The legal challenge to the disqualification of 17 Karnataka MLAs from the Assembly before the trust vote by the then HD Kumaraswamy government needs to be referred to the Constitution Bench, the Supreme Court was told today.
Senior advocate Kapil Sibal, appearing for the Karnataka Congress, contended that the then Speaker KR Ramesh Kumar exercised his jurisdiction to disqualify the MLAs and his decision cannot be questioned.
Mr Sibal, who also appeared for state Congress chief Dinesh Gundu Rao, submitted however that "the matter needs to be referred to a Constitution Bench as it raises matters of grave Constitutional importance".
He made his submission before a 3-judge bench, comprising Justices N V Ramana, Sanjeev Khanna and Krishna Murari, which reserved its judgement on the petition filed by the 17 rebel Congress-JD (S) MLAs challenging Ramesh Kumar''s decision.
Mr Kumaraswamy had resigned after losing a trust vote, which paved the way for the BJP-led government in the state under BS Yediyurappa.
Some of the disqualified MLAs had Wednesday told the apex court that they have an "indefeasible right" to resign as members of the Assembly and the decision by the then Speaker to disqualify them smacks of "vengeance" and "mala fide".
However, Mr Sibal said there should be a genuine reason for resignation and the Speaker has to examine the motive for resignation on the basis of the available material.
He said the sending of the resignation in writing, and the Speaker accepting it were the two elements to resignation which cannot be termed as instant and Constitution makers must have known that resignation and acceptance is not a simultaneous event.
"The motive behind the resignation by MLAs have to be determined and it all depends upon the material placed before the Speaker," Mr Sibal told the bench and elaborated that Speaker is entitled to make inquiry into the resignation, for which information can be procured from any number of sources prior to the act or subsequent to the act.
"They can't argue that subsequent events cannot be considered. It is necessary to find out what the motive is," the senior advocate submitted and stressed that there was a need for the top court to make an interpretation of the term "genuineness" and the MLAs cannot be allowed to subvert the system and resign a day before Floor test because he wants to be a minister.
"Intention, motive of the MLAs must be considered by the Speaker while conducting an inquiry," he said.
While submission was being made, the bench asked several questions including what if an MLA is resigning because there is corruption, and what if the MLA says he doesn't want to be part of the corruption and wants to go back to the people.
Mr Sibal said his argument was not that there should be a bar on resignation but the Speaker will have to decide on the basis of each case.
When the Bench said will he have the view that an MLA, who resigns in protest to a particular legislation should quit politics, Mr Sibal replied: "I would love to see a single legislator resign on the basis of such laudable principles. But I want your lordships to consider reality. Which legislator resigns on such principles?"
He said in the Karnataka case, the electoral process should not stop to protect their private interests.
Senior advocate Rajeev Dhavan, appearing for Kumaraswamy, on Thursday submitted that advocates representing these disqualified MLAs have contended that Speaker should accept the resignation mechanically and this is a "very strange argument".
Senior advocate Dev Dutt Kamath also supported the the arguments of Sibal and Dhavan.
The incumbent Karnataka Assembly Speaker Thursday told the apex court that he has no difficulty in hearing the 17 MLAs and take a "fresh call" on the issue.
Solicitor General Tushar Mehta, appearing for the office of the Karnataka Assembly Speaker, had submitted that under the scheme of Constitution, a lawmaker has a right to resign and speaker should accept it. The current Assembly Speaker is V Hegde Kageri.
"We have no difficulty in hearing them all (disqualified MLAs) and take a fresh call," Mehta had said and added that a lawmaker not only has a duty but also a right to resign as a member of the House.
"Under the scheme of the Constitution, as I have read, a legislator has the right to resign. Except the contingency provided in Article 190(3), there is no room for resignation being rejected," he told the bench.
Article 190 (3) of the Constitution envisages that the Speaker or the Chairman of the Assembly has to only ascertain whether the resignation of a lawmaker is voluntary and genuine and if not, he will not accept such resignations.