'Disqualification Remains If You Are Simply Nominated' : Supreme Court Upholds Karnataka HC Order Holding AH Vishwanath Disqualified

The bench headed by Chief Justice S. A. Bobde was hearing Vishwanath's challenge to the November 2020 verdict of the Karnataka High Court which prima facie declared that the MLC 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. The High Court judgment had upset his chances of becoming a Minister in the State Government.

"My disqualification under 164(1)(b) is restricted to the capacity of the office from which I have been disqualified. If I come back to the house in any other capacity… ", began senior advocate Gopal Sankaranarayanan for the petitioner.

Disagreeing with this submission, the bench observed that the disqualification will remain operative if a person is simply nominated to the legislative council instead of being elected.

"No, not in any other capacity. If you come back elected it is fine. If you are simply nominated, it cannot be.The High Court is right...", observed the Chief Justice, adding that the HC order was "well-reasoned".

Finally, Mr. Sankaranarayanan tried to argue that the present issue could not have been the subject-matter of a PIL, as was the case in the High Court.

"You cannot be granted relief on a technical ground. The fact of the matter is that you are not entitled to be a minister", said the CJ, dismissing the plea.

Background

A H Vishwanath was part of the 17 MLAs who resigned in 2019 leading to the downfall of the JD(S)-Congress government led by H D Kumaraswamy.

He belonged to the JD(S) before. In 2019, the Karnataka Speaker held that his resignation amounted to defection under the tenth schedule of the Constitution. The Speaker's order was upheld by the Supreme Court in November 2019. However, the top court clarified that the disqualified members can contest the bye-elections.

Though Vishwanath contested by-polls on BJP ticket, he lost.

In July 2020, he was nominated by the Governor to the Legislative Council, seemingly as a part of plan to induct him as a Minister.

The move of the Karnataka Government to induct Vishwanath and two other similar nominated members (R Shankar and N Nagaraj) was challenged in the Karnataka High Court in a PIL filed by one Harisha AS.

On November 30, 2020, a division bench headed comprising Chief Justice AS Oka and Justice S Vishwajith Shetty ruled that the disqualification of Vishwanath subsisted even after his nomination.

The bench observed that the Governor should take into account this fact while acting on the recommendation to make Vishwanath a Minister.

"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", the High Court ordered.