Balchandra L.
Jarkiholi & Ors. Vs. B.S. Yeddyurappa & Ors.
J U D G M E N T
ALTAMAS KABIR, J.
1.
Leave
granted.
2.
All
the above-mentioned appeals arise out of the order dated 10th October, 2010, passed
by the Speaker of the Karnataka State Legislative Assembly on Disqualification
Application No.1 of 2010, filed by Shri B.S. Yeddyurappa, the Legislature Party
Leader of the Bharatiya Janata Party in Karnataka Legislative Assembly, who is also
the Chief Minister of the State of Karnataka, on 6th October, 2010, under Rule 6
of the Karnataka Legislative Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986, against Shri M.P. Renukacharya and 12 others, claiming that
the said respondents, who were all Members of the Karnataka Legislative
Assembly, would have to be disqualified from the membership of the House under the
Tenth Schedule of the Constitution of India. In order to understand the circumstances
in which the Disqualification Application came to be filed by Shri Yeddyurappa for
disqualification of the 13 named persons from the membership of the Karnakata Legislature,
it is necessary to briefly set out in sequence the events preceding the said
application.
3.
On
6th October, 2010, all the above-mentioned 13 members of the Karnataka Legislative
Assembly, belonging to the Bharatiya Janata Party, hereinafter referred to as the
"MLAs", wrote identical letters to the Governor of the State
indicating that they had been elected as MLAs on Bharatiya Janata Party tickets,
but had become disillusioned with the functioning of the Government headed by
Shri B.S. Yeddyurappa and were convinced that a situation had arisen in which the
Government of the State could not be carried on in accordance with the provisions
of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the
people as the Chief Minister of the State. Accordingly, in the interest of the
State and the people of Karnataka, the legislators expressed their lack of confidence
in the Government headed by Shri B.S. Yeddyurappa and withdrew their support to
the said Government.
The contents of one of
the aforesaid letters dated 6th October, 2010, are reproduced hereinbelow : "His
Excellency, I was elected as an MLA on BJP ticket. I being an MLA of the BJP got
disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa.
There have been widespread corruption, nepotism, favouritism, abuse of power,
misusing of government machinery in the functioning of the government headed by
Chief Minister Shri B.S. Yeddyurappa and a situation has arisen that the
governance of the State cannot be carried on in accordance with the provisions of
the Constitution and Shri Yeddyurappa as Chief Minister has forfeited the confidence
of the people. In the interest of the State and the people of Karnataka I hereby
express my lack of confidence in the government headed by Shri B.S. Yeddyurappa
and as such I withdraw my support to the Government headed by Shri B.S. Yeddyurappa
the Chief Minister. I request you to intervene and institute the constitutional
process as constitutional head of the State. With regards, I remain Yours
faithfully, Shri H.R. Bharadwaj, His Excellency Governor of Karnataka, Raj
Bhavan, Bangalore." Five independent MLAs also expressed lack of
confidence and withdrew support to the Government led by Shri B.S. Yeddyurappa.
4.
On
the basis of the aforesaid letters addressed to him, the Governor addressed a letter
to the Chief Minister, Shri B.S. Yeddyurappa, on the same day (6.10.2010)
informing him that letters had been received from 13 BJP MLAs and independent MLAs,
withdrawing their support to the Government. A doubt having arisen about the majority
support enjoyed by the Government in the Legislative Assembly, the Governor requested
Shri Yeddyurappa to prove that he still continued to command the support of the
majority of the Members of the House by introducing and getting passed a
suitable motion expressing confidence in his Government in the Legislative
Assembly on or before 12th October, 2010 by 5 p.m. In his letter he indicated that
the Speaker had also been requested accordingly. On the very same day, Shri B.S.
Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative
Assembly, filed an application before the Speaker under Rule 6 of the Karnataka
Legislative Assembly (Disqualification of Members on Ground of Defection) Rules,
1986, being Disqualification Application No.1 of 2010, praying to declare that all
the said thirteen MLAs elected on BJP tickets had incurred disqualification in
view of the Tenth Schedule to the Constitution.
5.
As
will appear from the materials on record, Show-Cause notices were thereafter issued
to all the 13 MLAs on 7th October, 2010, informing them of the Disqualification
Application filed by Shri Yeddyurappa stating that having been elected to the
Assembly as Members of the BJP, they had unilaterally submitted a letter on 6th
October, 2010 to the Governor against his Government withdrawing the support given
to the Government under his leadership. The Appellants were informed that their
act was in violation of paragraph 2(1)(a) of the Tenth Schedule of the
Constitution of India and it disqualified them from continuing as Members of
the Legislature. Time was given to the Appellants till 5 p.m. on 10th October, 2010,
to submit their objections, if any, to the application. They were also directed
to appear in person and submit their objections orally or in writing to the Speaker,
failing which it would be presumed that they had no explanation to offer and further
action would 8thereafter be taken ex-parte, in accordance with law.
6.
It
also appears that replies were submitted by the Appellants to the Speaker on 9th
October, 2010 indicating that having come to learn from the media that a
Show-Cause notice had been issued as per the orders of the Speaker and had been
pasted on the doors of the MLA quarters in the MLA hostels at Bangalore, which were
locked and used by the legislators only when the House was in session, they had
the contents of the notices read out to them on the basis whereof interim replies
to the Show-Cause notices were being submitted.
In the interim replies
filed by the Appellants on 9th October, 2010, it was categorically indicated that
the interim reply was being submitted, without prejudice and by way of abundant
caution, as none of the documents seeking disqualification had either been
pasted on the doors of the MLA quarters 9or forwarded to the Appellants along
with the Show-Cause notice. Similarly, a copy of the Governor's letter, which was
made an enclosure to the Show-Cause notice, was also not pasted on the doors of
the residential quarters of the Appellants or otherwise served on them
personally. A categorical request was made to the Speaker to supply the said
documents and the Appellants reserved their right to give exhaustive replies after
going through the aforesaid enclosures to the Show-Cause notice as and when
supplied.
7.
Having
said this, the Appellants submitted that the notice was in clear violation of the
Disqualification Rules, 1986, and especially Rules 6 and 7 thereof. It was mentioned
that Rule 7(3) requires copies of the petition and annexures thereto to be
forwarded with the Show-Cause notice. The notice dated 7th October, 2010 called
upon the Appellants to appear and reply by 5 p.m. on 10th 10October, 2010, which
was in flagrant violation of Rule 7 of the aforesaid Rules which laid down a
mandatory procedure for dealing with a petition seeking disqualification filed
under the Rules.
8.
It
was pointed out that Rule 7 requires that the Appellants had to be given 7 days'
time to reply or such further period as the Speaker may for sufficient cause allow.
Under the said Rule the Speaker could only extend the period of 7 days, but
could not curtail the time from 7 days to 3 days. It was the categorical case of
the Appellants that the minimum notice period of 7 days was a requirement of the
basic principles of natural justice in order to enable a MLA to effectively
reply to the Show-Cause notice issued to him seeking his disqualification from the
Legislative Assembly.
It was mentioned in the
reply to the Show-Cause notice that issuance of such Show-Cause notice within a
truncated period was an abuse and misuse of the Constitutional provisions for the
purpose of achieving the unconstitutional object of disqualifying sufficient number
of Members of the Assembly from the membership of the House in order to prevent
them from participating in the Vote of Trust scheduled to be taken by Shri B.S.
Yeddyurappa on the Floor of the House at 11 a.m. on 11th October, 2010. It was
contended that the Show-Cause notices was ex-facie unconstitutional and
illegal, besides being motivated and mala fide and devoid of jurisdiction.
9.
In
addition to the above, it was also sought to be explained that it was not the intention
of the Appellants to withdraw support to the BJP, but only to the Government
headed by Shri Yeddyurappa as the leader of the BJP in the House. It was contended
that withdrawing of support from the Government headed by Shri B.S. Yeddyurappa
as the Chief Minister of Karnataka did not fall within the scope and purview of
the Tenth Schedule to the Constitution of India.
It was urged that the
conduct of the Appellants did not fall within the meaning of "defection"
or within the scope of paragraph 2(1)(a) of the Tenth Schedule or the scheme
and object of the Constitution of India. It was further emphasized that even prima
facie, "defection" means leaving the party and joining another, which
is not the case as far as the Appellants were concerned who had not left the BJP
at all. It was repeatedly emphasized in the reply to the Show-Cause notice that
the Appellants had chosen to withdraw their support only to the Government
headed by Shri B.S. Yeddyurappa as Chief Minister, as he was corrupt and encouraged
corruption, and not to the BJP itself, which could form another Government which
could be led by any other person, other than Shri Yeddyurappa, to whom the Appellants
would extend support. In the reply to the Show-Cause notice it was, inter alia,
stated 13as follows :-
"My letter submitted
to H.E. Governor of Karnataka of withdrawing the support from the Government headed
by Shri B.S. Yeddyurappa as Chief Minister of the State is an act of an honest worker
of the BJP party and a member of the Legislative Assembly to salvage the image and
reputation of the BJP or the BJP as such. In fact my letter is aimed at cleansing
the image of the party by getting rid of Shri B.S. Yeddyurappa as Chief
Minister of the State who has been acting as a corrupt despot in violation of the
Constitution of India and contrary to the interests of the people of the
State."
10.
It
was also categorically stated that as disciplined soldiers of the BJP the Appellants
would continue to support any Government headed by a clean and efficient person
who could provide good governance to the people of Karnataka. The Appellants appealed
to the Speaker not to become the tool in the hands of a corrupt Chief Minister
and not to do anything which could invite strictures from the judiciary. A request
was, therefore, made to withdraw the Show-Cause notices 14and to dismiss the
petition dated 6th October, 2010 moved by Shri B.S. Yeddyurappa, in the capacity
of the leader of the Legislature Party of the Bharatiya Janata Party and also as
the Chief Minister, with mala fide intention and the oblique motive of seeking
disqualification of the answering MLAs and preventing them from voting on the
confidence motion on 11th October, 2010.
11.
The
Speaker took up the Disqualification Application No.1 of 2010 filed by Shri B.S.
Yeddyurappa, the Respondent No.1 herein, along with the replies to the
Show-Cause notices issued to the thirteen MLAs, who had submitted individual
letters to the Governor indicating their withdrawal of support to the Government
led by Shri Yeddyurappa. Except for Shri M.P. Renukacharya and Shri Narasimha Nayak,
all the other MLAs were represented by their learned advocates before the
Speaker. It was noticed during the hearing that 15Shri Renukacharya had
subsequently filed a petition stating that he continued to support the
Government and also prayed for withdrawal of any action proposed against him.
He reiterated his
confidence in the Government headed by Shri Yeddyurappa and alleged that a fraud
had been perpetrated at the time when the individual letters were submitted to
the Governor and that he had no intention of withdrawing support to the Government
in which he had full confidence. A similar stand was taken on behalf of Shri Narasimha
Nayak also. In addition to the above, an affidavit along with supporting
documents, affirmed by one Shri K.S. Eswarappa, State President of the Bharatiya
Janata Party (B.J.P.) was filed and it was taken into consideration by the
Speaker. On the basis of the above, the following two issues were framed by the
Speaker : 16 "(a) Whether the respondents are disqualified under paragraph
2(1)(a) of Tenth Schedule of the Constitution of India, as alleged by the
Applicant? (b) Is there a requirement to give seven days' time to the
respondents as stated in their objection statement?"
12.
Answering
the aforesaid issues, the Speaker arrived at the finding that after having been
elected from a political party and having consented and supported the formation
of a Government by the leader of the said party, the respondents, who are the Appellants
herein, other than Shri M.P. Renukacharya and Shri Narasimha Nayak, had
voluntarily given up their membership of the party by withdrawing support to the
said Government. In arriving at such a conclusion, the Speaker took into consideration
the allegations made by Shri Yeddyurappa that after submitting their respective
letters to the Governor withdrawing support to the Government, the said respondents
had gone from Karnataka to Goa and other places and had declared that they were
a separate group and that they were together and that they had withdrawn their support
to the Government.
