On Monday, a full bench of the Karnataka high court upheld the disqualification of five independent MLAs under the anti-defection law. In October 2010, the speaker of the Karnataka assembly had disqualified them just before the trust vote by the Yeddyurappa government. The MLAs, who had been ministers in the Yeddyurappa government, challenged the order of the speaker in the high court, pleading that they were not subject to disqualification as they were independent MLAs and had never become part of the BJP.

In disposing of this case, the Karnataka high court referred to the landmark 1993 Kihoto Hollohan judgment by the Supreme Court on the validity of the anti-defection law. In that case, the apex court had ruled that the scope of judicial review in respect of an order passed by the speaker or chairman of a House would be confined only to jurisdictional errors such as (a) infirmities based on violation of the constitutional mandate, (b) mala fides, (c) non-compliance with rules of natural justice, and (d) perversity.

The MLAs in Karnataka had argued in the court that each independent member should in fact be treated as a distinct political party having one member that had chosen to be part of the coalition government led by the BJP. But the court held that they would be subject to the provisions of the anti-defection law since the "...facts leading to the conduct otherwise show that the independent member has joined a political party or lost his independent status."

The petitioners also argued that if joining a ministry in a coalition government leads to an independent member losing "independent" status, it can have serious implications for the future of coalition governments across the country. The court came up with a nuanced argument. It said that, when an independent member becomes part of a government led by a single party, the member will essentially have to implement the policies of that political party. This implies that they have lost their independent status. The court drew a distinction between such cases and coalitions where political parties get together to form a government and each party is not just implementing the will of the other political parties. Often, in such cases, a common minimum programme is drawn up beforehand.

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