They can't vote in the Rajya Sabha election scheduled for March 4

The Supreme Court on Tuesday refused to stay the Karnataka High Court's Full Bench judgment upholding the disqualification of five Independent MLAs for defection.

A Bench of Justices Altamas Kabir and Cyriac Joseph also declined the request of the five MLAs that they be permitted to vote in the Rajya Sabha elections scheduled for March 4, and their votes be kept in a sealed cover. (Actor Hema Malini is the BJP candidate for one seat in Karnataka.)

After hearing senior counsel K.K. Venugopal and P.P. Rao for the petitioners and senior counsel Soli Sorabjee and P.S. Narasimha for the Chief Whip of the BJP, Jeevaraju, the Bench refused to stay the impugned judgment at this stage. But it issued notice on the main appeal as well as on the stay applications.

Initially, Justice Kabir told Mr. Sorabjee that to balance the interests of both the parties, the five MLAs could be allowed to vote, but their votes would not be counted. But later, the Bench declined to pass this order. It asked the parties to file their responses and replies and posted further hearing for March 29.

Mr. Venugopal argued that S. Thangadagi, D. Sudhakar, Venkataramanappa, Gulihatti D. Shekar and P.M. Narendra Swamy, disqualified on October 10, 2010, must be allowed to vote in the Rajya Sabha election. He suggested that their votes be kept in a sealed cover, and the election be subject to the outcome of their appeal.

However, Mr. Sorabjee said that as of now the MLAs were disqualified and not members of the Assembly. Allowing them to vote would have an indirect effect of stay on the judgment. It would needlessly create uncertainty in the election.

Mr. Sorabjee said that putting the votes in a sealed cover might be alright in panchayat elections, but not in Rajya Sabha elections when the five MLAs were disqualified and no longer members of the Assembly.

The Full Bench of the Karnataka High Court had dismissed their writ petitions against the Speaker's decision to disqualify them.

The petitioners said the Speaker's decision, which the High Court upheld, was ex facie illegal and without jurisdiction, and was null and void. The BJP had always treated them as independents, even when they served as Ministers, they said.

The special leave petitions said independent members joining the Council of Ministers, without joining the ruling party, could never result in disqualification.