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Crisis in Karnataka : Experts say rebel MLAs cannot be disqualified


Bengaluru/New Delhi, Jul 11 (IANS): With the resignation spree creating a major crisis for the JD(S)-Congress government in Karnataka, the question arises whether the Assembly Speaker can invoke the Anti-Defection Law against the MLAs who have quit.

According to experts, the rebel legislators of the Congress and the Janata Dal-Secular (JD-S) can't be disqualified under the Anti-Defection Law as they have submitted their resignations as legislators to the Speaker, and not as party members to their party leadership.

The question of disqualification can arise if they defy the whip of their respective parties.

Over the last few days, 16 MLAs of the ruling coalition –- 13 from the Congress and 3 from the JD-S -- have tendered their resignations to the Speaker.


Rebel MLAs arriving at Vidhana Soudha

Prior to their resignations, the Congress had 79 MLAs, including the Speaker, and JD-S had 37 in the 225-member Karnataka Assembly.

If the Speaker accepts the resignations of the 16 MLAs, the Assembly's effective strength will drop to 209 from 225 and the ruling coalition will be reduced to 100, while the halfway mark would be 105.

The Speaker has not yet accepted the resignations on technical grounds of not being in the prescribed format or on the ground that he needed to hear the legislators before deciding on them.

"As the legislators submitted their resignations to Speaker K R Ramesh Kumar and not to their respective parties, the Anti-Defection Law will not apply to them and they cannot be disqualified," senior Karnataka High Court advocate Ravi Naik told IANS.

Naik said the Speaker was bound to accept the resignations if they were voluntary and genuine under the Anti-Defection Law or the 10th Schedule of the Constitution, which was amended in 1985 to prevent defections or switching parties for the sake of power.

"As no whip was issued to them before they resigned to be present in the Assembly for voting on a money bill or a Constitution amendment, they cannot be disqualified," Naik explained.

Though Congress Legislature Party (CLP) leader Siddaramaiah on Monday petitioned the Speaker to disqualify the rebels so that they cannot become ministers or contest elections for 6 years under Article 164-1(b), Naik said its provisions would not apply to them, as they have not been expelled from the party, nor have they defied the whip.

"The rebels have claimed that they resigned only from their respective Assembly constituencies from where they got elected in the May 2018 Assembly polls, and not from their parties (Congress or JD-S). The Speaker will also not be able to apply the provisions of the 10th Schedule or Article 164-1(b)," Naik added.

In Delhi, noted Constitution expert Subhash Kashyap also said that Article 104 of the Constitution was not applicable in the current political scenario in Karnataka. Instead, Article 101 described the course of action to be taken by the Speaker.

"The Speaker is at the discretion while deciding on the resignations. The Speaker might not even ask for a reason if he is satisfied that the resignations tendered are voluntary," he added.

Article 104 prescribes penalty for sitting and voting before making oath or affirmation under Article 99, or when not qualified, or when disqualified.

"If a person sits or votes as a member of either House of Parliament before complying with Article 99 or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from doing so by the provisions of any law made by the Parliament, he shall be liable in respect of each day on which he sits or votes to a penalty of Rs 500 to be recovered as a debt due to the Union Powers, Privileges and Immunities of Parliament and its Members," says Article 104.

Article 99 says, "Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."

Speaking to IANS, Kashyap said according to Article 101 of the Constitution, the Speaker has no power to identify the nature of cause at the core of resignations tendered by MLAs in the Legislative Assembly.

According to Article 101 clause 3 sub clause (b), If a member of the Legislative Assembly resigns his seat by writing under his hand addressed to the Chairman or the Speaker, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant.

"Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation," states the Article in the Constitution.

Therefore, the Supreme Court should not entertain the application of the Speaker, added Kashyap.

On the other hand, the Speaker, in the application, contended that the provison to Article 190(1) (b) specifically contemplated an enquiry for ascertaining whether the resignation was voluntary and genuine. It was only after such enquiry/process that the satisfaction of the Speaker could be reached.

The Speaker also submitted before the apex court that several of the resignations were not in accordance with Rule 202 of the Rules and Procedure of Conduct of Business in the Karnataka Legislative Assembly.

"It is thus respectfully submitted that the enquiry so contemplated cannot be completed today itself," said his application in the top court.

