Karnataka is on the verge of setting an agenda for a critical legal remedy just as the Supreme Court had decided in March 1994 that the majority of a ruling party can be decided only on the floor of the legislative assembly.
That judgement in the SR Bommai versus Union of India case ended the unbridled misuse of Article 356 by a ruling party at the centre and changed centre-state relations for ever. It also ended the practice of parading of MLAs in the Raj Bhavans to decide majority.
The latest political developments in Karnataka have led to a situation where the apex court is expected to decide whether there is any ambiguity in the powers of the Speaker of a legislative assembly.
And whether he/she can be directed by a High Court to decide acceptance of a resignation of a legislator or even disqualification as directed by the Supreme Court in the latest instance or, for that matter, in Telangana.
The Court had directed the Speaker to receive the resignation letters from the 10 petitioner MLAs by 6 pm on July 11. The Speaker complied promptly but preferred to point out to the court why he could not accept the resignation letters “forthwith” as per the second direction.
Speaker KR Ramesh Kumar’s point was that he needed time to convince himself whether the resignations submitted cleared the parameters of “genuineness and voluntariness.”
His actions have led to criticism across several sections of the media, more so in the electronic and social media, that the Speaker has committed contempt of court.
Just like his counterparts in Tamil Nadu and Telangana as well as one of his predecessors in Karnataka faced earlier.
So what are the powers of the Speaker? That is the core question.
The Speaker’s Powers
The Speaker draws his powers and jurisdiction from Article 190 (3) (b) of the Indian Constitution.
“If a member of a House of the Legislature of a State resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon becomes vacant: Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation,” says the Constitution.
“As per this clause, Karnataka Speaker Ramesh Kumar is well within his rights to do what he is doing at present,” said a former Secretary General of the Lok Sabha who spoke to The Lede on condition of anonymity.
“There are two options available to the Speaker. One is to take his own time and reject the resignations. If the Speaker is satisfied that these resignations are not genuine or voluntary, he can and shall reject it. That is what the Constitution says – that he “shall” reject. Speaker also has the power to also constitute an enquiry into this otherwise else will he satisfy himself. He can use any agents to do that. If the Speaker is satisfied so, he shall reject the resignations.
Of course, after that they (the MLAs) may go to court. But Article 190 gives power to the Speaker. He can take his own time. The Constitution empowers him to make an enquiry.
He has to see two things – was it genuine, was it voluntary. There is a lot of pressure on these MLAs from the BJP. What does genuine mean – genuine means that it is an honest kind of resignation. If it is motivated by other considerations, the Speaker can reject it.
Until then the Governor cannot ask Chief Minister to prove his majority. Until the resignations are accepted, the government is in majority,” he said.
In short, the Speaker cannot be directed to accept a resignation letter immediately, an issue on which the Karnataka Speaker has filed an application before the Supreme Court.
This is the reason why the Court has fixed Tuesday to decide on the Constitutional aspects of the issues that the assemblies in Tamil Nadu, Karnataka and Telangana faced during the last few years.
The Tamil Nadu & Karnataka Examples
In 2010, when the BJP’s BS Yeddyurappa was Chief Minister of the state, 13 BJP MLAs and five Independents withdrew support, demanding a change of Chief Minister. The Speaker disqualified all 18 MLAs.
The case went all the way up to the Supreme Court and in May 2011, the Speaker’s action was set aside.
“They (the MLAs) took the view that if the leader was changed, they would support the party,” said the former Secretary General. “But the decision in court was not taken on that basis. It was taken on the basis that the Speaker had not given a proper opportunity to them. So it was a violation of the principles of natural justice. They were not given adequate time. It was not decided on the question of merit,” he explained.
The political drama repeated itself in 2017 with 19 AIADMK (All India Anna Dravida Munnetra Kazhagam) MLAs in neighbouring Tamil Nadu withdrawing support to Chief Minister Edappadi K Palaniswamy and demanding he be replaced.
One MLA Jakkaiyan though withdrew his letter and Speaker C Dhanabal “forgave” him. The other 18 MLAs though were disqualified. This case, which went to the Madras High Court, got a different verdict. The Speaker’s decision to disqualify was upheld.
But in February 2017, O Panneerselvam and 10 other MLAs voted against the government in a vote of confidence. Despite being in the ruling party they defied the whip. No action was taken against them by the Speaker although the Opposition party DMK (Dravida Munnetra Kazhagam) has moved the Madras High Court over this issue.
So the Speaker’s actions do not appear to be uniform in nature across states.
“The problem arises because there are no clear cut rules about the power of the Speaker,” said Raja Senthur Pandian, advocate for TTV Dhinakaran and the 18 disqualified MLAs.
“There is a case that has been pending before the Constitution Bench of the Supreme Court for the past three years. The Bench has to decide on the Speaker’s powers. Until this case is decided and the powers of the Speaker clearly defined, this kind of confusion and multiple interpretations will continue in the entire country,” said Pandian.
The case he is referring to is an appeal before the apex court on an order passed in 2015 in the High Court of Hyderabad.
28 MLAs of the Congress, Telugu Desam Party, the YSR Congress and the Bahujan Samaj Party defected to the ruling Telangana Rashtra Samiti soon after the 2014 elections. One of the defectors was Congress MLA Kale Yadaiah.
As the Congress leadership demanded that the Speaker disqualify Kale Yadaiah and other MLAs, the Speaker delayed his decision.
Congress MLA Sampath Kumar then moved the Hyderabad High Court in 2015 to ask for directions to the Speaker for disqualification.
The case was then referred to the Supreme Court for a decision on whether a High Court can in fact direct the Speaker to “to decide a particular disqualification petition pending before him within a certain time.”
“We cannot be mindful of the fact that just as a decision of a Speaker can be corrected by judicial review by the High Court exercising jurisdiction under Article 226, so prima facie should indecision by a Speaker be correctable by judicial review so as not to frustrate the laudable object and purpose of the Tenth Schedule, which has been referred to in both the majority and minority judgments in Kihoto Hollohan’s case,” reads the 28 September 2015 order by a Bench comprising Justices RK Agrawal and Rohinton Fali Nariman.
This is the case that continues to remain pending and according to Raja Senthur Pandian, the cause for a variety of differing judgements and chaos within the political system.
And this is also the reason for Speakers of legislative assemblies to take different decisions depending on what outcome the ruling party wishes to achieve.