MLC Vishwanath's disqualification continues till May 2021, says Karnataka High Court

In a major blow to BJP MLC A H Vishwanath, the Karnataka High Court has held that his disqualification as MLA under the anti-defection law continues and hence he cannot appointed as a minister.

A division bench of Chief Justice Abhay Shreeniwas Oka and Justice S Vishwajith Shetty while hearing a petition by advocate A S Harish on Monday said Vishwanath has incurred disqualification under Article 164 (1) (b) and Article 361 (B) of the Constitution, till the expiry of the term of the Legislative Council-May 2021.

The other two MLCs R Shankar, and M T B Nagaraj got a reprieve as the court observed that their disqualification did not subsist as they were elected to the legislative council.

Hearing the petition, the bench noted, "It is not prima facie established that R Shankar and N Nagaraj have been disqualified under Article 164 (1) (b) and 361(B). We hold that A H Vishwanath, ex-facie attracts disqualification under Article 164 (1) (b) and Article 361 (B)."

The bench said the Chief Minister will have to take into account the issue of disqualification of Vishwanath.

Even if a recommendation is made by the Chief Minister, then the Governor is bound to consider the aspect of disqualification incurred by A H Vishwanath," the court said.

The petitioner had alleged that the three respondents were given a back door entry into the Legislative Council 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.

Shankar had not even contested the Assembly elections, the petitioner claimed.

Harish further submitted that a disqualified member of the Assembly will have to get re-elected to the same House during the same period in which he was disqualified, by contesting in an election from the Assembly constituency if he wishes to become eligible to be appointed as a Minister.

The respondents had opposed the petition on the grounds that they were filed prematurely.

The three MLCs, Vishwanath, Shankar and Nagaraj were among the 17 MLAs who were disqualified from the Karnataka assembly, which led to the fall of the Congress and JD(S) coalition government, led by H D Kumaraswamy.

While Shankar and Nagaraj were from the Congress, Vishwanath was elected on the JD(S) ticket. After their disqualification, the trio joined the BJP. Nagaraj and Vishwanath contested the December 2019 assembly by-polls unsuccessfully, whereas Shankar did not contest the polls.

They were all made MLCs by the BJP.