Full Judgement
Balchandra L. Jarkiholi & Ors. Vs. B.S. Yeddyurappa & Ors.
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. All the above-mentioned appeals arise out of the order dated 10th October, 2010, passed by the Speaker of the Karnataka State Legislative Assembly on Disqualification Application No.1 of 2010, filed by Shri B.S. Yeddyurappa, the Legislature Party Leader of the Bharatiya Janata Party in Karnataka Legislative Assembly, who is also the Chief Minister of the State of Karnataka, on 6th October, 2010, under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, against Shri M.P. Renukacharya and 12 others, claiming that the said respondents, who were all Members of the Karnataka Legislative Assembly, would have to be disqualified from the membership of the House under the Tenth Schedule of the Constitution of India. In order to understand the circumstances in which the Disqualification Application came to be filed by Shri Yeddyurappa for disqualification of the 13 named persons from the membership of the Karnakata Legislature, it is necessary to briefly set out in sequence the events preceding the said application.
3. On 6th October, 2010, all the above-mentioned 13 members of the Karnataka Legislative Assembly, belonging to the Bharatiya Janata Party, hereinafter referred to as the "MLAs", wrote identical letters to the Governor of the State indicating that they had been elected as MLAs on Bharatiya Janata Party tickets, but had become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa and were convinced that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people as the Chief Minister of the State. Accordingly, in the interest of the State and the people of Karnataka, the legislators expressed their lack of confidence in the Government headed by Shri B.S. Yeddyurappa and withdrew their support to the said Government.
The contents of one of the aforesaid letters dated 6th October, 2010, are reproduced hereinbelow : "His Excellency, I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa. There have been widespread corruption, nepotism, favouritism, abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri B.S. Yeddyurappa and a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Constitution and Shri Yeddyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka I hereby express my lack of confidence in the government headed by Shri B.S. Yeddyurappa and as such I withdraw my support to the Government headed by Shri B.S. Yeddyurappa the Chief Minister. I request you to intervene and institute the constitutional process as constitutional head of the State. With regards, I remain Yours faithfully, Shri H.R. Bharadwaj, His Excellency Governor of Karnataka, Raj Bhavan, Bangalore." Five independent MLAs also expressed lack of confidence and withdrew support to the Government led by Shri B.S. Yeddyurappa.
4. On the basis of the aforesaid letters addressed to him, the Governor addressed a letter to the Chief Minister, Shri B.S. Yeddyurappa, on the same day (6.10.2010) informing him that letters had been received from 13 BJP MLAs and independent MLAs, withdrawing their support to the Government. A doubt having arisen about the majority support enjoyed by the Government in the Legislative Assembly, the Governor requested Shri Yeddyurappa to prove that he still continued to command the support of the majority of the Members of the House by introducing and getting passed a suitable motion expressing confidence in his Government in the Legislative Assembly on or before 12th October, 2010 by 5 p.m. In his letter he indicated that the Speaker had also been requested accordingly. On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No.1 of 2010, praying to declare that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution.
5. As will appear from the materials on record, Show-Cause notices were thereafter issued to all the 13 MLAs on 7th October, 2010, informing them of the Disqualification Application filed by Shri Yeddyurappa stating that having been elected to the Assembly as Members of the BJP, they had unilaterally submitted a letter on 6th October, 2010 to the Governor against his Government withdrawing the support given to the Government under his leadership. The Appellants were informed that their act was in violation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India and it disqualified them from continuing as Members of the Legislature. Time was given to the Appellants till 5 p.m. on 10th October, 2010, to submit their objections, if any, to the application. They were also directed to appear in person and submit their objections orally or in writing to the Speaker, failing which it would be presumed that they had no explanation to offer and further action would 8thereafter be taken ex-parte, in accordance with law.
6. It also appears that replies were submitted by the Appellants to the Speaker on 9th October, 2010 indicating that having come to learn from the media that a Show-Cause notice had been issued as per the orders of the Speaker and had been pasted on the doors of the MLA quarters in the MLA hostels at Bangalore, which were locked and used by the legislators only when the House was in session, they had the contents of the notices read out to them on the basis whereof interim replies to the Show-Cause notices were being submitted.
In the interim replies filed by the Appellants on 9th October, 2010, it was categorically indicated that the interim reply was being submitted, without prejudice and by way of abundant caution, as none of the documents seeking disqualification had either been pasted on the doors of the MLA quarters 9or forwarded to the Appellants along with the Show-Cause notice. Similarly, a copy of the Governor's letter, which was made an enclosure to the Show-Cause notice, was also not pasted on the doors of the residential quarters of the Appellants or otherwise served on them personally. A categorical request was made to the Speaker to supply the said documents and the Appellants reserved their right to give exhaustive replies after going through the aforesaid enclosures to the Show-Cause notice as and when supplied.
