‘Pre­pos­ter­ous to say anti-de­fec­tion law won’t ap­ply’

The Times of India (Mumbai edition) - - TIMES NATION -

New Delhi: In an im­por­tant ob­ser­va­tion dur­ing night-long hear­ing on the Con­gressJD(S) pe­ti­tion, the Supreme Court on Thurs­day said it would be pre­pos­ter­ous to ar­gue that MLAs, prior to tak­ing oath in Assem­bly, would not face the anti-de­fec­tion law if they de­fied their party whip.

This was the re­sponse from the bench of Jus­tices A K Sikri, S A Bobde and Ashok Bhushan when at­tor­ney gen­eral K K Venu­gopal ar­gued that the SC must not en­ter the po­lit­i­cal thicket of who gets in­vited to form gov­ern­ment, which MLA ex­tends sup­port to which party dur­ing a floor test, and that it was a grey area whether an MLA prior to tak­ing oath was amenable to dis­qual­i­fi­ca­tion un­der the anti- de­fec­tion law ( Tenth Sched­ule of the Con­sti­tu­tion).

The bench said: “It is pre­pos­ter­ous to ar­gue that be­fore the MLAs take oath they are not amenable to anti-de­fec­tion law. This means it would be an open in­vi­ta­tion for any­one to in­dulge in horse trad­ing prior to MLAs tak­ing oath.”

Venu­gopal ar­gued that the SC could not step into ex­am­in­ing a zone of spec­u­la­tion as no one knew what the sup­port base claimed by Yed­dyu­rappa was to get in­vited by the gov­er­nor to form a gov­ern­ment. The SC agreed that it could not re­strain the gov­er­nor from ad­min­is­ter­ing these is­sues get set­tled in the House. A pe­ti­tion should never have been filed in the SC. The pe­ti­tion­ers should have awaited the out­come of the floor test. Swear­ing in of a per­son is not an ir­re­versible ex­er­cise. This can be re­viewed by the SC later.” Both AG and ex-AG Mukul Ro­hatgi agreed that the SC could re­duce the 15-day pe­riod granted by the gov­er­nor to Yed­dyu­rappa to prove his ma­jor­ity.

Le­gal ex­perts said the an­tide­fec­tion law comes into force im­me­di­ately after the re­sults of an elec­tion are de­clared. Se­nior ad­vo­cate Am­ren­dra Saran, who is not part of the case, said an MLA or MP could be pe­nalised if he re­fused to take oath, de­fy­ing the de­ci­sion of the party with which he con­tested the poll. “There is no ques­tion of an MLA be­ing ex­empted from the anti-de­fec­tion law be­fore tak­ing oath. The law im­me­di­ately comes into force after the elec­tion re­sult is de­clared and the elected rep­re­sen­ta­tive would have to fol­low the in­struc­tions of the party un­der which he con­tested and won,” he said.

A former Jhark­hand HC judge, how­ever, said that if an MLA ab­stained from tak­ing oath then the ma­jor­ity would be de­cided on the ba­sis of the ef­fec­tive strength of the house and floor test would go on. “If an MLA re­signs or ab­stains, he would face the con­se­quences for de­fy­ing the party but the floor test will go on,” he said.

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