The Karnataka High Court on Monday issued an interim order stating that Member of Legislative Council AH Vishwanath has incurred disqualification until the term of the Legislative Council expires in 2021, while two other MLCs MTB Nagaraju and R Shankar alias pendulum Shankar have not.
A division bench comprising Chief Justice of the Karnataka High Court, Abhay Sreenivas Oka and Justice S Vishwajit Shetty issued the interim order, while hearing a petition filed by AS Harish, who had alleged that AH Vishwanath, MTB Nagaraj and Pendulum Shankar had been appointed as members of the Legislative Council for the sole purpose of making them ministers, despite the fact that Vishwanath and Nagaraju had lost the bye-polls and R Shankar was not given a ticket. The petitioner argued that the three men were still disqualified as per the Supreme Court judgement on November 19, which upheld former Assembly Speaker Ramesh Kumar’s orders for disqualification.
The High Court held that AH Vishwanath has incurred disqualification under Article 164(1B) and Article 361 B of the Indian Constitution, Live Law reported.
Article 164(1B) states that any member of the Legislative Assembly either the house or the council, belonging to any political party, if disqualified as a member of the Assembly, shall also be disqualified to be appointed as a Minister for the period of their disqualification. The High Court upheld that as Vishwanath lost the elections, and was subsequently not elected as an MLC but was only nominated by the Chief Minister, the disqualification stands. MTB Nagaraju and R Shankar, however, were elected as MLCs by the councilmen.
It is not prima facie established that R Shankar and N Nagaraj have been disqualified under Article 164 (1) (b) and 361(B). We hold that A H Vishwanath, ex-facie attracts disqualification under Article 164 (1) (b) and Article 361 (B),” the report quoted the Karnataka High Court’s interim order.
The court observed that the Chief Minister, while making recommendations to the Governor, while nominating ministers to his cabinet, will have to take note of Vishwanath’s disqualification. “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 report added.
Advocate Prashant Bhushan appeared for the petitioner and argued that the three politicians were given a “back door entry” to the Legislative Council for the sole purpose of appointing them as ministers. The plea maintained that a disqualified member can become eligible to hold the position of a minister only if they win the bye-elections from the same constituency.
Advocate General Prabhuling Navadgi stated that the petition was filed prematurely. The High Court maintained that prima facie, it was “not yet established that MTB Nagaraju and R Shankar had incurred disqualification” at the time the interim order was passed.
AH Vishwanath, R Shankar and MTB Nagaraju were among 17 MLAs who had been disqualified by former Assembly Speaker Ramesh Kumar. These 17 leaders had submitted their resignations in July 2019 to the Governor and were cooped up at a star hotel in Mumbai until the motion of confidence was passed in the Assembly, which brought down the Congress-JD(S) coalition. Subsequently, the 17 disqualified MLAs were inducted into the BJP and 15 of them contested bye-polls. Of which 12 won. These former Congress-JD(S) rebels had petitioned the Supreme Court, seeking to quash the disqualifications. However, the apex court upheld the Speaker’s move to disqualify, but had stated that they could contest elections.