K’taka drama snowballing into constitutional crisis

The Karnataka political crisis is, in all probability, turning out to be a constitutional crisis, too. It could well become a tussle over the powers of a Speaker of the state Legislative Assembly and that of the judiciary — in this case the Supreme Court — and the perceived superiority of the latter over the Speaker’s powers.

Although Chief Minister H D Kumaraswamy has said that he will seek a confidence vote, the Assembly is unlikely to decide upon it, take it up and complete the vote today (July 15). And come Tuesday (July 16), the SC will start hearing the MLAs’ case.

It is also unlikely that the Assembly will take up the confidence vote until the Supreme Court resolves the issue that it has been called upon to look into – seeking a direction to the Speaker to accept their resignations. For, linked to the trust vote is the issue of disqualification of MLAs on which the SC wants the Speaker to maintain status quo.

The top court has already indicated that in the Karnataka case, larger constitutional issues are involved, and may even take a longer time — a few days at least — to deliver its judgement. The court itself has observed it will have to decide on “substantial questions of law of constitutional importance”.

Speaker Ramesh Kumar, who is in focus besides the MLAs who have moved the court, is a no-nonsense presiding officer who understands the legalities as well as the constitutional powers of his post as the custodian of the Karnataka Assembly. In sending his response in connection with the resignations, he has sought several questions to be answered by the top court relating to his powers and those of the apex court.

The top court may also lend clarity on the question of which issue — disqualification or resignation of MLAs — should be taken up first by the Speaker. This may become crucial for the very survival of the Kumaraswamy government. The apex court may also throw more light and bring in clarity on the three key constitutional provisions — the Tenth Schedule (provisions of anti-defection law), Article 190 (vacation of seat by a legislator) and the issue of maintainability under Article 32 (which accords right to a person to move the Supreme Court (and high courts) to protect her/his fundamental rights) under which the rebel MLAs petitioned the SC.

The Karnataka crisis, as far as the Speaker’s powers are concerned, seems to have some parallels with the crisis that gripped the Uttarakhand Assembly in 2016. The high drama that Uttarakhand witnessed during March-May 2016 had all the top constitutional offices involved in the tussle, some claiming superiority in their powers — the legislators, the chief minister, the Speaker, the Governor, the Uttarakhand High Court, the Union government and not the least, the President of India.

In that case, for the first time in the country, the President’s action in imposing President’s rule was quashed by a high court.

This was what happened: on March 18, 2016, nine of the 36 Congress legislators (in a House of 71) sided with the Opposition BJP while voting against the Harish Rawat government (the BJP had 28 MLAs). The voting was on the Appropriation Bill.

The Speaker, on voice vote, declared that the Bill had been passed. As the BJP charged that the government was in a minority, Governor K K Paul directed Chief Minister Rawat to seek a trust vote on March 28. On March 27, President’s rule was imposed on Uttarakhand. The same day, the Speaker disqualified the nine Congress MLAs. On April 21, the HC quashed the President’s rule, but the apex court stayed the order the next day. On May 6, the SC ordered a floor test in the Assembly on May 10, which Rawat won.

As regards disqualification of the nine MLAs, the HC on April 12 refused to stay it as it approved the Speaker’s action. On November 14, the SC upheld the HC order on disqualification. Thus, the Speaker won all the rounds regarding disqualification.

‘Double whammy’

Referring to the Speaker’s powers, the HC accepted the argument of Rawat’s lawyer Abhishek Singhvi (who is also the lawyer for Ramesh Kumar now in the SC) that the order for President’s rule was a “double whammy” on the powers of the Speaker (and the governor).

The HC had this to say: “…we cannot brush aside the argument of … Singhvi… that this is an extraordinary case and first time in the history of India, by action under Article 356, there is a double whammy by hitting at the authority of the Speaker under the Tenth Schedule, as also the Governor..”

The long two-month legal battle that was played out both in Dehradun and New Delhi caused some embarrassment to the Rashtrapati Bhavan, then headed by Pranab Mukherjee, himself no stranger to political or constitutional crises.

In fact, when the Congress-led United Progressive Alliance (UPA) was in power at the Centre from 2004 to 2014, the party invariably turned to Mukherjee whenever the UPA faced a political crisis or didn’t know how to tackle the Opposition in Parliament. He was the go-to man, in short. The BJP-led National Democratic Alliance, too, must have sought his counsel while resolving some of the key issues it faced.

Still, the Uttarakhand case resulted in some sort of a loss of face for Mukherjee, whose decision — at the advice of the NDA government — to impose President’s rule on the hill state was questioned and quashed by the HC bench led by Chief Justice K M Joseph.

“The President’s decision is subject to judicial review and, hopefully, Centre will not provoke us,” the court said, pointing out that it found that the powers to impose President’s rule in a state under Article 356 was used in a manner (that is) “contrary to law”. It also held that the “Centre (was) inducting chaos, taking away power of elected governments.”