Speaker K.G. Bopaiah's decision disqualifying 16 MLAs ahead of the trust vote is bad in law.
in New DelhiWHATEVER the denouement in the Karnataka political crisis, the legal questions involved in the episode will continue to engage the interest of observers.
The Karnataka Legislative Assembly Speaker's action in disqualifying 16 members ahead of the trust vote faced by the BJP government on October 11 has been challenged in the Karnataka High Court. The disqualifications brought down the effective strength of the Assembly to 209, thus making it necessary for the government to secure the support of only 105 members to win the second trust vote.
The 16 MLAs were disqualified by the Speaker under the Tenth Schedule of the Constitution, which deals with disqualification on grounds of defection. According to paragraph 2(1)(a) of this Schedule, a member of a House belonging to any political party shall be disqualified for being a member of the House if he voluntarily gives up his membership of such political party.
Under paragraph 2(1)(b), a member would also suffer disqualification if he votes or abstains from voting in the House contrary to any direction (whip) issued by his party. The occasion to use this provision did not arise as the Speaker disqualified the MLAs ahead of the first trust vote.
The Speaker, K.G. Bopaiah, using paragraph 2(1)(a) of the Schedule, issued notice to 11 BJP MLAs on October 7 asking why they should not be disqualified for voluntarily giving up the membership of the BJP, on whose ticket they were elected to the Assembly.
Reports in the media indicate that the Speaker issued the notice on the basis of the petition submitted by Chief Minister B.S. Yeddyurappa. The Chief Minister apparently complained that the 11 MLAs suffered disqualification because they sought a change in the leadership of the BJP legislature party.
It is well established that the phrase voluntarily giving up membership of such political party as mentioned in paragraph 2(1)(a) is not synonymous with resignation' and has a wider connotation.
The Supreme Court has held that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs ( Ravi Naik vs Union of India, AIR 1994 SC 1558).
In another case, the Supreme Court observed that the act of voluntarily giving up the membership of the political party may be either expressed or implied ( G. Viswanathan vs Hon'ble Speaker, Tamil Nadu Legislative Assembly, 1996, 2SCC 353).
But the inference of voluntarily giving up membership of a political party must be drawn objectively and fairly, giving due opportunity to the members concerned to explain their conduct. The rebel MLAs came to know on October 6 from the media that the Chief Minister had served them show-cause notices. The notices were pasted on the doors of their rooms, which they use only when the Assembly is in session. The MLAs were given time until 5 p.m. on October 10 to respond.
The Karnataka Assembly rules, according to reports in the media, require seven days' time to be given to an MLA to respond to a disqualification notice. The facts suggest that the Speaker hurried through with the disqualification proceedings, thus making his October 11 disqualification order appear arbitrary and therefore challengeable in a court of law.
The Speaker's decision disqualifying five independent MLAs under the Tenth Schedule is also vulnerable. It appears that the Speaker disqualified them on the basis of documentary evidence that they joined the BJP. Paragraph 2(2) of the Tenth Schedule states that an elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.
The Speaker's reliance on paragraph 2 (1)(a) and 2(2) of the Tenth Schedule suggests that his objective was to avoid the rigours of paragraph 2 (1)(b) of the Tenth Schedule if these rebel MLAs were allowed to vote during the trust vote. Paragraph 2 (1)(b) permits an MLA to violate the whip issued by his party if he had obtained prior permission of his party, or if his such voting against the party's whip or his absence during voting has been condoned by the party within 15 days from the date of such voting or abstention.
In Rajendra Singh Rana vs Swami Prasad Maurya (2007) the Supreme Court clarified what constitutes voluntarily quitting the party membership.
In 2003, 13 Bahujan Samaj Party (BSP) MLAs rebelled against Chief Minister Mayawati and joined the efforts by the Samajwadi Party (S.P.) to dislodge and replace her government. The rebel MLAs visited the Raj Bhavan along with the S.P.'s MLAs. But before S.P. chief Mulayam Singh Yadav secured their support in the House they faced a complaint from the BSP that they had voluntarily quit their party memberships and invited disqualification. After the Speaker and the Lucknow Bench of the Allahabad High Court rejected the BSP's petitions, the BSP appealed to the Supreme Court.
The Supreme Court's Constitution Bench held as follows:
The act of giving a letter requesting the Governor to call upon the leader of the other side to form a government itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. Clearly, from the conduct of meeting the Governor accompanied by the general secretary of the Samajwadi Party, the party in opposition, and the submission of letters requesting the Governor to invite the leader of that opposition party to form a government as against the advice of the Chief Minister belonging to their original party to dissolve the Assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule.
The facts of this case before the Supreme Court were different. In August 2003, the 13 rebel MLAs who stood disqualified, met the Uttar Pradesh Governor and requested him to invite the Leader of the Opposition, Mulayam Singh Yadav, to form an alternative government, after BSP leader Mayawati resigned as Chief Minister and recommended to the Governor that the Assembly be dissolved. The Supreme Court took these facts into consideration while deciding that the 13 MLAs voluntarily quit the membership of the BSP.
In other words, had Mayawati not recommended dissolution of the Assembly, and the rebel BSP MLAs not requested the Governor to extend an invitation to Mulayam Singh Yadav to form the next government, the court might not have concluded that the rebel BSP MLAs voluntarily quit their memberships of the BSP and suffered disqualification.
The 11 rebel BJP MLAs who met Governor H.R. Bhardwaj did not have to make a similar demand, as the Karnataka Chief Minister did not recommend dissolution of the Assembly. Nor did the rebel BJP MLAs request the Governor to invite the Leader of the Opposition to form a new government. The rebel BJP MLAs, according to reports in the media, simply wanted a change in the leadership of the BJP legislature party when they told the Governor that they no longer supported Yeddyurappa's leadership. Therefore, it is debatable whether their action can be deemed to have resulted in voluntarily giving up their membership of the BJP as interpreted by the Supreme Court in the Rajendra Singh Rana case.
On October 11, close on the heels of the BJP government winning the confidence vote in a dubious manner, Bhardwaj sent a report to the Centre recommending imposition of President's rule and keeping the Assembly in suspended animation.
Under the Constitution, the Centre can impose President's rule in a State either on the basis of a report from the Governor or otherwise. In other words, a Governor's report that the situation in a State warrants the imposition of President's rule is not binding on the Centre.
Bhardwaj's directive to the Speaker not to disturb the status quo in the Assembly as on October 6 and his directive to seek a second vote of confidence also came in for criticism by some experts, who questioned whether the Governor had indeed such powers to direct the House.
Most legal observers, however, feel that while the Speaker was arbitrary in denying the 16 MLAs their right to take part in the confidence vote, the Governor's report recommending President's rule was clearly mala fide as the situation was not yet beyond remedy.
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