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New Delhi: The Supreme Court on Wednesday upheld the disqualification of 17 Congress-JD(S) MLAs in Karnataka by the then Assembly Speaker but paved the way for them to contest the December 5 by-polls on 15 seats in the state.
While upholding their disqualification, the apex court set aside the portion of the orders by the then speaker K R Ramesh Kumar by which the legislators were disqualified till the end of the 15th Karnataka Legislative Assembly's term in 2023.
A bench of justices N V Ramana, Sanjiv Khanna and Krishna Murari said it is clear that the Speaker, in exercise of his powers under the Tenth Schedule of the Constitution, "does not have the power to either indicate the period for which a person is disqualified or to bar someone contesting elections".
"We must be careful to remember that the desirability of a particular rule or law, should not, in any event, be confused with the question of existence of the same, and constitutional morality should never be replaced by political morality, in deciding what the Constitution mandates," the bench said in its 109-page judgment.
The court said there is a growing trend of Speakers acting against the "constitutional duty of being neutral" in addition to political parties indulging in horse trading and corrupt practices due to which citizens are being denied stable governments.
The Speaker, being a neutral person, is expected to act independently while conducting the proceedings of the House or adjudication petitions, it said.
The constitutional responsibility endowed upon the Speaker has to be scrupulously followed and his political affiliations cannot come in the way of adjudication, the apex court said, adding, there is a need to consider strengthening certain aspects so that such "undemocratic practices" are discouraged and checked.
Regarding the maintainability of the petitions filed by the disqualified lawmakers challenging the then speaker's orders, the bench said the writ jurisdiction is one of the valuable rights provided under Article 32 of the Constitution, which in itself forms part of the basic structure.
Referring to a previous Constitution bench judgment, the court said, "We do not find any explicit or implicit bar to adjudicate the issue under the writ jurisdiction of this court."
The bench, however, deprecated the manner in which the disqualified MLAs directly approached it without first moving high court.
It said the Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed can be questioned before the apex court.
It said that despite the apex court having sufficient jurisdiction to deal with disqualification cases under the writ jurisdiction, a party challenging a disqualification order is required to first approach the high court as it would be appropriate, effective and expeditious remedy to deal with such issues.
"This court would have the benefit of a considered judicial verdict from the High Court. If the parties are still aggrieved, then they may approach this court," the bench said, adding, the petitioners have "leapfrogged the judicial hierarchy as envisaged under the Constitution".
The bench divided its order into five parts -- maintainability of the petition, aspect of resignation, aspect of disqualification, power of the speaker to disqualify a member till the expiry of the term and the question of reference to a larger bench.
The court said the Speaker's scope of inquiry regarding acceptance or rejection of a resignation tendered by a member is limited to examine whether it 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 and it is constitutionally impermissible for him to take into account any extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review," it said.
The bench said the object and purpose of the Tenth Schedule is to curb the evil of political defection motivated by lure of office or rather similar considerations which endanger the foundation of the democracy.
"Even if the resignation is tendered, the act resulting in disqualification arising prior to the resignation does not come to an end. The pending or impending disqualification action in the present case would not have been impacted by the submission of the resignation letter, considering the fact that the act of disqualification, in this case, have arisen prior to the members resigning from the Assembly," it said.
The court refused to refer the matter to a larger bench as no substantial question of law exists here.
Kumar had disqualified the 17 MLAs of the Congress-JD(S) coalition ahead of a trust vote in July.
The then chief minister H D Kumaraswamy had resigned after losing trust vote, which paved way for BJP-led government in the state under B S Yediyurappa.
The 17 disqualified MLAs are: Pratap Gowda Patil, BC Patil, Shivram Hebbar, ST Somashekar, Byrati Basavaraj, Anand Singh, R Roshan Baig, N Munirathna, K Sudhakar and MTB Nagaraj, Shrimant Patil, Ramesh Jarkiholi, Mahesh Kumatalli and R Shankar (all Congress). JD(S) members who faced action are K Gopalaiah, AH Vishwanath and KC Narayana Gowda.
By-polls to 15 out of these 17 assembly seats which fell vacant following the disqualification of MLAs are scheduled on December 5 and candidates are required to file their nomination papers between November 11 and November 18.
