The ‘nataka’ of numbers in Karnataka: With Kumaraswamy's back against the wall, the fight is not easy for the BJP too
Will Kumaraswamy still be in his CM residence on Friday? Or will the tide turn? Here’s what the numbers say.
After 14 months in power, the chances of HD Kumaraswamy spending Friday (July 19) in the chief minister’s residence are receding. He faces a trust vote on Thursday with the handicap of 12 of the 15 MLAs rebelling against him staying put in Mumbai. If these MLAs, who had backed him in May 2018 to become the CM, abstain — Kumaraswamy loses. If the speaker disqualifies them on the charge of defecting — Kumaraswamy loses.
With the current numbers, he desperately needs around four-five of the rebels to break the BJP's chakravyuh, and vote for him. Of course, the speaker can use pandemonium or some other alibi to defer the trust vote to gain time. A Congress counter offensive is on and Kumaraswamy hasn’t given up. A Congress man in Parliament’s central hall, on July 17, quipped “Jab tak satta, speaker aur DK Shivakumar hain, kafi kuchh mumkin hai (Till we have power, the speaker and DK Shivakumar — it’s possible)."
Wednesday will dictate the events on Thursday
Karnataka braces for the trust vote by the Kumaraswamy government in a Legislative Assembly that’s close to losing the trust of the very people who had voted it. Two political formations — one in power — other out to grab power — in defiance of the spirit of the Indian Constitution have loaded the odds against each other, in a battle of deceitful manoeuvres.
In the last few days the pendulum has swung wildly in Karnataka’s strife torn politics. The ruling Congress-JDS (Janata Dal Secular) combine, after existing in the weak back foot zone for almost two weeks, seems to have gained a toehold to throw a counter offensive against the might and manoeuvring of the BJP. On Thursday, the hopes of rebel MLAs crashed, as the SC neither made it mandamus on the speaker to decide on their resignations, nor did it order a timeline for it.
The apex court order has three clear directions —
A) “The discretion of the Hon’ble Speaker while deciding the above issue (resignations) should not be fettered by any direction”
B) “Permit the Hon’ble Speaker of the House to decide on the request for resignations by the 15 Members of the House within such time frame as the Hon’ble Speaker may consider appropriate”
C) “Until further orders, the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the Houseand an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same”.
While the BJP claimed that the SC has nullified the whip issued by the Congress and the Janata Dal (Secular), the Congress said it sets a bad precedent.
SC’s order nullifying the Whip & by extension, operation of Constitution’s Xth Schedule to punish MLA’s betraying the public mandate, sets a terrible judicial precedent!Blanket protection to MLA’s, who are driven not by ideology but by far baser concerns, is unheard-of.1/2 pic.twitter.com/SsNmxw5NCn
— Randeep Singh Surjewala (@rssurjewala) July 17, 2019
In my opinion, both seem to be misreading the order. Like resignation, following or defying a whip is the individual choice of an MLA or MP. No courts or constitutional entity like the speaker can ‘force them to follow a whip’.
Yes, defying a whip is an indiscretion which has consequences like disqualification. The court has upheld the right of the speaker and also of the MLAs without insulating the MLAs from the speaker’s right to take up the disqualification proceedings.
The elected people’s representatives might have long abandoned the ‘Laxman Rekha of Maryada’ (propriety) but the apex court walked the delicate line drawn by the Constitution in which the legislative’s territory is beyond judicial intervention.
The Supreme Court based its order on the 27-year-old Kihoto Hollohan vs Zachillhu and Others case headed by a five-judge bench which examined the 52nd Constitutional amendment of 1985. The critical amendment as a measure against destabilising political party hopping had brought the 10th Schedule in the Constitution. The five-judge bench while upholding the amendment, declared that the Speaker was the final authority in the matter of deciding on resignation or disqualification of a legislator. The SC order on Thursday, in simple terms, means the speaker is unfettered by the court to act within the rules, but the court would be watching him.
It’s over to Bengaluru
But the Supreme Court order has, in a way, created a fertile ground for the two warring sides to test out the strength of each other’s stratagem.
Ahead of the trust vote — the 15 rebel MLAs are the key and the lock of loyalty, depending on which side has a better offer and promise of a future for them.
Kumaraswamy’s future has been in the hands of the speaker of the Assembly, KR Ramesh since the rebellion started. His steadfast refusal to adjudicate on the resignations has survived the Supreme Court test.
If he had accepted the resignations, the strength of the House would have come down and BJP’s numbers would have inched over the Congress-JD(S) combine. Earlier, he had delayed taking a call on the resignations by claiming that they were ‘improper’. The court rectified the situation by ordering the MLAs to personally hand over their ‘I quit the House’ letters. The BJP, in a seamless operation, flew the MLAs from Mumbai to Bengaluru for the resignations and swiftly brought them back — without allowing the ruling combine to ambush the MLAs with ‘offers’.
Fear of disqualification is the key
The ‘living on the edge’ government moved in with a trust vote ploy and a whip. The copies of the whip or the command of the party were pasted outside the homes of the rebels in a display of muscular intent.
The idea was to signal to the rebel MLAs that abandoning the party will cost them. Congress troubleshooter-in-chief DK Shivakumar, on July 17, cryptically said, "I would suggest to the MLAs that they should consult their lawyers. Read the rule book."
The threat being dished out is that if the rebels defy the whip — by not attending the Assembly during the trust motion or vote against the government, they would face disqualification. The disqualification threat is not lightweight — it has serious future repercussions.
If the resignations were accepted, they could have become ministers without breaking their stride in the new majority government and get re-elected to the Karnataka Assembly in the next six months or join the Legislative Council.
