Gaya Lal was an MLA in the Haryana Legislative Assembly who changed his party three times over a span of a few hours in 1967. In his doing so, he gave rise to one of the memorable, if not infamous, terminologies in India’s political lexicon to describe a compulsive political turncoat – “Aaya Ram Gaya Ram”.

This "constitutional sin" of political defection by legislators commenced in the late 1960s and peaked in the 1980s, constraining the Parliament to enact the Anti-Defection Law, by inserting the Tenth Schedule to our Constitution.

Consequently, no MP or MLA could just waltz away from his political party, on whose ticket he won the elections, unless one third (later increased to two third) of that legislative party, decides to break away from the parent party.

For example, if a political party has won 60 seats in the Legislative Assembly, a minimum of two third ie. 40 MLAs, must walk out together and form a separate group/party in the Assembly or merge with any other political party. Any figure less than two-thirds would incur disqualification from the membership of the House under the Tenth Schedule.

This onerous limit of two-thirds was supposedly imposed to deter defections. However, the same has spectacularly failed, as will be elucidated later in this piece.

The vires of the Tenth Schedule was challenged in Kihoto Hollolan v Zachillhu and Ors. In that case, a Constitution Bench of the Supreme Court, by a 3:2 majority, held that the Speaker of the House exercises a quasi-judicial role akin to a Tribunal, when he, as the sole arbiter, decides any question pertaining to the validity of the defections of the MPs or MLAs as the case may be.

The Supreme Court trusted the Speaker to behave with impartiality and neutrality, which are necessary concomitants of the high office held by him.

However, subsequent experiences revealed that the Speaker would play a blatantly partisan role. He would sit on the disqualification petitions either for years or decide it in a jiffy, depending which course of action benefitted his party. This arbitrary and capricious action of Speakers defeated the very purpose and intent of the Tenth Schedule and the Supreme Court’s ratio in Kihoto.

When the aggrieved parties approached the Supreme Court/High Court, the plea of Article 212 was taken by the Speaker to pre-empt any judicial examination. This article embodies the Montesquieu-en principle of ‘Separation of Powers’ that threads through our Constitution.

The proceedings inside a House are the exclusive preserve of that House only and are immune from judicial interference or review. The Supreme Court cannot direct the Parliament/Legislature to pass or not to pass any Bill any more than the Parliament/Legislature can direct the Supreme Court to take up or not take up any given case. The Legislature and the Judiciary are separate and supreme in their respective spheres.

Once the Speaker made his decision, it was amenable to judicial review under Article 226/227 by the High Courts, as held by Kihoto. However, what was the role of the courts till the time Speaker didn’t decide the disqualification petition?

A two-judge bench of the Supreme Court comprising Justices RK Agarwal and Rohinton Nariman in the SA Sampath Kumar case, referred to the Constitution Bench, the important constitutional question - whether a ‘quia timet’ order can be passed against the Speaker.

The disqualification petitions were kept pending, in the instant case, by the Speaker since August 2014. Any disqualification of the MLAs would bring down both the total strength of the House as well as the incumbent government headed by the Chief Minister. Therefore, a minority government was allowed to continue in power because the Speaker refused to act under the Tenth Schedule and was claiming immunity from any judicial order in view of Article 212.

The question that arose was whether the High Court, exercising its writ jurisdiction under Article 226 of the Constitution of India, can direct the Speaker to decide a disqualification pending before him within a particular specified time period.

However, before the Constitution Bench could take up this reference, another bench of the Supreme Court, this time a three-judge bench headed by the inimitable Justice Rohinton Nariman in Keisham M Singh v Speaker, Manipur Legislative Assembly, virtually recalled the reference order passed in Sampath Kumar’s case.

In Keisham Singh, the disqualification petitions were pending before the Speaker since April 2017. The Supreme Court examined the position in Kihoto as well in Sampath Kumar, amongst other relevant judgments, and held that the Constitution Bench in Kihoto only interdicted any ‘quia timet’ action from the courts to the Speaker, insofar it prevents the Speaker from exercising his powers under the Tenth Schedule.

But an order aiding the Speaker to exercise his powers under the Tenth Schedule cannot be barred or cannot be held as an unreasonable interference. Though the Supreme Court accepted that it is not possible to give an exact time frame, as that may vary from case to case, ordinarily a period of three months was sufficient for the Speaker to decide the disqualification petition.

In the meanwhile, our legislators have adopted an innovative and ingenious modus operandi, what has been aptly described by Dr Abhishek Manu Singhvi as "Jugaad", during the course of his submissions in the recent Madhya Pradesh Assembly case in March 2020.

Now, any MLA whose "conscience" doesn't permit him to stay in the political party on whose ticket he originally won the election, doesn’t wait for the Speaker to decide his resignation letter under Article 190 or disqualification petition under the Tenth Schedule. He simply legs it off with other similarly “conscientious” MLAs, in an expensive private charter plane, to a salubrious 5-star resort located in a state whose Government is run by a party inimical to the party in power in their home state.

Once there, they are incommunicado to the outside world, even to their own family members. They do not have access to their own cell phones or emails. They are guarded round the clock, by multi-layered security wings consisting of the state-police administration, party workers, and local bouncers.

Meanwhile, the incumbent government in the home state is forced to seek a vote of confidence on the floor of the House. In the absence of these rebel MLAs, the result is a foregone conclusion, leading to the fall of the incumbent governments, as seen in July 2019 in Karnataka and in March 2020 in Madhya Pradesh.

This is a new twist in the decades-long saga of “Aaya Ram Gaya Ram Politics” in our country. This Jugaad itself spawns several constitutional questions. Are such resignations “voluntary and genuine” in terms of Article 190? Are they not vitiated by inducements, coercion and/or extraneous considerations?

Unlike the disqualifications under the Representation of the People’s Act, a disqualification under the Tenth Schedule (or resignation under Article 190) do not attract a six-year disqualification from being a member of the house.

Such rebel MLAs, after being instrumental in the fall of a duly elected government which has the mandate from the electorate, would presumably be given tickets to contest election in the by-elections, held within a couple of months and even be made Ministers, as the events in Karnataka in 2019 have already shown us.

The questions then are, does the Rule of Law, purity of the electoral process and the legislative intent behind the Tenth Schedule permit this? We may not have heard the last word on this by the Supreme Court.

The author is an Advocate-on-Record practising in the Supreme Court of India. Views are personal.

Disclaimer: The author was the AoR for the then Chief Minister in the Karnataka Legislative Assembly case (2019) and for the Speaker in the Madhya Pradesh Assembly case (March 2020).