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HC finds fault in Congress says speaker should decide disqualification plea against Rane Cannot entertain disqualification case against Rane before speaker decides HC HC junks petition that sought disqualification of Rane

Panaji: The high court of Bombay at Goa has held that it cannot decide the petition seeking disqualification of health minister Vishwajit Rane on ground of defection from the Congress party before the matter is decided by the speaker under the tenth schedule of the Constitution.

An important ruling from the verdict states that there is no bar on a MLA from contesting elections after being disqualified by the speaker under the Anti-Defection Law read with Article 191(2) of the Constitution. Rane had resigned as Congress Valpoi MLA in March 2017 and joined the BJP-led government as minister.

The Congress petition had said that the health minister is barred from contesting assembly elections as he had defected from the party.

While dismissing the petition filed by Indian National Congress and its 15 MLAs, the court remarked that the attempt in the petition is to eject Rane from the House for the next five years, till 2022.

Dealing with the argument of the Congress party that the speaker has no jurisdiction to decide the case as Rane had resigned as MLA of the House in March 2017, a division bench comprising justices G S Patel and Nutan D Sardessai said, "It was for the complainants to first go to the speaker, and invite a decision, and then submit that decision to judicial review. This is something the speaker alone must decide in terms of paragraph 6(1) of the Tenth Schedule."

The court also rejected the petitioner's contention that, according to Article 191 of the Constitution, Rane is disqualified from contest the election for five years, as he defied the party whip, and that he cannot continue as a minister in the BJP government.

In March, Rane had walked out of the assembly during the floor test of the BJP-led government and later submitted his resignation to the protem Speaker.

The court also observed, "Once a member resigns, and his resignation is accepted, the speaker cannot and does not have jurisdiction to decide whether, at some point, when he was a member of the House, he had become subject to a disqualification."

Rane's lawyer, senior advocate M S Doctor, who stated that if the member is declared to have earned a disqualification under Article 191(2) of the Constitution read with the Tenth Schedule, "that does not operate to bar him from elections for the whole five-year term of the assembly".

The issue before the court was whether disqualification under 191(2) of the Constitution, which is decided by the Speaker under the Tenth Schedule, also places a bar on contesting elections for five years. Under Article 191(1) there is bar on contesting elections when the disqualification is decided by the governor.

The high court held that when the disqualification is under Article 191(1) of the Constitution of India for holding office of profit, unsoundness of mind, insolvency, it engenders a disqualification either from continuing as a member, or even from standing for election ('being chosen as'), which necessarily means a five-year prohibition.

"The two clauses uses distinct phraseology and the meaning is plain. An Article 191(2) disqualification results in a discontinuance of membership. It does not earn the added disqualification of not returning to the voters and seeking re-election," the high court observed.


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Source: HC finds fault in Congress says speaker should decide disqualification plea against Rane Cannot entertain disqualification case against Rane before speaker decides HC HC junks petition that sought disqualification of Rane

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