Monday, October 11, 2010

Split on Speaker, but experts slam Governor as one

oct 11th, 2010

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From: sri venkat

Split on Speaker, but experts slam Governor as one
Maneesh Chhibber
Posted: Tue Oct 12 2010

 While the Karnataka High Court will decide on whether Karnataka
Assembly Speaker K G Bopaiah was right in disqualifying 16 rebel MLAs
— 11 from the BJP and five Independents — ahead of the trust vote,
legal experts were divided on the constitutional validity of his act.

Surprisingly, the majority of experts, including a senior law officer
of the Government of India, said the Speaker’s action was not wrong.

Almost all legal experts, however, came down heavily on Karnataka
Governor H R Bhardwaj for writing to the Speaker, directing him not to
disqualify the rebels before the trust vote.

“The Tenth Schedule of the Constitution deals with the issue of
anti-defection. Under the Constitution, the Speaker is the authority
to disqualify the member. His decision is, however, subject to
judicial review. On the question of when a MLA attracts
disqualification proceedings, the Supreme Court has held that it is
for the Speaker to take the view that a member of a party can be
proceeded against under anti-defection laws. It is not necessary for
the MLA to have parted company with the party, his actions can be the
basis of such an action,” said former Lok Sabha secretary general and
constitutional expert Subhash C Kashyap.

Asked if the confidence vote could be treated has having been
completed merely on the basis of a voice vote in the Assembly, Kashyap
said there was no rule under the parliamentary procedure dealing
exclusively with a floor test.

“It is treated like any other motion. The Speaker can rule the motion
passed by voice vote. It is only if some members — even one member is
sufficient — challenge the decision of the Speaker, is the motion put
to division by automatic vote recorder or paper slips,” Kashyap said.

On the question of the Governor’s instructions to the Speaker, the
expert said the Governor had no authority to send the letter that he
did. “He (Bhardwaj) is a senior lawyer and a former Union law
minister. It is unfortunate that he sent the letter to the Speaker. He
has no business to interfere in the proceedings of the legislature,”
he added.

Constitutional expert P P Rao, who is the lawyer for the disqualified
BJP MLAs in the Karnataka High Court, said the Speaker’s ruling was
unconstitutional. “The Speaker couldn’t have disqualified the MLAs.
They have not resigned from the party. All that they have done is to
declare their lack of faith in the present Chief Minister. This can’t
be a ground for any action by the Speaker against them,” Rao said.

However, a senior functionary of the Union Law Ministry, who has dealt
with such an issue in the past, told The Indian Express that while the
Speaker’s action could be justified, the Governor’s missive to the
Speaker was totally unconstitutional.

The controversial action of the Governor also did not find favour with
former Lok Sabha Speaker Somnath Chatterjee. “The Governor shouldn’t
have done it. He has no such power. As for the issue of the Speaker’s
decision, I will not comment on whatever he does inside the House. It
is a quasi-judicial power granted to the Speaker, which is subject to
judicial intervention. Personally, I feel this power shouldn’t vest in
the Speaker. I have said so in my book too,” Chatterjee said.

Union Law Minister M Veerappa Moily, however, found nothing wrong in
the Governor’s action. He also declared the Speaker’s action
unconstitutional. “The Speaker’s decision was partisan. He has acted
in a manner that is unconstitutional. No notice was served to MLAs
before disqualifying them. No procedure was followed,” Moily told
reporters here.

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