Karnataka Speaker’s order of disqualification will run into troubled waters legally

New Delhi, July 29: The order of the Karnataka Speaker which disqualified the 17 rebel MLAs is bound to run into troubled waters legally.

The legal team for the MLAs are bound to cite the latest judgment of the Bombay High Court, which said that disqualification under the Tenth Schedule cannot bar a legislator to seek an election during the term of the current assembly.

Speaker, Ramesh Kumar had in his order said that the legislators cannot contest the by-poll in the current assembly. He said that they were barred from contesting until 2023, when the term of the current assembly ends.

The Bombay High Court in 2017, while hearing a case relating to the Goa assembly had said that the disqualification is not for five years. There is no restraint in a case such as this from offering oneself for re-election, the court had said.

The court's ruling came, following a plea by the Congress party that the disqualification for anti-defection should mean barring the member from contesting an election till the term of the present house.

The judgment further said that disqualification for holding office of profit, unsoundness of mind, insolvency etc, engenders a disqualification either from continuing as a member, or even from standing for election. This would mean that a five year prohibition, because that is the term of note House under Article 172. The court rejected the contention by the Congress that the same meaning should be given to a disqualification under Article 191(2) for defecting to some other party or indulging in anti party activities.

The court also said that it was unclear whether this is a suggestion of reading down one clause or reading up another, but neither is possible. The court said that an Article 191 (2) disqualification results in discontinuance of membership. It does not earn the added disqualification of not returning to he voters and seeking re-election.

The court said that disqualifications under Article 191(1) and 191(2) result in instant vacating of the membership of the House under Article 190(3). The results of that disqualification are provided under Article 191 in two distinct clauses. Where the language is plain and unambiguous and where a legislature has used a phrase in one clause, but not the next, we are not to presume that if fell into error, or that it meant something other than what it said, or that it meant to include in the second that which it said in the first but did not in the second, the court also said.

The rebels also have other grounds to challenge the order of the Speaker. They would cite that the mandatory seven day notice clause was not followed. As per the Karnataka Legislative Assembly rules, a minimum seven day notice period to respond ought o have been given by the Speaker, they would argue.

Further they would cite the 1992 Kihote Holland case in which the Supreme Court had said that decisions made by the Tenth Schedule is subject to judicial review.