Monday, 30th October 2017

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Congress lawmakers challenge Supreme Court's ruling against whip shield

SC order would not prevent political parties from invoking the anti-defection law in the present context and in future

By R. Balaji in New Delhi
  • Published 20.07.19, 3:19 AM
  • Updated 20.07.19, 3:19 AM
  • 2 mins read
  •  
Karnataka Chief Minister H.D. Kumaraswamy at the Assembly Session at Vidhana Soudha, in Bangalore on Friday, July 19, 2019. (PTI)

The Congress legislature party in Karnataka and chief minister H.D. Kumaraswamy on Friday challenged Wednesday’s Supreme Court ruling, which said the dissident legislators cannot be compelled to participate in the current Assembly session, as contrary to the anti-defection law and a 1992 constitution bench ruling.

The apex court, whose order virtually rules out any disqualification proceedings against the dissidents for abstaining from Friday’s trust vote, is expected to hear both applications on Monday.

While the Congress lawmakers have moved their application through state unit president D. Gundu Rao, Kumaraswamy has filed his individual application through advocate Sunil Fernandez.

Apart from challenging Wednesday’s ruling, the chief minister has sought a clarification that the order would not prevent political parties from invoking the anti-defection law in the present context and in future.

“Under the Tenth Schedule (anti-defection law) a political party has a constitutional right to issue a whip to its legislators,” the Congress application says.

“The exercise of this right under the Constitution is not circumscribed by any condition nor can it be subject to any restrictive orders from the court even prior to the issuance of the whip.”

The application rued that Wednesday’s order was passed without arraying the Congress legislature party as a respondent.

Both applications rely extensively on the 1992 Kihoto Holohan vs Zachillhu case in which a five-judge constitution bench held that paragraph 2(1)(b) of the Tenth Schedule applied mandatorily to confidence motions.

Paragraph 2(1)(b) provides for a lawmaker’s disqualification “if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs”.

The 1992 judgment says: “The direction given by the political party to a member belonging to it, the violation of which may entail disqualification under Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no-confidence in the government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate.”

It adds: “The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.”