Fair or unfair? Jury’s out | delhi | Hindustan Times
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Fair or unfair? Jury’s out

As the Centre examines Karnataka Governor H R Bhardwaj’s recommendation for imposition of President’s Rule in the state, legal experts are divided in their opinion over the legality of Speaker K G Bopaiah’s action disqualifying 16 MLAs. Harish V Nair reports. The story so far

delhi Updated: Oct 12, 2010 09:12 IST
Harish V Nair

As the Centre examines Karnataka Governor H R Bhardwaj’s recommendation for imposition of President’s Rule in the state, legal experts are divided in their opinion over the legality of Speaker K G Bopaiah’s action disqualifying 16 MLAs. A few described it as premature, saying rules were not complied with, while others termed it legal.

Senior advocate Rajeev Dhavan said the Governor has exceeded his jurisdiction in recommending President’s rule, saying he had no business to interfere in the functioning of the state legislature and he was “wrong” in advising the Speaker to maintain the configuration of the House.

“Instability in the state due to defection is not good for democracy. But President’s Rule is also death of democracy,” PTI quoted him as having said.

Senior advocate P.P. Rao said: “The rebel BJP MLAs only expressed lack of confidence in Yeddyurappa Government. That does not amount to defection. How does the anti-defection law under the 10th Schedule of the Constitution come into play? They haven’t resigned from the party or defied any whip.”

Senior counsel Vikas Singh termed it a case of a Speaker acting as an agent of the ruling party.

“It is a high office. The Speaker is expected to be above politics. Since the MLAs were not allowed to enter the House and had not voted, the disqualification was illegal,” he said.

But noted constitutional expert and former Secretary General of the Lok Sabha Subhash Kashyap supported the Speaker’s decision, saying, “It is perfectly legal.” Explaining the provisions of 10th Schedule, Kashyap said there were three situations in which an MP/MLA could be disqualified — if he/she voted against the party whip; or abstained despite a whip to vote in a particular manner; or voluntarily gave up membership of the party.

“In this case the Speaker used the third circumstance as the SC has said in Ravi Nayak’s case that the meaning of the expression ‘voluntarily gave up membership’ could be inferred from the conduct of the member/s,” he said.

Former Attorney General Soli Sorabjee, too said the disqualification was in “full compliance with the 10th Schedule”. Sorabjee is defending the Speaker’s action before the Karnataka HC against a petition by disqualified MLAs.

Asked if the Speaker could have disqualified the independent MLAs, Kashyap said, “It’s a grey area. I haven’t seen the Speaker’s order. The 10th Schedule says, an independent MLA/MP can be disqualified if he/she joins any political party after election as independent.”