The Supreme Court on Wednesday 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 is no bar from contesting repolls.
“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,” a Bench led by Justice N.V. Ramana said in a judgment.
The court said Section 36 of the Representation of the People Act, 1951 does not contemplate such disqualification.
Referring to the provisions introduced in the 91st Constitutional Amendment, it said they 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 re-elected to the legislature, “whichever is earlier”.
“In the light of the existing constitutional mandate, the Speaker is not empowered to disqualify any member till the end of the term. 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 held.
In short, the court has, with this judgment, paved the way for the ousted legislators to contest the coming by-polls in December and face their electorate with the “taint” of disqualification on them.
“Object and purpose of the Tenth Schedule is to curb the evil of political defection motivated by lure of office or rather similar considerations which endanger the foundation of our democracy,” Justice Ramana, who authored the verdict, wrote.
Separate petitions
The judgment was based on separate petitions filed by the disqualified legislators against their ouster by Mr. Kumar.
The court said, “The Speaker, being a constitutional functionary, is generally presumed to have adjudicated with the highest traditions of constitutionalism.”
It was for this very reason that the Constitution has limited the powers of the court to judicially review the Speaker’s order under the Tenth Schedule.
Justice Ramana held that an order of the Speaker under the Tenth Schedule could be subject to judicial review only on four grounds: mala fide, perversity, violation of the constitutional mandate and order passed in violation of natural justice. He referred to the Constitution Bench decision in the Kihoto Hollohan case in this context.
The court rejected the MLAs’ contention that their disqualification was invalid as they had tendered their resignations. But it said the act that led to their disqualification preceded their offer of resignation.
The court said: “We do not agree with the submission of the 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 and taint of disqualification does not vapourise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter.”
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.
If that was so, the court reasoned, “any member who is on the verge of being disqualified would immediately resign and would escape from the sanctions provided under Articles 75(1B), 164(1B) and 361B”.
Resignation and disqualification were “distinct mechanisms provided under the law which result in vacancy” but they had very different consequences.
Right to resign
The court, however, upheld the MLAs’ submission that they had a right to resign. “A member may choose to resign for a variety of reasons and his reasons may be good or bad but it is his sole prerogative to resign. An elected member cannot be compelled to continue his office if he chooses to resign,” the judgment observed.
Justice Ramana said the Speaker’s enquiry on a resignation should be confined to whether it was a voluntary and genuine act. The Speaker had the discretion to reject a resignation but his decision should be based on “objective material” and not just ipse dixit (an assertion).
On the MLAs’ contention that the Speaker did not give them reasonable time to defend themselves before disqualifying them, Justice Ramana said that would depend on the “unique facts and circumstances” of each case.
However, the Speaker could not cut short the hearing period. “The Speaker should give sufficient opportunity to a member before deciding a disqualification proceeding and ordinarily follow the time limit prescribed in the Rules of the Legislature,” Justice Ramana wrote.
The court said a Speaker, a constitutional authority, should not replace constitutional authority with political morality.
“There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further, horse-trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked,” Justice Ramana wrote.
The court dismissed the Congress-JD(S) contentions to send the petitions to a larger Bench to adjudicate “substantial questions of law”.
The court also rejected the Congress-JD(S) argument against the maintainability of the petitions filed under Article 32 of the Constitution. It said the Speaker had passed the order in the role of a tribunal. The court recognised this role of the Speaker, and hence, it could review the disqualification.
