Member of House has indefeasible right to resign, disqualified K’taka MLAs tells SC

Team Udayavani, Oct 23, 2019, 7:11 PM IST

New Delhi: The 17 disqualified MLAs of Karnataka told the Supreme Court Wednesday that they have an “indefeasible right” to resign as members of the Assembly and the decision by the then Speaker K R Ramesh Kumar to disqualify them smacks of “vengeance” and “mala fide”.

Senior advocate Mukul Rohatgi, appearing for some of the disqualified MLAs, told a three-judge bench headed by Justice N V Ramana that Kumar had “violated” the apex court order by deciding against them for allegedly defying the party whip.

He had disqualified these MLAs, eventually leading to the fall of the Congress-JD(S) government headed by the then chief minister H D Kumaraswamy.

Kumaraswamy had resigned after losing a trust vote, which paved the way for the BJP-led government in the state under B S Yediyurappa.

Meanwhile, the bench, also comprising justices Sanjiv Khanna and Krishna Murari, stayed the proceeding pending before the Karnataka High Court on a separate plea challenging the Election Commission’s notification deferring the by-polls to 15 Assembly seats there.

The EC had on September 26 told the top court that it would defer the upcoming by-polls to 15 Assembly constituencies in Karnataka, scheduled for October 21, till the apex court finally decides the pleas filed by the 17 disqualified MLAs.

It had issued notification deferring the by-polls and fixed November 11 as the new date for commencement of Model Code of Conduct in Karnataka.

During the hearing, Rohatgi told the bench that speaker had not given the mandatory seven days to these MLAs to respond to disqualification applications moved against them by Congress and JD(S).

“There is no doubt that a member has a indefeasible right to resign (from the house). It is only to be seen that the resignation is voluntary and genuine,” he said.

“The whole thing smacks of vengeance and mala fide,” Rohatgi said, adding that “reasonable opportunity” was not given to these MLAs to respond to disqualification applications.

He said even if the disqualification of these MLAs is valid, it will be so till next elections and they can contest the by-polls.

“Our resignations should have been accepted by the speaker. There was no material to disqualify us,” he said, adding, “The motive for my resignation could be anything. He (speaker) should not be bothered about my motive. He has to only look if the resignation is voluntary and genuine”.

Rohatgi said pleas filed by these MLAs under Article 32 of the Constitution were maintainable and there was not question of referring the matter to a constitution bench.

When the issue whether the matter should be referred to a Constitution bench was raised, the bench said, “We are aware about the impending election. We will decide this issue”.

Senior advocate C A Sundaram, appearing for one of the disqualified MLAs, told the bench that speaker’s order “goes on imaginary reasons” and he should not have gone into the reasons behind the resignation.

“The Karnataka Assembly Rules speaks against going into reasons. Can the speaker go into the reasons to reject my resignation? The only inquiry that could be made is to see whether resignation is voluntary and genuine,” he told the bench, which would continue hearing arguments in the matter on Thursday.

Sundaram said that disqualification order by the then speaker bar the MLA from contesting elections till 2023 and it is akin to imposing punishment on them.

One of the advocates, representing some of the disqualified MLAs, told the bench that the then speaker’s order is “illegal” as he had not asked them to explain as to why he thinks that resignations are not voluntary and genuine.

“This is a clever devise to defeat my right to resign and deliberately go ahead with my disqualification,” the lawyer said.

Rohatgi said the apex court had earlier passed an order that these MLAs cannot be compelled to participate in the proceedings of the Assembly but despite that, the then speaker said that these lawmakers have defied the party whip to disqualify them.

“The speaker has decided against us also on the ground that we have defied the party whip. The speaker has violated the Supreme Court’s order,” he said, adding that the then speaker should not have considered the facts that some of these MLAs were camping together and travelling in chartered flight.

“If a man has guts to resign from the membership of the House, the law should allow him. Public is the master,” he said.

These 17 disqualified MLAs have challenged the decision of former assembly Speaker to disqualify them.

During the arguments earlier, senior advocate Kapil Sibal, representing senior Congress leaders Siddaramaiah and Dinesh Gundu Rao, had told the bench that the speaker, being a constitutional authority, was entitled to hold an inquiry on resignations tendered by 15 of these disqualified MLAs as they had “hobnobbed” with the BJP to topple the then Congress-JD (S) coalition government.

Sibal had questioned the maintainability of the pleas filed in the apex court by these disqualified MLAs under Article 32 of the Constitution and said that the order of the speaker could be challenged under Article 226 only before the high court.