The Speaker also took
personal notice of statements alleged to have been made by the Appellants and observed
that they had not denied the allegations made by Shri Yeddyurappa that they had
negotiated with the State Janata Dal, its members and leader, Shri H.D. Kumaraswamy,
regarding formation of another Government. In support of the same, the Speaker relied
on media reports and the affidavit filed by Shri Eswarappa. The Speaker recorded
that the same had not been denied by the Appellants herein.
13.
Referring
to the Tenth Schedule and certain decisions of this Court as to how statutory
provisions are to be interpreted in order to avoid 18mischief and to advance remedy
in the light of Heyden's Rule, the Speaker extracted a portion of a passage from
Lord Denning's judgment in Seaford Court Estates Ltd. Vs. Asher, wherein Lord Denning
had stated that a Judge must not alter the material of which the Act is woven, but
he can and should iron out the creases. The Speaker was of the view that in the
event of a difference of opinion regarding leadership in a political party, the
matter had to be discussed in the platform of the party and not by writing a letter
to the Governor withdrawing support to the Government.
The Speaker also observed
that the Governor never elects the leader of the legislature party. Accordingly,
from the conduct of the Appellants in writing to the Governor that they had withdrawn
support, joining hands with the leader of another party and issuing statements to
the media, it was evident that by their conduct the Appellants had become liable
to be disqualified under the Tenth Schedule. In 19coming to the said conclusion,
the Speaker placed reliance on several decisions of this Court and in
particular, the decision in Ravi S. Naik Vs. Union of India [(1994) Suppl.2 SCC
641], wherein the question of a member voluntarily giving up his membership of a
political party was considered in detail. Special emphasis was laid on the
observation made in the said decision to the effect that a person can voluntarily
give up his membership of a political party even though he may not have tendered
his resignation from the membership of the party. In the said decision it was
further observed that even in the absence of a formal resignation from membership,
an inference could be drawn from the conduct of a member that he had voluntarily
given up his membership of the political party to which he belonged.
14.
The
Speaker also referred to and relied on the decision of this Court in Jagjit
Singh Vs. State of 20Haryana [(2006) 11 SCC 1], wherein, it was expressed that to
determine whether an independent member had joined a political party, the test
to be considered was whether he had fulfilled the formalities for joining a political
party. The test was whether he had given up his independent character on which he
was elected by the electorate.
15.
Yet
another decision relied upon by the Speaker was the decision in Rajendra Singh
Rana & Ors. Vs. Swami Prasad Maurya & Ors. [(2007) 4 SCC 270], wherein the
question of voluntarily giving up membership of a political party was also under
consideration. The Speaker relied on paragraphs 48 and 49 of the said judgment,
wherein it was indicated that the act of giving a letter requesting the Governor
to call upon the leader of the other side to form a Government would itself
amount to an act of voluntarily giving up the membership of the party on whose ticket
the member was elected.
16.
The
Speaker observed that the Appellants herein had not denied their conduct anywhere
and had justified the same even during their arguments. The Speaker was of the view
that by their conduct the Appellants had voluntarily given up the membership of
the party from which they were elected, which attracted disqualification under
the Tenth Schedule. The Speaker further held that the act of withdrawing support
and acting against the leader of the party from which they had been elected,
amounted to violation of the object of the Tenth Schedule and that any law should
be interpreted by keeping in mind the purpose for which it was enacted.
17.
The
Speaker then took note of the retraction by Shri M.P. Renukacharya and Shri Narasimha
Nayak, indicating that they had no intention of 22withdrawing support to the Government
led by Shri Yeddyurappa and that they extended support to the party and the Government
and their elected leader. The Speaker also relied on the affidavit filed by
Shri K.S. Eswarappa and on considering the same, arrived at the decision that
the said two MLAs were not disqualified under the Tenth Schedule of the
Constitution. As far as the Appellants are concerned, the Speaker held that in view
of the reasons stated and the factual background, he was convinced that they were
disqualified from their respective posts of MLAs under paragraph 2(1)(a) of the
Tenth Schedule of the Constitution.
18.
The
Speaker then took up the objection taken on behalf of the Appellants herein
that the Show-Cause notice to the Appellants had been issued in violation of
the provisions of Rules 6 and 7 of the Karnataka Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules, 1986, hereinafter referred
to as "the Disqualification Rules,1986", inasmuch as, they were not
given seven days' time to reply to the Show-Cause notice, as contemplated by Rule
7(3) of the aforesaid Rules. The Speaker, without answering the objection
raised, skirted the issue by stating that it was sufficient for attracting the provisions
of paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India that the
Appellants herein had admitted that they had withdrawn support to the
Government.
The Speaker further
recorded that the Appellants had been represented by counsel who had justified the
withdrawal of support and "recognizing themselves with the leader and MLAs
of another party". Without giving details, the Speaker observed that this Court
had stated that the Disqualification Rules were directory and not mandatory as
they were to be followed for the sake of convenience. The stand taken by the
Speaker was that since the Appellants had appeared and filed objection and submitted
detailed arguments, the objection taken with regard to insufficient time being given
in violation of the Rules to reply to the Show-Cause notice, was only a technical
objection and was not relevant to a decision in the matter. On the basis of his
aforesaid reasoning, the Speaker rejected the objection filed on behalf of Appellants
and went on to disqualify the Appellants herein under paragraph 2(1)(a) of the
Tenth Schedule to the Constitution with immediate effect. The application seeking
disqualification of Shri M.P. Renukacharya and Shri Narasimha Nayak was
dismissed.
19.
The
Appellants herein challenged the decision of the Speaker in Writ Petition Nos.32660-32670
of 2010, which were listed for hearing before the Chief Justice of Karnataka and
the Hon'ble Mr. Justice N. Kumar. In his judgment, the Hon'ble Chief Justice took
up the objections taken on 25behalf of the Appellants herein, beginning with
the objection that the application for disqualification filed by Shri Yeddyurappa
was not in conformity with Rules 6 and 7 of the Defection Rules. Referring to Sub-rules
(5) and (6) of Rule 6, the Chief Justice held that there had been substantive
compliance with the said Rules which had been held to be directory in nature
and that it would not be possible merely on account of the violation of the
procedure contemplated under the Rules to set aside the order of the Speaker, unless
the violation of the procedure was shown to have resulted in prejudice to the
Appellants. Repeating the reasons given by the Speaker to reject the objection
of the Appellants on the aforesaid score and relying on the judgments rendered by
this Court in Ravi S. Naik's case (supra) and in the case of Dr. Mahachandra Prasad
Singh vs. Chairman, Bihar Legislative Council & Ors. [(2004) 8 SCC 747] the
Chief Justice held that it was not possible to 26accept the contentions of the learned
counsel for the Appellants and rejected the same.
20.
On
the second contention relating to violation of the rules of natural justice and
the proceedings conducted by the Speaker in extreme haste, thereby depriving the
Appellants of a reasonable opportunity of defending themselves, the Chief
Justice, placing reliance on the decision in Ravi S. Naik's case (supra), negated
the submissions made on behalf of the Appellants upon holding that since no prejudice
had been caused to the Appellants, it was difficult to accept the contention
advanced on their behalf that the entire proceedings of the Speaker deserved to
be set aside.
21.
Regarding
the other objection taken on behalf of the Appellants on the question of reliance
having been placed on the affidavit filed by the State President of the Bharatiya
Janata Party, the 27Chief Justice held that none of the Appellants had disputed
the factual position expressed in the newspaper cuttings which formed part of the
affidavit and that the submission made on behalf of the Appellants that had they
been afforded proper time to deal with the said affidavit, they would have been
able to show that the facts recorded in the newspaper article were incorrect, was,
therefore, without any basis.
22.
On
the main question as to whether the action of the Appellants had attracted the provisions
of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, the Chief Justice
came to a categorical finding that the Appellants had defected from the Bharatiya
Janata Party and had voluntarily given up their membership thereof.
Furthermore, while doing so, the Appellants had indicated that the constitutional
machinery had broken down leading to a situation where the governance of the
State could not be carried on in accordance with the Constitution and requested
the Governor to intervene and institute the constitutional process as the constitutional
head of the State. Referring to the wordings of Article 356 of the Constitution
which provides for proclaiming President's Rule in a State where it was no longer
possible to carry on the governance of the State in accordance with the provisions
of the Constitution of India, the Chief Justice agreed with the view expressed by
the Speaker that by withdrawing support from the Government led by Shri
Yeddyurappa, the Appellants had voluntarily chosen to disassociate themselves from
the Bharatiya Janata Party with the intention of bringing down the Government.
23.
The
Chief Justice also rejected the allegations of mala fide on account of the
speed with which the Speaker had conducted the disqualification 29proceedings within
five days i.e. one day ahead of the Trust Vote which was to be taken by Shri
Yeddyurappa on the Floor of the Assembly. The Chief Justice, accordingly, found
no merit in any of the contentions raised on behalf of the Appellants and holding
that the order of the Speaker did not suffer from any infirmity, dismissed the Writ
Petitions filed by the Appellants.
24.
Mr.
Justice N. Kumar, who, along with the Chief Justice, heard the writ petition filed
by the Appellants herein, in his separate judgment, differed with the views expressed
by the Chief Justice in regard to the interpretation of paragraph 2(1)(a) of the
Tenth Schedule of the Constitution. Observing that in a parliamentary democracy
the mandate to rule the State is given not to any individual but to a political
party, the learned Judge further observed that the Council of Ministers headed
by the Chief Minister can continue in the office as long as they enjoyed the
confidence of the majority of the Members of the House.
If the House expressed
no confidence in the Chief Minister, it was not only the Chief Minister, but
his entire Council of Ministers who cease to be in office. Regarding interpretation
of the provisions of paragraph 2(1)(a) of the Tenth Schedule of the
Constitution, Kumar,J., referred to the decisions rendered by this Court in - (1)
Kihoto Hollohan Vs. Zachillhu & Ors. [(1992) Supp.2 SCC 651]; (2) G. Viswanathan
Vs. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2
SCC 353]; (3) Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council
& Ors. [(2004) 8 SCC 747]; and (4) Rajendra Singh Rana & Ors Vs. Swami
Prasad Maurya & Ors. [(2007) 4 SCC 270], and held that from the scheme of the
Tenth Schedule it was clear that the same applied only to a Member of the House.
Such Member could be elected on the ticket of any political party or as an Independent,
but a member of a political party who is elected as a Member of the House,
would automatically become a member of the Legislature Party in the said House.
The learned Judge held
that paragraph 2 of the Tenth Schedule deals with disqualification of Members of
the House. The learned Judge also held that paragraph 2(1) deals with disqualification
of a Member of a House who belongs to a political party, while paragraph 2(2) deals
with disqualification of a Member of a House elected as an Independent. In the case
of a Member of a House elected as an Independent candidate, the question of his
voluntarily giving up his membership of a political party would not arise. Similarly,
when he did not belong to any political party, the question of voting or abstaining
from voting in such House contrary to the directions issued by the political
party would not arise.
The learned Judge observed
32that once a person gets elected as an Independent candidate, the mandate of the
voters is that he should remain independent throughout his tenure in the House and
under no circumstances could he join any political party. However, in the case of
a Member of the House belonging to a political party, the disqualification occurs
when he voluntarily gives up the membership of that political party. It is
because of the mandate of the people that he should continue to be the member of
that political party which set him up as a candidate for the election. He was, however,
free to give up his membership of the party, but for the said purpose he had to
resign from the membership of the House as well as the membership of the political
party and then contest the election in the vacancy caused because of his resignation
and then only he would have an independent course of choice.
25.
