The Legal Angle

Constitutional issues

Print edition : August 02, 2019

When 10 rebel legislators of the Congress-Janata Dal (Secular) ruling coalition in Karnataka submitted their resignations to Speaker K.R. Ramesh Kumar on July 6 and he refused to accept them immediately, the legislators lost no time in approaching the Supreme Court. They filed a writ petition alleging that the Speaker, in concert with the government, was facilitating their disqualification under the Tenth Schedule of the Constitution (anti-defection law), thereby making their resignations infructuous.

The Supreme Court bench comprising Chief Justice of India Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose heard the rebel MLAs and the Speaker on July 12. It decided that since the issue involved substantial questions of law, it would continue the hearing on July 16 and directed the Speaker to maintain status quo until then.

Article 190 (3)(b)

The issues before the court were clear. The rebel MLAs claimed that they were not defecting but resigning from the Assembly in order to seek a fresh mandate as they were fed up with the “maladministration” by the JD(S)-Congress coalition ruling the State. Under Article 190 (3)(b) of the Constitution, if a member of the State legislature resigns his or her seat by writing to the Speaker, and if the latter accepts it, then the seat falls vacant. This Article is qualified by a proviso which says:

“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 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.”

This proviso requires the Speaker to apply his mind before deciding on a member’s resignation and not mechanically accept it. The rebel MLAs claimed that any elected member of the legislature was entitled, in consultation with his conscience or other attendant circumstances, to resign his or her membership of the legislature. Their resignations, they claimed, were on the issue of principle and in the public interest. But they did not explain what this principle was and what public interest required their resignation from the Assembly. Clearly, disenchantment with maladministration would require them to continue their membership of the Assembly to seek appropriate corrective measures in the public interest.

The denial of their right to resign, they said, was destructive of the principles of democracy and hence violative of the basic structure of the Constitution. Again, they did not elaborate on those principles and how the basic structure stood violated.

The rebel MLAs claimed that subclause (b) in Article 190(3)(b) did not envisage a roving inquiry by the Speaker into the circumstances pertaining to a voluntary and genuine resignation by a member. They alleged that the Speaker, on the apprehension that the Chief Minister was likely to lose the confidence of the House for want of a majority, was acting in a partisan manner to frustrate the will of the House. They stated that as there was no doubt about the voluntariness and genuineness of their resignations, the Speaker ought not to conduct an inquiry to ascertain these facts. They also alleged that the Chief Minister, despite his government being reduced to a minority, was refusing to seek a vote of confidence. If that was so, which was not clear from their petition, why should they resign from the Assembly?

The rebel MLAs concealed the fact that they would faced disqualification proceedings if they defied their party whips and voted against the vote of confidence to be moved by the Chief Minister under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution. Resignation from the Assembly, therefore, provided them a convenient option to unseat an elected government, as it would lose its majority in an Assembly whose effective strength stood reduced.

Preferred to resign

The rebel MLAs preferred to resign rather than face disqualification under the Tenth Schedule, even though they could have made the same point to their party leaders through the latter option and still sought a fresh mandate in a byelection for the same seat.

They did not wish to be disqualified because they would have become ineligible to become Ministers as Article 164(1B) of the Constitution bars those disqualified on the grounds of defection from becoming Ministers if they do not get re-elected to the Assembly. Article 361B imposes a similar bar on those disqualified under Paragraph 2 of the Tenth Schedule, following their defection, from being appointed to remunerative political posts.

Abhishek Manu Singhvi, senior counsel for the Speaker, told the bench on July 12 that the rebel MLAs wanted to achieve the benefit, which had been expressly denied to them under the Constitution on the grounds of their defection and defiance of the party leadership, by resigning from the Assembly. Permitting such resignation, therefore, would be a fraud on the Constitution, he said.

Senior counsel Rajeev Dhavan, representing Chief Minister H.D. Kumaraswamy, said the bench should introspect on whether it did the right thing by directing the Speaker on July 11 to decide on the resignations on the same day in the evening without hearing the Speaker or the Chief Minister. The bench even refused to hear the Speaker in the afternoon on July 11 when he moved an application seeking relaxation of the deadline imposed on him to decide the resignations of the rebel MLAs. As a consequence, the Speaker insisted on following the provisions of Article 190(3)(b) in letter and spirit and sought more time to decide on the resignations of the rebel MLAs as the Supreme Court’s order left him with no other option.


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