Karnataka MLAs Disqualification Case : Election Commission Agrees Before SC To Defer Upcoming By-Polls

The Election Commission of India on Thursday told the Supreme Court that it would defer the by-polls to the 15 constituencies in Karnataka.

The submission was made by Senior Advocate Rakesh Dwivedi before the bench comprising Justices N V Ramana, Sanjiv Khanna and Krishnan Murari, which is hearing the petition challenging the former Karnataka Speaker Ramesh Kumar's decision to disqualify 15 MLAs. The by-polls are notified to the fill up the vacancies which arose due to the disqualification of the MLAs, who are the petitioners in the Supreme Court. 

The bye-polls are notified to be held on October 21 and the last date of submission of nominations is September 30.

The lawyers appearing for the disqualified MLAs, Congress leader Siddaramaiah and other respondents submitted that they have no objection if the by-polls are deferred.  Accordingly, the Court said that it will continue the hearing on October 22.

Earlier, Senior Advocate Kapil Sibal, appearing for the former Speaker, defended the decision to disqualify the MLAs. Resignations submitted by them were a ploy to avoid the incurring of disqualification. The Speaker has no obligation to blindly accept the resignation, and is Constitutionally bound to see if resignation is coloured by defection, submitted the senior coiunsel.

"Notice for the disqualification was issued at 4 PM on July 10. Dates were given for appearance. The petition was filed in the Supreme Court in the morning of July 10...They (the disqualified MLAs) said we couldn't give resignation to the Speaker because he ran away from the back. These averments are admitted to be false on video... Article 190(3) requires them to go to the Speaker but they went to the Governor instead….their constituency is in Bangalore and they took a chartered flight to Mumbai in the name of a sitting BJP member? Congress members were not allowed entry in the hotel in which they were staying to meet them? It was then that the Speaker asked them to come in 3 days and they objected, saying 3 days' notice is too short…Most of them have collectively given resignation on the same date. Para 2(1)(a) of the 10th schedule authorizes the Speaker to decide if one is voluntarily giving up membership of the party, and if he finds it to be so, the Speaker may disqualify the said member. The proviso to Article 190(3)(b) says that the resignation must be voluntary and genuine . Speaker has to inquire into it, unlike the resignation by the Supreme Court and High Court judges which is accepted immediately. Article 190(3)(b) is resignation from the House and Para 2(1)(a) is from the political party, but the membership of the House is from the Party only! There has been complete misleading of the constitutional scheme!", advanced Senior Advocate Kapil Sibal.

"The order of the Speaker can only be challenged under Article 226 and then a SLP may lie under Article 136. There can be no petition under Article 32 as no Fundamental Right is involved…if the 10th schedule is to work, this court must enforce consequences of a violation. These important issues impact the polity of India, See what is happening in small States like Goa", he continued.

It was Mr. Sibal's case that it was not for the election commission to permit the disqualified MLAs to contest the bye polls, and that it is a disqualification under 10th schedule and not one by the EC for, say, corrupt practices. He submitted that the EC can only notify the next elections, which procedure once begun cannot be interfered with by the virtue of Article 329(b).

"No interim order is called for", urged Mr. Kapil Sibal.

"They flew to Mumbai in a chartered plane owned by Jupiter Capital, which is Rajiv Chandrasekhar's company, who is the BJP member from Rajya Sabha…they were living in a hotel in full security of the (BJP led) Maharashtra government. And in the Supreme Court, they are still saying we are congress men?! What more do you want?! Which Speaker will not inquire into these facts? I think no notice is even required! How can you say I have filed the resignation and the Speaker cannot do anything about it?…And then they requested the Governor's office to advice the Speaker to decide the resignation? What the Governor has to do in the event of a resignation from the House is beyond us! It just goes to show the motive", argued Mr. Sibal.

Placing reliance on Kihoto Holohan's case, Mr. Sibal suggested that the apex courts earlier orders for the resignations to be decided and for the petitioner-MLAs to not be compelled to participate in the proceedings of the House were in excess of Court's jurisdiction-

" In Tamil Nadu, a Speaker didn't issue notice on a disqualification petition for 2 years. The court says that it cannot interfere. Here, the matter was mentioned and an order followed". However, the bench headed by Justice N. V. Ramana discouraged such commentary on the court's orders.