Explained: Supreme Court sets the rule, disqualified MLAs can’t be barred from contesting future elections

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November 13, 2019 2:54 PM

Karnataka MLA Disqualification Case Verdict: Supreme Court set the thumb rule that a disqualified member can't be barred from contesting future elections, holding minister's post.

Supreme Court, 17 Karnataka MLA disqualification case, Speaker's power, 10th Schedule of the Constitution,While upholding the speaker’s decision to disqualify the 17 MLAs, the top court struck down a part of it.

Disqualification of 17 Karnataka MLAs: The Supreme Court’s decision to maintain disqualification of 17 Congress and JDS MLAs in Karnataka has re-enforced the speaker’s power to disqualify members. However, in a big relief to the disqualified members, the judgement has also set the thumb-rule that the disqualification will not bar a disqualified member from contesting any future election during the remaining period of the house. Karnataka speaker KR Ramesh Kumar had disqualified 17 rebel MLAs of the Congress and Janata Dal (Secular) in July this year when they resigned from the membership Karnataka assembly in a bid to topple the coalition government led by HD Kumarswamy.

The speaker’s absolute power to disqualify a member has been a contentious issue in Indian politics since the time this provision was inserted in the constitution in 1985 by the Rajiv Gandhi government. The issue came to the fore when a Haryana MLA Gayalal changed his party three times in a day in 1967. It prompted the Union government to pass a law to prevent such defections to ensure the stability of an elected government.

What is the anti-defection law

In 1985, Rajiv Gandhi government inserted the 10th schedule in the Constitution that deals with the issue of disqualification of a member for changing his political party or for defying party’s direction by voting against or abstaining from voting by defying a party whip.

It lays down the rules and procedures for disqualification of a member from the house by its presiding officer. The presiding officer can act against such members on the complaints received by any other member of the house.

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When a legislator attracts the disqualification

A member of either house of the Parliament or a legislative assembly attracts the provisions of disqualification if he voluntarily resigns from the party or when he defies the party’s directions and either votes against the party’s directions or abstains from voting in defiance of a party whip.

The Supreme Court has expanded the definition of ‘voluntary resignation’ in its decisions, saying that if a member indulges in anti-party activities without resigning from the party then it can be inferred that he has voluntarily given up the membership of the party.

Whether a speaker’s decision is outside the judicial scrutiny

The 10th schedule of the Constitution bars judicial scrutiny of a speaker’s decision to disqualify a member on account of defection or anti-party activities. However, the top court struck down this provision in a judgement in 1992. The Supreme Court held that a presiding officer’s decision was open to judicial scrutiny by high courts and Supreme Court.

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What is the Karnataka case

In July this year, 14 Congress MLAs and 3 MLAs of Janata Dal (S) resigned from the assembly, turning the Kumarswamy led government coalition government into a minority. It allowed BJP leader BS Yeddiyurappa to stake claim to form the government. Speaker Kumarswamy ordered a trust vote but he did not accept the resignation tendered by the Congress and JDS MLAs. On 11 July this year, the rebel MLAs moved the Supreme Court asking it to direct the speaker to accept their resignation that would save them from disqualification proceedings in the even of defying the party whip.

These rebel MLAs wanted to avoid disqualification for the remainder period by resigning ahead of the trust vote. On July 25, the Karnataka speaker disqualified three of them for six years and barred them from contesting the elections for six years. Two days later, he disqualification remaining 14 MLAs for six years. His order was contrary to a decision by the Bombay High Court in Goa MLA Vishwajeet Rane’s case that had held in 2017 that a presiding officer can’t disqualify members of the house for the remaining tenure of the house.

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Why Supreme Court’s Karnataka Judgement is important

While upholding the then Karnataka speaker’s decision to disqualify these 17 MLAs, the apex court concurred with the view taken by the Bombay High Court in Vishwajeet Rane’s case that the speaker doesn’t have the power to disqualify MLAs for the remaining tenure of the house. The Bombay High Court held that the disqualification under the 10th schedule of the Constitution doesn’t bar members from going back to electorates and seek re-election.

The apex court’s decision has come as a big relief not only for these 17 MLAs who wanted to contest the upcoming by-elections but it has set the precedent that a presiding officer cannot curtail a disqualified member’s right to go back to the electorate and seek re-election.

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