The right of an MLA to resign voluntarily for reasons of conscience is a recognised right. A legislator who chooses to first resign his seat in the Assembly and then joins another party after leaving the House cannot be disqualified under the anti-defection law, Solicitor-General Tushar Mehta, appearing for Karnataka Speaker Vishweshwar Hegde Kageri told the Supreme Court on Wednesday.
“It is not defection if you give up membership of a political party for reasons of conscience, then you resign and go back to face the public mandate. This is recognition of the MLA’s right to resign,” Mr. Mehta submitted before a three-judge Bench, led by Justice N.V. Ramana.
In an oblique reference to the disqualification of 17 Congress and Janata Dal (S) MLAs by his predecessor, K.R. Ramesh Kumar, the Solicitor-General, speaking for Mr. Kageri, said: “It is high time Your Lordships lay down guidelines for Speakers”.
“How can we lay down guidelines for the Speaker? He is a constitutional authority ... We cannot encroach,” Mr. Justice Ramana shot back at the top law officer.
Mr. Mehta persisted in his line of argument that “changing political parties as an MLA was defection, but resigning from the House and subsequently shifting to another party to face elections does not amount to defection under Schedule 10 of the Constitution”. But Justice Sanjeev Khanna, on the Bench, orally observed that the reality behind a resignation may be completely different from the reasons given in the resignation letter or conveyed to the public.
“What is written on paper may be different from what is the reality. An MLA may be intentionally resigning from the Assembly to join another party. Or, there are cases where disqualification motion may already be pending against the MLA who opts to resign ... What do you make of that?” Mr. Justice Khanna asked Mr. Mehta.
The Solicitor-General replied that for an MLA, his constituency is sovereign. A party whip cannot stop him from doing good for his electorate. In such cases, the legislator may opt to resign than continue his participation in an ineffectual government.
Senior advocate C.A. Sundaram, for disqualified Congress MLA D. Sudhakar, submitted that the authority of the Speaker when faced with the resignation of an MLA is limited. The Speaker is to only see if the resignation is voluntary or genuine.
“The Speaker is to check whether someone is holding a gun to the head of the resigning MLA or whether the resignation letter is a forgery,” Mr. Sundaram submitted.
“A Speaker is not the party boss. He is the master of the House and not the president of the party,” Mr. Sundaram submitted.
Senior advocate Mukul Rohatgi, for some other disqualified legislators, highlighted the procedural flaws in the events leading to the disqualification, including the lack of notice period.
The Election Commission (EC) has already orally conveyed to the Supreme Court that an Assembly Speaker cannot deprive disqualified Karnataka legislators from contesting the bypolls due on October 21. The last date for nominations is September 30.
Mr. Rohatgi said the court should stay the notification issued on Saturday last as regards byelections to 15 Karnataka Assembly constituencies or, in the alternative, give them permission to contest the polls in October.
Senior advocate Rakesh Dwivedi, for the EC, said there is “much to say” in the manner in which the MLAs were disqualified from the House by the former Karnataka Assembly Speaker on the charge of violating the anti-defection law.