Can a Disqualified MLA become a Minister?

Context: 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 be appointed as a minister.

Analysis

  • The Court 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 Court said the Chief Minister will have to take into account the issue of disqualification of Vishwanath.
  • Even if the recommendation is made by the Chief Minister, then the Governor is bound to consider the aspect of disqualification incurred by A H Vishwanath.
  • 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 petitioner said.
  • Vishwanath was 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.
  • After his disqualification, Vishwanath joined the BJP. Vishwanath contested the December 2019 assembly by-polls unsuccessfully.
  • He was made MLCs by the BJP.
  • Article 164 (1) (b): A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under the Tenth Schedule shall also be disqualified to be appointed as a Minister for the duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.
  • Article 361 (B): A member of a House belonging to any political party who is disqualified for being a member of the House under the Tenth Schedule shall also be disqualified to hold any remunerative political post for the duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier.

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