Preposterous to say anti-defection law won’t apply: SC

In an important observation during night-long hearing on the Congress-JD(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 oath to Yeddyurappa as it had no knowledge of the support claimed by BSY before the governor. However, it wanted to peruse the letters written by Yeddyurappa to the governor to ascertain whether they gave a clue to his support base, which influenced the governor’s decision.

Venugopal said: “Swearing in of a person as CM is always subject to the floor test. All 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.