SC clears way for 17 disqualified Karnataka MLAs to contest 5 December bypolls

The top court observes in its ruling that there is a growing trend among assembly Speakers to act against constitutional mandate.

Dissident MLAs from JD(S) and Congress | Photo: Shailendra Bhojak | PTI

New Delhi: The Supreme Court Wednesday upheld the disqualification of 17 Karnataka MLAs, even as it said the Speaker cannot dictate the duration of the disqualification, paving the way for the MLAs to contest bypolls on 5 December.

The verdict was delivered on the pleas of the 17 disqualified Congress-JD(S) MLAs in Karnataka who had challenged the orders of the then assembly speaker K.R. Ramesh Kumar who didn’t accept their resignations and instead disqualified them.

A three-judge bench of Justice N.V. Ramana, Justice Sanjiv Khanna and Justice Krishna Murari had reserved its verdict on 25 October on the petitions filed by these disqualified MLAs.

In its order, the court refrained from commenting on the validity of the MLAs’ resignations, and observed that there is a growing trend among speakers acting against constitutional mandate.

“Citizens are denied stable governments,” noted the apex court.

Kumar had disqualified the 17 MLAs of the ruling Congress-JD(S) coalition ahead of a trust vote in July. Then chief minister H.D. Kumaraswamy had resigned after losing the vote, which paved the way for the BJP-led government in the state under B.S. Yediyurappa.

Bypolls to 15 out of these 17 assembly seats, which fell vacant following the disqualification of the MLAs, are scheduled on 5 December. Candidates are required to file their nomination papers between 11 November and 18 November.

‘Constitutional morality’

As it cleared the way for the barred MLAs to contest again, the court noted that “constitutional morality should never be replaced by political morality, in deciding what the Constitution mandates”.

“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,” the court said.

“We must be careful to remember that the desirability of a particular rule or law, should not in any event be confused with the question of existence of the same, and constitutional morality should never be replaced by political morality, in deciding what the Constitution mandates,” it added.

‘Vengeance’

While reading out the verdict, Justice Ramana said the bench didn’t appreciate the manner in which petitioners had approached the Supreme Court, adding that the high court should have been the first option.

The court also said that resignation was not a question that court could venture into.

“Since we are deciding disqualification, resignation not needed to be gone into. As such there is no doubt that disqualification has nothing to do with resignation. Resignation does not take away power of disqualification of speaker,” said the court.

The disqualified MLAs had last week approached the apex court seeking a direction to the Election Commission to postpone the assembly bypolls for these 15 seats until the pronouncement of verdict in the matter.

Some of the disqualified MLAs had argued in the apex court that they have an “indefeasible right” to resign as members of the assembly and the decision by the then Speaker to disqualify them smacks of “vengeance” and “mala fide”.

During the arguments in the matter, senior advocate Kapil Sibal, appearing for the Karnataka Congress, had contended that the then Speaker, who was the master of the assembly, had exercised his jurisdiction to disqualify these MLAs and his decision cannot be questioned.

Sibal had also submitted that “the matter needs to be referred to a Constitution bench as it raises matters of grave constitutional importance”.

Solicitor General Tushar Mehta, appearing for the office of the Karnataka assembly Speaker, had submitted that under the scheme of Constitution, a lawmaker has a right to resign and the Speaker should accept it.

The incumbent Karnataka assembly Speaker, V. Hegde Kageri, had earlier told the top court that he has no difficulty in hearing these 17 MLAs and take a “fresh call” on the issue.

The disqualifications had brought the number of the 224-member Karnataka assembly down to 207, putting the majority mark at 104. The BJP has 105 MLAs and is supported by an Independent.

The Congress now has 68 MLAs but 11 of those disqualified belong to the party. The JD(S) has 34 MLAs but three of the rebels belonged to the party. The other rebel set to contest is an Independent.