Supreme Court: 17 Karnataka MLAs remain disqualified, but can contest Dec 5 bypolls

Ananthakrishnan G
The disqualified MLAs have moved the Supreme Court seeking postponement of the bypolls. (File)

The Supreme Court Wednesday upheld the disqualification of 17 Congress-JD(S) MLAs in Karnataka but allowed them to contest the December 5 Assembly bypolls to 15 seats, setting aside the Speaker’s July order which disqualified them till the end of the term of the Assembly in 2023. The rebellion of the MLAs — 14 from Congress and 3 from JD(S) — led to the fall of the H D Kumaraswamy government and the return of the BJP.

Stating that “the satisfaction of the Speaker is subject to judicial review”, the bench of Justices N V Ramana, Sanjiv Khanna and Krishna Murari said “it is clear that the Speaker, in exercise of his powers under the Tenth Schedule, does not have the power to either indicate the period for which a person is disqualified, nor to bar someone from contesting elections”.

It said “neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections”.

“We need to note that the Speaker, being a neutral person, is expected to act independently while conducting the proceedings of the House or adjudication of any petitions. The Constitutional responsibility endowed upon him has to be scrupulously followed. His political affiliations cannot come in the way of adjudication. If Speaker is not able to disassociate from his political party and behaves contrary to the spirit of neutrality and independence, such person does not deserve to be reposed with public trust and confidence,” it said.

The former MLAs had challenged the Constitutional validity of then Speaker K R Ramesh Kumar’s orders of July 25 and 28 which rejected their resignations saying these were not voluntary or genuine, and disqualified them till the end of the term of the 15th Legislative Assembly in 2023.

The bench concluded that their act of defection, which constituted the basis for their disqualification, happened prior to their resignations and, therefore, would not become infructuous by submitting the resignation letters.

“Disqualification relates back to the date when the act of defection takes place. Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter,” said Justice Ramana, writing for the bench.

The bench ruled that “in the light of the existing Constitutional mandate, the Speaker is not empowered to disqualify any member till the end of the term”.

“However, a member disqualified under the Tenth Schedule shall be subjected to sanctions provided under Articles 75(1B), 164(1B) and 361B of Constitution, which provides for a bar from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re­-elected to the legislature, whichever is earlier,” it said.

The bench also dwelt on the powers of the Speaker while dealing with resignations and said the Speaker can reject a resignation only if an inquiry demonstrates that it is not “voluntary” or “genuine”.

“...although the word ‘genuine’ has not been defined, in this context, it would simply mean that a writing by which a member chooses to resign is by the member himself and is not forged by any third party. The word ‘genuine’ only relates to the authenticity of the letter of resignation. Similarly, the word ‘voluntary’ has not been defined. In this context, it would mean the resignation should not be based on threat, force or coercion.”

The bench said “the inquiry” by the Speaker when a resignation is received “should be limited to ascertaining if the member intends to relinquish his membership out of his free will. Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. It is Constitutionally impermissible for the Speaker to take into account any other extraneous factors while considering the resignation”.

The bench rejected senior advocate Kapil Sibal’s contention that a Speaker, as part of his inquiry, can also go into the motive of the member and reject his resignation if it was done under political pressure.

“We are unable to accept this contention. The language of Article 190(3)(b) of the Constitution does not permit the Speaker to inquire into the motive of the resignation. When a member is resigning on political pressure, he is still voluntarily doing so. Once the member tenders his resignation it would be ‘voluntary’ and if the writing can be attributed to him, it would be ‘genuine’,” the bench ruled.

It voiced its concern on the “growing trend of the Speaker acting against the Constitutional duty of being neutral”.

“Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby, the citizens are denied stable governments,” it said, adding that “in these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked”.

The bench, however, said the petitioners should have first approached the High Court and not “leapfrogged the judicial hierarchy” by directly coming to the Supreme Court.