This is the fear the ruling combine is trying to evoke — that we may go down, but you wouldn’t get the reward the BJP has promised.
The Congress-JDS, in the remaining hours before the trust vote, would like the fear to sink in and make the MLAs return and stand in the ruling benches of the Assembly.
Post disqualification, life is difficult. Disqualified MLAs will lose their membership of the House. Worse if Kumaraswamy loses the trust vote due to their absence or negative vote, and the BJP led by BS Yeddyurappa forms a government, these MLAs can’t get ministerial berths instantly.
The hurdle is the provisions of Indian Constitution. The 10th schedule or simply the anti-defection law says:
"A member of a House belonging to any political party shall be disqualified for being a member of the House —
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority.
Obstacle two is Article 164(1B) which lays down: "A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier’."
So, if the speaker disqualifies the MLAs by invoking the 10th Schedule of the Constitution, rules say the legislator can’t contest election to the current 15th Legislative Assembly. They can do that in the 16th Assembly elections. Disqualified MLAs can’t become a member of the legislative council also. That can happen only after the 16th Assembly is convened.
Which means either an almost 4 year wait or post-dissolution of the current assembly. The catch is Yeddyurappa is an old man in a hurry. While many in the party feel that dissolution and mid-term polls are needed, Yeddyurappa, who is already 76, feels it’s now or never.
But disqualifying MLAs would be the last ditch desperate option. Since disqualification may help the BJP by bringing the strength of the House down, it is being used as a threat. If the speaker wanted to disqualify the rebels, he could have gone back to the precedence of December 2017 disqualification of Janata Dal (United) Rajya Sabha member Sharad Yadav by chairman M Venkaiah Naidu.
Yadav had not defied any party whip. Acting on a complaint by JD(U), Naidu had ruled that Yadav had "voluntarily given up membership" of the party by attending and addressing a Rashtriya Janata Dal (RJD) rally and hence indulged in anti-party activities.
This means anti-party activities, not necessarily defying the whip by voting against the party command or abstaining from a vote in an Assembly or Parliament, are enough for a member to get disqualified. The rebels have been anything but ideal, obedient party members. They have hobnobbed with the rival BJP, resigned in tandem and refused to meet party leaders. The speaker has enough grounds to first, reject their resignations for being ‘motivated’ and then, disqualify them.
BJP strategy — guard the eggs
The BJP has to hold the rebel MLAs flock together and keep them in Mumbai and ensure they defy their party whips. The party has few things working for it. One, the BJP has managed to convince the MLAs — majority of them, from the Congress, that their original parties have spent forces in the state, especially after BJP won 25 of the 28 seats and 51.4% vote share in the Lok Sabha polls. The Rahul Gandhi resignation saga has added as per the BJP’s narrative, apart from the various allurements, the BJP may be offering.
Second, the BJP has tried to weaken the disqualification threat. Top sources in the party say that it has tried to convince the MLAs that even if they get disqualified by the speaker, their kin can contest the by-polls and enter the Assembly to take a ministerial berth till the time the ‘re-contest’ bar set by Article 164(1B) is in place.
Still the BJP is nervous. On July 18, the show of rebel strength crafted by the BJP in form of a photo op and a ‘we will not go back to our parties or to Bengaluru’ statement by the rebels had only 12 MLAs not 15.
Kumaraswamy may lose but things are still not easy for the BJP.
One day before a trust vote, despite BJP’s Herculean effort to bring down Kumaraswamy, it was a very close numerical contest. If the ruling combine can crack four-five of those who have left it, the BJP will lose the battle for power yet again.
May 2018 numbers
HD Kumaraswamy is due to face a trust vote on Thursday.
For 14 months he ruled in a House of 225 MLAs (including speaker and 1 nominated) with JDS - 37, Cong-79 (including speaker), BSP-1, KPJP-1 and 1 independent. Minus the speaker, Kumaraswamy had 119 MLAs (including a nominated member) against BJP’s 105.
Numbers ‘nataka’ in Karnataka
17 July 2019 Numbers:
12 congress and 3 JDS MLAs have rebelled or resigned or both. One independent and KPJP MLA R Shankar who the Congress claims had merged his party with it in 2018 are with the BJP.
A) On paper, right now, the Congress-JDS alliance is down by 17. If the nominated member is included, Kumaraswamy has 102 votes (excluding the speaker) in the assembly against BJP’s 105 (107 with 1 independent & 1 KPJP) Kumaraswamy goes.
B) If the 12 MLAs who are in Mumbai, abstain, 3 missing rebel MLAs turn up and support him without 1 independent and 1 KPJP, Kumaraswamy would get 105 votes against BJP’s 107 (including 1 independent and 1 KPJP). Kumaraswamy would have to go.
C) But if the alliance manages to get the three rebels who are not in Mumbai, cracks the KPJP MLA R Shankar, with the speaker threatening disqualification — to vote for Kumaraswamy — despite 12 rebels staying in Mumbai, both sides will end up with 106 votes.
And that’s where the ruling coalition has the advantage — as the speaker has the casting vote in case of tie. If that happens — the tally will be Congress-JDS’s 107 against BJP’s 106. Kumaraswamy will survive.
D) But I have my fears. I wonder, if the 12 rebels stay put in Mumbai, 3 rebels who are in Bengaluru and 1 each of KPJP and independent don’t defect back to the Congress — will there be a trust vote? What if the speaker takes up disqualification of defectors first and rest later?
Or What if the speaker disqualifies KPJP MLA R Shankar first thing in the morning. What if pandemonium ensues? Speakers in the past have displayed similar skills.
Constitutional fathers created rules which forbid division of votes for a floor test or passing of bill in case the house is in disorder. And we know disrupting order in the house is a well practiced art form among Indian law makers.