Can Resignation Avoid Disqualification? Rohatgi, Singhvi & Dhavan Battle It Out In Karnataka MLAs Case [Court Room Exchange]

"Pendency of a disqualification is not a bar to the Speaker to act on resignation. The procedure, the Articles for the two are completely different. The roles of the Speaker in disqualification and in resignation under 190 are different. And the decision is subject to Your Lordships' jurisdiction", began Senior Counsel Mukul Rohatgi for the rebel MLAs.

"All 10 of the MLAs had resigned on July 6 under their own hand. The resignation was stated in 2 lines. Out of the 10, disqualifications were pending against 2 of them, the petitions having been filed on February 11. One of these 2, Umesh Jadhav, who had resigned pending the disqualification, his resignation having been submitted on March 4, the same was accepted on April 1...and the disqualifications against the remaining 8 were moved on July 10...", he continued.

"By virtue of Your Lordships' order, these 10 people appeared before the Speaker on July 11 in the evening and gave fresh resignation which was nothing but just a reiteration of the earlier resignation...of the 5 MLAs now seeking impleadment, 3 resigned on July 10, 1 on July 1 and 1 on July 6..."

"Any disqualification petitions pending against these 5?", asked Chief Justice Ranjan Gogoi. Mr. Rohatgi replied that the petitions were filed on July 10.

"For 2, the disqualification is pending since February. For one Jadhav, the Speaker accepted the resignation despite the pendency of the disqualification. He didn't think it was a bar then. Now he is saying 'I will decide the resignations in the shortest possible time. I will also decide the disqualification petitions. But the latter is a mean trial- natural justice has to be followed, show-cause notice is to be issues, evidence has to be examined, it has to be ascertained if the member is crossing over to another party. It is an adversarial lis as two parties are fighting...But resignation, once moved, notwithstanding the disqualification petition, has to be decided in its own sphere of 190. The only parameter is that the resignations are genuine, voluntary and without any coercion...this is not a case where the MLAs were locked up in a room with a gun to their temple and asked to resign. Here, the man appears before you twice and says he wants to resign- he says so in the media and before the SC! No other inquiry is needed here. The inquiry cannot be prolonged or mixed with disqualification . And I am not saying 'please quash my disqualification petition'. I am only saying that 'I don't want to be a MLA and attend the House...Don't force me to discharge my duties! I do't want to defect; I just want to go back to the public and contest elections again or maybe even just give up!...But the Speaker is coercing me to sit in a room and vote in a particular manner...'...It is my right, my profession, my vocation to do what I want to under 190. The Speaker is infringing my right...Besides, the Speaker has now called for the trust vote the day after tomorrow. Your Lordships had given us protection, and now the idea is that there will be a fresh whip to ask these 15 to attend and vote. And the argument will be that the SC's order was confined to the previous whip. That is the game. The government knows that it is in minority, and that it about to come down by 15 more people", argued Mr. Rohatgi.

"The Proviso to 190(3) was added as a security to the MLA, not as anything against him. It is beneficial to the MLA who is coerced to do something. 191 is on disqualification. (a) to (e) are the grounds in 191(1) which are not under the Speaker but referred to the Governor who is to act as per the opinion of the EC. 191(2) takes you to the 10th Schedule which the Speaker decides. 191(2) has nothing to do with resignation", submitted the Senior Advocate.

Indicating Rule 202 of the Karnataka Assembly Rules on Vacation and Resignation, he contended that if the Speaker has no further information, he has to accept the resignations immediately and that he cannot have an inquiry.

"What are the grounds in the disqualification petition?", asked the Chief Justice. "Not acting in concert with the party. Not attending meetings outside of the House. Not a disciplined member of the party", responded Mr. Rohatgi. "Are the grounds identical in all?", the Chief Justice wanted to know- "Slightly different but broadly the same"

Next, the Senior Counsel discussed the grounds for disqualification on defection as in Paragraph 2 of the 10th Schedule- "It is not as if a member of the opposition party came and stood with you on a public platform and you said 'vote for him'. That would be a clear indication of the intention to be somewhere else. They are saying the MLAs are trying to destabilize the government in collusion with the BJP, that the resignation is without reason. They have no real material. The reasons are being attributed. It is only a ploy to scuttle the resignations and have the Speaker decide them along with the disqualifications"

"Then there is Article 361B which has no bearing on our case. It provides punishment for criminal acts in the RPA- if you are disqualified today, for 4 years and 9 months you cannot hold a remunerative post and go to another party and become a minister. Either you will stay out for 4 years and 9 month or jump into bye-elections", claimed Mr. Rohatgi.