After
analyzing the intent behind the inclusion of the Tenth Schedule to the Constitution,
the learned Judge also observed that the anti-defection law was enacted to prevent
floor crossing and destabilizing the Government which is duly elected for a term.
If, however, a Member of the House voluntarily gave up his membership of a political
party, the object of the anti-defection law was to prevent him from extending support
to the opposition party to form the Government by his vote or to ensure that if
he has resigned from the membership of a party, his support was not available for
forming an alternative Government by the opposition party.
The learned Judge observed
that if a Member violates the above conditions, the Parliament has taken care to
see by enacting the Tenth Schedule that such Member would be instantly
disqualified from being a Member of the House. Once the act of disqualification
occurred, the question of condoning such act or taking him back to the party on
his tendering an apology or expressing his intention to come back to the party,
would not arise. Therefore, if the act falls within the ambit of paragraph 2(1)(a)
of the Tenth Schedule, his membership becomes void. However, if such disqualification
was incurred under paragraph 2(1)(b), such disqualification did not render his
membership void but it was voidable at the option of the political party.
26.
The
learned Judge went on to further hold that when a Member of a House expressed his
no-confidence in the leader of a Legislature Party and if he happened to be the
Chief Minister who is heading the Council of Ministers and had written to the Governor
in that regard, such act by itself would not amount to an act of floor crossing.
Similarly, if the Governor, after taking note of the expression of
no-confidence, was satisfied that the Chief Minister had lost majority support
in the House, he could call upon the Chief Minister to prove his majority on the
Floor of the House. It was further observed that if the Chief Minister, on such
request, failed to establish that he enjoyed the support of the majority of the
Members, his Ministry would fall, but such act of the Member of the House would
not constitute `defection' under the Tenth Schedule.
By such act, the political
party which had formed the Government, would not lose its right to form a Government
again. It is not as if the Governor can recommend the imposition of President's
Rule under Article 356 of the Constitution or call upon the leader of the
opposition to form an alternative Government after the fall of the earlier Government.
Before embarking upon either of the two options, the Governor was expected to
explore the possibility of formation of an alternative Government. The Speaker
could call upon the leader who enjoyed the majority support of the Members of the
House to form an alternative Government. In such case it was open to the
political party, whose Government had fallen on the Floor of the House, to once
again stake a claim before the Governor, either with the same leader or another
leader elected by the party, by showing the majority support of the Members of the
House.
In that a situation, the
stability of the Government of the political party is not disturbed. On the
other hand, what is disturbed by such an act is the Government of the political
party with a particular leader in whom the Members of the House belonging to the
same political party have no confidence. But this would not mean that the member
of the political party to which the Chief Minister belonged had given up his membership
of the political party. Other provisions have been made in the Constitution for
dealing with such dissenting members. In such a case, by issuing a whip, those
who had expressed their no-confidence in the leader of the House, can be
directed to vote in his favour 37at the time of voting on the floor of the House.
Once such direction is given, the member concerned can neither abstain from voting
nor vote contrary to the direction.
If he does so, he incurs
disqualification under paragraph 2(1)(b) of the Tenth Schedule to the Constitution.
The learned Judge observed further that, in fact, the said provision also provides
for such an act being condoned so that by persuasion or by entering into an understanding,
their support could still be relied upon by the party to save the Government
before voting or in forming a fresh Government after such voting, if in the voting
the Government fails. The said dissent amounts to the dissent within the party
itself.
27.
The
learned Judge observed that the two grounds set out in paragraph 2 of the Tenth
Schedule to the Constitution are mutually exclusive and operate in two
different fields. While paragraph 2(1)(a) deals 38with the Member who voluntarily
walks out of the party, paragraph 2(1)(b) deals with the Member who remains in
the party but acts in a manner which is contrary to the directions of the party.
The learned Judge, however, went on to observe that if a Member voluntarily gives
up his membership from the party, then paragraph 2(1)(b) is no longer
attracted. In either event, it is the political party which is aggrieved by
such conduct. However, it was left to the party to condone the conduct
contemplated in paragraph 2(1)(b), but such conduct would have to be condoned within
15 days from the date of such voting or abstention.
28.
Having
dealt with the various decisions referred to hereinabove, the learned Judge came
to the conclusion that it was clear that an act of no confidence in the leader of
the legislative party does not amount to his voluntarily giving up the
membership of the political party. Similarly, his act of expressing no confidence
in the Government formed by the party, with a particular leader as Chief Minister,
would not also amount to a voluntary act of giving up the membership of the
political party. The learned Judge further observed that deserting the leader and
deserting the Government is not synonymous with deserting the party. If a Minister
resigned from the Ministry, it would not amount to defection. What constitutes
defection under paragraph 2(1)(a) of the Tenth Schedule is deserting the party.
The learned Judge observed that dissent is not defection and the Tenth Schedule
while recognising dissent prohibits defection.
29.
The
learned Judge also considered the case of Shri M.P. Renukacharya and Shri Narasimha
Nayak, who were among the 13 members against whom the disqualification petition
had been filed by the Chief Minister. The learned Judge pointed out that 40along
with the Appellants herein, the aforesaid two members had also signed a representation
which had been given to the Governor and if such an act would amount to
voluntarily giving up the membership of a political party and the case fell within
paragraph 2(1)(a), the disqualification becomes automatic and the membership of
such persons becomes void. The question of those members retracting their steps
and reaffirming their confidence in the Chief Minister and the Party President confirming
the same on a subsequent date, is of no consequence. The learned Judge held that
the same yardstick had not been applied for the Appellants and the two other members
against whom the disqualification petition filed by the Chief Minister was
dismissed.
30.
Expressing
his views with regard to the manner in which the Speaker had acted in the
matter in hot haste, the learned Judge referred to paragraphs 180, 181 and 182 of
the decision rendered by this Court in Kihoto Hollohan's case (supra), which was
the minority view, but had suggested that the office of the Speaker which was
attached with great dignity should not be made the target of bias since his tenure
as Speaker is dependent on the will of the majority of the House. While holding
that right to dissent is the essence of democracy, for the success of democracy
and democratic institutions honest dissent is to be respected by persons in
authority. On the basis of his aforesaid conclusions, the learned Judge held that
the order of the Speaker impugned in the writ petition was in violation of the constitutional
mandate and also suffered from perversity and could not, therefore, be sustained.
The impugned order of the Speaker was, therefore, set aside by the learned
Judge.
31.
On
account of such difference of opinion between the Chief Justice and his companion
Judge, the matter was referred to a third Judge to consider the following issue
:- "Whether the impugned order dated 10.10.2010 passed by the Speaker of the
Karnataka State Legislative Assembly is in consonance with the provisions of paragraph
2(1)(a) of the Tenth Schedule of the Constitution of India."
32.
On
the basis of the said reference, the matter was referred to the Hon'ble Mr. Justice
V.G. Sabhahit, who by his judgment and order dated 29th October, 2010,
concurred with the decision rendered by the Chief Justice upholding the order passed
by the Speaker. As a result, the majority view in the writ petitions was that the
Hon'ble Speaker was justified in holding that the Appellants herein had
voluntarily resigned from their membership of the Bharatiya Janata Party by their
conduct, which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule
to the Constitution and were 43rightly disqualified from the membership of the
House.
33.
Mr.
R.F. Nariman, learned Senior Advocate, appearing for the Appellants in SLP(C)Nos.33123-33155
of 2010, Balchandra L. Jarkiholi & Ors. Vs. B.S. Yeddyurappa & Ors. (now
appeals), questioned the order of the Speaker dated 10th October, 2010,
disqualifying the Appellants from membership of the House, on grounds of mala fide
and violation of Rules 6(5)(b) and 7(3) of the Disqualification Rules, 1986, as
also the principles of natural justice. Contending that the order passed by the
Speaker on 10th October, 2010, was vitiated by mala fides, Mr. Nariman submitted
that the same had been passed with the oblique motive of preventing the
Appellants from participating in the Trust Vote which was to be taken by the
Chief Minister on 11th October, 2010. Learned counsel also submitted that the
letters dated 6th March, 2010, addressed by the Appellants individually along with
Shri M.P. Renukacharya and Shri Narasimha Nayak to the Governor did not even suggest
that they had intended to leave the Bharatiya Janata Party or to join another political
party but that they were disillusioned with the functioning of the Government under
Shri B.S. Yeddyurappa and had, therefore, decided to withdraw support to the
Government headed by him. Furthermore, apart from mentioning that the Appellants
had written to the Governor withdrawing their support to the Government, the Disqualification
Application does not also contain any averment that the Appellants had met any person
from any other political party. Although certain press statements had been
mentioned in the petition, the same had not been annexed to the application. Mr.
Nariman submitted that, in fact, no documentary evidence was at all annexed to
the said application.
34.
In
addition to the above, Mr. Nariman also pointed out that the Disqualification Application
had not been properly verified in terms of Rules 6(6) of the Disqualification Rules,
1986, and that the said application was, therefore, liable to be rejected on such
ground also. Instead of rejecting the application or even returning the same for
proper verification, the Speaker chose to ignore the shortcomings and issued Show-Cause
notices to the Appellants in undue haste with the oblique motive of
disqualifying them from the membership of the House prior to the Trust Vote to be
taken on 11th October, 2010.
Applications sans annexures
were not even served on the Appellants, but merely pasted on the doors of the official
residence of the Appellants which were locked since the Assembly was not in
session. Mr. Nariman submitted that the Appellants were granted time till 5.00
p.m. on 10th October, 2010, to respond to the Show-Cause notices although Rule
7(3) provided for seven days' time or 46more to respond to such an application.
Instead, in complete violation of the said Rules, the Appellants were given only
three days' time to respond to the Show-Cause notices and even more serious objection
was taken by Mr. Nariman that it was in the Show-Cause notices that for the first
time, it was stated that the actions of the Appellants were in violation of paragraph
2(1)(a) of the Tenth Schedule of the Constitution, although no such specific averment
had been made by the Respondent No.1 in his application.
It was urged that on account
of the short time given by the Speaker to the Appellants to respond to the Show-Cause
notices, they could only submit an interim reply of a general nature and it had
been categorically mentioned that on receipt of all the documents on which reliance
had been placed, a detailed response would be given to the Show-Cause notices. Mr.
Nariman contended that certain documents were made available to the learned Advocate
of the Appellants just before the hearing was to be conducted before the Speaker
on 10th October, 2010, which contained facts which could be answered only by the
Appellants personally. However, since the Appellants were not available in
Karnataka at the relevant point of time, it was not possible for the learned Advocate
appearing on their behalf to respond to the issues raised in the additional documents.
It was submitted that
the Speaker acted against all principles of natural justice and the propriety in
taking on record the affidavit affirmed by the State President of the Bharatiya
Janata Party Shri K.S. Eswarappa, with the sole intention of supplying the
inadequacies in the Disqualification Application filed by Shri Yeddyurappa. In addition,
the Speaker also took into consideration the statements of retraction made by Shri
M.P. Renukacharya and Shri Narasimha Nayak and allowed the same, whereafter they
proceeded to make allegations against the 48Appellants that they had intended
to remove the BJP Government and to support any Government led by Shri H.D. Kumaraswamy.
Mr. Nariman submitted that the Speaker had applied two different yardsticks as
far as the Appellants and Shri M.P. Renukacharya and Shri Narasimha Nayak are
concerned, despite the fact that they too had written identical letters to the Governor
withdrawing support to the Government led by Shri Yeddyurappa. Mr. Nariman submitted
that once Shri M.P. Renukacharya and Shri Narasimha Nayak had written to the Governor
expressing their decision to withdraw support to the Government headed by Shri Yeddyurappa,
the provisions of paragraph 2(1)(a) of the Tenth Schedule came into operation
immediately and the Speaker was no longer competent to reverse the same.
35.
Mr.
