gain. Bumper offers await the MLAs who succumb to pressures to resign.

Tapes sting BJP!

In February 2019, Karnataka Chief Minister H D Kumaraswamy, and the Congress party released audio tapes allegedly exposing Bharatiya Janata Party leader B S Yeddyurappa offering a Rs 10-crore bribe to poach a Janata Dal (Secular) MLA and claiming to have offered Rs 50 crore to the Speaker of the Legislative Assembly.

The Karnataka Speaker should have denied the allegation and initiated action for offering to bribe which amounts to attempt to bribe under Prevention of Corruption Act read with IPC, if it is proved that he has offered.

If it is not proved, still the Speaker would have initiated privilege action for bringing his office down to the bribe business. Whether it was done, if not, why?

In the alleged audio recordings of Yeddyurappa's conversation with a JD(S) MLA's son, the former is also heard claiming that his party's top brass will manage the higher judiciary.

There was no follow up action on this sting that exposed conspiracy to topple Karnataka coalition government and prosecute the accused for attempting to bribe the people's representative i.e., public servants.

If a common man bribes a revenue officer for any certificate, he would have been prosecuted. But when a leader worth becoming Chief Minister offers a bribe or illegal gratification of Ministry to public servant MLA, the law will not take its course! There were no steps to verify authenticity of the audio tapes.

The Congress has alleged a leader was caught offering crores of rupees to Congress MLA BC Patil. In the audio clip, Yeddyurappa can be allegedly heard offering a ministerial position to Patil.

He even asks Patil not go to Kochi and come back instead. "Once you go to Cochin, the matter is closed because we won't be able to catch you," Yeddyurappa tells Patil.

One of four audios released by the Congress shows that they were ready to offer Minister position to MLAs defecting from the Congress or the JD(S) and assuring that their speaker would never act on disqualification petitions/complaints by their original parties, siting examples of defected legislators holding Cabinet berth in Andhra Pradesh and Telangana.

The exposure of the BJP's manipulations through these audios helped the coalition to survive for some more months, but the BJP's winning of 25 of 28 Lok Sabha seats has created fresh troubles.

The BJP changed the strategy after revelation of tapes exposing their inducement plan. Instead of engineering defections, some MLAs were asked to resign from the House. His defection cannot be questioned under tenth schedule.

Whether a legislator attracts the disqualification even if resigns before changing the party? The defection engineers think no. This is wrongful perception about disqualification under anti-defection law.

BJP now in majority!

It is not magic. Without winning a single additional seat, the BJP gained majority! The Congress-JD(S) coalition of 118 will fall into minority 112, not because they lost election.

With the resignation of 16 legislators, the BJP automatically becomes majority party in the house of those present and voting.

The Constitution facilitates a government to survive if it can gain confidence of majority of MLAs present and voting; they need not have full strength of House.

They can fulfil promise of inducting defected (resigned legislator) into Cabinet as promised can still be inducted, because the Constitution provided six months for getting the Minister elected to either of the House.

Then can such a defected Minister enter the House? Can a disqualified defector contest by-election, and if re-elected re-enter the House? Is that the meaning of 'disqualification'?

The BJP's strategy appears perfectly constitutional. But is it? Section 2 of the Tenth Schedule under title "Provisions as to disqualification on ground of defection", says 'a member of the House belonging to any political party shall be disqualified for being a member of the House (a) if he has voluntarily given up his membership of such political party…".

Meaning of disqualification

In Karnataka, Congress and JDS legislators were openly declaring that they would quit and join the BJP, which, according to judicial interpretation, amounts to voluntarily giving up the membership of their original party.

This is enough ground for disqualification and Speaker has every power to take such action. As per law, such defectors should be disqualified for being a member of the House.

If Karnataka Speaker disqualifies these members, who openly declared their intention to quit the party, with a specific bar from entering the House until its term, they cannot enter as Ministers in the new government.

With such action, Speaker may still not save the coalition government, but can prevent defectors from entering the House.

Proper meaning of 'disqualification for being a member of the House' is that the member should quit the house as he cannot continue till end of the term of that house, which means he cannot contest byelection to re-enter the House.

Eminent attorney and former Legal Advisor to Karnataka Governor Vikas Bansode opined (while speaking to this author), "The House literally means its 'term' i.e., five years; hence a member disqualified for defection is disqualified for the rest of the term and he shall stand debarred from contesting election again to the seat that fell vacant due to his defection".

The Article 83 and Article 172 of the Constitution of India explains the duration of the House as five years. The speakers/chairmen, courts and legal experts so far not properly understood and implemented the expression 'disqualified for being a member of the House' in its true spirit.

Once disqualified he must wait not for just byelection, but until the next elections to the new House. He said the lawmakers in 1985 have laid down unambiguous provision to disqualify for entire term, but the political parties interpreted to suit their vested interests.

With purposive interpretation of Section 2 of the Tenth Schedule, a member disqualified should be debarred specifically from re-contesting. Extending the legal logic further, the legislators who resigned their membership in House and Congress and JD(S) parties cannot even be offered Minister positions.

Unfortunately, the Speakers were not told that they have every authority to disqualify the legislator if the latter voluntarily gave up the membership of the original party, after due process of hearing, even if complaint or petition was not filed. It amounts to abdication of constitutional responsibility by sitting over the petitions till House is dissolved.

(The writer is former Central Information Commissioner and Professor of Law, at Bennett University, Greater Noida)