"What if I resign?", probed the Chief Justice. "Then I can become a minister in another party and contest elections in 6 months...361B came in 2003 and still didn't amend 191..even in 361B if I am disqualified, I can contest elections in 3 months and become a minister. So it is only about 3 months...Resignation operates on its own terms unless the Speaker has credible material", suggested Mr. Rohatgi.

"Is there a constitutional obligation on the Speaker to decide a disqualification petition coming subsequent to the resignation prior to the resignation? What is the order?", questioned the Chief Justice. "190, coupled with Rule 202 ('which is the Assembly's own mandate', he added), says that if the resignation is under their own hand and there is no other material, the Speaker must decide on the resignation immediately. Otherwise, he is compelling a man. He is not being neutral but partisan. The onus is on the man tendering the resignation- that I am before you voluntarily, without any pressure...Here, they are crying hoarse in the SC to resign, they are going to the Speaker! It is absurd to enter into this discussion", answered Mr. Rohatgi.

"There are myriad of reasons to resign- one might be unwell, one might be sick of politics and want to pursue a different vocation, one doesn't want to go to the House. The fallacy of their argument is that they say these MLAs want to go elsewhere, and that is completely irrelevant. The Assembly Rules say that even if the reason for resignation is stated, the Speaker may strike it out. The disqualification petition may take months and months to decide...The Speaker says that in your resignation, you have said 'voluntarily' but the format stipulates 'I resign' so the resignation is not in format. How perverse is this? Another stated the resignation is 'for personal reasons', again the Speaker says this is not the format..", he persisted.

He moved on to rely on a decision of the Kerala High Court, the Rules of Procedure of the Kerala Assembly being identical to that of Karnataka, where the resignation had come pending the disqualification petition, in fact only a day prior to the order on the latter- "It was only towards the fag-end that the resignation was tendered. The MLA must have seen the writing on the wall. But even then the Kerala HC said that he allowed to resign! ('So you are on a stronger ground', remarked the Chief Justice)...There are similar cases of MP and Goa...The Speaker cannot say the resignations are involuntary because I have started the disqualification. Involuntary are physical grounds- like somebody holding you. Escaping disqualification is not the same as involuntary".

"If we agree with you, what is the extent of our jurisdiction?", Chief Jutsice Gogoi wanted to know. "There is no fetter on Your Lordships to ask the Speaker to decide within a time-frame. He can't claim to be the imperium in imperio! This happened in Haryana also and in Orissa also. Last year, for the same Karnataka Assembly, Your Lordships had ordered a floor test to be held within 24 hours! The entire timeline was given- for the oath of the protem speaker, for the vote...The only immunity to the Speaker is in Article 212. And my answer is that resignation is not a proceeding in the House", asserted Mr. Rohatgi.

In his turn, Senior Counsel Abhishek Manu Singhvi, for the Karnataka Assembly Speaker, advanced, "On a demurrer, a large part of what Mr. Rohatgi has said is incorrect. All the disqualification petitions were moved before the presentation of the resignations. Anyway, the speed and the race between the disqualification and the resignation is a wrong equation. Disqualification relates to the original act and even if it comes several years later, it shall operate from the past date. It is not a race against time of who gave what first"

"...the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up (his membership of a political party) or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the Legislator", Dr. Singhvi quoted from the 2007 constitution bench judgment in Rajendra Singh Rana's case to buttress his argument.

"Your Lordships are not the deciders of the seriousness of the existence of the disqualification. Can all this be decided in an interim hearing? Why have a Speaker then? Nobody is saying that he is infallible, but the judicial review can be of only his final decision...The Constitution says the resignation must be under the MLA's hand, voluntary and genuine. But 202 adds that not only must it be in format but must be tendered in person. All the cases of presenting the resignations personally are for the first time on July 11, either 4 months or 1 day after the disqualification petitions. And 4 persons have still not appeared before the Speaker physically. Even if date is the issue, which I say is the wrong approach, even then the resignations are subsequent to the disqualifications", he continued.

