A H Vishwanath Disqualified; Disqualification To Be Considered While Nominating Him As Minister : Karnataka High Court

The Karnataka High Court on Monday held a prima facie view that Member of Legislative Council A.H. Vishwanath, has incurred disqualification under Article 164 (1) (b) and Article 361 (B) of the Constitution of India, till the expiry of the term of the Legislative Council-May 2021, while two other nominees R. Shankar, and N. Nagaraj (MTB) have not.

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty while hearing on a batch of petition seeking to restrain the Chief Minister and Governor from affirming oath to them into the Council of Ministers said "It is not prima facie established that R Shankar and N Nagaraj have been disqualified under Article 164 (1) (b) and 361(B). We hold that A H Vishwanath, ex-facie attracts disqualification under Article 164 (1) (b) and Article 361 (B)."

The bench said "Honourable Chief Minister, while making recommendation to Honourable Governor on nominating Ministers will have to take into consideration the issue of disqualification incurred by A H Vishwanath. Similarly, even if recommendation is made by Honourable CM, the Honorable Governor is bound to consider the aspect of disqualification incurred by A H Vishwanath."

Advocate Prashant Bhushan appearing for petitioner Harisha A.S had alleged that the three respondents are given a back door entry into the Legislative Council with the sole purpose of inducting them into the Council of Ministers even though Vishwanath and Nagaraj had lost in the byelections in their respective Assembly constituencies, after their disqualification.

Moreover, Shankar did not contest the Assembly elections, the plea stated.

The plea states that to become eligible to be appointed as a Minister, a disqualified member of the Assembly will have to get "re-elected" to the same House during the same period in which he was disqualified, by contesting in an election from the Assembly constituency.

The three respondents were "not eligible" to be appointed as Ministers and in politically remunerative posts because of the prohibitions imposed in constitutional provisions and the observations of the apex court of November 13, 2019, which had upheld the order passed the Speaker of the Legislative Assembly in July last year disqualifying them from the Assembly, the plea stated.

Advocate General Prabhuling K Navadgi and the respondents had opposed the petition on the grounds that they were filed prematurely.

A H Vishwanath, R Shankar and Nagaraj were part of the 17 MLAs who resigned last year leading to the downfall of the JD(S)-Congress government led by H D Kumaraswamy.

Shankar belonged to KPJP, Nagaraj to Congress and Vishwanath to JD(S). They were held to the disqualified under the anti-defection law by the Speaker last year and the Supreme Court upheld the disqualification.

Vishwanath lost the bye-elections contested on BJP ticket.

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