The Supreme Court has declined to pass an order on the Speaker's application.

In its order passed earlier in the day, the court asked the Speaker to grant an audience to the 10 MLAs who moved the court against the Speaker.

"The petitioners (MLAs), if they so wish and are so inclined, shall intimate the Speaker of the Assembly their decision to resign, in which event, the Speaker shall take a decision forthwith and, in any case, in the course of the remaining part of the day. Such decision of the Speaker, as may be taken in terms of the present order, will be laid before the Court tomorrow," the court order said.

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Comment on this article

  • Vinay, Udupi

    Fri, Jul 12 2019

    Don't elect same MLAs (rebels) again whichever the party, as a citizen we all do this
    Then only these kind of drama may be stop.

    DisAgree Agree [4] Reply Report Abuse

  • Alwin, Mangalore

    Fri, Jul 12 2019

    Law has characters of evolution and development
    It cannot be stagnant water.These types of lawaker should be punished by speaker, court and voters. This type people have no party and are there in every party.They should be bNned any type representative election of citizen. The cost of the election and future cost of election recovered from them and credited to Government treasury.

    DisAgree [3] Agree [2] Reply Report Abuse

  • Alphonse Rodrigues, Udupi

    Fri, Jul 12 2019

    We have voted from our willingness to our preferred candidates.
    We have not taken money to cast our our free vote.
    If the MLA's are enticed from opposition in the ministerial posts for money making business or with notes, he has broken our trust vote during the assembly elections.
    How was anti-defection law passed when the citizens gave free of cost votes one's trusted candidates, then betraying our free vote & defecting for money.
    Those MLA's defecting should be barred from contesting elections for 7 years.

    DisAgree [4] Agree [5] Reply Report Abuse

  • Mehakchand, Bantwal

    Fri, Jul 12 2019

    Can we believe whole night speaker sit and done chintane on it. Do we receive good results from a person who didn't slept whole night..having garshane within himself. Speaker himself weaved chakrayuvah and fallen on it. Now difficult to come out of it. Resigned leaders alreadu succeded in there efforts. Ramesh Jharkoli as there leader they will teach lesson for DK Shivkumar and Sidda...soon. Fall of govt. is imminent. BJP now after appointing suitable cabinet ministers of calibre.

    DisAgree [6] Agree [9] Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Fri, Jul 12 2019

    We want CBI to inquire about all these Illegal Money Transactions ...

    DisAgree [10] Agree [8] Reply Report Abuse

  • ad, mangaluru

    Fri, Jul 12 2019

    BJP Experts ?

    DisAgree [8] Agree [3] Reply Report Abuse

  • Mehakchand, Bantwal

    Fri, Jul 12 2019

    Internal clashes within the party create rift of which bjp now take advantage. Now no need to blame bjp. D K Shivkumar, Siddaramiyah,Revanna created problem showed there strength often.

    DisAgree [4] Agree [12] Reply Report Abuse

  • H. Almeida., Bendur/Andheri

    Fri, Jul 12 2019

    The nation is watching this sordid, sick drama, with disbelief...... The speaker is now attempting to put up support, to the dilapidated coalition structure.... This farcical n desperate attempt to survive, has not got unnoticed, in the eyes of the citizens of Karnataka..... They are waiting for elections to be declared... to boot out these power seeking ego bloated netas !!!!!

    DisAgree [1] Agree [9] Reply Report Abuse

  • Rational thinker, Mangalore

    Fri, Jul 12 2019

    But everybody knows that these were not voluntary resignations!

    DisAgree [5] Agree [7] Reply Report Abuse

  • Mangalurian, Mangaluru

    Fri, Jul 12 2019

    Thankfully for India, "experts" from the opposition camp are not the same as the courts of law.

    The "experts" from the opposition camp create the provocation and manipulation, and then go about giving "expert opinions".

    DisAgree [4] Agree [4] Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Fri, Jul 12 2019

    Rebel MLA's took vote from our Honest people & are now joining Criminals ...

