Former JDS Chief A H Vishwanath Can't be Appointed as Minister Till Assembly Term Expires: Karnataka HC

It’s bad news for former JDS party president A H Vishwanath, who was among the 17 MLAs who switched parties to join the BJP and overthrew the Congress-JDS coalition government in Karnataka in 2018.

The Karnataka High Court on Monday held that prima facie A H Vishwanath has incurred disqualification under Article 164 (1) (b) and Article 361 (B) of the Constitution of India and remains disqualified till the expiry of the term of the Legislative Council, that is till May 2021.

A bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty were hearing a batch of petitions seeking to restrain Chief Minister B S Yediyurappa and the governor’s office from affirming oath to three of the disqualified MLAs into the Council of Ministers.

The court held that it is not prima facie established that R Shankar and N Nagaraj — the 2 independent MLAs– can’t be disqualified under Art 164 and 361.

The bench said, “Honourable Chief Minister, while making recommendation to Honourable Governor on nominating Ministers will have to take into consideration the issue of disqualification incurred by A H Vishwanath. Similarly, even if recommendation is made by Hon CM, the Hon Governor is bound to consider the aspect of disqualification incurred by A H Vishwanath.”

According to the Constitution, to become eligible for appointment as a minister, a disqualified MLA 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.

But even though A H Vishwanath and N Nagraj contested the subsequent by-elections on BJP ticketd, they both lost. To then accommodate these MLAs they were nominated to the Karnataka Legislative Council.

“The governor of Karnataka got bad repute to his office by nominating Vishwanath under Article 171 (5) if he happens to be a person of eminence in either 5 fields. He was nominated under the Arts category, However that is a blatant violation of Article 191 (2),” said lawyer Dhananjay.

Legal experts said that there was only one way for him and that was “to contest an election to the house of the Council” and to be “declared elected in the election”. Since both were missing at the time of his nomination made by the governor, his very nomination to the Karnataka Legislative Council stands invalid in law.

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