Set to pronounce its order Wednesday on the pleas of 15 rebel Congress and JD(S) MLAs against Karnataka Speaker K R Ramesh Kumar for not accepting their resignations from the Assembly, the Supreme Court said Tuesday that the position and powers of the Speaker after the enactment of the anti-defection law in 1985 may require a re-look.
“When the 10th Schedule (Anti-Defection law) was added (to the Constitution), a very high status was given (to the Speaker). But with (what has happened in the) last 10-25 years, probably a re-looking is required,” observed the bench comprising Chief Justice of India Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose.
After hearing the rebel MLAs, the Speaker and Karnataka Chief Minister H D Kumaraswamy, the court fixed Wednesday to pronounce its decision on the plea of 15 rebel MLAs, whose resignations have plunged the Congress-JD(S) coalition government into crisis earlier this month.
Thirteen Congress and three JD(S) MLAs have resigned since July 6, technically reducing the numbers of the coalition from 117 to 101 compared to the BJP’s 105 in the 224-member House where the halfway mark is 113.
However, the numbers will reduce only when the resignations are accepted by the Speaker or if the rebels are disqualified.
In the SC Tuesday, the CJI countered arguments that the court did not have the jurisdiction to direct the Speaker to act in a particular manner at this stage.
“The extent of jurisdiction depends on the kind of restraint this court would like to impose upon itself. There is no inflexible rule,” the bench told senior counsel Abhishek Manu Singhvi who appeared for the Speaker.
Hearing the matter on July 11, the SC had asked the MLAs to appear before the Speaker and requested him to take a decision on their resignations before the end of the day. Singhvi had told the bench that the court should not have given such a direction.
Singhvi said that an earlier decision of the court asking a Speaker to intimate how much time is required to dispose of some disqualification petitions had since been referred to a Constitution bench. He asked if the court would not give more time to the Speaker to decide on the resignations.
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“Very well, we only asked you to decide,” replied the CJI. “But your lordships do not have the jurisdiction,” contended Singhvi.
The argument did not go down well with the bench with the CJI remarking that “the court had jurisdiction to order a floor test in 24 hrs…because that was to your advantage? Court has jurisdiction to appoint pro-tem Speaker.”
He was referring to the midnight hearing by the SC last year when it allowed BJP leader B S Yeddyurappa 24 hours to hold a floor test and ordered the appointment of a pro-tem speaker.
The CJI said that he had heard the arguments of both sides and “what is needed is balancing”. “That balancing is required only after the order is given by the Speaker,” responded Singhvi, adding that the order in the Karnataka midnight hearing was when there was no government.
“Leave it open to the Speaker. Test him, correct him or invalidate him after he takes a decision. That will be the correct way to interpret the Constitutional provision,” said Singhvi.
On the court’s jurisdiction, Singhvi said, “Your lordships have never done it before. Power may be there. But your lordships have never exercised it”. He said it was a question of Constitutional bodies respecting each other.
Senior Advocate Rajeev Dhavan, appearing for Kumaraswamy, said what mattered was the motive of the MLAs and the Speaker had to take this into account. “Your lordships are not dealing with individual resignations. But here is a situation where they are hunting in a pack,” he said, referring to the MLAs travelling to Mumbai after the political storm erupted.
He said their petition did not disclose any fundamental right that warranted the filing of a writ petition under Article 32 of the Constitution.
But Justice Bose pointed out that the petition had referred to the Speaker’s action being arbitrary and violative of the fundamental rights of the legislators.
Dhavan said there was nothing in the Constitution on what should be decided first – disqualification or resignation, but added that the consequence of deciding the resignations first will be that the legislators will become ministers in a new dispensation. Senior advocate Mukul Rohatgi, representing the MLAs, said that “by not deciding, you (Speaker) are compelling a man to act against his wishes.”
He contended that the resignation of the MLAs was voluntary and that it was absurd to demand proof when they had appeared in person and tendered their resignations.
“There could be myriad reasons for an MLA to resign,” he said, adding that the fundamental right of the MLAs to resign and do what they want is being curtailed. Rohatgi said there was no fetter on the power of superior courts to direct the Speaker. “He must be asked to decide on the resignations. There is no material to show it (resignation) is not voluntary,” he said.