‘Art 164 contemplates re-election of disqualified'’

B V Acharya

The Speaker’s take is not only wrong, but a total misconception. It is against Constitutional provisions and the well-accepted principles of law. 

Clause 2 of Article 191 of the Constitution deals with the present position. A member is disqualified from being a member of the Assembly if he is disqualified under the 10th Schedule. So, the member cannot continue. But Clause 1 of Article 191 deals with disqualification for being ‘chosen’ as a member. The 10th Schedule does not disqualify a member from being chosen. 

According to me, Article 164 (1B) makes it clear that one cannot be a minister until one gets re-elected. So, this itself contemplates re-election and that the member can contest a byelection.  

The disqualification is contrary to the Supreme Court’s order and can be held in contempt. The Supreme Court granted a status quo with regard to resignation and disqualification. Later on, due to the trust motion, the Supreme Court said whether the Speaker should deal with resignation, disqualification or both simultaneously will be dealt with in its final order.

As an interim measure, the Speaker was permitted to proceed with the resignation. There was an embargo on dealing with the disqualification. When the MLAs were not to be compelled, how can the Speaker deal with resignation and disqualification together? 

As a quasi-judicial authority, the Speaker, after hearing all parties, should pronounce his order in a public place and give copies of the same. Instead, he addressed a press conference. 

(The author is a former advocate-general and is considered an authority on constitutional law.)

(As told to Bharath Joshi)

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