Nariman submitted that the action taken by the Speaker on the Disqualification Application
filed against Shri M.P. Renukacharya and Shri 49Narasimha Nayak made it obvious
that such steps were taken by the Speaker to save the membership of the said
two MLAs to enable them to participate in the Trust Vote. It was also submitted
that to make matters worse, the Speaker took personal notice about the statements
allegedly made by the Appellants to the effect that they wanted to topple the BJP
Government and to form a new Government with the others. It was submitted that while
performing an adjudicatory function under the Tenth Schedule, while holding a highly
dignified office, all personal knowledge which the Speaker may have acquired, should
not have been taken into consideration in taking a decision in the matter. In this
regard, Mr. Nariman referred to the decision of this Court in S. Partap Singh
Vs. State of Punjab [(1964) 4 SCR 733], wherein it was held that if while exercising
a power, an authority takes into account a factor which it was not entitled to,
the exercise of the power would be bad. However, where the purpose sought to be
achieved are mixed, some relevant and some not germane to the purpose, the difficulty
is resolved by finding the dominant purpose which impelled the action and where
the power itself is conditioned by a purpose, such exercise of power was required
to be invalidated.
36.
Mr.
Nariman submitted that at every stage the Speaker had favoured Shri Yeddyurappa
and even though Rule 7(2) of the 1986 Rules provided for the dismissal of the
petition which did not comply with the requirements of Rule 6, as in the
present case, the Speaker did not do so. Even the period of seven days' which was
required to be granted to allow the Appellants to respond to the Show-Cause
notices, only three days' time was given to the Appellants to submit their response
which could be done only in a hurried manner for an interim purpose and despite
the request made by the Appellants to the Speaker to postpone the date in order
to give the Appellants a proper opportunity of responding to the allegations contained
in the Show-Cause notices, such request was turned down thereby denying the
Appellants a proper opportunity of representing their case, particularly when
neither the Show-Cause notices nor the Disqualification Application filed by Shri
Yeddyurappa along with all annexures had been supplied to the Appellants.
37.
Referring
to the decisions which had been mentioned by the Speaker in his order, Mr. Nariman
pointed out that both in Mahachandra Prasad Singh's case and also in Ravi S.
Naik's case (supra), this Court had held that the 1986 Rules were only
directory in nature and that as a result the order dated 10th October, 2010, could
be questioned not only on the ground of violation of the Rules, but in the facts
of the case itself. It was pointed out that in Mahachandra Prasad Singh's case it
had never been disputed that the petitioner therein had been elected to the Legislative
Council on an Indian National Congress ticket and had contested Parliamentary elections
as an independent candidate. It was submitted that it was in such background
that this Court had held that non-supply of a copy of the letter of the Leader of
the Congress Legislative Party had not caused any prejudice to the petitioner. Mr.
Nariman reiterated that the Appellants had all said in separate voices that
they had not left the BJP and had only withdrawn support to the Government led
by Shri Yeddyurappa and that they were ready to support any new Government formed
by the BJP, without Shri Yeddyurappa as its leader.
38.
Mr.
Nariman also referred to the decision of this Court in Kihoto Hollohan's case (supra)
and urged that the order of disqualification passed 53against the Appellants for
merely expressing their disagreement with the manner of functioning of the
Respondent No.1 as Chief Minister, had not only impinged upon the Appellants'
right of free speech, as guaranteed under Article 19(1)(a) of the Constitution,
but from a bare reading of the letter dated 6th October, 2010, written by the Appellants
to the Governor, it could not be held that the same indicated their intention to
voluntarily give up the membership of the BJP. Mr. Nariman submitted that the impugned
orders and the order of the Speaker dated 10th October, 2010, were
unsustainable since they had been engineered to prevent the Appellants from participating
in the Vote of Confidence fixed on 11th October, 2010.
39.
Mr.
P.P. Rao, learned Senior Advocate, who appeared for the Appellants in the Civil
Appeals arising out of Special Leave Petition (Civil) Nos.33533-33565 of 2010,
submitted that in order to attract the disqualification clause under paragraph
2(1)(a) of the Tenth Schedule, Shri Yeddyurappa had first to establish that the
Appellants had voluntarily given up their membership of the BJP. It was submitted
that in the Disqualification Application filed by Shri Yeddyurappa, there is no
averment to the said effect and what has been averred is that the Appellants had
withdrawn their support to his government and had informed the Governor of
Karnataka about their decision, despite there being no decision in the party in
this regard, which made such action a clear violation of the Tenth Schedule to the
Constitution. Mr. Rao submitted that the Disqualification Application did not even
refer to paragraph 2(1)(a) of the Tenth Schedule to the Constitution and that the
same should, therefore, have been rejected by the Speaker in terms of Rule 6(2)
of the 1986 Rules.
40.
Reiterating
Mr. Nariman's submissions, Mr. Rao submitted that withdrawal of support by the
Appellants to the Government led by Shri Yeddyurappa did not amount to voluntarily
relinquishing the membership of the BJP since the Government led by a particular
leader and the political party are not synonymous. Mr. Rao also urged that asking
the Governor to institute the constitutional process for replacing one Chief
Minister by another, did not also amount to voluntary relinquishment of the membership
of the party. According to Mr. Rao, withdrawal of support to the incumbent Chief
Minister and intimation thereof to the Governor, could, at best, be said to be a
pre-voting exercise in regard to the Vote of Confidence sought by the Chief Minister,
but the question of disqualification will arise only if the Appellants voted in
the House contrary to the directions of the whip issued by the BJP. However,
even such a transgression could be condoned by the 56party within 15 days of such
voting. Mr. Rao submitted that announcement of withdrawal of support to the Chief
Minister before actual voting in violation of the whip would not bring the case
within the ambit of paragraph 2(1)(a) of the Tenth Schedule to the Constitution
and make him liable to disqualification.
41.
Mr.
Rao submitted that the minority view taken by N. Kumar, J. that "dissent"
could not be regarded as defection was a correct view and did not amount to voluntarily
relinquishing membership of the political party, since such act expresses a
lack of confidence in the leader of the party, but not in the party itself. Quoting
the minority view expressed by N. Kumar, J., Mr. Rao submitted that the object of
paragraph 2(1)(a) was not to curb internal democracy or the right to dissent, since
dissent is the very essence of democracy, but neither the Chief Justice nor V.G.
Sabhahit, J. even adverted to such basic principle of Parliamentary democracy and
erred in equating withdrawal of support to the Government led by Shri B.S. Yeddyurappa
with withdrawing support to the BJP Government.
According to Mr. Rao,
the Appellants were only doing their duty as conscious citizens to expose the corruption
and nepotism in the Government led by Shri B.S. Yeddyurappa. Mr. Rao referred to
and relied upon the decisions of this Court in (1) State of M.P. Vs. Ram Singh
[(2000) 5 SCC 88] and (2) B.R. Kapur Vs. State of T.N. [(2001) 7 SCC 231], wherein,
such sentiments had also been expressed. Mr. Rao contended that it is a well-settled
principle of law that when a power is conferred by the Statute and the procedure
for executing such power is prescribed, the power has to be exercised according
to the procedure prescribed or not at all. In this regard, Mr. Rao referred to the
celebrated decision of the Privy Council in Nazir Ahmad Vs. King Emperor [63 Indian
Appeals 372] and State of U.P. Vs. Singhara Singh [(1964) 4 SCR 485]. Mr. Rao urged
that the 1986 Rules had a statutory flavour and had to be treated as part of the
Representation of the Peoples Act, 1951. Going one step further, Mr. Rao also urged
that the Rules and Administrative Instructions lay down certain norms and guidelines
and violation thereof would attract Article 14 of the Constitution and even if the
said Rules were directory, they had to be substantially complied with.
42.
Mr.
Rao also contended that the order of disqualification passed by the Speaker was
vitiated by mala fide on the part of the Chief Minister Shri Yeddyurappa, who filed
the application for disqualification with the deliberate intention of
preventing the Appellants from participating in the Trust Vote to be taken on 11th
October, 2010. It was urged that such mala fide acts on the part of 59the Speaker
would be evident from the fact that although the Disqualification Application did
not conform to Rules 6(4), (6) and (7) of the 1986 Rules read with Order VI
Rule 15(2)(4) of the Code of Civil Procedure, the same was entertained by the
Speaker and a separate page of verification was subsequently inserted, which
ought not to have been permitted by the Speaker. Mr. Rao reiterated the submissions
made by Mr. Nariman that the Disqualification Application was liable to be
dismissed under Rule 7(2) of the aforesaid Rules which says that "if the petition
does not comply with the requirement of Rule 6, the Speaker shall dismiss the petition
and intimate the petitioner".
Despite the fact that
the application was not properly verified, the same was not dismissed. Mr. Rao submitted
that in blatant disregard of the above-mentioned Rules, the Speaker had entertained
the defective petition filed by Shri Yeddyurappa in complete disregard of Rules
6 and 7 of the 1986 60Rules. It was submitted that the said steps were taken by
the Speaker in a partisan manner and against the highest traditions of the
Office of the Speaker with the obvious intention of bailing out the Chief Minister
to whom he owed his Chair as Speaker, which he could lose if the Chief Minister
failed to win the Vote of Confidence in the Assembly.
43.
Mr.
Rao repeated Mr. Nariman's submissions regarding the purported violation of Rule
7(3) of the 1986 Rules, but added that such breach not only amounted to violation
of principles of natural justice but also in violation of Article 14 of the
Constitution itself, as was held in Union of India Vs. Tulsiram Patel [(1985) 3
SCC 398]. Mr. Rao submitted that this was a clear case of abuse of
constitutional powers conferred on the Speaker by paragraph 6 of the Tenth Schedule,
with the sole motive of saving his own Chair and the Chair of the 61Chief Minister.
The Show-Cause notice was not only unconstitutional and illegal, but motivated and
mala fide and devoid of jurisdiction.
44.
Referring
to the judgment of the Chief Justice, which was in variance with the decision of
N. Kumar, J., Mr. Rao urged that the Chief Justice had only noted and considered
ground "K" to the Writ Petition, without considering grounds C, D, F,
H and I, which dealt with the very maintainability of the Disqualification application
on account of improper verification. Mr. Rao submitted that indecent haste with
which the Disqualification Application was processed was clearly in violation
of the mandate of Rule 7 of the 1986 Rules, which provided for at least 7 days'
time to reply to a Show-Cause notice issued under Rule 6.
45.
Mr.
Rao also submitted that despite pointed references made to the corruption and nepotism
in the Government led by Shri Yeddyurappa, the same 62has not been denied by Shri
B.S. Yeddyurappa and this Court should draw an adverse inference when such
allegations of bias or mala fide had not been denied by Shri B.S. Yeddyurappa.
46.
Mr.
Rao also repeated and reiterated Mr. Nariman's submissions regarding non-service
of Notices and copies of the application and the annexures thereto on the Appellants
and the introduction of the affidavit filed by Shri K.S. Eshwarappa and the Statements
of Shri M.P. Renukacharya and Shri Narasimha Nayak without serving copies
thereof on the Appellants and giving them reasonable opportunity to deal with the
same. It was submitted that by adopting the procedure as mentioned above, the Speaker
denied the Appellants a proper opportunity of contesting the Disqualification Application
despite the fact that the additional affidavit and the submissions made by Shri
M.P. Renukacharya and Shri Narasimha Nayak contained factual allegations against
the Appellants which they could only answer. Mr. Rao submitted that the Speaker
rushed through the formalities of an enquiry within four days from the issuance
of the Show-Cause notices knowing that the Chief Minister had to face a
Confidence Vote in the Assembly on 11th October, 2010.
47.
