The Chief Justice of India-led bench of the Supreme Court said it would pass the order on the plea made by 15 rebel MLAs on Wednesday at 10:30am after hearing detailed arguments from all sides.
The apex court’s observation on Tuesday is crucial as a floor test scheduled on Thursday is set to seal the fate of the Kumaraswamy government which is currently struggling with the numbers. The BJP is at an advantage leading with 107 MLAs including the support of two Independents, while the coalition is stuck at 101.
Arguing for the rebel MLAs seeking acceptance of their resignations, former Attorney General of India Mukul Rohatgi claimed that the top leadership of both the Congress and the JD(S) was using disqualification as a means of “coercing and threats”.
He mentioned Article 190 of the Representation of The People Act which he argued allows an MLA to resign if he has no faith in the government and seek re-election. He said, “If the Speaker is not deciding the resignations on some reason or other, means he is not impartial.”
Rohatgi further argued that the threat of disqualification by the coalition leaders was a means to scupper the resignations. For this, he cited the case of Kerala MLA PC George when he was allowed by the Kerala HC to resign even though disqualification proceedings were initiated against him.
Responding to that, the CJI observed, “Mr. Rohatgi, we cannot say how the Speaker should decide resignation or disqualification of MLAs. We cannot fetter him. The question here is if there is any constitutional obligation for him to decide resignation before disqualification or to club his decision on both.”
On this, Rohatgi insisted that the top court, like it did in a midnight hearing in May 2018 in the case of holding a floor test, order the Speaker to decide the resignations within 24 hours.
He prayed the court to grant exemption to the 15 MLAs from appearing in the Assembly on Thursday. "We have the fundamental right to resign," he maintained..
Following Rohatgi’s arguments. Abhishek Manu Singhvi, appearing for the Speaker, said the disqualification petitions for the MLAs have to be recognised first as all disqualifications are prior to resignations. He also cited a Constitution Bench order stating that disqualification of an MLA applies retrospectively and it supersedes resignation.
The court also questioned if the Tenth Schedule (anti-defection law) and Article 190 (to vacate seats in the House/resignation) are interdependent or mutually exclusive. The court also pointed out, “You cannot question our jurisdictionary powers when we, to your benefit, had ordered a floor test, appointed a protem Speaker in a midnight hearing. The exercise of jurisdiction of our powers depends only on self-restraint.”
Responding to this, Singhvi told the apex court that if allowed, the Speaker will decide on both the resignation and the disqualification of these MLAs. Mentioning the Kihoto Hollohan case, he said that there was a direct link between resignations and disqualifications.
Following that, Rajeev Dhawan argued for the Karnataka Chief Minister HD Kumaraswamy. He said that the case is not between the Speaker and the judiciary but between the CM and those wanting to be the CM.
"The only purpose of resignation is to become ministers. Speaker can't be unmindful of what's happening. These MLAs are hunting in a pack. These aren't individual requests," he told the court.
He added, "This Court can interfere only after the decision is made and not before that. Judicial review cannot be exercised before the Speaker has taken a decision."