In Shrimanth Balasaheb Patil vs Hon’ble Speaker, Karnataka, Supreme Court upheld the disqualification of 17 Congress - JD(S) MLAs in Karnataka by the then Assembly Speaker K.R. Ramesh Kumar but allowed their plea to contest the by-election to be held on December 5 for the seats that fell vacant in July.
A three-judge bench of justices NV Ramana, Sanjiv Khanna and Krishna Murari held that the Speaker does not have the power to indicate the duration for which a member may not contest elections after being disqualified or after resigning.
FACTS OF THE CASE
In July this year, Writ Petitions were filed by 17 ex-MLAs of Karnataka challenging their disqualification by the previous Speaker of the Assembly.
The resignation of the 17 MLAs from the Congress and JD(S) parties eventually brought down the HD Kumaraswamy-led regime in Karnataka in July this year.
Speaker rejected the resignation of the members asserting that they were not voluntary or genuine. Further, Speaker disqualified all the MLAs and said they could not contest elections until the end of the current assembly term in 2023.
ISSUES BEFORE THE SUPREME COURT
~ Whether the order of the Speaker rejecting the resignation and disqualifying the MLAs is in accordance with the Constitution.
~Even if the Speaker’s order of disqualification is valid, does the Speaker have the power to disqualify the members for the rest of the term.
OBSERVATIONS OF THE COURT
~Right to Resign
Bench held that a member of the Legislature has a right to resign. Nothing in the Constitution, or any statute, prevents him from resigning. A member may choose to resign for a variety of reasons and his reasons may be good or bad, but it is his sole prerogative to resign. An elected member cannot be compelled to continue his office if he chooses to resign. The 33 rd Constitutional Amendment does not change this position. On the contrary, it ensures that his resignation is on account of his free will.
~ Acceptance of Resignation by the Speaker
33rd Constitutional Amendment requires acceptance of resignation by the Speaker. Thus, merely addressing a resignation letter to the Speaker would not lead to the seat automatically falling vacant. The Speaker has to accept such resignation for the seat to become vacant. Court held that the Speaker has limited discretion for rejecting the resignation. If the resignation is voluntary or genuine, the Speaker has to accept the resignation and communicate the same.
~ Reject the Resignation
Court held that the Speaker can reject the resignation, if the Speaker is satisfied that resignation was “not voluntary or genuine”. But if he receives information that a member tendered his resignation under coercion, he may choose to commence a formal inquiry to ascertain if the resignation was voluntary and genuine.
~ Disqualification proceedings after Resignation
Court didn’t agree with the submission of the MLAs that the disqualification proceedings cannot be continued if the resignations are tendered. Court held that, if the resignation is tendered, the act resulting in disqualification arising prior to the resignation does not come to an end. The pending or impending disqualification action in the present case would not have been impacted by the submission of the resignation letter, considering the fact that the act of disqualification in this case have arisen prior to the members resigning from the Assembly.
~Validity of Disqualification order
Court held that the MLAs have not been able to establish any illegality in the orders passed by the Speaker. The Speaker had concluded based on material and evidence that the members have voluntarily given up their membership of the party, thereby accruing disqualification in terms of the Tenth Schedule, which facts cannot be reviewed and evaluated by this Court in these writ petitions. So, we have to accept the orders of the Speaker to the extent of disqualification.
~ Power of the Speaker to direct disqualification till the expiry of the term
The Tenth Schedule of the Constitution while dealing with disqualification on account of defection, does not specify the consequences or period of such disqualification.Speaker, does not have the power to either indicate the period for which a person is disqualified, nor to bar someone from contesting elections.
Court further stated that part of the impugned orders passed by the Speaker which specifies that the disqualification will last from the date of the order to the expiry of the term of the 15th Legislative Assembly of Karnataka to be ultra vires the constitutional mandate, and strike down this portion of the disqualification orders.
WHAT IS ANTI-DEFECTION LAW?
In 1985, Rajiv Gandhi government inserted the 10th schedule in the Constitution that deals with the issue of disqualification of a member for changing his political party or for defying party’s direction by voting against or abstaining from voting by defying a party whip.
It lays down the rules and procedures for disqualification of a member from the house by its presiding officer. The presiding officer can act against such members on the complaints received by any other member of the house.
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