On
the scope of justiceability of an order passed by the Speaker under paragraph 6
of the Tenth Schedule to the Constitution, Mr. Rao submitted that such a question
had been gone into and settled by this Court firstly by the Constitution Bench in
Kihoto Hollohan's case (supra) and thereafter in Dr. Mahachandra Prasad Singh's
case (supra), wherein it had been held that Rules 6 and 7 of the Disqualification
Rules were directory and not mandatory in nature and hence the finality clause in
paragraph 6 did not completely excluded the jurisdiction of the Courts under Articles
136, 226 and 227 of the Constitution. It is pointed out that it had been
indicated in Kihoto Hollohan's case (supra) that the very deeming provision implies
that the proceedings for disqualification are not before the House but only
before the Speaker as a substantially distinct authority and that the decision under
paragraph 6(1) of the Tenth Schedule is not the decision of the House nor is it
subject to approval of the House and that the said decision operates
independently of the House.
It was accordingly
held that there was no immunity under Articles 122 and 212 from judicial scrutiny
of the decision of the Speaker or Chairman exercising powers under paragraph 6(1)
of the Tenth Schedule. Mr. Rao pointed out that paragraph 100 of the decision in
Kihoto Hollohan's case (supra) declares the Speaker or the Chairman acting under
paragraph 6 of the Tenth Schedule to be a Tribunal. Mr. Rao submitted that the
view taken in Ravi S. Naik's case (supra) 65that the Disqualification Rules
being procedural in nature, any violation of the same would amount to
irregularity in procedure which was immune from judicial scrutiny in view of
Rule 6(2) of the 1986 Rules, was an inaccurate statement of law in view of the
decision of the Constitution Bench in Kihoto Hollohan's case (supra). Mr. Rao also
pointed out that the decision in Ravi S. Naik's case (supra) had been
considered by a Bench of 3 Judges of this Court in Mayawati Vs. Markandeya Chand
[(1998) 7 SCC 517], wherein K.T. Thomas J. had observed that the decision in
Kihoto Hollohan's case had not been considered in Ravi S. Naik's case in its proper
perspective. M. Srinivasan, J. did not agree with the views expressed by K.T. Thomas,
J. and quoted approvingly from the decision in Ravi S. Naik's case (supra). However,
Chief Justice M.M. Punchhi took the view that the matter was required to be
referred to a Constitution Bench, as the decision in Kihoto Hollohan's case (supra)
is silent on the 66question as to whether cognizance taken by the Speaker of the
occurrence of a split is administrative in nature, unconnected with the
decision making process or is it an adjunct thereto. Mr. Rao submitted that the
decision in Dr. Mahachandra Prasad Singh's case (supra) suffered from the same
vice and was, therefore, per incuriam.
48.
Mr.
Rao also contended that the view subsequently taken by the Constitution Bench in
Rajendra Singh Rana Vs. Swami Prasad Maurya [(2007) 4 SCC 270] that the failure
on the part of the Speaker to decide an application seeking disqualification
cannot be said to be merely in the realm of procedure, goes against the very
constitutional scheme contemplated under the Tenth Schedule, read in the context
of Articles 102 and 191 of the Constitution. It was also observed that it also went
against the Rules framed in that behalf and the procedure that was expected to be
followed by the Speaker. It was further observed that the lapse on the part of
the Speaker amounted to jurisdictional error. Mr. Rao urged that the
pronouncement in the aforesaid case was final on this aspect of the matter and was
required to be reiterated in the present case.
49.
The
submissions made on behalf of the Appellants were strongly opposed by Mr. Soli J.
Sorabjee, learned Senior Advocate appearing for the Respondent No.1, Shri B.S. Yeddyurappa,
Chief Minister of Karnataka. He identified six issues which, according to him, had
arisen in the Appeals for consideration. The same are reproduced hereinbelow:- (i)
The extent and scope of Judicial Review available against the order of the
Speaker passed in exercise of powers under the Tenth Schedule to the
Constitution. (ii) Whether the Karnataka Disqualification Rules framed in exercise
of powers under paragraph 8 of the Tenth Schedule are directory and procedural
in nature and whether judicial review is available against an alleged breach of
the said Rules? (iii) Whether the Speaker's order impugned herein is mala fide?
(iv) Whether Speaker's order can be said to be vitiated on account of non- compliance
with the principles of natural justice? (v) The scope of paragraph 2(1)(a) of the
Tenth schedule; and (vi) Whether the Speaker's inference from the conduct of the
MLA's in the present case that they have given up the membership of the political
party to which they belong, can be said to be `perverse'?
50.
It
was submitted that the scope of judicial review of the order of the Speaker of the
Legislative Assembly was extremely limited in view of the finality attached to the
Speaker's order under paragraph 6(1) of the Tenth Schedule. Mr. Sorabjee submitted
that in Kihoto Hollohan's case 69this Court had held that the immunity granted
under sub-paragraph (2) of paragraph 6 was in respect of the procedural aspect of
the disqualification proceedings, but that the decision itself was not totally immune
from judicial scrutiny. However, having regard to the finality attached to the
decision of the Speaker, as indicated in sub-paragraph (1), judicial review of the
said order would be confined to infirmities based on (a) violation of constitutional
mandate; (b) mala fides; (c) non-compliance with the rules of natural justice;
and (d) perversity. Mr. Sorabjee submitted that the Speaker's order impugned in
these proceedings did not suffer from any of the infirmities mentioned in paragraph
6(1) of the Tenth Schedule to the Constitution and that on account of the decision
in Kihoto Hollohan's case (supra), the decision of the Speaker could not be
assailed even on the ground of violation of any of the Rules framed by the
Speaker.
51.
Relying
heavily on the decision of this Court in Ravi S. Naik's case (supra), Mr. Sorabjee
pointed out that this Court had held that the 1986 Rules had been framed to regulate
the procedure to be followed by the Speaker for exercising his powers under paragraph
6(1) of the Tenth Schedule. The same are, therefore, procedural in nature and
any violation thereof would be a procedural irregularity which is immune from
judicial scrutiny in view of the provisions of paragraph 6(2) as was construed by
this Court in Kihoto Hollohan's case (supra). Mr. Sorabjee submitted that the 1986
Rules framed by the Speaker being subordinate legislation, the same could not
be equated with the provisions of the Constitution and could not, therefore, be
regarded as constitutional mandates and violation of the 1986 Rules did not afford
a ground for judicial review of the order of the Speaker.
52.
Mr.
Sorabjee also placed strong reliance on the decision of this Court in Dr. Mahachandra
Prasad Singh's case (supra), wherein the same view was reiterated. It was observed
that the Rules being in the domain of procedure, they were intended to
facilitate the holding of an inquiry and not to frustrate or obstruct the same by
introducing innumerable technicalities. Mr. Sorabjee submitted that the Rules being
directory, any alleged breach thereof cannot also be a ground for striking down
the Speaker's order or make the same susceptible to judicial review as per the parameters
laid down in Kihoto Hollohan's case (supra). It was also submitted that the
power of the Speaker flowed from the Tenth Schedule and was not dependent on the
framing of Rules and even in the absence of Rules, the Speaker always has the
authority to resolve any dispute raised before him, without any fetter on his
powers by the Rules.
53.
As
to the period of three days given to the Appellants to reply to the Show-Cause notices,
instead of seven days mentioned in Rule 7(3) of the 1986 Rules, Mr. Sorabjee submitted
that it was quite clear that the use of the expression "within 7
days" clearly indicated that the full period of 7 days was not required to
be given by the Speaker for showing cause by the Member concerned. Mr. Sorabjee
submitted that since the period of 7 days was the maximum period prescribed, it
did not circumscribe the Speaker's authority to require such response to the Show-Cause
notice within a lesser period and, in any event, the said issue was a
non-starter since the Rules had been held by this Court to be directory and not
mandatory. In any event, in Ravi S. Naik's case (supra), it had been observed that
while applying the principles of natural justice, it had to be kept in mind that
"they were not cast in a rigid mould nor can they be put in a legal strait
jacket." Mr. Sorabjee submitted that the same view had been reiterated in
Jagjit Singh's case (supra) and the contention that the Speaker ought not to have
relied upon his personal knowledge was specifically rejected in the said case.
54.
Mr.
Sorabjee urged that this Court in Kihoto Hollohan's case (supra) had drawn a distinction
between the procedure followed by the Speaker and the decision rendered by him
and had held that the procedure followed would be immune from judicial review, being
administrative in nature, though the decision could be challenged on grounds of
jurisdictional errors. It was urged that in any event the decision in Ravi S. Naik's
case (supra) which had been subsequently approved in Dr. Mahachandra Prasad Singh's
case (supra) is binding upon this Bench, having been rendered by a Bench of
three Judges.
55.
As
far as the charge of mala fides against the Speaker is concerned, Mr. Sorabjee submitted
that such a charge was not maintainable since the Speaker had been made a Respondent
in the proceedings not in his personal capacity but in his capacity as Speaker.
It was contended that as had been held by this Court in Sangramsinh P. Gaekwad
Vs. Shantadevi P. Gaekwad [(2005) 11 SCC 314], allegation of mala fide has to
be pleaded with full particulars in support of the charge. Making bald
allegations that the Chief Minister had influenced the Speaker to get the Appellants
removed from the membership of the House before the Trust Vote scheduled to be
held on 11th October, 2010, without any material in support of such allegations,
could not and did not amount to mala fides on the part of the Speaker. Mr. Sorabjee
submitted that as was also observed in the case of E.P. Royappa Vs. State of
Tamil Nadu [(1974) 4 SCC 3], the allegations of mala fide are often more easily
made than proved and the very seriousness of such allegations demands proof of
a high order of credibility.
56.
Mr.
Sorabjee submitted that coupled with the allegation of mala fides was the allegation
that the Speaker had conducted the entire exercise of disqualifying the
Appellants from the membership of the House in great haste so that they would
not be able to participate in the Trust Vote. Mr. Sorabjee submitted that
proceedings under the Tenth Schedule have to be decided as early as possible in
order to avoid the participation of a disqualified Member in the House. It was
contended that in view of the decision of the Constitution Bench in Rajendra Singh
Rana's case, the Speaker was under an obligation to decide the issue of
eligibility of the Member to cast his vote before the Confidence Vote was taken.
Mr. Sorabjee submitted that as had been held in Rajendra Singh Rana's case,
disqualification occurs on the date of the act of the Member and not on the date
of the Speaker's order. Applying the said analogy to the facts of this case, it
had to be presumed that the disqualification had already occurred when the
concerned Member had presented his letter to the Governor and as a result since
the Vote of Confidence was fixed for the next day, the Speaker had no option but
to decide the question of disqualification before the Vote of Confidence was
taken. Mr. Sorabjee submitted that even N. Kumar, J. while dissenting from the order
of the Chief Justice, concurred with him on the issue regarding absence of mala
fides on the part of the Speaker.
57.
Mr.
Sorabjee urged that although various charges had been made against the Appellants,
they had neither denied the same before the Speaker nor in the Writ Petition nor
in the proceedings before the High Court, which gave rise to a presumption that
there was a ring of truth in such allegations. 77Mr. Sorabjee urged that the case
of the Appellants that they had not been provided a proper opportunity of dealing
with and replying to the Show-Cause notices, was completely incorrect, since
they had sent detailed replies to the Speaker in response to the Show-Cause
notices.
58.
Mr.
Sorabjee submitted that after detailed replies had been filed by the Appellants,
a full-fledged hearing had been given to them and hence the Appellants did not suffer
any prejudice on account of the procedure adopted by the Speaker in disposing of
Shri Yeddyurappa's Disqualification application.
59.
On
the question as to whether the Appellants incurred disqualification under paragraph
2(1)(a) of the Tenth Schedule on account of their conduct, Mr. Sorabjee
submitted that it was settled law that for a Member to incur disqualification under
paragraph 2(1)(a) of the Tenth Schedule, he was not required to formally resign
from the party, but an inference to that effect could be drawn from his conduct
which may be incompatible with his political allegiance to the Party. Relying
again on paragraph 11 of the decision in Ravi S. Naik's case (supra), Mr.
