New Delhi: Karnataka's 17 rebel MLAs, of the Congress and the Janata Dal(S), on Wednesday secured a reprieve from the Supreme Court which allowed them to contest the Assembly by-elections slated on December 5.
But, at the same time, their disqualification by then Karnataka Speaker K R Ramesh Kumar under the anti-defection law was upheld.
They got the relief five days ahead of the last date of filing of nominations for the by-elections. The by-polls are important as they will determine the fate of the B S Yeddyurappa government, which hangs by a slender thread – a majority of three.
A Bench headed by Justice N V Ramana, with Justices Sanjiv Khanna and Krishna Murari as the other members, held that the Speaker had gone beyond his jurisdiction while debarring these MLAs from contesting any by-election during the tenure of the present House.
"We are upholding the order of the Speaker," said Justice Ramana while reading out the judgment. The MLAs had claimed that they had resigned and so the Speaker cannot disqualify them subsequently. The top court, however, said that resignation does not take away the power of disqualification by the Speaker.
"Since we are deciding on disqualification, resignation is not needed to be gone into. As such there is no doubt that disqualification has nothing to do with resignation," the court said.
It, however, provides a discussion on the interplay between resignation and disqualification of a legislator. The court, therefore, held that the resignation will not efface the effect of disqualification if defection has taken place before the date of resignation.
"Disqualification relates back to the date when the act of defection takes place. 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 acts of disqualification have arisen prior to the member's resignation letter."
The rebel legislators were disqualified by the then Speaker in July under the anti-defection law after they tendered their resignation. They were also barred from contesting polls for the duration of the current assembly, which is slated to end in 2023.
The move had led to fall of the Congress-JD (S) coalition government, paving the way for the BJP to stake claim to form a new government in the state. The verdict was reserved by the court on October 24.The elections for 15 out of 17 seats are slated to be held on December 5.
They were earlier scheduled to be conducted on October 21 but were deferred by the Election Commission (EC) as the petitions of disqualified MLAs were pending in the top court.
The poll body had withheld the elections for two seats -- Maski and Rajarajeshwari -- as the petitions against these Assembly constituencies are pending in the Karnataka High Court.
After their disqualification, the strength of the 224-member Assembly had come down to 207. This had brought down the majority mark to 104.
The BJP, which helms the government under Chief Minister B S Yeddyurappa in the state, has 106 MLAs in the Assembly. With the by-poll elections, the majority mark will climb to 222 and the BJP will have to win a minimum of six out of fifteen seats to keep its majority.
