Supreme Court: The 3-judge bench of NV Ramana, Sanjiv Khanna, and Krishna Murari, JJ has upheld the speaker’s orders dated 25.07.2019 and 28.07.2019 to the extent of the disqualification of the Petitioners but has set aside the part of order that said that disqualified members can’t contest elections till the end of the current Assembly term i.e. the 15th Legislative Assembly of Karnataka. It, hence, directed that 17 Karnataka MLAs can contest the by-elections in the state.

On validity of Speaker’s order

In the impugned order, the Speaker had concluded that the Petitioners have voluntarily given up membership of the party, through their undisputed conduct. Here are the grounds on which the said order was challenged and the Court’s decision on the same:

Breach of principles of natural justice

The Petitioners had contended that the principles of natural justice were breached when the Speaker provided for a three­days’ notice, in derogation of Rule 7(3)(b) of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, wherein a seven­day period is prescribed. The Court, however, held that

“Principles of natural justice cannot be reduced into a straitjacket formula. The yardstick of judging the compliance of natural justice, depends on the facts and circumstances of each case.”

Violation of constitutional mandate

The Court held that though there was an error on the part of the Speaker relating to the period of disqualification imposed in the impugned orders, the same does not rise to a level which requires us to quash the disqualification orders in their entirety.

“the error is severable, and does not go to the root of the disqualification, and thus does not require us to quash the disqualification orders in toto.”

Orders passed with malafides

The Court noticed that the Petitioners have not been able to establish any illegality in the orders passed by the Speaker. It held,

“The Speaker, in our view, had concluded based on material and evidence that the members have voluntarily given up their membership of the party, thereby accruing disqualification in terms of the Tenth Schedule, which facts cannot be reviewed and evaluated by this Court in these writ petitions.”

On Speaker disqualifying members till the end of the term

The Court noticed that the 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 under Articles 75(1B), 164(1B) and 361B of Constitution, 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 re­elected to the legislature, whichever is earlier.

It also explained that the 91st  Constitutional Amendment, Articles 71(1B), 164(1B) and 361B  were enacted to ensure that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or till the date on which his term of office would expire or he/she is re­elected   to the legislature, whichever is earlier.

Considering that the Speaker had, in the order, disqualified the members from contesting elections till the end of the current Assembly term, the Court held:

“the part of Speaker’s 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 accordingly set aside.”

On Petitioner’s approaching Supreme Court directly

The Court, however, wasn’t pleased with the way the matter was dealt with & said,

“we do not appreciate the manner in which the petitioners came to the Court”

It said that the matters challenging disqualification must go to the High Court first. It said that the Speaker, while adjudicating a disqualification petition, acts as a  quasi­judicial  authority and the validity of the orders thus passed can be questioned before this Court under Article 32 of the Constitution. However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the same would be appropriate, effective and expeditious.

On growing trend of Speakers acting against constitutional mandate

It also emphasised on the need for stable governments and that there is a growing trend of Speakers acting against constitutional mandate due to which the citizens are denied stable governments. It said,

“There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty or lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.”

On disqualification vis-à-vis resignation

Though the Court noticed that resignation and disqualification on account of defection under the Tenth Schedule, both result in vacancy of the seat held by the member in the legislature. It, however, said that further consequences envisaged are different. It explained,

“Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter.”

On reference to larger bench

Holding that no substantial question of law exists in the present matter, which needs reference to a larger bench, the Court said that the power of the Speaker to   disqualify has been interpreted in a number of cases, and the present case does not require any broad­based reference which would only prolong the inevitable.

“Such casual and cavalier references should not be undertaken by this Court in view of conditions prescribed under Article   145(3)   of   the   Constitution,   which   mandates   a responsibility   upon   this   Court   not   to   indulge   in   excessive academic endeavors and preserve precious judicial time, and effectively dispense justice in a timely fashion.”

[Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly, 2019 SCC OnLine SC 1454, decided on 13.11.2019]

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