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SC upholds disqualification of 17 Karnataka MLAs by Speaker
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- The Supreme Court on 13 Nov upheld the disqualification of 17 dissident Congress and Janata Dal (Secular) legislators by then Karnataka Assembly Speaker K.R. Ramesh Kumar under the Tenth Schedule (anti-defection law) but held that their ouster was no bar to contesting repolls.
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- The Judgement
(1) Neither under the Constitution nor under the statutory scheme it is contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections.
(2) Section 36 of the Representation of the People Act, 1951, does not contemplate such disqualification.
(3) 91st Amendment provisions were brought in specifically to ensure that a legislator disqualified for defection was not appointed as a government Minister or to any remunerative post from the date of his disqualification either till the expiry of his term of office or till he was reelected to the legislature, “whichever is earlier”.
(4) In the light of the existing constitutional mandate, the Speaker is not empowered to disqualify any member till end of the term.
(5) 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,”.
- The court has, with this judgment, paved the way for the ousted legislators to contest the coming bypolls in December and face their electorate with the “taint” of disqualification on them.
- The court rejected the MLAs’ contention that their disqualification was invalid as they had tendered their resignations.
- Act of defection
(1) The act that led to their disqualification preceded their offer of resignation.
(2) The court said: “We do not agree with the submission of petitioners that the disqualification proceedings cannot be continued if the resignations are tendered... “Disqualification relates back to the date when the act of defection takes place. Factum & taint of disqualification does not vapourise by tendering resignation letter to Speaker. A pending or impending disqualification action does not become infructuous by submission of resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter.”
(3) The court noted that it would defeat the purpose of the Tenth Schedule if it was held that disqualification proceedings would become infructuous upon tendering resignation.
(a) Resignation and disqualification were “distinct mechanisms provided under the law which result in vacancy” but they had very different consequences.
- Court upheld the MLAs’ submission that they had a right to resign.
Sources
The Hindu