7. Having said this, the Appellants submitted that the notice was in clear violation of the Disqualification Rules, 1986, and especially Rules 6 and 7 thereof. It was mentioned that Rule 7(3) requires copies of the petition and annexures thereto to be forwarded with the Show-Cause notice. The notice dated 7th October, 2010 called upon the Appellants to appear and reply by 5 p.m. on 10th 10October, 2010, which was in flagrant violation of Rule 7 of the aforesaid Rules which laid down a mandatory procedure for dealing with a petition seeking disqualification filed under the Rules.
8. It was pointed out that Rule 7 requires that the Appellants had to be given 7 days' time to reply or such further period as the Speaker may for sufficient cause allow. Under the said Rule the Speaker could only extend the period of 7 days, but could not curtail the time from 7 days to 3 days. It was the categorical case of the Appellants that the minimum notice period of 7 days was a requirement of the basic principles of natural justice in order to enable a MLA to effectively reply to the Show-Cause notice issued to him seeking his disqualification from the Legislative Assembly.
It was mentioned in the reply to the Show-Cause notice that issuance of such Show-Cause notice within a truncated period was an abuse and misuse of the Constitutional provisions for the purpose of achieving the unconstitutional object of disqualifying sufficient number of Members of the Assembly from the membership of the House in order to prevent them from participating in the Vote of Trust scheduled to be taken by Shri B.S. Yeddyurappa on the Floor of the House at 11 a.m. on 11th October, 2010. It was contended that the Show-Cause notices was ex-facie unconstitutional and illegal, besides being motivated and mala fide and devoid of jurisdiction.
9. In addition to the above, it was also sought to be explained that it was not the intention of the Appellants to withdraw support to the BJP, but only to the Government headed by Shri Yeddyurappa as the leader of the BJP in the House. It was contended that withdrawing of support from the Government headed by Shri B.S. Yeddyurappa as the Chief Minister of Karnataka did not fall within the scope and purview of the Tenth Schedule to the Constitution of India.
It was urged that the conduct of the Appellants did not fall within the meaning of "defection" or within the scope of paragraph 2(1)(a) of the Tenth Schedule or the scheme and object of the Constitution of India. It was further emphasized that even prima facie, "defection" means leaving the party and joining another, which is not the case as far as the Appellants were concerned who had not left the BJP at all. It was repeatedly emphasized in the reply to the Show-Cause notice that the Appellants had chosen to withdraw their support only to the Government headed by Shri B.S. Yeddyurappa as Chief Minister, as he was corrupt and encouraged corruption, and not to the BJP itself, which could form another Government which could be led by any other person, other than Shri Yeddyurappa, to whom the Appellants would extend support. In the reply to the Show-Cause notice it was, inter alia, stated 13as follows :-
"My letter submitted to H.E. Governor of Karnataka of withdrawing the support from the Government headed by Shri B.S. Yeddyurappa as Chief Minister of the State is an act of an honest worker of the BJP party and a member of the Legislative Assembly to salvage the image and reputation of the BJP or the BJP as such. In fact my letter is aimed at cleansing the image of the party by getting rid of Shri B.S. Yeddyurappa as Chief Minister of the State who has been acting as a corrupt despot in violation of the Constitution of India and contrary to the interests of the people of the State."
10. It was also categorically stated that as disciplined soldiers of the BJP the Appellants would continue to support any Government headed by a clean and efficient person who could provide good governance to the people of Karnataka. The Appellants appealed to the Speaker not to become the tool in the hands of a corrupt Chief Minister and not to do anything which could invite strictures from the judiciary. A request was, therefore, made to withdraw the Show-Cause notices 14and to dismiss the petition dated 6th October, 2010 moved by Shri B.S. Yeddyurappa, in the capacity of the leader of the Legislature Party of the Bharatiya Janata Party and also as the Chief Minister, with mala fide intention and the oblique motive of seeking disqualification of the answering MLAs and preventing them from voting on the confidence motion on 11th October, 2010.
11. The Speaker took up the Disqualification Application No.1 of 2010 filed by Shri B.S. Yeddyurappa, the Respondent No.1 herein, along with the replies to the Show-Cause notices issued to the thirteen MLAs, who had submitted individual letters to the Governor indicating their withdrawal of support to the Government led by Shri Yeddyurappa. Except for Shri M.P. Renukacharya and Shri Narasimha Nayak, all the other MLAs were represented by their learned advocates before the Speaker. It was noticed during the hearing that 15Shri Renukacharya had subsequently filed a petition stating that he continued to support the Government and also prayed for withdrawal of any action proposed against him.
