The Supreme Court of India has recently delivered its judgement in the case of Karnataka Members of Legislative Assembly (MLA) disqualification.
Let us look at the case,
Background
The total strength of the Karnataka Legislative Assembly is 225 seats (including one nominated Anglo-Indian member). Article 331 of the Indian constitution gives the power to the President of India and the Governor of a state to nominate two members (In the case of Lok Sabha) and one member (in the case of Legislative Assemblies of the states) respectively, if they are of the opinion that the community is under represented.
The Indian National Congress (INC) under the leadership of Siddaramaiah who was the Chief Minister of the state from 2013-18, lost the elections to the Legislative Assembly conducted in May 2018.
The polls to 222 seats (Jayanagara and Rajarajeshwari Assembly Constituencies did not vote as a sitting candidate passed away and in another, a massive electoral fraud was detected) saw the Bharatiya Janta Party (BJP) emerge as the single largest party winning 104 seats. The INC won 80 seats and the Janta Dal (Secular) won about 37 seats. It wasn’t a decisive victory, rather a hung assembly. Throughout the History of the state, the state has seen only 2 individuals complete their full term in office. The half war mark was in this case 112.
The Governor then nominated a member of the Anglo-Indian community to the state legislature in May 2018, the Supreme Court struck down this decision and suspected the timing of the nomination even as a ‘numbers game’ was going on to prove the majority on the floor of the house. A similar trick had been used before in the state of Jharkhand.
BS Yeddyurappa from the BJP, a former CM was sworn in as the CM by the Governor of Karnataka. The Governor gave a time period of 15 days to the government to prove his majority. Immediately the Supreme Court was approached to stop the government formation as the BJP couldn’t muster support. They fell short by eight seats. The Supreme Court while accepting the petition, over turned the decision of the Governor and granted the BJP three days to prove their majority on the floor of the assembly. Before the vote of confidence, the Chief Minister resigned.
In accordance with the constitution, the governor invited the second largest party, the INC to form the government. In a strange turn of events, the INC pledged their support to a minority party, the JD (S). HD Kumaraswamy from the latter party became the Chief Minister of the state.
In July 2019, 17 MLAs of the ruling coalition quit their membership of the house. This brought the total membership of the house to 208 and the half way mark in the Assembly to 105. The ruling coalition was reduced to 101. The total strength of the BJP went up to 106 (1 independent MLA joined the BJP and another supported it later). The ruling coalition was defeated in a vote of confidence motion to 100-105. They formed the government and once again BS Yeddyurappa became the Chief Minister after winning a vote of confidence motion on the floor of the assembly.
The Speaker of the Assembly also disqualified 17 MLAs under the 10th schedule of the constitution for the offence of anti-defection (he had previously disqualified 3 MLAs and 14 more before resigning). He further ruled that those members who are disqualified will not be able to contest further elections for the entire term of the current Assembly till 2023. The MLA’s approached the Supreme Court directly challenging the decision of the Speaker. Subsequently, once the BJP government formed the government, Ramesh Kumar resigned from his post.
Meanwhile, the Election Commission of India had announced the date for the By Polls to be conducted in 15 Assembly constituencies on October 21st. The results would have been out by October 24th. However, the Supreme Court postponed these by polls to December 5th, 2019 in view of the petition filed by the disqualified legislators. By- elections to 2 of the vacant Assembly constituencies have been withheld due to an ongoing case in the Karnataka High Court.
These by elections will be held on December 5th, 2019 and the results are expected on December 9th, 2019.
Here is the list of 15 Assembly Constituencies where the by-elections will take place: Athani, Kagwad, Gokak (all in Belgavi), Yellapur (Uttara Karnataka), Hirekerur, Ranibennur (both Haveri), Vijayanagara (Ballari), Chikballapur, KR Pura, Yeshwantapura, Mahalakshmi layout, Shivajinagar (all in Bengaluru), Hosakote (Bengaluru rural), KR Pet (Mandya) and Hunsur (Mysuru).
The two Assembly constituencies which will lie vacant due to an ongoing case in the Karnataka High Court are: Maski in Raichur District and RR Nagar in Bengaluru.
Supreme Court case
The Court while considering the petition by the 17 disqualified MLA s discussed five aspects pertaining to it.
A three-judge bench consisting of Justices NV Ramana, Sanjiv Khanna and Krishna Murari delivered their judgement in the case.
The case was divided into five issues which were: maintainability of the petition, aspect of resignation, aspect of disqualification, power of the Speaker to disqualify a member till the expiry of the Assembly term and the question of reference to a larger bench of the court.
The court clearly stated that the petitioners should have approached the Karnataka High Court which is the competent authority to deal with this said case. The court said that the petitioners could have approached the Supreme Court if they were dissatisfied with the verdict of the High Court.
As far as the issue of resignation and disqualification is considered, the court upheld the decision of the Speaker to disqualify the members under the 10th schedule of the Indian constitution. The court made it clear that though the members resigned, the decision of the Speaker to investigate and disqualify them for the offence of defection was perfectly legal. Their offence preceded their act of resignation. There is a distinction between the offence of defection and voluntary resignation. The former is an offence. Hence, the Speaker was right. Members are well within their right to resign.
In the case of resignations, the speaker can and should only determine whether it was free of any coercion and has been voluntary.
However, the court came down heavily on the Speaker who delayed his decision on the matter and expressed its concern at the politicization of this constitutional post and warned of its consequences to the functioning of Democracy. The Speaker is to remain neutral and not have any political affiliations after being elected to the post.
The court reversed the order of the Speaker to disqualify the members for the rest of term which would have prevented them from contesting the upcoming by elections. The court opined that no where in the 10th schedule of the constitution is this mentioned. The disqualified members can now contest elections in this term and can even become Ministers.
The court refused to refer this matter to a larger bench as it doesn’t involve any further interpretation of law.