In the second day of hearing in the Karnataka MLAs disqualification case, Solicitor General Tushar Mehta on Thursday suggested that the new Speaker of the Karnataka Legislative Assembly can take a fresh call on their disqualification after hearing the aggrieved MLAs.
"An ex parte finding was recorded. I believe the conclusion would not bind the new Speaker. The new Speaker would record a new finding after hearing the disqualified MLAs. He is a constitutional functionary, almost like a tribunal...Under the constitutional scheme, as I read it, the legislator is not only under the duty, but he has a right to resign! And except as under Article 190(3)(b), the resignation cannot be rejected...", he submitted.
Senior Advocate Rajeev Dhawan, appearing for the erstwhile CM of Karnataka H. D. Kumaraswamy, objected to the SG acting as the "self-styled Amicus Curiae"- "He has put a proposition which goes against the earlier Speaker. It is completely improper"
Then he proceeded to counter one-by-one the arguments advanced on behalf of the disqualified MLAs-
"Suppose a resignation comes in on the 6th of a month and a disqualification petition is moved on the 8th of that month which indicates that the resignation is not pure. Can the Speaker ignore it? His range is the information which is available in public domain and also that which is revealed upon inquiry. According to (the other side's) argument of compartmentalisation of resignation and disqualification, the Speaker must ignore it! And the Proviso (to Article 190(3)(b)) is meaningless!"
"And the MLAs have an indefeasible right to resign? He is not a civil servant! The post of a MLA or a MP is one of constitutional significance!"
"And motive (behind the resignation) is irrelevant? This is not a criminal case where intention and motive are separated. Malafide does not just pop-up in the air but flows from a chain of events...It is being argued that this man (the disqualified MLAs) is a political 'Sanyasi'. It is not known if he will go left or right. And against him is a constitutional pervert!...The entire case of disqualification is about motive! Whether there was pressure on you? Whether there was some inducement?"
"The genuineness of the resignation is limited to seeing whether it was forged? This is part of a mechanical argument!"
"Your Lordships are dealing with a constitutional authority and not some Deputy Secretary. The test (for judicial review) would be the test of some material, which is traceable to Indira Sawney. If there is some material based on which the (impugned) order is valid, then Your Lordships may not interfere"
Emphasising on the phrase "if from information received or otherwise" in the Proviso, Dr. Dhawan submitted,
"Not just the public domain, I would say the Speaker can even rely on information in the private domain, say, if someone gives some information...one of the biggest crisis happened in Karnataka- a government was toppled and a group of people wanted to resign. Your Lordships' rule to not rely on newspaper reports does not apply to the Speaker. Should the Speaker ignore the facts (of the MLAs flying to Mumbai in a chartered plane owned by a BJP MP and camping there at a hotel in the company of BJP leaders)? A Speaker has some political ingenuity! He knows what is going on in his Assembly! Is he to ignore it?...We are not on Wednesbury or proportionality. The proportionality lies with the Speaker. If this meaning is curtailed, then the Proviso would be futile...this argument based on grammar, past tense and present tense (to ignore the facts subsequent to the resignation), cannot be accepted. We are not dealing with an administrative order here, but a situation"
"Not just the public domain, I would say the Speaker can even rely on information in the private domain, say, if someone gives some information...one of the biggest crisis happened in Karnataka- a government was toppled and a group of people wanted to resign. Your Lordships' rule to not rely on newspaper reports does not apply to the Speaker. Should the Speaker ignore the facts (of the MLAs flying to Mumbai in a chartered plane owned by a BJP MP and camping there at a hotel in the company of BJP leaders)?
A Speaker has some political ingenuity! He knows what is going on in his Assembly! Is he to ignore it?...We are not on Wednesbury or proportionality. The proportionality lies with the Speaker. If this meaning is curtailed, then the Proviso would be futile...this argument based on grammar, past tense and present tense (to ignore the facts subsequent to the resignation), cannot be accepted. We are not dealing with an administrative order here, but a situation"
On whether the present petition is maintainable under Article 32, he stated,
"Is the Speaker to be drawn to this court when he also has an option under 226? That is what Your Lordships did in the Kashmir issue...How can they claim a violation of the right under Article 19(1)(g)? This is not an occupation. Avocation. A calling. Who has called you? You are not an officer of the State. And you say you can resign anytime...and even if it is assumed that they are entitled to 19(1)(g), then they are also subject to the reasonable restrictions under 19(6)"
"When a Speaker passes an order under Article 190, is he not an authority under Article 12? If we read para 6(2) (of the Tenth Schedule) with (Article) 212, would he not be included?", asked Justice Sanjiv Khanna.
"If someone has a grievance and the Speaker is acting on the administrative side, then he would be included, as he is acting as an employer and not as a constitutional authority. But in a privilege case, there is an externality. There is a Lakshman Rekha where his autonomy is protected", replied Dr. Dhawan.
He referred to a 2016 judgment of the apex court where the Speaker of the Tamil Nadu Assembly had barred certain suspended members from entering the House and availing of any facilities (even their salaries) inside or outside the House.
"The court had held that the freedom of speech is not absolute, and curtailment of speech due to suspension from the legislature falls within reasonable restriction. With respect to freedom of occupation, the court held that only those activities fall under 'occupation' which generate economic benefits, which is not the case here. Lastly, the court held that violation of principles of natural justice a ground for judicial review of internal proceedings of the legislative bodies"
"They expect the Speaker to be like the 3 Gandhi monkeys- to see no evil, to hear no evil and to say no evil. Even if he smells evil, he must ignore it. It is their jurisdiction to say that they are resigning simpliciter. And it is the Speaker's jurisdiction to see if it is resignation simpliciter or resignation for cause", averred Dr. Dhawan.
"If one says he is resigning voluntarily, is the Speaker compelled to look into it", questioned Justice N. V. Ramana.
"No. At that stage, they don't say anything. If you say you are resigning voluntarily, for so-and-so reasons, then whatever inquiry I do under the Proviso, I do...", responded the Senior Counsel.
He insisted that the Karnataka Assembly Rules cannot override the Constitution, even as Justice Ramana observed that there is no difference between the two.
In so far as, on Wednesday, Senior Advocate Mukul Rohatgi had argued that the same Speaker had accepted MLA Umesh Jadhav's resignation even though it had been tendered when a disqualification petition was already pending against him, Dr. Dhawan said that the decision was on a different set of facts altogether and hence could not be cited as a precedent or as grounds of the Speaker's discrimination.
Further, Mr. Rohatgi had also doubted the rationality of the Speaker's objection to the use of the terms "voluntarily" and "for personal reasons" in the resignations (in a variation from the format prescribed in the Rules) tendered by the disqualified MLAs. Justice Khanna noted that even in Jadhav's case, the language had been different, while Justice Ramana wondered if after the resignations were handed over, the Speaker had issued any communication as to the format.
It had been Mr. Rohatgi's contention that the MLAs were wrongly given a short notice of only 3 days, as against the mandate of a minimum 7 days under the Rules. Dr. Dhawan asserted that in former Goa CM Ravi Naik's case, a mere 2 days had been granted.
When he suggested that both resignation and disqualification should be decided simultaneously, and not the former before the latter (which, he said, was sought to render the disqualification infructuous), Justice Khanna probed whether this argument would also stand in a genuine case where a member does not agree with the policy of the ruling party and sides with the opposition.
"Your Lordship speaks of the conscientious politician. That would have to be seen in the facts of each case. Right now we are at the point of inquiry. The chain of events has to be seen", answered Dr. Dhawan.
"Defection remains the single biggest evil in elections", he said.