Taint of defection is not vaporised by resignation, Supreme Court had said in a judgment

A question has been raised in Tamil Nadu as to whether the Speaker can accept the resignation of MLAs while petitions for disqualifying them are pending. The Tamil Nadu Assembly Speaker, J.C.D. Prabhakar, has accepted the resignation of four legislators elected as AIADMK candidates. They have all joined the ruling Tamilaga Vettri Kazhagam (TVK) after their resignations were accepted. The members were part of a group of 25 AIADMK legislators who voted in favour of the TVK government in the recent confidence motion in the Assembly.

The AIADMK leadership had earlier sought their disqualification for violating the party’s direction to oppose the motion. However, the acceptance of their resignations may have rendered the disqualification proceedings against them infructuous. Against this backdrop, the AIADMK has appealed to the Speaker to take back the acceptance of their resignations and adjudicate the petitions for their disqualification.

An answer to the main question may be inferred from the judgment of the Supreme Court in 2019 in Shrimanth Balasaheb Patel and Othersvs. Speaker, Karnataka Assembly. In an apparent bid to topple the Janata Dal (S)-Congress coalition government, a group of MLAs seemed to have acted against the Congress party’s directions and avoided party meetings and Assembly sittings. On realising that they may be disqualified under the Tenth Schedule of the Constitution for “voluntarily giving up the membership of their party”, many of them submitted their resignations, but the then Speaker of the Karnataka Assembly did not accept their decision to quit immediately. Subsequently, many of them were disqualified.

In a judgment that upheld their disqualification, but set aside the Speaker’s order declaring that they would remain disqualified for the remainder of the Assembly’s term, the Supreme Court gave three conclusions relevant to the question arising today.

First, the Speaker’s role in considering a resignation was limited He could only ascertain if the resignation is “voluntary” (out of one’s free will, and not under duress) and “genuine” (authentic). Beyond this, he cannot delve into motive. “Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation.”

The court further said: “It is constitutionally impermissible for the Speaker to take into account any extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review.”

However, it made a second point. The taint of disqualification does not “vaporise” just because a member submitted his resignation prior to adjudication. The court reasoned that defection related back to the date when a member incurred disqualification, and the submission of a resignation letter does not render a pending or impending disqualification action infructuous.

The court noted that there is a second consequence to defection, apart from loss of membership. It is the provision in the Constitution barring a disqualified member from holding a Minister’s post or any remunerative political office until the end of the term or until he is re-elected to office, whichever is earlier. This means no member can join a Ministry formed by defection without facing an election or byelection. (This prospect was real in the Karnataka case in 2019, as the defectors were likely keen on joining an alternative government). As such a possibility exists, the fate of a person facing disqualification may hinge on whether the Speaker accepts a resignation or not.

In a related conclusion, the court also declined to go into the question on the Speaker’s jurisdiction to deal with a disqualification issue after a member has quit. The question did not arise in a strict sense in that case because the act that amounted to defection occurred prior to their resignation, and the court did not want to decide a question of law that did not arise in the facts of the case.

A harmonised reading of these conclusions gives a picture of how the law deals with the interplay between disqualification and resignation: the Speaker may disqualify a person if the defection occurred earlier, but does not mean he could reject a voluntary and genuine resignation by delving into its motive. The submission of a resignation is not a reason to close a disqualification complaint, but the acceptance of the resignation may bring it to an end. However, the Speaker’s decision on the question is still subject to judicial review.

The author is an independent journalist