    DisAgree [12] Agree [9] Reply Report Abuse

  • NN, NN

    Fri, Jul 12 2019

    These rebel MLAs are elected from the party ticket. So, if they resign those vacant seats belong to Congress/JDS party. In the interest of justice and fairness to the voters, the SC can allow the Congress to nominate MLSs for the remainder of the term. Please take precedence of USA democracy where where a Senator resigned or expelled, the another person is nominated for the vacant position for the remainder of the term. Please see Sen. Jesse Jackson Jr. case.

    DisAgree [5] Agree [3] Reply Report Abuse

  • KvKamath, Mangalore

    Fri, Jul 12 2019

    Ruling in America doesn't apply here in Karnataka. Ignore it unless rules and acts are there in constitution.

    DisAgree Agree [3] Reply Report Abuse

  • David Pais, Mangalore

    Fri, Jul 12 2019

    nations r bound by da constitution of u.n.

    DisAgree [1] Agree Reply Report Abuse

  • NN, NN

    Tue, Jul 16 2019

    The essence of democracy is the same. Since these provisions are not specified in the Indian Constitution, SC has the right to interpret the constitution and make a ruling which is equal to law. Is noise pollution decision by SC included in the constitution?

    I am not a law expert but I use my common sense looking at the shameless raptorious attempts to gain power by these MLAs which is totally undemocratic. The voters take off from the work, stand on the queue rain or shine, vote for the party and get betrayed by their own reps before the indelible ink on the finger disappears. What a shame and what a betrayal !!!!!

    DisAgree Agree Reply Report Abuse

  • SmR, Karkala

    Thu, Jul 11 2019

    The Supreme Court’s direction to the speaker to decide the rebel MLAs’ resignations today also flies in the face of
    the proviso to Article 190 (3)(b), which empowers the speaker to reject the resignation of a legislator, “if from information received or otherwise and after making such inquiry as he thinks fit”, he is satisfied that such resignation is not voluntary or genuine.

    Article 190(3)(b) in The Constitution Of India 1949
    (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant: Provided that in the case of any resignation referred to in subclause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.
    If his plea indeed has substance, he would be unable to comply with the Supreme Court’s morning directive, unless it is modified by the same bench before 6 p.m. On the contrary, if the order remains as it is, and if he does not comply with it, he may be reprimanded for contempt, even if the court finds substance in his application.

    I would rather say Supreme Court instead of holding the values of the democracy, somewhat lean to BJP favoring the party threatening the speaker of the house with contempt of the court.

    1. Does the Supreme Court of India will ever consider the voters of India, who have been cheated by the elected members?
    2. Why the Court is not questioning the defected MLA's what kind of security threat they are facing being elected representative of the assembly?

    Whichsoever party candidate they belong. The Supreme Court of India should once for all stop this horse trading to save democracy.
    Jai Hind

    DisAgree [9] Agree [4] Reply Report Abuse

  • Chetan .S, Mangalore. INDIA

    Thu, Jul 11 2019

    KINDLY BANISH THESE 225 MLA'S .THERE SHOULD NEW FRESH LOT OF MLA'S.

    DisAgree [1] Agree [3] Reply Report Abuse

  • SB, Mlore

    Thu, Jul 11 2019

    .....with that ... Congress supporters frustattion wil reach new high now here.

    DisAgree [1] Agree [6] Reply Report Abuse

  • Sms, Kundapura

    Thu, Jul 11 2019

    These people are playing with people’s sentiments.
    Bring some law, from which these idiots would never represent public again.

    DisAgree [2] Agree [5] Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Thu, Jul 11 2019

    Why no one is questioning the Black Money used by Amit Shah to topple Karnataka ...

    DisAgree [12] Agree [8] Reply Report Abuse

  • Mehakchand, Bantwal

    Fri, Jul 12 2019

    Why you are asking others..?? Every time you claim i m mangalorean. Take volvo bus of canara pinto from mira road and get down in santekatte. Latter on protest on roads taking support of ghulmas. What else now left you people. No ned of party president. Giving position to youngsters like Scindia Jr..Pilot Jr..Deora Jr. Can it work. Seniors will agree..!!

    DisAgree [4] Agree [11] Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Fri, Jul 12 2019

    Mehakchand, Bantwal
    Harsh Malhotra, why are you scared to use your Real Name ...

    DisAgree [4] Agree [1] Reply Report Abuse

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Title : Crisis in Karnataka : Experts say rebel MLAs cannot be disqualified


 
 
 
 

 
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