New Delhi: Karnataka Speaker KR Ramesh Kumar's decision to disqualify the 17 dissident Congress-JDS MLAs till the expiry of the present Assembly’s term is fraught with legal dangers and is vulnerable to be challenged before a constitutional court.
His decision to oust the MLAs till 2023, primarily, runs counter to the Bombay High Court’s latest judgment in the Goa Assembly case wherein the High Court held it unequivocally that disqualification under Tenth Schedule cannot debar a legislator to go back to people and get re-elected during the term of the present Assembly.
"The disqualification in question is not for five years. There is no restraint in a case such as this from offering oneself for re-election," the High Court had ruled in its 2017 decision.
The High Court had rejected the plea made by the Congress party that disqualification for anti-defection should mean ousting a member till the term of the present House.
The High Court had differentiated between disqualification incurred over reasons such as holding office of profit, unsound mind etc, and those under anti-defection law.
“Disqualification for holding office of profit, unsoundness of mind, insolvency etc, engenders a disqualification either from continuing as a member, or even from standing for election (‘being chosen as’). This necessarily means a five-year prohibition, because that is the term of the House under Article 172," said the High Court while rejecting the Congress' contention that the same meaning must be given to a disqualification under Article 191(2) for defecting to some other party or indulging in anti-party activities.
"We are unclear whether this is a suggestion of reading down one clause or reading up another, but neither is possible. The two clauses use distinct phraseology and the meaning is plain. An Article 191(2) disqualification results in a discontinuance of membership. It does not earn the added disqualification of not returning to the voters and seeking re-election," noted the court.
It held that results of disqualification have been distinctly provided by the legislature.
“Disqualifications declared under Articles 191(1) and 191(2) both result in an eo instante vacating of the membership of the house in question, under Article 190(3); but the results of that disqualification are provided in Article 191 in two distinct clauses. Where the language is plain and unambiguous, and where a legislature has used a phrase in one clause, but not the next, we are not to presume that it fell into error, or that it meant something other than what it said, or that it meant to include in the second that which it said in the first but did not in the second,” it said.
The petition by the Congress was directed against Vishwajeet Rane, who was elected to the state legislative assembly on a Congress ticket. But he defied the whip, quit the party as well as his legislatorship on the day of the floor test of the BJP-led coalition government in Goa before eventually joining the Manohar Parrikar-led cabinet as health minister.
The Congress had moved the High Court, complaining that the Speaker should not have accepted his resignation and that Rane must be disqualified for the entire term of the Assembly for defying the party leadership.
The High Court not only dismissed this petition but also clarified that the law cannot be interpreted in such a way that it could prohibit a disqualified member to seek re-election in a bypoll.
About Rane, it noted that the attempt was to achieve a knock-out of Rane and have him ejected from the House for the next five years till 2022. "If that argument fails, and this is not the disqualification he could ever have earned, then simply by returning to the people and seeking re-election — which is not forbidden under Article 191(2) — he may continue on a fresh re-election as a member of the House," the bench ruled, rejecting the plea by Congress.
As for the present, this judgment holds the field and this High Court decision has not been overturned or stayed by the Supreme Court where the appeal is still pending.
Besides, the MLAs are expected to also challenge the Speaker's decision for alleged violation of principles of natural justice, malafide conduct of the Speaker and bypassing the rules of the Karnataka Legislative Assembly which mandated for a minimum seven-day notice to respond.
The Supreme Court, in a series of judgments starting from Kihoto Holland in 1992, has maintained that in making a decision under the Tenth Schedule, the Speaker functions as a tribunal, and, as such, his decision is subject to judicial review.
Thus, the Supreme Court as well as many high courts have held that the Speaker's decisions can be challenged on the grounds of infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity.
Of the 17 disqualified MLAs, 15 are already before the Supreme Court while their petitions on resignation remain pending.
In an interim order to protect them, the top court had said they cannot be compelled to participate in the Assembly proceedings. Therefore, these MLAs may also claim before the top court that the Speaker's action of disqualifying them notwithstanding the Supreme Court's protection amounts to contempt. They will also press for an immediate stay on the Speaker's decision.
All eyes will be on the Supreme Court which will again have the task cut out for itself to interpret the pertinent constitutional provisions and clear the air on the powers of the Speaker and duties of the legislators.
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