Bengaluru/New Delhi: According to experts, the rebel legislators of the Congress and the Janata Dal-Secular (JD-S) can't be disqualified under the Anti-Defection Law as they have submitted their resignations as legislators to the Speaker, and not as party members to their party leadership.
The question of disqualification can arise if they defy the whip of their respective parties.
Over the last few days, 16 MLAs of the ruling coalition Â-- 13 from the Congress and 3 from the JD-S -- have tendered their resignations to the Speaker. Prior to their resignations, the Congress had 79 MLAs, including the Speaker, and JD-S had 37 in the 225-member Karnataka Assembly.
If the Speaker accepts the resignations of the 16 MLAs, the Assembly's effective strength will drop to 209 from 225 and the ruling coalition will be reduced to 100, while the halfway mark would be 105.
The Speaker has not yet accepted the resignations on technical grounds of not being in the prescribed format or on the ground that he needed to hear the legislators before deciding on them.
"As the legislators submitted their resignations to Speaker K.R. Ramesh Kumar and not to their respective parties, the Anti-Defection Law will not apply to them and they cannot be disqualified," senior Karnataka High Court advocate Ravi Nail told IANS.
Naik said the Speaker was bound to accept the resignations if they were voluntary and genuine under the Anti-Defection Law or the 10th Schedule of the Constitution, which was amended in 1985 to prevent defections or switching parties for the sake of power.
"As no whip was issued to them before they resigned to be present in the Assembly for voting on a money bill or a Constitution amendment, they cannot be disqualified," Naik explained.
Though Congress Legislature Party (CLP) leader Siddaramaiah on Monday petitioned the Speaker to disqualify the rebels so that they cannot become ministers or contest elections for 6 years under Article 164-1(b), Naik said its provisions would not apply to them, as they have not been expelled from the party, nor have they defied the whip.
"The rebels have claimed that they resigned only from their respective Assembly constituencies from where they got elected in the May 2018 Assembly polls, and not from their parties (Congress or JD-S). The Speaker will also not be able to apply the provisions of the 10th Schedule or Article 164-1(b)," Naik added.
In Delhi, noted Constitution expert Subhash Kashyap also said that Article 104 of the Constitution was not applicable in the current political scenario in Karnataka. Instead, Article 101 described the course of action to be taken by the Speaker.
"The Speaker is at the discretion while deciding on the resignations. The Speaker might not even ask for a reason if he is satisfied that the resignations tendered are voluntary," he added.
Article 104 prescribes penalty for sitting and voting before making oath or affirmation under Article 99, or when not qualified, or when disqualified.
"If a person sits or votes as a member of either House of Parliament before complying with Article 99 or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from doing so by the provisions of any law made by the Parliament, he shall be liable in respect of each day on which he sits or votes to a penalty of Rs 500 to be recovered as a debt due to the Union Powers, Privileges and Immunities of Parliament and its Members," says Article 104.
Article 99 says, "Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."
Speaking to IANS, Kashyap said according to Article 101 of the Constitution, the Speaker has no power to identify the nature of cause at the core of resignations tendered by MLAs in the Legislative Assembly.
According to Article 101 clause 3 sub clause (b), If a member of the Legislative Assembly resigns his seat by writing under his hand addressed to the Chairman or the Speaker, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant.
"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 Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation," states the Article in the Constitution.
Therefore, the Supreme Court should not entertain the application of the Speaker, added Kashyap.
On the other hand, the Speaker, in the application, contended that the provison to Article 190(1) (b) specifically contemplated an enquiry for ascertaining whether the resignation was voluntary and genuine. It was only after such enquiry/process that the satisfaction of the Speaker could be reached.
The Speaker also submitted before the apex court that several of the resignations were not in accordance with Rule 202 of the Rules and Procedure of Conduct of Business in the Karnataka Legislative Assembly.
"It is thus respectfully submitted that the enquiry so contemplated cannot be completed today itself," said his application in the top court.
The Supreme Court has declined to pass an order on the Speaker's application. In its order passed earlier in the day, the court asked the Speaker to grant an audience to the 10 MLAs who moved the court against the Speaker.
"The petitioners (MLAs), if they so wish and are so inclined, shall intimate the Speaker of the Assembly their decision to resign, in which event, the Speaker shall take a decision forthwith and, in any case, in the course of the remaining part of the day. Such decision of the Speaker, as may be taken in terms of the present order, will be laid before the Court tomorrow," the court order said.