Sorabjee submitted that a person could voluntarily give up his membership of a political
party, even without tendering his resignation from the membership of that party
and in the absence of a formal resignation from the membership, an inference can
be drawn from the conduct of the Member that he had voluntarily given up his
membership of the political party to which he belonged. Mr. Sorabjee submitted that
the view expressed in Ravi S. Naik's case (supra) had been reiterated in Jagjit
Singh's case (surpa) and had also been approved by the Constitution Bench in
Rajendra Singh Rana's case (supra).
60.
Once
again referring to the letters written by the Appellants withdrawing support from
the Government of their own political party and asserting that a situation had arisen
in which the governance of the State could not be carried on in accordance with
the provisions of the Constitution, Mr. Sorabjee submitted that the language of
the letters submitted by the Appellants contemplated a situation where the governance
of the State could not be carried out in accordance with the provisions of the Constitution.
It was submitted that the reproduction of the words of Article 356 of the Constitution,
which enables imposition of President's Rule and dissolution of the Assembly,
coupled with the request to the Governor to intervene and initiate the constitutional
process, could only mean that the Appellants had voluntarily resigned from the
Bharatiya Janata Party and wanted President's Rule to be imposed in the State.
61.
Mr.
Sorabjee submitted that there is no constitutional provision which permits the Members
of a House from withdrawing support to the Chief Minister alone. It is the entire
Council of Ministers that is collectively responsible to the House. In other words,
a Vote of Confidence is expressed in the entire Council of Ministers and not in
the Chief Minister alone. According to Mr. Sorabjee, the arguments advanced on behalf
of the Appellants, that expression of honest political dissent must not be seen
as defection, had been rejected in Kihoto Hollohan's case (supra) where this Hon'ble
Court observed that a political party functions on the strength of shared beliefs.
Its own political stability and social utility depends on such shared beliefs and
concerted action of its Members in furtherance of those commonly held
principles. Any freedom of its Members to vote as they please independent of the
political party's declared policies, would not only embarrass its 81public image
and popularity but also undermine public confidence in it. Mr. Sorabjee submitted
that it necessarily follows that as long as a Member professes to belong to a
political party, he must abide by and be bound by the decision of the majority within
the party.
He is free to express
dissent within the party platform, but disparate stands in public or public display
of revolt against the party, undeniably undermines the very foundation of the party.
The very object of the Tenth Schedule was to bring about political stability and
prevent members from conspiring with the opposite party.
62.
Having
dealt with the disqualification of the Appellants by the Speaker, Mr. Sorabjee next
took up the question of the rejection of the disqualification application in relation
to Shri M.P. Renukacharya and Shri Narasimha Nayak, who were among the 13 MLAs
who had submitted individual but identical letters to the Governor withdrawing
support to the Bharatiya Janata Party Government led by Shri B.S. Yeddyurappa, on
the ground that they had lost confidence in him in view of the corruption and nepotism
prevalent in the administration under him. It was pointed out that the Speaker
had made a distinction between the said two MLAs and the other eleven on the ground
that while the other two MLAs had retracted their letter to the Governor, they had
also indicated that they had full faith in the Government led by Shri
Yeddyurappa, whereas the Appellants had simply indicated that they were willing
to support any other Government formed by the Bharatiya Janata Party, but with a
different Chief Minister. Mr. Sorabjee submitted that while the two MLAs had
retracted their letters to the Governor upon reiterating their faith in the Government
led by Shri Yeddyurappa, the Appellants were bent upon bringing down the
Bharatiya Janata Party Government 83with the ulterior motive of forming a new
Government with the Members of the opposition. It was submitted that the concept
of collective responsibility is essentially a political concept. The Cabinet which
takes a collective decision relating to policy stands or falls together and any
individual member of the Government cannot show a face which is different from that
of the Cabinet, as anything contrary would contribute to serious weakening of
the Government itself.
63.
Mr.
Sorabjee submitted that even if the Speaker's decision was wrong, it could not be
said to be a perverse order, since there was no deviation from the accepted rules
and norms which had prejudiced the Appellants. It was also urged that while the
Chief Justice and V.G. Sabhahit, J. had taken one view, N. Kumar, J. had taken a
different view, which only reinforced the proposition that in this case two views
are 84possible since the majority decision was that the view of the Speaker could
not be regarded as perverse, the Appeals were liable to be dismissed.
64.
In
addition to the submissions made by Mr. Sorabjee, which he adopted, Shri Satyapal
Jain, appearing for Shri Yeddyurappa in the several Civil Appeals, submitted that
two other issues were also required to be taken into consideration, namely, (1)
whether the Appellants had been prejudiced by the action of the Speaker; and (2)
whether the action of withdrawing support from the Chief Minister amounted to voluntarily
giving up the membership of the Bharatiya Janata Party which disqualified them under
paragraph 2(i)(a) of the Tenth Schedule.
65.
Mr.
Jain submitted that the crucial facts had not been denied by the Appellants and
hence it could not be said that any prejudice had been caused to them. Mr. Jain
submitted that it was 85for the Appellants to deny the allegations made
regarding their moving in a group from Karnataka to Goa and to other places
where they had issued press releases stating that they were together and had
withdrawn support to the Government. Mr. Jain also submitted that the Appellants
had not denied the allegation that they had negotiated with another party of the
State led by Shri H.D. Kumaraswamy, exploring the possibility of forming an alternate
Government.
66.
Mr.
Jain submitted that apart from denying the allegations made against them, the
Appellants could not establish that they had in any way been prejudiced by the order
passed by the Speaker and such fact had been duly noted by the Chief Justice in
his judgment.
67.
On
the question of construction of paragraph 2(1)(a) of the Tenth Schedule to the Constitution,
Mr. Jain reiterated the submissions made by Mr. 86Sorabjee relying on the decision
of this Court in Ravi S. Naik's case (supra) which was upheld in Rajendra Singh
Rana's case (supra).
68.
Mr.
Jain submitted that even the question of not having received the copy of the
notice sent by the Speaker was a clear afterthought, since detailed replies had
been submitted by them and if the Appellants had to differ with the functioning
of Shri Yeddyurappa, they should have taken up the matter within the party without
writing to the Governor withdrawing their support to the Bharatiya Janata Party
Government led by Shri Yeddyurappa. Mr. Jain submitted that it was quite obvious
from the letters written by the Appellants to the Governor that they were bent upon
effecting the fall of the Bharatiya Janata Party Government, led by Shri Yeddyurappa,
in breach of party discipline, and, as a result, the order passed by the Speaker
87was fully justified and did not warrant any interference in these
proceedings.
69.
The
main questions which emerge from the submissions made on behalf of the respective
parties and the facts of the case may be summarised as follows : (a) Did the
Appellants voluntarily give up their membership of the Bharatiya Janata Party? (b)
Since only three days' time was given to the Appellants to reply to the Show-Cause
notices, as against the period of 7 days or more, prescribed in Rule 7(3) of the
Disqualification Rules, were the said notices vitiated? (c) Did the Speaker act
in hot haste in disposing of the Disqualification Application filed by Shri B.S.
88 Yeddyurappa introducing a whiff of bias as to the procedure adopted? (d) What
is the scope of judicial review of an order passed by the Speaker under Paragraph
2(1)(a) of the Tenth Schedule to the Constitution, having regard to the provisions
of Article 212 thereof?
70.
The
facts of the case reveal that the Appellants along with Shri M.P. Renukacharya and
Shri Narasimha Nayak, wrote identical letters to the Governor on 6th October, 2010,
indicating that as MLAs of the Bharatiya Janata Party they had become disillusioned
with the functioning of the Government headed by Shri B.S. Yeddyurappa.
According to them, there was widespread corruption, nepotism, favouritism,
abuse of power and misuse of Government machinery in the functioning of the
Government headed by Chief Minister, Shri 89Yeddyurappa, and that a situation had
arisen when the governance of the State could not be carried on in accordance with
the provisions of the Constitution (Emphasis added). Accordingly, they were withdrawing
their support from the Government headed by Shri Yeddyurappa with a request to the
Governor to intervene and to institute the constitutional process as the constitutional
head of the State (Emphasis added).
71.
The
Speaker took the view that the said letter and the conduct of the Appellants in
moving from Karnataka to Goa and other places and issuing statements both to the
print and electronic media regarding withdrawal of support to the BJP
Government led by Shri Yeddyurappa and the further fact that the Appellants are
said to have negotiated with Shri H.D. Kumaraswamy, the leader of the State
Janata Dal, and its members, regarding the formation of an alternative Government
was 90sufficient to attract the provisions of Paragraph 2(1)(a) of the Tenth Schedule
to the Constitution. It was held by the Speaker that in the absence of any denial
to the allegations made by Shri K.S. Eswarappa, the State President of the BJP,
the same had to be accepted as having been proved against the Appellants.
72.
In
this regard, the Speaker referred to the views expressed by the Constitution
Bench in Kihoto Hollohan's case (supra), wherein, one of the issues which had
been raised and decided was that the act of voluntarily giving up membership of
a political party may be either express or implied. Even greater emphasis was laid
on the decision in Ravi S. Naik's case (supra), wherein, it was observed that there
was no provision in the Tenth Schedule which indicated that till a petition, signed
and verified in the manner laid down in the Civil Procedure Code for verification
of pleadings, was 91made to the Chairman or Speaker of the House, he did not get
jurisdiction to give a decision as to whether a Member of the House had become
subject to disqualification under Paragraph 2(1)(a) of the Tenth Schedule or
not.
73.
The
aforesaid view taken by the Speaker has to be tested in relation to the action of
the concerned Members of the House and it has to be seen whether on account of such
action a presumption could have been drawn that they had voluntarily given up their
membership of the BJP, thereby attracting the provisions of Paragraph 2(1)(a)
of the Tenth Schedule.
74.
In
the instant case, the Appellants had in writing informed the Governor on 6th October,
2010, that having become disillusioned with the functioning of the Government headed
by Shri B.S. Yeddyurappa, they had chosen to withdraw support to the Government
headed by Shri B.S. Yeddyurappa and 92had requested the Speaker to intervene and
institute the constitutional process as constitutional head of the State. The said
stand was re-emphasized in their replies to the Show-Cause notices submitted by
the Appellants on 9th October, 2010, wherein they had, inter alia, denied that their
conduct had attracted the vice of "defection" within the scope of Paragraph
2(1)(a) of the Tenth Schedule. In their said replies they had categorically indicated
that nowhere in the letter of 6th October, 2010, had they indicated that they would
not continue as Members of the Legislature Party of the BJP.
On the other hand,
they had reiterated that they would continue to support the BJP and any Government
formed by the BJP headed by any leader, other than Shri B.S. Yeddyurappa, as Chief
Minister of the State. They also reiterated that they would continue to support
any Government headed by a clean and efficient person who could provide good governance
to the 93people of Karnataka according to the Constitution of India and that it
was only to save the party and Government and to ensure that the State was rid
of a corrupt Chief Minister, that the letter had been submitted to the Governor
on 6th October, 2010.
75.
At
this point let us consider the contents of the letter dated 6th October, 2010, written
by the Appellants to the Governor, which has been reproduced hereinbefore. The letter
clearly indicates that the author thereof who had been elected as a MLA on a Bharatiya
Janata Party ticket, having become disillusioned with the functioning of the Government
headed by Shri B.S. Yeddyurappa on account of widespread corruption, nepotism,
favouritism, abuse of power and misuse of Government machinery, was convinced that
a situation had arisen in which the governance of the State could not be carried
on in accordance with the provisions of the Constitution and that Shri 94Yeddyurappa
had forfeited the confidence of the people. The letter further indicates that it
was in the interest of the State and the people of Karnataka that the author was
expressing his lack of confidence in the Government headed by Shri Yeddyurappa and
that he was, accordingly, withdrawing his support to the Government headed by
Shri Yeddyurappa with a request to the Governor to intervene and institute the constitutional
process as constitutional head of the State.
