Following the judgment of the Supreme Court which upheld the disqualification of 17 MLAs of Karnataka Assembly, but did not debar them from contesting elections again, in absence of any constitutional provision for the same, the BJP issued a press release on November 14 declaring the names of candidates from their party who would be contesting the bye-elections. This included 13 MLAs from the Congress-JD(S) alliance, who were disqualified by reason of having defected. The Chief Minsiter, B S Yediyurappa declared that the rebel legislators would be given ministry portfolios. “These MLAs have sacrificed everything to ensure that the BJP comes to power in the state. Due to this, all BJP workers should join hands and ensure that they are re-elected to the Assembly,” he said.
Part of the press release:
Background
The results of Assembly elections in Karnataka were declared on May 15, 2019 in which BJP had won 104 seats and congress had 78 seats. Janata Dal (Secular) had acquired 37 seats. A coalition government of Congress and JD(S) was formed but this government only lasted for 14 months as the Chief Minister, Kumaraswamy lost the trust vote in the House on July 23, 2019. Following the trust vote which went against the coalition government, a few disqualification orders were passed by the Speaker leading to the disqualification of 17 MLAs, 15 of which belong to the Congress party, 1 belonged to JD(S) and one was an independent candidate of KPJP (Karnataka Pragnyavantha Janatha Party). Dissatisfied by these orders, the MLA’s approached the Supreme Court by filing 9 writ petitions.
The judgment
The judgment authored by Justice N.V. Ramana was unanimous from a bench including two other judges, namely, Justice Sanjiv Khanna and Justice Krishna Murari. The judgment which is about a 100 pages delves into the details of the authority of the Speaker of a Legislative Assembly as provided for the Constitution, thescope of judicial review in a decision of the Speaker and the law of defection. The court observed with disdain that there has been a trend of Speakers of Legislative Assemblies acting against their constitutional duty of being neutral and also how horse trading and defection have denied the citizens stable governments.
The Four Main Issues
1. Whether the Writ Petition challenging the order of theSpeaker under Article 32 is maintainable?
“In Jagjit Singh v. State of Haryana[1], (this court) has explicitly held that a challenge to an order of disqualification under the Tenth Schedule is available under the writ jurisdiction of this Court.”
The Court however noted, “that by challenging the order directly underArticle 32, the Petitioners have leapfrogged the judicial hierarchy as envisaged under the Constitution.”
The Court still proceeded with the matter since certain interim orders had already passed by a co-ordinate bench of the court in one of the writ petitions and so that the same exercise is not repeated before a High Court, to save the precious time of judiciary, the Supreme Court heard the matter on merits.
Giving rest to this issue, the bench finally noted,“Despite the fact that this Court has sufficient jurisdiction to deal with disqualification cases under the writ jurisdiction, a party challenging a disqualification order is required to first approach the High Court as it would be appropriate, effective and expeditious remedy to deal with such issues.”
2. Whether the order of the Speaker rejecting the resignation and disqualifying the Petitioners is in accordance with the Constitution?
While examining the scope of judicial review in case of rejection of resignation of members by the Speaker, the court held thus, “Determination ofwhether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the Speaker, instead it has to be based on his “satisfaction. Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine…. This satisfaction of the Speaker is subject to judicial review.” Article 190(3)(b) provides that the resignation tendered by the members should be voluntary and genuine and the Speaker should be satisfied that the resignation is voluntary and genuine. This was a proviso inserted by the 33rd Amendment Act, 1974.
The Court held that “genuine” referred to the authenticity of the resignation letter and “voluntary” meant a resignation which is not based on threat, force or coercion. The Supreme Court dismissed the contention that the Speaker can go into the motive of the member behind such resignation.
The court finally held that, “Once it is demonstrated that a member is willing to reign out of 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 Court refused to admit that after tendering of resignation an order of disqualification is not valid. The court instead held that, “If we hold that the disqualification proceedingswould become infructuous upon tendering resignation, any member who is on the verge of being disqualified would immediately resign and would escape from the relevant sanctions in the Constitution.” The Court also held that “Courtsare obligated to take an interpretation which glorifies the democratic sprit of the Constitution[2].” The court further held that in this case, the act which resulted in the eventual disqualification took place before the tendering of the resignation and hence the resignation tendered, even if before the disqualification order would not be upheld.
3. 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?
The Speaker had issued the disqualification orders as the petitioners had voluntarily given up the membership of their respective political parties, which was apparent from the fact that the members did not attend meetings called by the party, despite of having been issued a whip, for one reason or the other, which were eventually held to be invalid and false, in some cases.
The Court, further, drew a distinction between two types of disqualifications of members of Legislative Assembly, as provided for in Article 191(1) and (2) of the Constitution. While Article 191(1) disqualifies a member for being chosen as and for being a member, Article 191 (2) which deals with disqualification under the Tenth Schedule, provides for disqualification for being a member. This means that a member disqualified under the tenth schedule is only disqualified from being a member and it is inferred that such a member can contest elections again.
While upholding only the disqualification part of the orders, the Court held, “The Speaker, in our view, 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.”
The court further held that, “ Since neither the Constitution nor any Act provides for defection to another party as a bar from contesting further elections, reading such a bar into the nebulous concept of the inherent powers of the Speaker is impermissible and invalid.”
The Court also held that sufficient opportunity was given to the petitioners of being heard and hence the disqualification order were not in violation of principles of natural justice.
4. Whether the issues raised require a reference to the larger Bench?
The Court held that question of constitutional interpretation would arise only if two or more possible constructions are sought to be placed on a provision, which was not the situation in this case. Hence, the issues did not require a reference to a Constitution Bench.
The Defection Menace
The issue of defection has preoccupied the national conscience from the 1960s. Having experienced earlier Governments falling due to such practice, the legislature introduced the bill inserting the Tenth Schedule (Provisions as to Disqualification on Ground of Defection) in the Constitution, for discouraging such practice. In Kihoto Hollohan v. Zachillhu[3], this Court, about the Tenth Schedule, had observed, “The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House.”
As a deterrent to defection, a few other Articles were added to the Constitution [75(1B), 164(1B) and 361B], which barred any person who is disqualified under the Tenth Schedule 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 reelected to the legislature, whichever is earlier.
The provisions of the Tenth Schedule however fall weak when dealing the problem of defection as a whole, since if the defecting member is allowed to contest for the by elections of the same term, it is likely that they will get elected again and their disqualification in the first place would hold no value. The Court hence mentioned that the parliament ought to reconsider the provisions of the tenth Schedule to discourage such undemocratic practices.
Key takeaways:
- Speaker is a quasi-judicial body and his/her decision is not completely outside of judicial review
- The Court observed that there is a dire need for amendment to the Constitution in order to include stronger deterrents in case of defection.
- A resignation tendered by a member does not amount to him not being a member and a disqualification order still holds against such member, especially if the act of defection occurred before the resignation.
- The right legal approach in cases of disqualification of MLAs is to approach the High Court first, for it to decide the case on its merits.
- This case does not set a precedent on the amount of time to be provided by the Speaker to respond to a hearing of a disqualification petition. In this case, even though only 3 days’ time was granted, it was held to be valid by the court, in the light of the unique facts and circumstances of the case.
- The Constitution does not debar a member disqualified under Tenth Schedule from re-contesting elections even within the same term.
The full judgment can be read here:
