New Delhi: The Supreme Court Wednesday upheld the disqualification of 17 Karnataka MLAs, but allowed them to contest bypolls on 5 December.
The court was hearing the pleas of the 17 disqualified Congress and JD(S) MLAs in Karnataka, who had challenged the orders of the then assembly speaker K.R. Ramesh Kumar when he didn’t accept their resignations, and instead, disqualified them.
In the 109-page judgment by the bench comprising Justices N.V. Ramana, Sanjiv Khanna and Krishna Murari, “constitutional silences” saved the day for the 17 MLAs, allowing them to contest despite being disqualified under the anti-defection law. ThePrint explains.
Aaya Ram, Gaya Ram
The phrase ‘aaya Ram, Gaya Ram’ became popular in Indian politics after Haryana MLA Gaya Lal changed his party twice within a few hours and thrice within a fortnight in 1967.
The anti-defection law, enshrined in the Tenth Schedule of the Constitution of India, was inserted in 1985 to prevent such political defections.
It allows a legislator to be disqualified if he/she either “voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote”. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his/her membership of the house.
India was one of the first countries to formulate a law on defection. Many other countries like Israel and Canada followed suit.
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No illegality in disqualification order
The court upheld the orders of disqualification, opining that there was sufficient material available before the Speaker to disqualify the MLAs, and that the MLAs had failed to show any illegality in the Speaker’s orders.
The MLAs had contended that the Speaker had violated “principles of natural justice” by providing them with only a three-day notice, when Rule 7(3)(b) of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, provides for a seven-day notice period.
However, the court was of the view that instead of the number of days, it was to be seen whether “an effective opportunity of hearing” was provided to them. To this end, it examined individual cases to uphold the challenged orders.
‘Constitutional silences’
The Speaker’s order had not just disqualified the MLAs but had also specified the time period for which they would be disqualified — they would be barred from contesting elections for the whole term of the 15th Karnataka legislative assembly, which is supposed to end in 2023.
The court held this to be in excess of the Speaker’s powers, referring to the absence of any consequences or period of disqualification in the Tenth Schedule.
It also referred to Article 191 of the Constitution of India, which provides for disqualification of a legislator from the membership of the assembly or legislative council of a state. Article 191(2) specifically deals with disqualification under the Tenth Schedule.
The court pointed out that even this provision does not state that the disqualification is to operate for a particular period or duration.
The court also focused on the phrases used within Article 191.
Article 191 (1), which is a general provision, uses the terms “for being chosen as” and “for being” a member of the house in the context of disqualification. Article 192(2) only uses the phrase “for being a member”.
This, it said, meant that the disqualification under the Tenth Schedule did not mean that the disqualified person would not be allowed to become a member subsequently.
Pointing out the absence of any provision specifying such a term of disqualification, the court then asserted: “Constitutional silences cannot be used to introduce changes of such nature.”
The court refused to accept the submission that the Speaker has an “inherent power” to pass such restrictions.
It also rejected the contention that “political exigencies” required such measures to be taken, and instead opined: “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.”
The court, therefore, held that the Speaker’s order could not have specified that the disqualification would last till the expiry of the term.
It, however, added that the disqualification would be subject to Articles 75(1B), 164(1B) and 361B of the Constitution, which provide 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 the legislator’s office would expire or if the legislator is re-elected, whichever is earlier.
Suggestion for Parliament
The court also commented on the need for the Speaker to act independently, and asserted that “his political affiliations cannot come in the way of adjudication”.
It took note of the “growing trend” of Speakers not acting neutrally and political parties indulging in horse- trading. Pointing out that this deprives citizens of stable governments, the court indicated the need for “strengthening” the Tenth Schedule.
The respondents had also suggested that the court should consider the need for a “stricter model of disqualification” and that someone who jumps party lines should be punished instead of being encouraged.
The court, however, opined that an “extreme stand” on disqualification “could have a chilling effect on legitimate dissent”. In any case, it said any policy change falls within the legislative forte.
“In these circumstances, Parliament is required to reconsider strengthening certain aspects of the Tenth Schedule, so that such undemocratic practices are discouraged,” the court asserted.
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