The historic pre-dawn hearing on the Karnataka crisis in which the Supreme Court today dubbed as "preposterous" the arguments of Attorney General K K Venugopal that the anti-defection law was not attracted, has led to an open debate among jurists.
A clear division of opinion was reflected with experts like senior advocate Vikas Singh and constitutional expert Govind Goel agreeing with the remarks of a bench headed by Justice A K Sikri, while others like senior counsel Rajeev Dhavan and Rakesh Dwivedi finding merits in the Attorney General's argument that anti-defection law comes into play only against the MLAs who have taken the oath.
The observation of the bench that Venugopal's argument was preposterous and implies an open invitation to horse trading, has become a subject requiring authoritative pronouncement, a lawyer on condition of anonymity said after hearing the divergent views.
Dwivedi said the AG was right that unless a person takes oath, he is not a member of the House and disqualification can happen only after he does something wrong there.
He said the issue of switching loyalty before oath is relevant only for the Governor to take a decision, but the floor test has to be conducted.
His view was shared by Dhawan who said the anti defection law will apply only after the MLAs take oath because it concerns the assembly.
"In democracy, people should honour the identity for which they have been voted. It is not an invitation to subvert democracy. You cannot cheat the electorate. They (MLAs) should and must retain their identity. Post-poll alliance is a different issue. Any attempt by the BJP to erase the identity before swearing-in is contrary to the Constitution," he said.
However, Vikas Singh differed with them and said the anti-defection law will apply before taking oath because voting will take place in the House only after the MLAs take oath. He said by the time oath is administered, everything would have been done.
Goel also said this law will apply at any stage when the MLAs leave their political party and joins another or disobeys the whip of their political party.
"In the 10th Schedule of the Constitution, which is also referred to as the 'Anti-Defection Law', there is no mention of oath. It mentions that any person elected as a member of a political party, will not leave the political party or join any other political party. If he does so, he will lose his office of elected representative.
"Oath is only a formality. Once the person is elected to the legislative assembly as a member of a political party, he cannot leave that political party nor join any other political party or acts to prejudice the political party on whose ticket he has been elected. Nor can he disobey the whip. I disagree with Venugopal," he said.
Singh also said the Governor had no business to call BJP to form government as this amounted to encouraging defection, which is constitutionally impermissible.
He said the Governor who holds a constitutional post cannot do anything which is not permissible and "according to me, the Governor's decision was illegal". "What is the premise on which BJP has been called by the governor," he also asked.
The anti-defection law was passed by Parliament in 1985. The 'Tenth Schedule' which was added in the 52nd amendment to the Constitution laid down the process by which legislators may be disqualified on grounds of defection.
It says that a member of parliament or state legislature is deemed to have defected if he either voluntarily resigns from his party or disobeys the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party's whip.
Independent members would be disqualified if they joined a political party. Nominated members who are not members of a party could choose to join a party within six months. After that period, they are treated as a party member or an independent.
A party could be merged with another if at least two-thirds of its legislators voted for the merger.
As per Parliament legislative research done in 2009, complaints were made against 62 Lok Sabha MPs till then. Of these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld.
In state legislatures, up to 2004, out of 268 complaints, 113 were upheld.
Besides, Rajya Sabha chairman Venkaiah Naidu had expelled Janata Dal (United) leaders Sharad Yadav and Ali Anwar Ansari from membership of the Upper House on December 12, 2017 after finding them guilty of defection.
In September 2008, then Congress MP Kuldeep Bishnoi, son of former Haryana chief minister Bhajan Lal, and rebel Samajwadi Party MP Jaiprakash Rawat were disqualified from Lok Sabha by then Speaker Somnath Chatterjee under the anti-defection law.
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