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Tug of war between Resignation by legislators and Disqualification by Speaker.

Author :- Himanshu Anand

Apex Court in its November 2019 pronouncement in Shrimath Balasaheb Patil v The Hon’ble Speaker, Karnataka legislative assembly & others held that if cause of defection arises before the resignation is tendered then speaker shall decide defection proceeding first and can withhold the resignation for a reasonable period. Bench headed by Justices N V Ramana, Sanjiv Khanna and Krishna Murari upheld the disqualification of the 17 rebel MLAs but set aside the duration of the disqualification and held that speaker is not qualify to prescribe the period of disqualification, as speaker disqualified the members till the end of the tenure of 15th Karnataka Assembly(2023).

In the said case, 17 rebel MLAs from Congress and JD(S) tendered their resignation to the Karnataka Speaker. One among the other member from congress party met the Speaker K R Ramesh Kumar and tabled the petition seeking disqualification of the rebel legislators on the grounds of Anti-defection law. Speaker then disqualified the named MLAs and procrastinated the acceptance of their resignation.

The speaker disqualified the MLAs on the ground prescribed under Paragraph 2 of Tenth Schedule, where member of the party abstained from voting in the House. Later the said MLAs tendered their resignation using their prerogative under Article 190(3)(b) to the speaker, to dodge from the wrath of defection. Afterwards, Speaker found out that resignation was not given voluntarily and genuinely and he used his power under the proviso to Article 190(3) which was added by the 33rd Constitutional Amendment Act, 1974 (w.e.f. 19-5-1974) and thereafter withhold their resignations till his satisfaction.

The Anti-defection law was enacted by way of 52nd Constitutional Amendment Act, 1985. It is being provide under Tenth Schedule of the Constitution of India. The purpose for bringing this law is to address the perceived problem of instability caused by the democratically elected members of the house. Shifting their alliance from one party to another or abstaining from voting or voting against the will of the party attracts this law. The law has been enact to curb the politically envisaged greed of members and to protect the sacrosanct scheme of democracy.

The power to adjudicate matters regarding In-House proceeding has been given to the Speaker only. He has a power to adjudicate matters on defection and power to accept or reject resignations. Speaker’s order comes under judicial purview if it falls within the four grounds delineated by the Apex Court in KOHITO HOLLOHAN case i.e., malafide, perversity, violation of the constitutional mandate and order passed in violation of natural justice. Speaker acts as a Tribunal while passing an order of disqualification. Hence, his order is subject to judicial review. The subjective satisfaction of the speaker while accepting or rejecting the resignation of the member is also subject to judicial review.

The Apex Court construed that; Speaker can accept or reject resignations only on the ground of voluntariness and genuineness under Article 190(3) proviso. The word genuine means the authenticity of the letter made by the member himself to the speaker and not by any other member or forged by any other member of the assembly. The word voluntary simply means made out of his personal will and not made under coercion, threat or fear.Once it is made clear, that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. It is constitutionally impermissible for the Speaker to take into account any other extraneous factors while considering the resignation.

Apex Court held that resignations by MLA does not take away the power of the speaker to disqualify. Speaker is qualified to examine whether the resignation being made by the MLA is voluntary or not, otherwise he is bound to accept it. He cannot check for the motive and intention behind tendering resignation. It is clear that speaker in exercise of powers under Constitution has this power and he cannot use it sparingly.

Importantly, the Court added that resignation would not efface the effects of disqualification. Disqualification relates back to the time on which it takes place. Resignation does not make it redundant. If the cause for disqualification arose before tendering resignation then Speaker is not debar from exercising its discretion to adjudicate the proceeding. The Court propounded this on the base of Articles 75(1B), 164(1B) and 361B, which are inscribe by 91st Constitutional Amendment Act, 2003 (w.e.f. 1-1-2004) to discourage horse-trading.

At last, court delineate that, Speaker’s order of disqualifying 17 rebel MLAs is Valid but it could not disqualify members for unreasonable period and, to be precise, it does not have power to prescribe the period of disqualification. Hence, they are rightful to re-contest in the upcoming by-polls and can re-elect again. There is no such Constitutional or Statutory scheme, which will operate as a bar to the disqualified members.

Another case came before Supreme Court was KEISHAM MEGHACHANDRA SINGH v. HON’BLE SPEAKER MANIPUR LEGISLATIVE ASSEMBLY AND ORS, judgment delivered on 21 January 2020. Bench headed by Justice R F Nariman, Aniruddha Bose, V. Ramasubramanian. In this case, court opined that disqualification proceeding shall be conclude within 3 months from filling of the petition. In Rajendra singh Rana v Swami Prasad Maurya bench held that, failure of speaker to exercise his jurisdiction will attract the Judicial Review. There shall not be any unreasonable delay while adjudicating the matter unless exceptional reason comes before it. The court further held that, Speaker acts as a tribunal while adjudicating the matter and he shall not delay it for unreasonable time. What is reasonable depends upon the facts and circumstances of the each case.

The period of the three months has been fix keeping in mind the ordinary lifespan of legislative assembly of states i.e. 5 years and a person who incurred disqualification cannot stand a chance to be an MP/MLA for a single day.

The bench suggested that parliament should form an independent mechanism by way of amending the Constitution, such as Permanent Tribunal, headed by the retired Supreme Court judge and Chief justice of High Court, to adjudicate the matters under Tenth Schedule. Parliament may seriously consider amending the Constitution and to substitute Speaker by a Permanent Tribunal to protect the integrity of the democracy and independency.

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