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Constitution of India – Tenth Schedule; Arts.190(3)(b), 191(1), 191(2) – Acceptance/rejection of the resignation of the members of the House by the Speaker – Scope of judicial review u/Arts.32 – Writ petitioners were elected as members of the 15th Karnataka Legislative Assembly – Though the BJP was the single largest party, but could not form the Government – A coalition government of INC and JD(S) was formed – Disqualification Petition No.1 of 2019 was instituted against the petitioners in W.P.(C) No. 997/19 alleging that their conduct was in violation of the whip issued by INC – Said petitioners submitted resignations to the Speaker – Other petitioners also submitted their resignations – No call taken by the Speaker on the resignations – Most of them filed W. P.(C) No. 872/19 wherein Supreme Court inter alia directed the Speaker to take decision qua the resignations forthwith – No decision taken by the Speaker on the resignations – Further, Disqualification Petition Nos.3-5 were filed against 13 petitioners (Three in W.P (C) No. 1005/19 and 10 in W.P (C) Nos. 998/19, 1000/19, 1001/19, 1006/19 & 1007/19) – Disqualification Petition Nos. 7 & 8 of 2019 were also filed – Chief Minister resigned on losing the trust vote on 23.07.2019 – On 25.07.2019 and 28.07.2019, the Speaker passed the five impugned orders in the above Disqualification Petitions rejecting the resignation of the members asserting that they were not voluntary or genuine; disqualifying all the Petitioners, the disqualification being till the end of the 15th Legislative Assembly term – Held: Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority – However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the same would be appropriate, effective and expeditious – Speaker’s scope of inquiry with respect to acceptance/rejection of a resignation tendered by a member of the legislature is limited to examine whether such a resignation was tendered voluntarily or genuinely – 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 – In the present case, the Petitioners stated and re-affirmed before the Speaker and this Court, in unequivocal terms, that they voluntarily and genuinely resigned their membership of the House – It is constitutionally impermissible for the Speaker to take into account any extraneous factors while considering the resignation – Satisfaction of the Speaker is subject to judicial review – Further, in light of the existing Constitutional mandate, the Speaker is not empowered to disqualify any member till the end of the term – Also, no substantial question of law exists in the present matter, which needs reference to a larger bench – Petitioners failed to show any illegality in the orders of the Speaker – Orders dated. 25.07.2019 and 28.07.2019 passed by the Speaker in Disqualification Petition Nos. 1, 3-5, 7 & 8 of 2019, are upheld to the extent of the disqualification of the Petitioners therein, however, the part of the orders detailing the duration of disqualification, viz., from the date of the respective order till the expiry of the term of the 15th Legislative Assembly of Karnataka is set aside – Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly – Chapter 22, r.202 (2) – Constitution (Thirty- third Amendment) Act, 1974 – Constitution (Fifty-second Amendment) Act, 1985 – Constitution (Ninety-first Amendment) Act, 2003 – Arts. 75(1B), 164(1B) and 361B – Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 – r.7(3)(b) – Principles of Natural Justice – Representation of the People Act, 1951 – s.36(2).Constitution of India – Constitution (Thirty-third Amendment) Act, 1974 – Proviso to Art.190(3)(b) – Respondents contended that the acceptance/rejection of resignation is based on the subjective satisfaction of the Speaker which is immune from judicial review – Held: Unable to agree with this contention – It is true that 33rd Constitutional Amendment changed 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.Constitution of India – Art.190(3)(b) – Speaker’s duty under – Scope of – Discussed. Constitution of India – Constitution (Ninety-first Amendment) Act, 2003 – Arts. 75(1B), 164(1B) & 361B – Various Disqualification Petitions were filed against the petitioners wherein the Speaker passed the impugned orders – However, 15 of the 17 Petitioners had tendered their resignation from the House before the disqualification petitions were adjudicated – Petitioners contended that the Speaker did not have the jurisdiction to deal with disqualification petitions, as the Petitioners having resigned were no longer members who could have been disqualified – Held: This issue does not apply to the Pe-titioners in W. P. (C) No. 992/ 19 and W. P. (C) No. 1003/19 as they did not tender their resignation – Further, if it is held 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 u/Arts. 75(1B), 164(1B) & 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 – In addition, the decision of the Speaker that a member is disqualified, relates back to the date of the disqualifying action complained of – Constitution (Fifty-second Amendment) Act, 1985 – Tenth Schedule. Constitution of India – Arts. 102(2), 164(1B), 168, 172, 190(3), 191(1), (2), 192, 361(B) – Scheme of the Constitution with respect to State Legislatures – Discussed.Constitution of India – Arts.191(1) and (2) – Contrast in phraseology between Arts.191(1) and 191(2) – Held: Exclusion of the phrase “for being chosen as” a mem-ber in Art.191(2) suggests that the disqualification under the Tenth Schedule is qualita-tively and constitutionally different from the other types of disqualification that are provided for u/Art. 191(1) – Phrase “for being chosen as” has a specific connotation, meaning that a person cannot become a member of the House, if suffering from a disqualification u/Art.191(1) – At the same time, the absence of these words in Art.191(2) suggests that a person who is no longer a member due to disqualification under the Tenth Schedule does not suffer from the additional infirmity of not being allowed to become a member subsequently – Therefore, such a person is not barred from contesting elections – Representation of the People Act, 1951 – ss.7-11, 36(2) – Constitution (Ninety-first Amendment) Act, 2003 – Arts. 164(1B) & 361B.Constitution of India – Tenth Schedule – Resignation and disqualification on account of defection under the said Schedule – Held: Both result in vacancy of the seat held by the member in the legislature, but further consequences envisaged are different. Constitution of India – Disqualification under the Tenth Schedule – Sanctions under Arts. 75(1B), 164(1B) and 361B – Held: Speaker is not empowered to disqualify any member till the end of the term – However, a member disqualified under the Tenth Schedule shall be subjected to sanctions provided u/Arts. 75(1B), 164(1B) & 361B which provides for a bar from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re-elected to the legislature, whichever is earlier. Constitution of India – Duty of constitutional functionaries to uphold constitutionalism and constitutional morality – Discussed. Constitution of India – Art.145(3) – Interpretation of – Held: Two important phrases occurring in Art.145(3) are ‘substantial question of law’ and ‘interpretation of the Constitution’ – Two conditions can be culled out before a reference is made: (i) The Court is satisfied that the case involves a substantial question of law as to the interpretation of this Constitution; (ii) The determination of which is necessary for the disposal of the case – Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to the final outcome, cannot be considered as a substantial question of law – Existence of substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the question of law will have on the final determination. Words & Phrases – “voluntary” and “genuine” – Ambit of, in context of Art.190(3)(b)– Constitution of India – Art. 190(3)(b) - Explained. Words & Phrases – ‘disqualification’ – Meaning of – Constitution (Fifty-second Amendment) Act, 1985 – Tenth Schedule. Words & Phrases – “violation of constitutional mandate” – Held: Phrase “violation of constitutional mandate” speaks for itself and does not need much elaboration. A “constitutional mandate” can be understood as what is required under, or by, the Constitution – In the context of the Tenth Schedule, and an order of disqualification passed by the Speaker thereunder, the “constitutional mandate” is therefore nothing but what is constitutionally required of the Speaker – A “violation of constitutional mandate” is merely an unconstitutional act of the Speaker, one that cannot be defended on the touch-stone of the Tenth Schedule and the powers or duties of the Speaker therein and is in contravention or violation of the same – Constitution (Fifty-second Amendment) Act, 1985 – Tenth Schedule. |
