The Supreme Court will pronounce judgment tomorrow on the petitions filed by 17 rebel MLAs of Karnataka assembly challenging their disqualification.
A bench comprising Justices N V Ramana, Sanjiv Khanna and Krishna Murari had reserved judgment in the case on October 25.
The MLAs were disqualified by the former speaker Ramesh Kumar on the ground that their resignations were not voluntary, and hence amounted to defection.
Background of the case
The current crisis started on July 1 with the resignations of Vijayanagara MLA Anand Singh and Gokak MLA Ramesh Jarkiholi. Ramesh was already suspended from Congress for anti-party activities. Within a week, nearly thirteen more MLAs from Congress and JD(S) resigned. They were reportedly camping at Mumbai in the security of the BJP-led government in the state.
Although BJP emerged as the single largest party with 104 seats after the 2018 elections, Congress and JD(S) had struck an out of blue alliance, stitching up 116 strength in the 224-members house.
In a counter offensive move after the MLAs resigned, dealing a blow to the 13-month-old government, a delegation of Congress leaders met Speaker K R Ramesh Kumar and submitted the petition seeking, under the anti-defection law, disqualification of the rebel legislators.
On July 10, the rebel MLAs moved the apex court alleging that the Speaker has failed in his constitutional duty and is on purpose procrastinating the acceptance of their resignations.
On July 11, the bench headed by Chief Justice Ranjan Gogoi had permitted the disqualified MLAs (then 10 in number) to appear before the Speaker of the Karnataka Legislative Assembly at 6 PM on the same day, requesting the Speaker to grant an audience to them- "The petitioners, if they so wish and are so inclined, shall intimate the Hon'ble Speaker of the Assembly their decision to resign, in which event, the Hon'ble Speaker shall take a decision forthwith and, in any case, in the course of the remaining part of the day. Such decision of the Hon'ble Speaker as may be taken in terms of the present order, be laid before the Court tomorrow (12.07.2019)"
The Speaker, on his part, had refused to be pushed around by the court's direction, arguing that he had the constitutional obligation under Article 190(3)(b) to ensure that the resignations were voluntary and genuine, that the rebel MLAs are attempting to avoid disqualification by tendering resignations and that the Speaker has to enquire on whether they have incurred disqualification as per anti-defection clauses under Schedule 10 of the Constitution, which cannot be done in a hurried fashion.
On July 12, the court noted that issues of substantial importance arose in the case, particularly relating to a constitutional court's power to issue directions to another constitutional functionary to take decisions within a time frame, and the mechanism envisaged under the Constitutional scheme to tackle overlapping resignations and disqualification motions. "In the meantime, the status quo as on today, with regard to the ten petitioners, be maintained, namely, that neither the issue of resignation nor the issue of disqualification will be decided by the Hon'ble Speaker", the court had ordered.
After an elaborate hearing, the court had on July 17 permitted the Speaker of the House to decide on the request for resignations by the 15 Members of the House "within such time frame as the Hon'ble Speaker may consider appropriate". "We also take the view that in the present case the discretion of the Hon'ble Speaker while deciding the above issue should not be fettered by any direction or observation of this Court. We also make it clear that until further orders the 15 Members of the Assembly, ought not to be compelled to participate in the proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same", the court held.
After the fall of the coalition government post the trust vote, the then Speaker had disqualified them as MLAs, ruling that they cease to be so with immediate effect till the expiry of the term of the assembly (in 2023).
The disqualification came to be challenged before another Supreme Court bench helmed by Justice N. V. Ramana. The interim relief that the by-polls be postponed was also sought. Although initially reluctant to procrastinate the polls scheduled for October 21, and instead inclined towards allowing the disqualified MLAs to contest the elections, subsequently, by a fresh notification on September 27, the Election Commission had conceded to push back the elections to December 5. The Karnataka High Court was moved in a writ petition challenging the validity of the Commission's decision, which proceedings were stayed by Justice Ramana's bench on October 23.
Senior Advocate Mukul Rohatgi, appearing for the disqualified MLAs, advanced a three-fold argument on behalf of the rebel MLAs-
One, that the members have an indefeasible right to resign and hence, the resignations should have been accepted immediately.
Two, that there was no material for disqualification, considering that they were given only 3 days to dispute it, as against the mandate of a minimum of 7 days under the Karnataka Assembly Rules.
And three, that even if the disqualification is assumed to be valid, it will be valid only until the fresh elections.
"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!", he said.
"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 contested 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.
"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 (in person before the Speaker). So that it is not forged. But these safeguard cannot be used against me!", he contended.
Senior Counsel C. A. Sundaram had also 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!"
Solicitor General Tushar Mehta suggested that the new Speaker of the Karnataka Legislative Assembly 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 opined.
Senior Advocate Kapil Sibal appeared for the former Speaker Ramesh Kumar.
"They flew to Mumbai in a chartered plane owned by Jupiter Capital, which is Rajiv Chandrasekhar's company, who is the BJP member from Rajya Sabha…they were living in a hotel in full security of the (BJP led) Maharashtra government. And in the Supreme Court, they are still saying we are congress men?! What more do you want?! Which Speaker will not inquire into these facts?...And then they requested the Governor's office to advice the Speaker to decide the resignation? What the Governor has to do in the event of a resignation from the House is beyond us! It just goes to show the motive", argued Senior Counsel Kapil Sibal.
"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...The entire case of disqualification is about motive! Whether there was pressure on you? Whether there was some inducement?...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?...", Senior Advocate Rajeev Dhawan had stressed.
"But can the Speaker seek to safeguard the interests of the government?", inquired Justice Ramana. "Should the Speaker not act in a neutral manner?", asked Justice Sanjiv Khanna. "What would happen if a member sought to resign on account of some corrupt practices prevalent in the party that he wanted to distance himself from?", Justice Ramana wanted to know. "What if he didn't agree with some law that the government sought to introduce? Would he have to give up politics altogether?", added Justice Khanna.
After the bench reserved its judgment on the disqualification of the 17 MLAs October 25, The Karnataka Congress requested the court to take on record a fresh audio clip in which Chief Minister B. S. Yediyurappa is purportedly hitting out at his party leaders for not recognising the "sacrifice" of the disqualified Congress-JD(S) MLAs, because of whom the BJP could come to power.
Refraining from issuing notice, the bench had remarked, "You have brought it to our notice. That's it. Let us give the judgment now"