76.
Although,
Mr. Sorabjee was at pains to point out that the language used in the letter was
similar to the language used in Article 356 of the Constitution, which, according
to him, was an invitation to the Governor to take action in accordance with the
said Article, the same is not as explicit as Mr. Sorabjee would have us believe.
The "constitutional process", as hinted at in the said letter did not
necessarily mean the 95constitutional process of proclamation of President's rule,
but could also mean the process of removal of the Chief Minister through
constitutional means. On account thereof, the Bharatiya Janata Party was not
necessarily deprived of a further opportunity of forming a Government after a
change in the leadership of the legislature party. In fact, the same is evident
from the reply given by the Appellants on 9th October, 2010, in reply to the Show-Cause
notices issued to them, in which they had re-emphasized their position that
they not only continued to be members of the Bharatiya Janata Party, but would also
support any Government formed by the Bharatiya Janata Party headed by any leader,
other than Shri B.S. Yeddyurappa, as the Chief Minister of the State. The conclusion
arrived at by the Speaker does not find support from the contents of the said letter
of 6th October, 2010, so as to empower the Speaker to take such a drastic step as
to remove the 96Appellants from the membership of the House.
77.
The
question which now arises is whether the Speaker was justified in concluding
that by leaving Karnataka and going to Goa or to any other part of the country or
by allegedly making statements regarding the withdrawal of support to the
Government led by Shri Yeddyurappa and the formation of a new Government, the Appellants
had voluntarily given up their membership of the B.J.P. and were contemplating the
formation of a Government excluding the Bharatiya Janata Party. The Speaker has
proceeded on the basis that the allegations must be deemed to have been proved,
even in the absence of any corroborative evidence, simply because the same had
not been denied by the Appellants.
The Speaker apparently
did not take into consideration the rule of evidence that a person making an allegation
has to prove the same with supporting evidence and the mere fact that the allegation
was not denied, did not amount to the same having been proved on account of the
silence of the person against whom such allegations are made. Except for the
affidavit filed by Shri K.S. Eswarappa, State President of the B.J.P., and the
statements of two of the thirteen MLAs, who had been joined in the Disqualification
Application, there is nothing on record in support of the allegations which had
been made therein. Significantly, the said affidavits had not been served on the
Appellants. Since Shri K.S. Eswarappa was not a party to the proceedings, the
Speaker should have caused service of copies of the same on the Appellants to enable
them to meet the allegations made therein.
In our view, not only
did the Speaker's action amount to denial of the principles of natural justice to
the Appellants, but it also reveals a partisan trait in the Speaker's approach in
disposing of the Disqualification Application filed by Shri B.S. Yeddyurappa. If
the Speaker wished to rely on the statements of a third party which were adverse
to the Appellants' interests, it was obligatory on his part to have given the
Appellants an opportunity of questioning the deponent as to the veracity of the
statements made in the affidavit. This conduct on the part of the Speaker is also
indicative of the "hot haste" with which the Speaker disposed of the
Disqualification Petition as complained of by the Appellants.
The question does,
therefore, arise as to why the Speaker did not send copies of the affidavit affirmed
and filed by Shri Eswarappa as also the affidavits of the two MLAs, who had
originally withdrawn support to the Government led by Shri Yeddyurappa, but were
later allowed to retract their statements, to the Appellants. Given an opportunity
to deal with the said affidavits, the Appellants could have raised the question
as to why the said two MLAs, Shri M.P. Renukacharya and Shri Narasimha Nayak, were
treated differently on 99account of their having withdrawn the letters which
they had addressed to the Governor, while, on the other hand, disqualifying the
Appellants who had written identical letters to the Governor, upon holding that
they had ceased to be members of the Bharatiya Janata Party, notwithstanding the
Show-Cause notices issued to them.
The explanation given
as to why notices to show cause had been issued to the Appellants under Rule 7
of the Disqualification Rules, giving the Appellants only three days' time to
respond to the same, despite the stipulated time of seven days or more indicated
in Rule 7(3) itself, is not very convincing. There was no compulsion on the Speaker
to decide the Disqualification Application filed by Shri Yeddyurappa in such a great
hurry within the time specified by the Governor to the Speaker to conduct a Vote
of Confidence in the Government headed by Shri Yeddyurappa. It would appear that
such a course of action was adopted by the Speaker on 10th 100October, 2010, since
the Vote of Confidence on the Floor of the House was slated for 12th October,
2010. The element of hot haste is also evident in the action of the Speaker in
this regard as well.
78.
In
arriving at the conclusion that by such short notice, no prejudice has been caused
to the Appellants, since they had filed their detailed replies to the Show-Cause
notices, the Speaker had relied on the two decisions of this Court, referred to
hereinbefore in Dr. Mahachandra Prasad Singh's case and Ravi S. Naik's case, wherein
it had been held that the 1986 Rules were directory and not mandatory in nature,
and, as a result, the order dated 10th October, 2010, could not be set aside
only on the ground of departure therefrom. Even if less than seven days' time
is given to reply to the Show-Cause notice, the legislator must not be
prejudiced or precluded from giving an effective reply to such notice.
79.
One
of the questions which was raised and answered in Dr. Mahachandra Prasad
Singh's case was the nature and effect of non-compliance with the provisions of
Rules 6 and 7 of the Disqualification Rules, 1994. It was held therein by a Bench
of Three Judges of this Court that the said provisions were directory and not mandatory
and the omission to file an affidavit neither rendered the petition invalid nor
did it affect the assumption of jurisdiction by the Chairman to initiate
proceedings to determine the question of disqualification of a Member of the
House. In the facts of the said case it was held that the 1994 Rules being subordinate
legislation, they were directory and not mandatory as they could not curtail the
content and scope of the substantive provision under which they were made. However,
the facts of this case differ significantly from the facts in Mahachandra's
case (supra).
80.
In
Mahachandra's case, a member of the Indian National Congress, who had been
elected as a Member of the Legislative Council on the ticket of the Indian
National Congress, contested a Parliamentary election as an independent candidate,
which facts were part of official records and not merely hearsay, as in the
present case. In the aforesaid circumstances, the Chairman held that by
contesting as an Independent Candidate, the said Member had given up his membership
of the Indian National Congress. It is in that context that it was held that since
the Member had not disputed the allegations, but had, in fact, admitted the
same in his writ petition, he had not suffered any prejudice in not being
provided with a copy of the letter from the leader of the Indian National
Congress on which reliance had been placed by the Chairman. The distinguishing feature
of the facts of Mahachandra Prasad Singh's case and this case is that the facts
in the former case were admitted and were part of the official records, while in
this case the allegations are highly disputed and are in the realms of allegation
which were yet to be proved with corroborating evidence, though according to
the Speaker, such allegations were not disputed.
81.
As
far as the decision in Ravi S. Naik's case (supra) is concerned, the facts of the
said case are somewhat different from the facts of this case. What is commonly known
and referred to as Ravi S. Naik's case is, in fact, a decision in respect of
the two Civil Appeals, namely, Civil Appeal No.2904 of 1993 filed by Ravi S. Naik
and Civil Appeal No.3309 of 1993 filed by Shri Sanjay Bandekar and Shri
Ratnakar Chopdekar. There is a certain degree of similarity between the facts of
the latter appeal and this case.
At the relevant time,
the Congress (I) initially formed the Government with the support of one independent
member. Subsequently, seven members of the Congress (I) left the party and formed
the Goan People's Party and formed a coalition government with the Maharashtrawadi
Gomantak Party under the banner of Progressive Democratic Front (PDF). The said
government was also short-lived and ultimately President's Rule was imposed in the
State and the Legislative Assembly was suspended on 14th December, 1990. Prior to
proclamation of President's Rule, Shri Ramakant Khalap, who was the leader of the
Progressive Democratic Front, staked his claim to form a Government, but no further
action was taken on such claim since the Assembly was suspended on 14th December,
1990. However, Shri Ramakant Khalap filed a petition before the Speaker under Article
191(2) read with paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution
for disqualification of two Members, who had joined the Congress Democratic Front
inspite of being Members of the Maharashtrawadi Gomantak Party. By his order dated
13th December, 1990, the Speaker disqualified the said two Members from the
House on the ground of defection.
82.
On
25th January, 1991, President's Rule was revoked and Shri Ravi S. Naik was
sworn in as Chief Minister of Goa. On the same day, one Dr. Kashinath G. Jhalmi,
belonging to the Maharashtrawadi Gomantak Party, filed a petition before the
Speaker for Shri Naik's disqualification on the ground of defection. Simultaneously
with the above, the Speaker, Shri Sirsat, was removed from the Office and was
replaced by the Deputy Speaker who began to function as Speaker in his place.
Shri Bandekar and Shri Chopdekar filed an application before the Deputy Speaker
for review of the order dated 13th December, 1990, by which they had been
disqualified from the membership of the House.
The same was allowed
by the Deputy Speaker by his order dated 7th 106March, 1991, and the earlier order
dated 13th December, 1990, was set aside. Similarly, Shri Ravi Naik also filed an
application for review of the order dated 15th February, 1991, which was
allowed by the Deputy Speaker by his order of 8th March, 1991. The said two orders
passed by the Deputy Speaker were challenged by way of Writ Petitions which were
allowed and the orders passed by the Deputy Speaker on 7th and 8th March, 1991,
were held to be void. Consequently, the Writ Petitions filed by Shri Bandekar
and Shri Chopdekar and by Shri Ravi S. Naik stood revived with a direction for
disposal of the same on merits. The Writ Petitions were ultimately dismissed against
which two appeals were filed.
83.
It
was in the appeal filed by Shri Bandekar and Shri Chopdekar that the issue of voluntary
resignation from membership of the Maharashtrawadi Gomantak Party fell for consideration
of the High Court, while in Ravi S. Naik's case the question was whether a valid
split of the aforesaid party had been effected with Shri Naik forming a new
party with seven other Members of the said party. The said question was answered
in Shri Ravi Naik's favour and his appeal was allowed and the order of his disqualification
from the House was set aside. The other appeal filed by Shri Bandekar and Shri
Chopdekar was dismissed and their disqualification by the Speaker was upheld.
In other words, the High Court approved the proposition that it was not
necessary for a Member of the House to formally tender his resignation from the
party but that the same should be inferred from his conduct.
It was held that a person
may voluntarily give up his/her membership of a political party, even though
he/she had not tendered his/her resignation from the membership of that party. However,
the Division Bench of the High Court approved the said proposition in the facts
and circumstances of that case, where, after the Government was initially
formed, there was an exodus from the principal party resulting in the formation
of a new party which stood protected under paragraph 4 of the Tenth Schedule to
the Constitution. Of course, it will also have to be noted that Shri Bandekar and
Shri Chopdekar had not only accompanied Dr. Barbosa to the Governor and had informed
the Governor that it did not support the Maharashtrawadi Gomantak Party any
further, but they had also made it known to the public that they had voluntarily
resigned from the membership of the said party. It is in these facts that a presumption
was drawn from the conduct of the Members that they had voluntarily resigned
from the membership of the Maharashtrawadi Gomantak Party.
In the said case
also, after Show-Cause notices were issued, both persons filed their replies stating
that they had not given up the membership of the Maharashtrawadi Gomantak Party
voluntarily or would otherwise continue to be a 109Member of the said party and
no document had been produced by the complainant nor has anything disclosed to show
that they had resigned from the membership of the party. It was also denied
that they had informed the Governor that they did not support the Maharashtrawadi
Gomantak Party or that they had informed anybody that they had voluntarily
resigned from the membership of said party. The Speaker, however, rejected the
explanation given by Shri Bandekar and Shri Chopdekar and recorded that he was
satisfied that by their conduct, actions and speech, they had voluntarily given
up the membership of the Maharashtrawadi Gomantak Party.
