Decoding the SC Order on Disqualification of K’taka Rebel MLAs
The Congress & JD(S) rebel MLAs will be able to stand for the upcoming bypolls on 5 December.
On Wednesday, 13 November, the Supreme Court upheld the disqualification of 17 rebel MLAs by former Karnataka Assembly Speaker KR Ramesh Kumar.
While doing so, however, the judges struck down the part of Kumar’s orders which said the MLAs were disqualified for the current Assembly’s term ie, till 2023. Consequently, the Congress and JD(S) rebels who brought down the coalition government in the state will be able to stand for the upcoming bypolls on 5 December – which are being held as a result of their own resignations.
When they submitted their resignations, then Speaker Kumar took a long time to make his decision on whether to accept their resignations, claiming he was empowered under Article 190 of the Constitution to assess whether or not the resignations were ‘genuine’.
At the time, the Speaker’s argument was that the MLAs’ resignation could have been a way to circumvent the anti-defection law that prevents them from quitting their party or changing sides and switching over to a different party.
The rebel MLAs approached the Supreme Court back in July to challenge the delay in the decision of their resignations. Then the apex court had held that the Speaker could not be forced to deliver a decision on the resignations within a set time-frame as the Constitution indeed allowed him to conduct an inquiry.
However, the Bench headed by CJI Ranjan Gogoi also held that while the Speaker decided on the resignations, the MLAs could not be forced to take part in any Assembly proceedings, including a trust vote in HD Kumaraswamy’s government, which was to take place in the days which followed.
The rebel MLAs were, therefore, able to skip the crucial trust vote, leading to the end of the coalition government, and allowing BJP leader BS Yeddiyurappa to form the government.
By the end of July, Kumar had disqualified the 17 rebel MLAs under para 2(1)(a) of the Tenth Schedule of the Constitution of India – the dreaded anti-defection law. He expressly clarified it meant they would cease to be members of the Karnataka Legislative Assembly “till the term of the incumbent Assembly of Karnataka”.
The rebel MLAs approached the apex court and asked for bypolls to be deferred from October – when bypolls had been scheduled in three states including in Karnataka – and the apex court and Election Commission eventually agreed to have the bypolls in Karnataka rescheduled to early December.
What Did the SC Order Observe?
On whether or not former Speaker Ramesh Kumar could disqualify MLAs who had resigned?
The court said the Speaker has the power under Article 190 to conduct an inquiry and assess whether the resignations of the MLAs were genuine. The Speaker also has the power to disqualify MLAs if they deem the resignations are not genuine – resignation does not mean the MLAs are no longer subject to the Speaker’s jurisdiction, as this would defeat the very purpose of the anti-defection law.
On whether the decision of the Speaker can be subject to judicial review? To what extent can a decision of the Speaker be reviewed?
The relevant law on this issue has been clarified in the Kihoto Hollohan vs Zachillhu case from 1992. In that case, the Supreme Court had held the courts can only overturn a decision of the Speaker if there is some perversity or illegality in the order they have given – otherwise, the Speaker has to be allowed to use their discretion as given to them under the law.
In the case of Karnataka, the judges said the rebel MLAs hadn’t been able to show any perversity or illegality in the Speaker’s orders disqualifying them. The court observed that Kumar had examined enough material before arriving at the decision to disqualify the MLAs. Therefore, the SC couldn’t interfere with the decision.
On whether the Speaker could disqualify the rebel MLAs till the end of the Assembly’s term?
The judges then examined whether the Speaker had the authority to decide till when the disqualification would apply.
They observed that there was no basis for the Speaker to disqualify the rebel MLAs for the entire term of the current Assembly, and so this part of his orders had to be struck down.
They noted the difference between the language used in Article 191(1) of the Constitution (which deals with disqualification for convictions and other conditions under the Representation of People Act) and Article 191(2) (which specifically deals with disqualification under the Tenth Schedule), and the corresponding language in provisions of the Representation of People Act 1951.
When it comes to anti-defection disqualifications, the language clearly indicates that the person is disqualified till the expiry of the term of the Assembly OR they are re-elected, whichever is earlier.
The judges expressly rejected the arguments posited by senior advocate Kapil Sibal on behalf of the Speaker, who said that this interpretation would render the anti-defection law ineffective, and laid down the following conclusions which will be important in any such case, going forward:
“Therefore, neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections.”
“It is clear that nothing can be added to the grounds of disqualification based on convenience, equity, logic or perceived political intentions.”
“From the above, it is clear that the Speaker, in exercise of his powers under the Tenth Schedule, does not have the power to either indicate the period for which a person is disqualified, nor to bar someone from contesting elections.”
‘Political Morality Cannot Dictate Constitutional Morality’
Sibal’s argument included a suggestion that in cases such as this, the court should consider “a stricter model of disqualification wherein a person who has jumped the party lines should not be encouraged and should be punished with severe penal consequences for attempting to do so.”
However, the top court rejected this argument, saying that added that law cannot allow political morality to dictate constitutional morality, thus, the Speaker couldn’t be given such powers and the decision had to be grounded in the letter of law.
At the same time, the judges noted that there was a trend of Speakers making political decisions rather than doing their job as constitutional functionaries, and emphasised the need for those holding this position to act in a neutral manner. They also recognised that “political parties are indulging in horse-trading and corrupt practices, due to which the citizens are denied of stable governments.”
As a result, they suggested the Parliament consider strengthening the anti-defection law in the Tenth Schedule “so that such undemocratic practices are discouraged.”
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