Henceforth, legislators who wish to defect need not dread the Tenth Schedule to the Constitution, dealing with the disqualification of elected representatives on the grounds of defection. Before indulging in any anti-party activity which could invite disqualification under the schedule, they need to simply send in their resignation letters to the presiding officers of the house to which they have been elected as members.
If their resignation letters precede the cause of action of their disqualification proceedings, the speakers ought not to inquire into their motivation for resigning their seats. The speakers ought to satisfy themselves by ensuring that the resignation letters were not forged by others, and that the members who resigned did not do so out of coercion.
If the members who resign do so because of some allurement from other parties, the speaker ought not to cite that as a ground for rejecting their resignations.
The Supreme Court bench comprising Justices N.V. Ramana, Sanjiv Khanna and Krishna Murari on Wednesday, in its judgment in Shrimanth Balasaheb Patil v Hon’ble Speaker, Karnataka Legislative Assembly and others, (authored by Justice Ramana) did not have to pronounce on the validity of the rejection of resignations of 17 MLAs by the former speaker of the Karnataka assembly, because it found that their acts of disqualification arose prior to their submission of resignation letters.
Since the bench found their disqualification by the speaker constitutional, it did not have to adjudicate the question of whether the speaker’s rejection of their resignation letters was valid. But that did not prevent the bench from laying down the principles to guide the speaker’s decision in future.
The Karnataka MLAs disqualification case posed an unprecedented dilemma before the Supreme Court in that whether the MLAs who defect could evade the rigours of the Tenth Schedule, by submitting their resignations. The court knew that the MLAs wanted to resign, in order to avoid disqualification by the speaker, and thereby avail the perks of office offered by the then opposition, the BJP, in the event of the latter forming the government, after the fall of the JD(s)-Congress alliance led by the former chief minister, H.D.Kumaraswamy.
As the constitution permits non-members, if not otherwise disqualified as members, to continue as ministers for six months, the period within which they should get reelected, they chose to resign from the assembly, rather than from their parties, which could have resulted in their disqualification under the Act. But the bench missed an opportunity to lift the veil behind their resignation from the assembly, and instead considered it as an act with no bearing on defection.
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The former Karnataka speaker took a controversial decision in disqualifying the 17 MLAs for the rest of the current assembly’s term, so that they do not contest by-elections to seek reelection and resume their membership of the house, and enjoy the rewards offered by the opposition to lure them away from the coalition which ruled the state earlier. The bench, however, struck down this action of the speaker as unconstitutional, and declared them eligible for contesting the by-elections to the assembly.
The bench, while doing so, dwelt upon the importance of party politics in a democracy, and arguably justified the requirement of stability within the government to facilitate good governance, which it claimed is mandated under our constitution. The bench erroneously assumed that good governance is not possible if the government is not stable and therefore, if a few MLAs resign from their seats in order to provide “stability” to the government of the opposition, so be it.
By approving the disqualification of these MLAs (while declaring their disqualification for the rest of the assembly’s term as unconstitutional), the bench has made the end-result of resignations and disqualifications similar. Under both situations, the MLAs have to recontest to secure their reelection to the assembly. Therefore, it does not really matter whether the Speaker accepts their resignations or disqualify them, except of course, for the fact that a member whose resignation is accepted, but not disqualified, may be in a position to become a minister for six months, without getting reelected to the assembly.
“The separation between dissent (as represented by resignation) and defection requires to be made apparent, so that democratic values are upheld in balance with other constitutional considerations”, the bench observed, clearly refusing to acknowledge that the line of demarcation between the two is often blurred.
MLAs who resigned from the Congress-JD(S) alliance. Photo: PTI/Files
The bench would have clearly wanted the petitioners in the case to have first exhausted the remedy of approaching the high court first, before seeking the Supreme Court’s intervention. But the peculiar facts of this case, wherein another bench of the Supreme Court had already passed certain orders, prevented this bench from closing the doors on the petitioners on this ground.
Determination of whether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the speaker, instead, it has to be based on his “satisfaction”. Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine, the bench held. The satisfaction of the speaker is subject to judicial review, it added.
“On a consideration of the totality of the facts brought on record before us, it cannot be held that the findings of the Speaker are so unreasonable or unconscionable that no tribunal could have arrive at the same findings”, the bench concluded.
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“The Speaker decided that the members voluntarily gave up their membership of the party. We cannot review the facts and evaluate them in these petitions”, the bench observed refusing to go into the merits of speaker’s decision to disqualify the MLAs under the Tenth Schedule.
“Principle of natural justice is not a straitjacket formula”, the bench said while dismissing concerns that the Speaker’s decision to grant just three days to these MLAs to respond to the notices of disqualification was against natural justice.
Disqualification for the end of the assembly’s term?
The absence of the words “being chosen as” in Article 191(2) – in contrast to Article 191(1) – suggests that a person who is no longer a member due to disqualification under Tenth Schedule does not suffer from the additional infirmity of not being allowed to become a member subsequently. Therefore, such a person is not barred from contesting elections. The Returning officer, at an election, under Section 36(2)(a) of the RPA, can only reject a nomination if a candidate is disqualified “for being chosen” to fill the seat under Article 191 of the constitution, the bench reasoned.
Both Articles 164(1B) and 361B show that disqualification does not bar a person from contesting elections. The outer period of disqualification is either till the end of the term or till the disqualified member is re-elected, whichever is earlier. Therefore, the constitution contemplates a situation where an election takes place prior to the end of the term of the house, the bench further added.
Supreme Court of India in New Delhi. Photo: PTI
The speaker does not have any explicit power to specify the period of disqualification or bar a member from contesting elections after disqualification until the end of the term of the legislative assembly, the bench clearly held.
Such an extreme stand could have a chilling effect on legitimate dissent; such a change in the policy cannot be looked into by this court, as the same squarely falls within the legislative forte, the bench further explained.
The desirability of a particular rule or law should not in any event be confused with the question of the existence of the same, and constitutional morality should never be replaced by political morality, in deciding what the constitution mandates, the bench reasoned. The bench thus struck down the part of the impugned orders passed by the speaker which specifies that the disqualification would last from the date of the order to the expiry of the term of 15th legislative assembly of Karnataka as ultra vires the constitutional mandate. As this does not go to the root of the order, it does not affect the aspect of legality of the disqualification orders, the bench said while justifying its decision to sever the two aspects of the Speaker’s order.
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“Parliament should reconsider strengthening of certain aspects of the Tenth Schedule, so that such undemocratic practices are discouraged. There is a growing trend of Speakers acting against the constitutional duty of being neutral. Additionally, political parties are indulging in horse trading and corrupt practices, due to which the citizens are denied the stable governments”, the bench observed without going into the specifics.
No substantial questions of law exist in the present matter which needs reference to a larger bench, the bench held while dismissing pleas of the respondents. But a relook by a larger bench may become inevitable in future, as this decision opens the door for defections through re-election or resignation to circumvent the rigours of the Tenth Schedule.