While holding that MLC A.H. Vishwanath is ex-facie disqualified under the anti-defection law for being considered for appointment as a minister, the Karnataka High Court has left it to the Chief Minister and the Governor to consider this aspect as per the Constitutional mandate when considering him to induct into the the council of ministers.
However, the Court said that no such disqualification is operating against two other MLCs, R. Shankar and N. Nagaraj (MTB), for considering them for the post of ministers, as they were duly elected to the Legislative Council in the elections held from the Legislative Assembly.
A Division Bench comprising Chief Justice Abhay Shreeniwas Oka and Justice S. Vishwajith Shetty passed the interim order on the separate PIL petitions, filed by Harisha A.S., a city-based advocate, G. Mohan Kumar, and S. Rukmangada, both residents of Bengaluru.
However, the Bench pointed out that the Governor and the Chief Minister, both constitutional functionaries, are required to consider this aspect in terms of the constitutional provisions without issuing any directions to them.
Noticing that Mr. Vishwanath was nominated to the Council and was not elected as per the constitutional provisions, the Bench said that he attracted disqualification from being considered for the post of minister or politically remunerative post in July 2018 and the same is operating as on today he was not got elected to either of houses of the State Legislature as required under the constitutional provisions.
It was contended in the petition that the move, published in the media, to induct the trio into the Council of Ministers would be contrary to Article 164 and 361B of the Constitution.
The petitioner alleged that the trio were given entry into the Legislative Council with the sole purpose of inducting them into the Council of Ministers even though Mr. Vishwanath and Mr. Nagaraj had lost in the byelections in their respective Assembly constituencies after their disqualification. Mr. Shankar did not contest from the Assembly constituency after his disqualification, the petitioner said.
However, Mr. Nagaraj and Mr. Shankar were subsequently elected to the Legislative Council from the Legislative Assembly, and Mr. Vishwanath was nominated to the Council from the field of literature.