84.
This
brings us to the next question regarding the manner in which the Disqualification
Application filed by Shri B.S. Yeddyurappa was proceeded with and disposed of
by the Speaker. On 6th October, 2010, on receipt of identical letters from the 13
BJP MLAs and the 5 independent MLAs withdrawing support to the BJP Government led
by Shri B.S. Yeddyurappa, the Governor on the very same day, wrote a letter to the
Chief Minister, informing him of the developments regarding the withdrawal of support
by 13 BJP MLAs and 5 independent MLAs and requesting him to prove his majority
in the Assembly on or before 12th October, 2010 by 5.00 p.m. The Speaker was also
requested accordingly.
On the very same day,
Shri Yeddyurappa, as the leader of the Bharatiya Janata Legislative Party in the
Legislative Assembly, filed an application before the Speaker under Rule 6 of the
Disqualification Rules, 1986, being Disqualification Application No.1 of 2010, for
a declaration that all the thirteen MLAs elected on BJP tickets along with two other
MLAs had incurred disqualification in view of the Tenth Schedule to the Constitution.
Immediately thereafter, on 7th October, 2010, the Speaker issued Show-Cause
notices to the aforesaid MLAs informing them of the Disqualification Application
filed by Shri B.S. Yeddyurappa and informing them that by submitting letters to
the Governor withdrawing support to the Government led by Shri Yeddyurappa, they
had violated paragraph 2(1)(a) of the Tenth Schedule to the Constitution and were,
therefore, disqualified from continuing as Members of the House.
The Appellants were given
time till 5.00 p.m. on 10th October, 2010, to submit their objection, if any,
to the said application. Even if as held by this Court in Mahachandra Prasad Singh's
case (supra), Rules 6 and 7 of the Disqualification Rules are taken as directory
and not mandatory, the Appellants were still required to be given a proper
opportunity of meeting the allegations mentioned in the Show-Cause notices. The
fact that the Appellants had not been served with notices directly, but that the
same were pasted on the outer doors of their quarters in the MLA complex and that
too without copies of the various 112documents relied upon by Shri Yeddyurappa,
giving them three days' time to reply to the said notices justifies the Appellants'
contention that they had not been given sufficient time to give an effective
reply to the Show-Cause notices. Furthermore, the Appellants were not served with
copies of the affidavit filed by Shri K.S. Eswarappa, although, the Speaker relied
heavily on the contents thereof in arriving at the conclusion that the Appellants
stood disqualified under paragraph 2(1)(a) of the Tenth Schedule to the
Constitution.
85.
Likewise,
the Appellants were also not supplied with the copies of the affidavits filed by
Shri M.P. Renukacharya and Shri Narasimha Nayak, whereby they retracted the statements
which they had made in their letters submitted to the Governor on 6th October, 2010.
The Speaker not only relied upon the contents of the said affidavits, but also
dismissed the Disqualification Application against 113them on the basis of such
retraction, after having held in the case of the Appellants that the provisions
of paragraph 2(1)(a) of the Tenth Schedule to the Constitution were attracted
immediately upon their intention to withdraw their support to the Government led
by Shri Yeddyurappa.
The Speaker ignored the
claim of the Appellants to be given reasonable time to respond to the Show-Cause
notices and also to the documents which were handed over to the learned Advocates
of the Appellants at the time of hearing of the Disqualification Application. Incidentally,
a further incidence of partisan behaviour on the part of the Speaker will be evident
from the fact that not only were the Appellants not given an adequate
opportunity to deal with the contents of the affidavits affirmed by Shri K.S. Eswarappa,
Shri M.P. Renukacharya and Shri Narasimha Nayak, but the time given to submit
the Show-Cause on 10th October, 2010, was preponed from 5.00 p.m. to 3.00 p.m.,
making it even more difficult for the Appellants to respond to the Show-Cause notices
in a meaningful manner. The explanation given by the Speaker that the Appellants
had filed detailed replies to the Show-Cause notices does not stand up to the
test of fairness when one takes into consideration the fact that various
allegations had been made in the three affidavits filed by Shri K.S. Eswarappa,
Shri M.P. Renukacharya and Shri Narasimha Nayak, which could only be answered by
the Appellants themselves and not by their learned Advocates.
86.
The
procedure adopted by the Speaker seems to indicate that he was trying to meet the
time schedule set by the Governor for the trial of strength in the Assembly and
to ensure that the Appellants and the other independent MLAs stood disqualified
prior to the date on which the Floor Test was to be held. Having concluded the
hearing on 10th October, 2010, by 5.00 p.m., the Speaker passed a detailed
order in which various judgments, both of Indian Courts and foreign Courts, and
principles of law from various authorities were referred to, on the same day, holding
that the Appellants had voluntarily given up their membership of the Bharatiya Janata
Party by their acts and conduct which attracted the provisions of paragraph 2(1)(a)
of the Tenth Schedule to the Constitution, whereunder they stood disqualified.
The Vote of Confidence took place on 11th October, 2010, in which the disqualified
members could not participate and, in their absence Shri B.S. Yeddyurappa was able
to prove his majority in the House.
87.
Unless
it was to ensure that the Trust Vote did not go against the Chief Minister, there
was no conceivable reason for the Speaker to have taken up the Disqualification
Application in such a great hurry. Although, in Mahachandra Prasad Singh's 116case
(supra) and in Ravi S. Naik's case (supra), this Court had held that the
Disqualification Rules were only directory and not mandatory and that violation
thereof amounted to only procedural irregularities and not violation of a
constitutional mandate, it was also observed in Ravi S. Naik's case (supra) that
such an irregularity should not be such so as to prejudice any authority who is
affected aversely by such breach. In the instant case, it was a matter of
survival as far as the Appellants were concerned. In such circumstances, they deserved
a better opportunity of meeting the allegations made against them, particularly
when except for the newspaper cuttings said to have been filed by Shri
Yeddyurappa along with the Disqualification Application, there was no other evidence
at all available against the Appellants.
88.
We
are quite alive to the decision in Jagjit Singh's case (supra), where it was held
that failure to provide documents relied upon by the Speaker to the concerned Member,
whose membership of the House was in question, and denying him the right of cross-examination,
did not amount to denial of natural justice and did not vitiate the
proceedings. However, a rider was added to the said observation to the effect that
the Speaker's decision in such a situation would have to be examined on a case-to-case
basis. In Jagjit Singh's case (supra), video recordings of TV interviews, participation
in the meeting of the Congress Legislative Party in the premises of the
Assembly, the signatures on the register maintained by the Congress Legislative
Party, were produced before the Speaker, who decided the matter on the basis thereof.
That is not so in the
present case. As mentioned hereinbefore, the Disqualification Application filed
by Shri Yeddyurappa contained only bald allegations, which were not corroborated
by any direct evidence. The application did not even mention the provision
under which the same had been made. By allowing Shri K.S. Eswarappa, who was not
even a party to the proceedings, and Shri M.P. Renukacharya and Shri Narasimha Nayak
to file their respective affidavits, the short-comings in the Disqualification Application
were allowed to be made up. The Speaker, however, relied on the same to ultimately
declare that the Appellants stood disqualified from the membership of the House,
without even serving copies of the same on the Appellants, but on their learned
Advocates, just before the hearing was to be conducted.
If one were to take a
realistic view of the matter, it was next to impossible to deal with the allegations
at such short notice. In the circumstances, we cannot but hold that the conduct
of the proceedings by the Speaker and the decision given by the Speaker on the basis
thereof did not meet even the parameters laid down in Jagjit Singh's case
(supra).
89.
We
cannot also lose sight of the fact that although the same allegations, as were
made against the Appellants by Shri Yeddyurappa, were also made against Shri M.P.
Renukacharya and Shri Narasimha Nayak, their retraction was accepted by the
Speaker, despite the view expressed by him that upon submitting the letter withdrawing
support to the BJP Government led by Shri Yeddyurappa, all the MLAs stood
immediately disqualified under paragraph 2(1)(a) of the Tenth Schedule to the Constitution,
and they were, accordingly, permitted to participate in the Confidence Vote for
reasons which are not required to be spelt out.
90.
On
the question of justiceability of the Speaker's order on account of the expression
of finality in paragraph 6 of the Tenth Schedule to the Constitution, it has
now been well-settled that such finality did not include the powers of the
superior Courts under Articles 32, 226 and 136 of 120the Constitution to judicially
review the order of the Speaker. Under paragraph 2(1)(a) of the Tenth Schedule,
the Speaker functions in a quasi-judicial capacity, which makes an order passed
by him in such capacity, subject to judicial review. The scope of paragraph
2(1)(a) of the Tenth Schedule to the Constitution, therefore, enables the
Speaker in a quasi-judicial capacity to declare that a Member of the House stands
disqualified for the reasons mentioned in paragraph 2(1)(a) of the Tenth
Schedule to the Constitution.
91.
Having
considered all the different aspects of the matter and having examined the various
questions which have been raised, we are constrained to hold that the proceedings
conducted by the Speaker on the Disqualification Application filed by Shri B.S.
Yeddyurappa do not meet the twin tests of natural justice and fair play. The
Speaker, in our view, proceeded in the matter as if he was required to meet the
deadline set by the Governor, irrespective of whether, in the process, he was
ignoring the constitutional norms set out in the Tenth Schedule to the Constitution
and the Disqualification Rules, 1986, and in contravention of the basic principles
that go hand-in-hand with the concept of a fair hearing.
92.
As
we have earlier indicated, even if the Disqualification Rules were only directory
in nature, even then sufficient opportunity should have been given to the Appellants
to meet the allegations levelled against them. The fact that the Show-Cause notices
were issued within the time fixed by the Governor for holding the Trust Vote,
may explain service of the Show-Cause notices by affixation at the official residence
of the Appellants, though without the documents submitted by Shri Yeddyurappa
along with his application, but it is hard to explain as to how the affidavits,
122affirmed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak,
were served on the learned Advocates appearing for the Appellants only on the
date of hearing and that too just before the hearing was to commence.
Extraneous considerations are writ large on the face of the order of the Speaker
and the same has to be set aside.
93.
Incidentally,
in paragraph 5 of the Tenth Schedule, which was introduced into the
Constitution by the Fifty-second Amendment Act, 1985, to deal with the immorality
of defection and Floor crossing during the tenure of a legislator, it has been
indicated that notwithstanding anything contained in the said Schedule, a person
who has been elected to the office of the Speaker or the Deputy Speaker of the House
of the People or the Deputy Chairman of the Council of States or the Chairman or
the Deputy Chairman of the Legislative Council of the State or the Speaker or the
Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified
under the Schedule if he by reason of his election to such office, voluntarily gives
up the membership of the political party to which he belonged immediately
before such election, and does not, so long as he continues to hold such office
thereafter, rejoin that political party or become a member of another political
party. The object behind the said paragraph is to ensure that the Speaker, while
holding office, acts absolutely impartially, without any leaning towards any party,
including the party from which he was elected to the House.
94.
The
Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010,
disqualifying the Appellants from the membership of the House under paragraph 2(1)(a)
of the Tenth Schedule to the Constitution is set aside along 124with the majority
judgment delivered in Writ Petition (Civil) No.32660-32670 of 2010, and the
portions of the judgment delivered by Justice N. Kumar concurring with the views
expressed by the Hon'ble Chief Justice, upholding the decision of the Speaker on
the Disqualification Application No.1 of 2010 filed by Shri B.S. Yeddyurappa.
Consequently, the Disqualification Application filed by Shri B.S. Yeddyurappa
is dismissed.
95.
There
will be no order as to costs.
................................................J.
(ALTAMAS KABIR)
................................................J.
(CYRIAC JOSEPH)
New
Delhi,
Dated:
13.05.2011.
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