If an MLA quits out of free will, accept it, says Supreme Court
Upholding the disqualification orders passed by then Speaker Ramesh Kumar on July 25 and July 28, 2019, a three-judge bench comprising Justices N.V. Ramana, Sanjeev Khanna and Krishna Murari set aside the part of the Speaker’s order unseating the 17 for the rest of the Assembly’s term.
Calling for the strengthening of the anti-defection law to ensure that “undemocratic practices are discouraged and checked”, Justice Ramana said there was a “growing trend” of Speakers “acting against the constitutional duty of being neutral”.
The court also lamented that “horse-trading and corrupt practices” associated with defections and change of loyalties for the “lure of office or wrong reasons have not abated”.
As a principle, the court said it was the prerogative of a member to resign and he could not be compelled to continue in the legislature.
“Once it is demonstrated a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation” — a point emphasised by the 17 MLAs in the course of the hearing.
Not accepting the disqualified MLAs’ argument that the disqualification proceedings cannot be continued if the resignations are tendered, the court said: “Even if the resignation is tendered, the act resulting in disqualification arising prior
to the resignation does not come to an end.”
However, the verdict said that “a member disqualified
under the Tenth Schedule shall be subjected to sanctions provided under Articles 75(1B), 164(1B) and 361B of the 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 re-elected to the legislature, whichever is earlier”.
Rejecting the plea by the Congress and JD(S) that the entire issue be sent to a larger five-judge Constitution Bench, Justice Ramana said: “The existence of a substantial question of law does not weigh on the stakes involved in the case, rather it depends on the impact the ‘question of law’ will have on the final determination.”
Making it clear there was no “substantial question of law” in this matter which needs reference to a larger bench as sought by the Congress and JD(S), the court said: “If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as ‘substantial questions’ of law.”
Meanwhile, R. Roshan Baig, one of the 17 disqualified MLAs, is not likely to join the BJP on Thursday along with other disqualified MLAs, with his name missing from the invitation sent out by the BJP which lists the names of 16 disqualified MLAs but omits the name of Baig. This issue was discussed in Delhi, sources said.