He reiterated his confidence in the Government headed by Shri Yeddyurappa and alleged that a fraud had been perpetrated at the time when the individual letters were submitted to the Governor and that he had no intention of withdrawing support to the Government in which he had full confidence. A similar stand was taken on behalf of Shri Narasimha Nayak also. In addition to the above, an affidavit along with supporting documents, affirmed by one Shri K.S. Eswarappa, State President of the Bharatiya Janata Party (B.J.P.) was filed and it was taken into consideration by the Speaker. On the basis of the above, the following two issues were framed by the Speaker : 16 "(a) Whether the respondents are disqualified under paragraph 2(1)(a) of Tenth Schedule of the Constitution of India, as alleged by the Applicant? (b) Is there a requirement to give seven days' time to the respondents as stated in their objection statement?"
12. Answering the aforesaid issues, the Speaker arrived at the finding that after having been elected from a political party and having consented and supported the formation of a Government by the leader of the said party, the respondents, who are the Appellants herein, other than Shri M.P. Renukacharya and Shri Narasimha Nayak, had voluntarily given up their membership of the party by withdrawing support to the said Government. In arriving at such a conclusion, the Speaker took into consideration the allegations made by Shri Yeddyurappa that after submitting their respective letters to the Governor withdrawing support to the Government, the said respondents had gone from Karnataka to Goa and other places and had declared that they were a separate group and that they were together and that they had withdrawn their support to the Government.
The Speaker also took personal notice of statements alleged to have been made by the Appellants and observed that they had not denied the allegations made by Shri Yeddyurappa that they had negotiated with the State Janata Dal, its members and leader, Shri H.D. Kumaraswamy, regarding formation of another Government. In support of the same, the Speaker relied on media reports and the affidavit filed by Shri Eswarappa. The Speaker recorded that the same had not been denied by the Appellants herein.
13. Referring to the Tenth Schedule and certain decisions of this Court as to how statutory provisions are to be interpreted in order to avoid 18mischief and to advance remedy in the light of Heyden's Rule, the Speaker extracted a portion of a passage from Lord Denning's judgment in Seaford Court Estates Ltd. Vs. Asher, wherein Lord Denning had stated that a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. The Speaker was of the view that in the event of a difference of opinion regarding leadership in a political party, the matter had to be discussed in the platform of the party and not by writing a letter to the Governor withdrawing support to the Government.
The Speaker also observed that the Governor never elects the leader of the legislature party. Accordingly, from the conduct of the Appellants in writing to the Governor that they had withdrawn support, joining hands with the leader of another party and issuing statements to the media, it was evident that by their conduct the Appellants had become liable to be disqualified under the Tenth Schedule. In 19coming to the said conclusion, the Speaker placed reliance on several decisions of this Court and in particular, the decision in Ravi S. Naik Vs. Union of India [(1994) Suppl.2 SCC 641], wherein the question of a member voluntarily giving up his membership of a political party was considered in detail. Special emphasis was laid on the observation made in the said decision to the effect that a person can voluntarily give up his membership of a political party even though he may not have tendered his resignation from the membership of the party. In the said decision it was further observed that even in the absence of a formal resignation from membership, an inference could be drawn from the conduct of a member that he had voluntarily given up his membership of the political party to which he belonged.
14. The Speaker also referred to and relied on the decision of this Court in Jagjit Singh Vs. State of 20Haryana [(2006) 11 SCC 1], wherein, it was expressed that to determine whether an independent member had joined a political party, the test to be considered was whether he had fulfilled the formalities for joining a political party. The test was whether he had given up his independent character on which he was elected by the electorate.
15. Yet another decision relied upon by the Speaker was the decision in Rajendra Singh Rana & Ors. Vs. Swami Prasad Maurya & Ors. [(2007) 4 SCC 270], wherein the question of voluntarily giving up membership of a political party was also under consideration. The Speaker relied on paragraphs 48 and 49 of the said judgment, wherein it was indicated that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government would itself amount to an act of voluntarily giving up the membership of the party on whose ticket the member was elected.
16. The Speaker observed that the Appellants herein had not denied their conduct anywhere and had justified the same even during their arguments. The Speaker was of the view that by their conduct the Appellants had voluntarily given up the membership of the party from which they were elected, which attracted disqualification under the Tenth Schedule. The Speaker further held that the act of withdrawing support and acting against the leader of the party from which they had been elected, amounted to violation of the object of the Tenth Schedule and that any law should be interpreted by keeping in mind the purpose for which it was enacted.
17. The Speaker then took note of the retraction by Shri M.P. Renukacharya and Shri Narasimha Nayak, indicating that they had no intention of 22withdrawing support to the Government led by Shri Yeddyurappa and that they extended support to the party and the Government and their elected leader. The Speaker also relied on the affidavit filed by Shri K.S. Eswarappa and on considering the same, arrived at the decision that the said two MLAs were not disqualified under the Tenth Schedule of the Constitution. As far as the Appellants are concerned, the Speaker held that in view of the reasons stated and the factual background, he was convinced that they were disqualified from their respective posts of MLAs under paragraph 2(1)(a) of the Tenth Schedule of the Constitution.
