Defections in democracy: When lawmakers end up in the corridors of courts

The incidence of disputes regarding the powers of the Speaker of the House have risen in the recent past. The law is clear on how the Speaker must deal with the matters inside the House, especially with regard to defections. However, what constitutes a defection is becoming less clear. In such cases, where the Governor plays a dubious and unhelpful role, the constitutional courts have been routinely called to rectify the situation. 

Three major states have witnessed legislative upheaval in the last five years. In the case of Arunachal Pradesh, the Governor went to the extent of calling for a special session of the Legislative Assembly and dictating the agenda of the House. When these actions were challenged, in Nabam Rebia and Damang Felix vs Deputy Speaker and Others, the Supreme Court effectively cut the office of the Governor down to size and held that the messages sent by the Governor were constitutionally invalid.  

Two different issues have arisen in Tamil Nadu involving a total of 29 Members of Legislative Assembly, which is more than one-tenth of its total strength. The case of 18 MLAs submitting a letter to the Governor led to their disqualification by the Speaker under the Tenth Schedule and ultimately, this was upheld by a third judge of the Madras High Court. 

The other case of 11 MLAs who voted against the Motion of Confidence on 18 Februray 2017, when Edapadi Palaniswamy proved his majority, is pending appeal in the Supreme Court. The matter is of great constitutional importance because it would ultimately determine the powers of the Speaker and whether the Supreme Court can interfere in a matter where the Speaker has taken no decision. Such a question around qua timet actions is already referred to the consideration of a Constitutional Bench in the Supreme Court after a matter came from the Legislative Assembly of Telangana. However, in the present case involving 11 MLAs, it has been argued that the Speaker has displayed mala fides by taking no action against the 11 MLAs for their conduct in February 2017 but was quick to issue notice and subsequently disqualify 18 MLAs for their actions in September 2017.  

The case in Karnataka is on a different pedestal as it involves the simultaneous determination of two issues – question of voluntary or genuine resignation by a group of MLAs and the disqualification proceedings for defection under the Tenth Schedule. 

When the matter came up before the Supreme Court last week, in Pratap Gouda Patil and Ors vs State of Karnataka, the Speaker was directed “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”. The Supreme Court has exercised immaculate restraint to not interfere with the legislative sovereignty and has upheld the separation of powers between constitutional high offices. However, there appears to be no resolution in sight. 

The Supreme Court may have to finally step in to the “legislative thicket” in order to bring the ongoing saga to an end. While doing so, the Supreme Court must assess the actions of the MLAs who have shown scant regard to the principles of the Tenth Schedule to the Constitution and have engaged in dishonest conduct. While the Speaker is supreme within the four walls of the House, the actions of MLAs – who have become unseasonal visitors to resorts in Koovathur, Coorg and Mumbai – must be factored in. In the interest of larger democratic considerations, the Supreme Court would also require to settle the larger questions pending before the Constitutional Bench with regard to the power of speaker and the determination of defections.  

Manuraj Shunmugasundaram

Advocate and Spokesperson, DMK

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