Defection Or Resignation? Key Issues In Karnataka MLAs Disqualification Case

The judgment to be delivered by the Supreme Court on Wednesday, against the backdrop of the political crisis in Karnataka, is likely to set the tone for the resignation-disqualification conundrum that threatens to derail the Tenth Schedule- whether the chosen representatives of the people can resign their membership of the House, defy the whip of the party (on whose ticket they were elected), all with a view to topple the government and cross over to the political rival on the inducement of a portfolio, without attracting liability under the anti-defection law. The impending decision is expected to rule on whether a person so disqualified under the Tenth Schedule for being a member of the Legislative Assembly [here, of a state, under Article 191(2)] is entitled, by virtue of Articles 164(1B) and 361-B, to contest the fresh by-polls. In a similar instance of resignation-disqualification in Goa MLA Vishwajeet Rane's case, the Bombay High Court had in 2017 observed, "The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate...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 verdict to be tendered on Wednesday by Justices N. V. Ramana, Sanjiv Khanna and Krishna Murari is to act as a precedent on whether the Speaker, in inquiring into the genuineness and the voluntariness of a resignation [under the Proviso to Article 190(3)(b)], can look into the motive behind the act of the resignation to impose on the member the consequence of Para 2 of the Tenth Schedule- Can the Speaker, even when there is no motion for disqualification, reject or keep on hold a volunteered resignation so as to force a member to continue as such only to face a potential disqualification petition? Prior to the Thirty-third Constitutional Amendment of 1974, the provision regarding the resignation of a member of the Legislature was self-executing and did not require any acceptance by the Speaker, or as the case may be, the Chairman. The Statement of Objects and Reasons of this Bill mentions why this amendment was brought about: "In the recent past, there have been instances where coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution" So the apex court judgment will determine whether a genuine and voluntary letter is simply one which is not a "forged letter or one obtained by fraud or force" and which has the "full consent of the writer of his or her own volition" (as held by several High Courts time and again), even though it is engineered with an ulterior motive to achieve a political end. On behalf of the disqualified Karnataka MLAs, it has been advanced that Article 190(3)(b) only contemplates a resignation which is not forged or procured "by putting a gun to one's temple". It was suggested that the Karnataka Assembly Rules (framed under the scheme of the Constitution) envisage that where the resignation is handed over to the Speaker in person, it may be accepted immediately. The argument was that the rebel MLAs had "cried hoarse" to the Speaker of their wish to resign, reiterated the same to the media and even announced it before the top court and hence, no further proof of voluntariness and genuineness was called for. The subsequent acts of flying to Mumbai in a chartered plane owned by a BJP MP and camping there in the hospitality of BJP leaders was irrelevant. It was also lamented that the 7 days' time, stipulated under the Rules as the minimum for defending a disqualification petition, was not accorded. On the opposite side, it was argued that "in politics, nothing is hidden" and that "everybody knows who is going where", that "the Speaker knows what is going on in his House", that the motive behind the en-masse resignations, as inferred from the said anti-party conduct, could not be ignored, and in view of the same, no notice for the disqualification need have been given at all. In 1994, the Madhya High Court has backed the indefeasible right of an elected lawmaker to resign- "Once a candidate is elected, ordinarily he is expected to function as a member of the Legislative Assembly for the requisite term. There is nothing in the Constitution which takes away the right of an elected member to resign his seat. Denial of such a right to an elected member would be destructive of principles of democracy. A legislator is the servant, but not the slave of the people. It is true that frequent resignations and frequent by-elections are a drain on the...

Defection Or Resignation? Key Issues In Karnataka MLAs Disqualification Case

Mehal Jain

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