Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors on 13 May, 2011

Last Updated on 10 years

Supreme Court of India

Bench: Altamas Kabir, Cyriac Joseph

                                                        REPORTABLE





              IN THE SUPREME COURT OF INDIA



                  CIVIL APPELLATE JURISDICTION



          CIVIL APPEAL NOs.4444-4476     OF 2011

      (Arising out of SLP(C)Nos.33123-33155 of 2010)





Balchandra L. Jarkiholi & Ors.           ... Appellants  





           Vs.





B.S. Yeddyurappa & Ors.                  ... Respondents





WITH C.A.Nos...4522-4554/2011 @ SLP(C)Nos. 33185-

33217 of 2010 and C.A.Nos...4477-4509/2011 @ 

SLP(C)Nos.33533-33565 of 2010





                      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

5

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 5 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

thereafter 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

or 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

October, 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

as 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

and 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

Shri 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 :

“(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

mischief 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

coming 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

Haryana [(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

withdrawing 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

behalf 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

accept 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

Chief 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

proceedings 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

that 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

at 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

with 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

along 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

rightly 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

more 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

Appellants 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

Narasimha 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

against 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

party 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

the 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

Rules. 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

Chief 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

has 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)

that 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

question 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

this 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.

Mr. 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

public 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

with 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

possible 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

for 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.

Sorabjee 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

was 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.

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

Yeddyurappa, 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

sufficient 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

made 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

had 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

people 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

Yeddyurappa 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

constitutional 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

Appellants 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

account 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

100

October, 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.

101

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).

102

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

103

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

104

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

105

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

106

March, 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

107

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

108

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

109

Member 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

110

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

111

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

112

documents 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

113

them 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.,

114

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

115

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

116

case (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

117

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

118

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).

119

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

120

the 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

121

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,

122

affirmed 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

123

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

124

with 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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