At the High Court: What is defection?

The breakdown at the Vidhana Soudha in Bengaluru on the unruly Monday, October 11th, was broadcast over and over again on television channels last night. The city dailies of October 12th have a veritable gallery of pictures: everything from broken glass and a ripped off shirt, to police pushing back on legislators, and more.

The High Court today continues hearing arguments on the controversial disqualification of the 11 dissident BJP MLAs and five independent MLAs. In case coverage in the media has left you confused or you have not had time to catchup with the core of the issue, here is a quick brief:

At the heart of the matter is the use of the Anti-Defection Law by the assembly Speaker K G Bopiah. By disqualifying 11 dissident BJP MLAs and five Independents, the strength of the house was reduced to 209, and the BJP ‘won’ the trust vote with a simple majority of 105.

What the court will have to determine today at least in part is this: what constitutes defection?

The Anti-Defection law was enacted through a constitutional amendment by the Rajiv Gandhi-led Congress government in 1985. The intention was that candidates elected with party support and on the basis of party manifestoes remain loyal to the party whip and policies.

Under the Anti-Defection law, here are the grounds for disqualification by Speaker of a House

a. If a member of a house belonging to a political party:
– Voluntarily gives up the membership of his political party, or
– Votes, or does not vote in the legislature, contrary to the directions of his political party.

However, if the member has taken prior permission, or is condoned by the party within 15
days from such voting or abstention, the member shall not be disqualified.

b. If an independent candidate joins a political party after the election.
c. If a nominated member joins a party six months after he becomes a member of the legislature.

What the arguments are

The arguments at the High Court are about whether the Speaker’s action in disqualifying the MLAs was legal. Speaker Bopiah had ruled in response to chief minister B S Yeddyurappaa’s petition asking for the disqualification.

The BJP argues the ‘conduct’ of the dissident MLAs and Independents was already of the nature that attracted disqualification. The opposition and the disqualified MLAs are arguing otherwise. One, that Independent MLAs cannot be disqualified since they were not members of the BJP. Two, that the dissident BJP MLAs have not resigned from the party and that the Speaker disqualified them before the trust vote itself, i.e. that they had not even voted against the party whip yet.

In deciding the case, the High Court is very likely going to look at precedents on what constitutes giving up of membership in party and what constitutes defection. This is not the first time in India that such developments have transpired and have invited the review of the judiciary.

There have already been several important judgements on disqualification by the Supreme Court (SC). One previous judgement of 1994 may play an important role today.

On the question of whether resignation alone constitutes voluntarily giving up membership of a political party, the SC had ruled in Ravi S Naik v. Union of India (AIR 1994 SC 1558) that:

the words "voluntarily giving up membership" have a wider meaning. An inference can also be drawn from the conduct of the member that he has voluntarily given up the membership of his party.

This is the case law that has it going for the Yeddyurappa government. The BJP will argue that its 11 dissident MLAs attracted disqualification on these grounds and they need not have resigned to be thrown out. 

However, the case of the Independent MLAs is more complicated. Kolar MLA Varthur Prakash who was not disqualified by the Speaker is key test of the matter. Prakash, as reported in the The Times of India today, did not give written support to the government and also did not formally record his presence in BJP party meetings and responses to the party whip. In contrast, the other five Independents had reportedly given written support to the government and recorded their presence in the muster roll in party meetings.

In disqualifying the five Independents, the BJP is creatively arguing that they were ‘virtual’ members of the BJP legislature party in power and hence attract disqualification, just like the dissident BJP MLAs.

If the court strikes down the disqualification of the Independents, the BJP government will likely fall on a fresh vote. This is because in an assembly strength of 214, the BJP needs 108 votes to say in power and they have 105.

Which ever way the court rules, and if the case goes to the Supreme Court, the question of what membership and defection really constitute is going to be tested hard.

In the meantime, Karnataka will remain in crisis and the troubled capital city of Bengaluru will have to wait and watch. Bengaluru is particular is closely related to this power struggle. Every party in power wants a share of land spoils (the denotification scam is testament to that) especially from Bengaluru. The city’s massive growth and meteoric rise in its real estate prices in the last decade have ensured that.

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