[Karnataka MLAs Disqualification] A Member Has An Indefeasible Right To Resign, Motive Irrelevant :Mukul Rohatgi Tells SC

A three Judge Bench comprising of Justices NV Ramana, Sanjiv Khanna and Krishna Murari on Wednesday commenced the hearing of petitions filed by 17 Karnataka MLAs challenging their disqualification"There is no doubt that a member has an indefeasible right to resign. The only exception would be where the resignation is under pressure, where there is a gun to the temple. That it should be voluntary and genuine is the only prerequisite. The (Karnataka Assembly) Rules require that the resignation would be one-line and that it shall not state any reason...", submitted Senior Advocate Mukul Rohatgi He was appearing on behalf of the disqualified MLAs."Suppose I have stated (in the resignation) that I am sick of politics, or that I don't like the Speaker or the Chief Minister, these reasons can be omitted!...The resignation was handed to the Speaker in person. We said in the Supreme Court that we want to resign! The Supreme Court asked us to meet the Speaker at 6 PM to tender the resignation! We gave our resignation to the Speaker on the order of the Supreme Court! It should have stopped at that and the resignations should have been accepted immediately!...The Rules say that where the Speaker receives a letter of resignation through post or through some other source, then he shall make an inquiry into its genuineness. But here, it was coming by hand! Under the order of the Supreme Court!...But he (the Speaker) kept the pot boiling! The game was to keep the resignations pending...in the hotbed of politics, of people crossing over to other parties, of elections! It smacks of arbitrariness, of malafide, of vengeance!", he continued.He further argued that the MLAs were not afforded a reasonable opportunity to dispute the disqualification motion, considering they were granted only 3 days as against the statutory mandate of 7 days- "The Rules require that a minimum of 7 days are given. And this period can even be extended if a request is made and is found to be justified. You are dealing with a very, very important factum of disqualification! It, in a sense, violates the will of the people who have elected him! Some breathing space has to be given!""Article 191(1) disqualifies a person both from being chosen as and for continuing as a member of the legislature. It is a threshold bar, for, say, corruption, which even debars one from contesting elections. But Article 191(2) is only a bar to continuance in case a member is disqualified under the Tenth Schedule! One where an existing member is asked to go home, but he is not barred from entering the zone of election!", advanced Mr. Rohatgi."Even if I am disqualified, I am still entitled to contest elections by virtue of Article 361B of the Constitution...Suppose a man is disqualified for wanting to join another party, the next day he would have joined and become a minister and then six months later conteste elections! That is why this provision is there!... So my disqualification date is either 2023 (the expiration of the term of the Assembly) or until the new elections...This is not a case of disqualification for corruption which will mandatorily last till the end of the term. This will last either till 2023 or until the next elections", he had said. "In case of disqualification, you are barred from holding any remunerative post. You are saying that in case of resignation, this bar does not apply?", asked Justice Sanjiv Khanna."Correct! I am not a member of the legislature anymore. I become an ordinary citizen. Any citizen can become the member of the cabinet", replied Mr. Rohatgi."But would that not negate the purpose of 361 B?", pressed the judge."No. Because you are engaging with the electorate. You are not being 'Aaya Ram, Gaya Ram'. Can I go on for 5 years with the party on whose ticket I was elected against my conscience? What if the electorate says that we chose you but we don't like this party?", insisted Mr. Rohatgi."So my argument is three-fold. One, That the resignations should have been accepted. Two, That there was no material for disqualification, considering we were given only 3 days to dispute it. The 7-day period is at-least salutary, if not mandatory! And three, that even if we assume that the disqualification is valid, I have not become a minister and hence, the disqualification will be valid only till the fresh elections...", he said.He indicated an earlier instance where the very same Speaker had accepted the resignation of a member (MLA Umesh Jadhav) who was facing a disqualification petition and pending the same, he had tendered his resignation. He relied on a Kerala High Court judgment where the decision of the Speaker, who had kept the resignation pending and had proceeded to decide the disqualification first, was quashed. Further, he even showed how on an earlier occasion, a short notice for disqualification given by another Speaker of the Karnataka Assembly, albeit with a reason, was frowned upon by the top court as being violative of natural...

[Karnataka MLAs Disqualification] A Member Has An Indefeasible Right To Resign, Motive Irrelevant :Mukul Rohatgi Tells SC

Mehal Jain