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 finances of the State and may prove irksome. But that is no reason to compel an elected member who has no desire to continue his membership, to continue as such. A person, after getting elected, may, for variety of reasons, desire not to continue as a member. His reasons may be good or bad, but that is his decision and his right"
"We are inclined to hold that an elected member can resign his seat independently of the circumstances contemplated in Sub-sections (1) and (2) of Article 190. He may resign for any reason which weighs with him, and the tenability of the reason cannot be subjected to scrutiny either by the Speaker or any other authority", the court had opined.
The Chhattisgarh High Court had also, in 2001, expressed the view that " contrary to the provisions of the Constitution of India, which provides that every body would have justice-social, economic and political, a man cannot be put to ransom, simply because without assigning any reason, he resigns from the office held or the seat occupied by him. In a Court of law, we are not required to consider the moral aspect of the matter".
In 2016, the Kerala High Court had also quashed former rebel Kerala Congress (M) leader P. C. George's disqualification, noting that, "the words 'voluntary' and 'genuine' occurring in the proviso to Article 190(3)(b) only mean 'out of own free will' and 'not counterfeit' and nothing at all more. The words 'not voluntary or genuine' pertain to the letter of resignation only and it is immaterial as to whether the reasons are genuine or not...What more is required to show that the letter of resignation is voluntary and genuine when the same is presented in person by a member of the Legislative Assembly to the Speaker ?...". "I do not for a moment hold that the petitioner has not incurred disqualification on account of voluntarily giving up his membership in his political party in the circumstances obtaining. But I am of the firm view that a decision on that count was unnecessary and unwarranted in the wake of the fact that the petitioner had put in his resignation before", the judge had stated.