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.
"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 justice.
"The Speaker said that I have used the term 'voluntary' in my resignation and therefore, I have not followed the stipulated format? Saying 'I voluntarily tender resignation' is foul? He has taken objection to me writing that the resignation is for 'personal reasons'? What should I say to this?...And how are subsequent facts of me taking a chartered plane (owned by a BJP MP) and camping in Mumbai (in the company of BJP leaders) relevant to the resignation that was given on July 6? If I have resigned, I should be allowed to do whatever I want, contest elections with whichever party I want!...The motive for my resignation could be anything. The Speaker should only be concerned with voluntariness and genuineness. That is why one is required to sign it themselves and appear by themselves. So that it is not forged. But these safeguard cannot be used against me!", he submitted.
Finally, Mr. Rohatgi persisted that the MLAs petition under Article 32 was maintainable as their Fundamental Rights under Articles 14 and 19 (to carry out the profession of their choice) has been violated.
"What can be done in 226 can also be done under 32. We are all citizens. There is nothing here which calls for a constitution bench hearing", he concluded, in response to the pleas from the opposite side for a hearing by a larger bench.
Next. Senior Counsel C. A. Sundaram made his submissions for the disqualified MLAs-
"What is the distinction between one who resigns and goes to another party, and one who goes to another party and is disqualified? The former gives up his seat in present time! He may or may not be elected or become a minister later! And the latter gives up nothing! He wants to have his cake and eat it too!...The intent is to stop one from getting elected on one party and then saying, I don't like this party and want to go to another one'! But resigning because I like another party is within my right under Article 19(1) and the right to form associations!"
"The Speaker could have excluded the word 'voluntarily' if he thought it is a reason for the resignation or an extraneous factor. But when I am not supposed to give any reason for my resignation, can the Speaker reject my resignation for the want of reason? The Speaker can't be looking into reasons, finding reasons, or imagining reasons! Voluntariness and genuineness are the sine qua non for resignation. Resignation is not to be qua reason!"
Senior Advocates A. K. Ganguli and K. V. Vishwanathan also made brief arguments.