"How were the resignations presented?", asked the Chief Justice. "They were sent to the Speaker's office", replied Dr. Singhvi.

"What did he do then?" - "He fixed a date for inquiry".

"(Mr. Rohatgi) says the resignations were sent on July 6. But the Speaker was not there. And then he doesn't do anything until the MLAs came to this court?" - "(The Speaker) had replied on the 9th that the resignations are not in proper format"

"When they appeared before the Speaker personally on the 11th, why did he not decide then?" - "11th was the first day. Time is needed. This is not how it works. There are people on video saying 'we never sought an appointment with the you', 'never even came to you'. Voluntariness and genuineness cannot be ascertained through postal communication. Personal appearance is important so the Speaker can ask questions"

"Then he says he shall decide the disqualifications first" - "He has to decide disqualification because that has already taken place. Can you circumvent Article 164(1B) [disqualification for being a member of a House under paragraph 2 of the Tenth Schedule shall also be disqualification to be appointed as a Minister] and escape disqualification by resigning?"

"Are the Tenth Schedule and Article 190 interdependent", asked Justice Anirudhha Bose.

"Highly interlinked and have to be interpreted together. Please read 164, 122 and the 10th Schedule together. Originally there was no 10th schedule. It was added so that resignation cannot be an escape route to disqualification...Our case is also of disqualification like Kihoto Hollohan...If a person seeks to resign a day after a protest, the very act of resignation would have him disqualified...resignation is of two types- one when, say, you are ill, and two, when you seek to circumvent disqualification...What if the party leaves the government post the resignation? Will Your Lordships say 190 is in a different silom?"

"So alternatively, resignation could be for personal reasons. But in this case, we invoke the 10th Schedule? Just like resignation must not be to achieve a purpose, neither must be disqualification", noted the Chief Justice.

"If the Speaker feels the resignations are not bonafide, what stopped him from deciding so? These people (the MLAs) were before him...He says he will decide the resignations at the earliest but then takes up the disqualifications?", the Chief Justice sought to know.

"You don't give such timelines to even the lower courts which are writ within your jurisdiction! The Speaker is a persona designata!", urged Dr. Singhvi.

"So we can direct the floor test to be held within 24 hours? We can order the appointment of a protem speaker? But not this? The exercise of jurisdiction by this court depends on the self-restraint exercised by this court on a case-to-case basis. There is no inflexible rule", observed the Chief Justice.

"So if he the Speaker undertakes to decide the disqualifications by 6 PM today, could Your Lordships stay the disqualification?", asked Dr. Singhvi.

"We are not restraining. We are asking you to decide if the resignations are voluntary", commented the Chief Justice.

"We will do both tomorrow. Please modify you status quo. What Mr. Rohatgi has asked for is nothing other than 2 injunctions- one mandamus and one negative injunction", replied Dr. Singhvi.

"So why not accept or reject the resignations", asked the Chief Justice again.

"They never came! The counting starts from the 11th and not the 6th", repeated the Senior Counsel.

"Disqualification and resignation are inextricably linked. They are like scrambled eggs, if I may use the term. Can they be unscrambled? And they are deemed to be proceeding within the Parliament", advanced Dr. Singhvi.

"So why did the court have to order the protem speaker? The procedure of the House should have covered that too?", demanded the Chief Justice, adding that such an approach would be abhorrent to the Constitution.

"In that case, there was no direction to the Speaker as there was no Speaker...to interfere at an interim stage would be equally destructive of the Constitution. There has to be mutual respect for the co-equal organs of the State...if the Speaker does something crazy, Your Lordships may interfere. But here, he is an experienced person yet to take a decision...", emphasised Dr. Singhvi.

"You are saying the resignation is to circumvent disqualification. He (Mr. Rohatgi) says the 10th Schedule is being invoked to defeat his right to resign. We need to balance the two", noted Chief Justice Gogoi.

Finally, Senior Advocate Rajeev Dhawan made submissions on behalf of the Karnataka CM- that the purpose of resignation may be to become Ministers in the opposition party government and therefore, this aspect has to be examined by the Speaker; that they are hunting in a pack and went to Mumbai instead of meeting the Speaker; that Article 190 has to be read with the 10th Schedule; and that the top court, in its interim orders passed last week, has overstepped its jurisdiction.