The Supreme Court on Wednesday gave 15 dissident MLAs of Karnataka complete freedom to opt out of the ongoing Assembly session even as it acknowledged the Speaker’s discretion to decide on their resignations as and when he considers appropriate.
A five-page order pronounced by a Bench led by Chief Justice of India Ranjan Gogoi gave a clear indication to the 15 rebel Congress-Janata Dal (Secular) legislators, led by Pratap Gouda Patil, that they could bail out of the trust vote scheduled for July 18.
“Until further orders, the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same,” the interim order said.
The free run given by the Supreme Court to the dissident legislators means they can defy a party whip without the fear of disqualification for defection under clause 2 (b) of the Tenth Schedule of the Constitution. Clause 2 (b) of the Tenth Schedule mandates that a legislator is liable for defection if he or she “votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf...”
On the other hand, the court said it should not shackle the Speaker’s authority. He should be allowed to arrive at a decision on the resignations at an “appropriate time”.
“In the present case, the discretion of the Speaker while deciding the issue should not be fettered by any direction or observation of this court. The Speaker should be left free to decide the issue in accordance with Article 190 read with Rule 202 of the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly framed in exercise of the powers under Article 208 of the Constitution,” the court held.
The court said the Speaker, once he had taken a call on the resignations, should place his decision before the court.
This shows that the decision of the Speaker and any legal issues sprouting from it would certainly be open for adjudication before the Supreme Court in future.
The court’s order may act as an impetus for the Speaker to take a quick call on the pending disqualification as well as resignation of the MLAs. In fact, senior advocate A.M. Singhvi, for the Speaker, submitted on July 16 – the final day of arguments - that the Speaker could decide both disqualification and resignations “by tomorrow”.
Nevertheless, the Speaker's grounds for rejection of the resignations remains limited. He can reject a resignation only if it is not in proper format or if found to be involuntary or bogus. In this case, the MLAs have already filed sworn affidavits in the court that their resignations are voluntary and genuine.
The Bench described its order on Wednesday as a “prudent” interim exercise and a deft balancing act in the face of “conflicting and competing” rights of the Speaker and the dissident MLAs. The court said the interim order is only meant to maintain the constitutional balance between the authority of the Speaker and the rights of the rebel MLAs.
The decision on Wednesday comes as a complete U-turn from the court's order on July 11, asking the Speaker to decide the resignations of 10 of the total 15 MLAs “forthwith or within the remaining part of the day.”
The Speaker and Chief Minister H.D. Kumaraswamy had argued that the court should let the Speaker take a final decision on the resignations. The MLAs, on the other hand, had accused the Speaker of delaying acceptance of their resignation in order to provide the Kumaraswamy government “something to hang on to.” They said they could not be compelled by the Speaker to participate in the Assembly proceedings.
Five of the 15 MLAs said they were been threatened to support the government in the proposed floor test.