MLA has right of resignation, does not warrant disqualification: Karnataka Speaker tells Supreme Court

A Member of the Legislative Assembly (MLA) has the right to resign from his post and the same would not amount to defection, the Speaker of the Karnataka Assembly told the Supreme Court yesterday..While making submissions in the petitions filed by 17 ex-MLAs of Karnataka challenging their disqualification by the previous Speaker of the Assembly, Solicitor General Tushar Mehta, arguing for current Speaker Vishweshwar Hegde Kageri, batted for the right of an MLA to resign..An MLA cannot and should not be proceeded against for resigning from his post in a case where he has had a change of heart and does not wish to continue being a member of a certain political party. In a case like this, the MLA would have the right to resign and go back to face the electorate since the duty of legislators is first and foremost towards their constituency, Mehta argued..It was further submitted that the Constitutional framework under Articles 191 and 361B, along with the Tenth Schedule of the Constitution of India, deal with the duty of legislators towards their political party and the electorate. While a legislator is duty-bound to remain in his party discipline for the entire term that he is elected for, he also has the right to tender his resignation from the House if his conscience does not permit him to be bound by the whip of the party, Mehta argued while citing the Kihoto Hollohan case..Making a distinction between resignation from the post of an MLA and defection, Mehta said that the anti-defection law disallows leaving a political party to join another and makes one liable for defection. However, resigning as an MLA does not warrant disqualification, the Solicitor General submitted..“The provisions say that if you give up the membership of a political party, then you are disqualified… provision does not say if you resign from the membership of a House, you are disqualified.”.On being quizzed about Speaker’s role when a legislator tenders his resignation with the primary purpose of joining another political party, Mehta responded that the time has come for the courts to lay down guidelines on the same. The Bench, however, responded in the negative, citing the Constitutional authority held by the Speaker..Senior Counsel Mukul Rohatgi, representing some of the ex-MLAs, had also opposed the order of disqualification on the grounds that the Speaker had rejected the resignation and further ordered disqualification on the assumption that the resignation was fuelled by the desire to join another party..Arguing for some of the petitioners, Senior Counsel Aryama Sundaram also argued on the point of the role of the Speaker in case of resignations. He submitted that the Speaker has limited scope to examine whether or not the resignations tendered by the MLAs are voluntary and genuine. The resignations ought not to be kept pending, Sundaram argued, while challenging the disqualification order..Senior Counsel V Giri also appeared for a few of the 17 disqualified MLAs..In the previous hearing, the Election Commission had taken a stand that whether on account of resignation or disqualification, the vacancy had been created and the by-polls should be allowed to take place as scheduled. Senior Counsel Rakesh Dwivedi for the ECI had also submitted that the disqualified MLAs should not be barred from contesting in these by-elections. An application was moved to implead the ECI as a party in the case yesterday..The respondents in the case are scheduled to make their submissions before the Bench of Justices NV Ramana, Sanjiv Khanna, and Krishna Murari tomorrow.