13 Nov 2019 7:01 AM GMT
A significant point in the Supreme Court's judgment in the Karnataka MLAs disqualification case is the discussion on the interplay between resignation and disqualification of a legislator.The apex court held that resignation of a legislator will not efface the effect of disqualification if defection has taken place before the date of resignation."Disqualification relates back to the date when...
A significant point in the Supreme Court's judgment in the Karnataka MLAs disqualification case is the discussion on the interplay between resignation and disqualification of a legislator.
The apex court held that resignation of a legislator will not efface the effect of disqualification if defection has taken place before the date of resignation.
"Disqualification relates back to the date when the act of defection takes place. Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member's resignation letter", held the bench comprising Justices N V Ramana, Sanjiv Khanna and Krishna Murari.
The petitioners had taken the contention that since the disqualification proceedings initiated by the Speaker became infructuous the moment they submitted the resignations.
Rejecting this argument, the top court held :
"We do not agree with the submission of the Petitioners that the disqualification proceedings cannot be continued if the resignations are tendered. Even if the resignation is tendered, the act resulting in disqualification arising prior to the resignation does not come to an end.
The pending or impending disqualification action in the present case would not have been impacted by the submission of the resignation letter, considering the fact that the act of disqualification in this case have arisen prior to the members resigning from the Assembly."
Acceptance of petitioners' arguments would defeat the intent of anti-defection laws, observed the Court :
"If we hold that the disqualification proceedings would become infructuous upon tendering resignation, any member who is on the verge of being disqualified would immediately resign and would escape from the sanctions provided under Articles 75(1B), 164(1B) and 361B. Such an interpretation would therefore not only be against the intent behind the introduction of the Tenth Schedule, but also defeat the spirit of the 91st Constitutional Amendment".
Resignation and disqualification on account of defection under the Tenth Schedule, both result in vacancy of the seat held by the member in the legislature, but further consequences envisaged are different, the Court held.
Right of legislator to resign
The Court also added that a legislator has the right to resign and that there is nothing in the Constitution which compel an MLA to continue in office for the entire term.
The 33rd Constitution amendment, which enabled the Speaker to examine if the resignation is voluntary by introducing proviso to Article 190(3)(b), does not hamper an MLA's right to resign.
"as a starting principle, it has to be accepted that a member of the Legislature has a right to resign. Nothing in the Constitution, or any statute, prevents him from resigning. A member may choose to resign for a variety of reasons and his reasons may be good or bad, but it is his sole prerogative to resign. An elected member cannot be compelled to continue his office if he chooses to resign. The 33rd Constitutional Amendment does not change this position. On the contrary, it ensures that his resignation is on account of his free will".
Speaker has no unqualified discretion
The discretion of the Speaker under proviso to Article 190(3)(b) to examine the circumstances of resignation is not unqualified. An opinion on whether the resignation is 'voluntary' and 'genuine' is based on the subjective satisfaction of the Speaker. However, the subjective satisfaction must be based on objective material showing that resignation is not 'voluntary' or 'genuine'. The subjective satisfaction of the Speaker is open to judicial review.
"It is true that 33rd Constitutional Amendment changes the constitutional position by conferring discretion on the Speaker to reject the resignation. However, such discretion is not unqualified; as the resignation can only be rejected if the Speaker is "satisfied that such resignation is not voluntary or genuine". Determination of whether the resignations were "voluntary" or "genuine" cannot be based on the ipse dixit of the Speaker, instead it has to be based on his "satisfaction". Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine....This satisfaction of the Speaker is subject to judicial review".
Explaining the concept of 'genuine' and 'voluntary', the Court said :
"the word "genuine"… simply mean(s) that a writing by which a member chooses to resign is by the member himself and is not forged by any third party. The word "genuine" only relates to the authenticity of the letter of resignation"
"the word "voluntary" … would mean the resignation should not be based on threat, force or coercion"
Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. It is constitutionally impermissible for the Speaker to take into account any other extraneous factors while considering the resignation.
Speaker act as a Tribunal when disqualification order is passed; Order subject to judicial review.
Referring to the Constitution Bench decision in Kihoto Hollohan, the SC held that the Speaker acts as a Tribunal when an order of disqualification is passed. Such order is subject to judicial review.
Judicial review of Speaker's decision to disqualify can be sought on four grounds: malafide, perversity, violation of the constitutional mandate and order passed in violation of natural justice.
The Speaker should give sufficient opportunity to a member before deciding a disqualification proceeding and ordinarily follow the time limit prescribed in the Rules of the Legislature.
[Case details : Shrimanth Balasaheb Patil v Hon'ble Speaker, Karnataka Legislative Assembly, Writ Petition (Civil) No.992 of 2019 and connected cases; Judgment dated November 13, 2019. Coram : Justices N V Ramana, Sanjiv Khanna and Krishna Murari]
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