[Breaking] MLC AH Vishwanath cannot become Minister, disqualification to continue till present Assembly term expires: Karnataka High Court

The Karnataka High Court on Monday held that Member of Legislative Council (MLC) AH Vishwanath attracted disqualification under Articles 164 (1) (b) and 361 (B) of the Constitution of India, and therefore, cannot be inducted into the Council of Ministers. .However, the Bench added that no interim order can be passed in the cases of R Shankar and N Nagaraj, as prima facie, it was not established that they have incurred disqualification under Articles 164 and 361..With respect to Vishwanath, the order passed by Chief Justice Abhay Shreeniwas Oka and Justice Vishwajith Shetty reads, ."Thus, ex-facie disqualification of AH Vishwanath will continue till expiry of term of Karnataka Legislative Assembly.".The Court ruled that Karnataka Chief Minister BS Yeddyurappa will have to take into consideration the issue of disqualification incurred by Vishwanath, while making his recommendation to the Governor on nominating Ministers. .Similarly, even if a recommendation is made by the Chief Minister, the Governor is bound to consider the aspect of disqualification incurred by Vishwanath, added the Bench. .On the point of the other two respondents, the Court opined that, ."It is not even prima facie established that R Shankar and N Nagaraj have been disqualified under Article 164 (1) (b)and 361 (B). No interim order can be passed for N Nagaraj and R Shankar.".The Bench passed the interim order in a batch of pleas challenging the induction of three Members of the State Legislative Council (MLCs) - R Shankar, AH Vishwanath, and N Nagaraj - into the Council of Ministers..One of the petitioners, advocate Harish AS, had approached the High Court alleging that the three MLCs were given entry into the Legislative Council of Karnataka with the sole purpose of inducting them into the Council of Ministers, even though Vishwanath and Nagaraj had lost in the by-elections in their respective Assembly constituencies after their disqualification.Moreover, Shankar did not even contest in the Assembly election, the petitioner had submitted. .The three MLCs were part of the 17 MLAs who had resigned from the House in 2019 and effected the fall of the Congress-Janata Dal (Secular) government.Shankar belonged to the Karnataka Pragnyavantha Janatha Party, Nagaraj to the Congress party, and Vishwanath to the Janata Dal (Secular). After the then Speaker of the House had disqualified them, the Supreme Court later upheld the disqualification, but allowed them to contest in the by-polls. Though the BJP won 12 out of 15 seats in the by-polls, Vishwanath and Nagaraj were among those from the BJP camp who lost..During the hearing of the matter, Advocate Prashant Bhushan, representing the petitioner, argued that electing or nominating disqualified candidates to the Legislative Council amounts to “back-door entry"..The petitioner had contended that the nomination of the three to the Upper House in the State was done with the intention of inducting them into the Cabinet, and the same was contrary to Articles 164 and 361B of the Constitution. .It was further submitted that this plea is not premature. "We have relied on newspaper reports which clearly said that they were going to appointed to the Council of Ministers. Therefore, coming with a writ of prohibition in this case is justiciable", said Bhushan. .He further contended, "If a person has defected, he has forfeited his right to be a part of the House till he is re-elected. If he is loses in the re-election, the people have not forgiven him for defection. They have no confidence (in those candidates).".Bhushan further pushed for a purposive interpretation of Articles 361 and 164, urging that they have to be elected to the same House..Advocate General Prabhuling Navadgi, appearing for the State government, had submitted that the petition was premature since such induction had not taken place yet. It was further argued that there cannot be an injunction against the Governor. .Senior Advocate Ashok Haranhalli, appearing for two of the respondents, contended that a plea cannot be filed even before the Governor, who is a high functionary, applies his mind.Senior Advocate Udaya Holla, appearing for the respondents, had submitted that disqualification under the Tenth Schedule does not bar a person from contesting in re-elections.