18. The Speaker then took up the objection taken on behalf of the Appellants herein that the Show-Cause notice to the Appellants had been issued in violation of the provisions of Rules 6 and 7 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, hereinafter referred to as "the Disqualification Rules,1986", inasmuch as, they were not given seven days' time to reply to the Show-Cause notice, as contemplated by Rule 7(3) of the aforesaid Rules. The Speaker, without answering the objection raised, skirted the issue by stating that it was sufficient for attracting the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India that the Appellants herein had admitted that they had withdrawn support to the Government.
The Speaker further recorded that the Appellants had been represented by counsel who had justified the withdrawal of support and "recognizing themselves with the leader and MLAs of another party". Without giving details, the Speaker observed that this Court had stated that the Disqualification Rules were directory and not mandatory as they were to be followed for the sake of convenience. The stand taken by the Speaker was that since the Appellants had appeared and filed objection and submitted detailed arguments, the objection taken with regard to insufficient time being given in violation of the Rules to reply to the Show-Cause notice, was only a technical objection and was not relevant to a decision in the matter. On the basis of his aforesaid reasoning, the Speaker rejected the objection filed on behalf of Appellants and went on to disqualify the Appellants herein under paragraph 2(1)(a) of the Tenth Schedule to the Constitution with immediate effect. The application seeking disqualification of Shri M.P. Renukacharya and Shri Narasimha Nayak was dismissed.
19. The Appellants herein challenged the decision of the Speaker in Writ Petition Nos.32660-32670 of 2010, which were listed for hearing before the Chief Justice of Karnataka and the Hon'ble Mr. Justice N. Kumar. In his judgment, the Hon'ble Chief Justice took up the objections taken on 25behalf of the Appellants herein, beginning with the objection that the application for disqualification filed by Shri Yeddyurappa was not in conformity with Rules 6 and 7 of the Defection Rules. Referring to Sub-rules (5) and (6) of Rule 6, the Chief Justice held that there had been substantive compliance with the said Rules which had been held to be directory in nature and that it would not be possible merely on account of the violation of the procedure contemplated under the Rules to set aside the order of the Speaker, unless the violation of the procedure was shown to have resulted in prejudice to the Appellants. Repeating the reasons given by the Speaker to reject the objection of the Appellants on the aforesaid score and relying on the judgments rendered by this Court in Ravi S. Naik's case (supra) and in the case of Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council & Ors. [(2004) 8 SCC 747] the Chief Justice held that it was not possible to 26accept the contentions of the learned counsel for the Appellants and rejected the same.
20. On the second contention relating to violation of the rules of natural justice and the proceedings conducted by the Speaker in extreme haste, thereby depriving the Appellants of a reasonable opportunity of defending themselves, the Chief Justice, placing reliance on the decision in Ravi S. Naik's case (supra), negated the submissions made on behalf of the Appellants upon holding that since no prejudice had been caused to the Appellants, it was difficult to accept the contention advanced on their behalf that the entire proceedings of the Speaker deserved to be set aside.
21. Regarding the other objection taken on behalf of the Appellants on the question of reliance having been placed on the affidavit filed by the State President of the Bharatiya Janata Party, the 27Chief Justice held that none of the Appellants had disputed the factual position expressed in the newspaper cuttings which formed part of the affidavit and that the submission made on behalf of the Appellants that had they been afforded proper time to deal with the said affidavit, they would have been able to show that the facts recorded in the newspaper article were incorrect, was, therefore, without any basis.
22. On the main question as to whether the action of the Appellants had attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, the Chief Justice came to a categorical finding that the Appellants had defected from the Bharatiya Janata Party and had voluntarily given up their membership thereof. Furthermore, while doing so, the Appellants had indicated that the constitutional machinery had broken down leading to a situation where the governance of the State could not be carried on in accordance with the Constitution and requested the Governor to intervene and institute the constitutional process as the constitutional head of the State. Referring to the wordings of Article 356 of the Constitution which provides for proclaiming President's Rule in a State where it was no longer possible to carry on the governance of the State in accordance with the provisions of the Constitution of India, the Chief Justice agreed with the view expressed by the Speaker that by withdrawing support from the Government led by Shri Yeddyurappa, the Appellants had voluntarily chosen to disassociate themselves from the Bharatiya Janata Party with the intention of bringing down the Government.
23. The Chief Justice also rejected the allegations of mala fide on account of the speed with which the Speaker had conducted the disqualification 29proceedings within five days i.e. one day ahead of the Trust Vote which was to be taken by Shri Yeddyurappa on the Floor of the Assembly. The Chief Justice, accordingly, found no merit in any of the contentions raised on behalf of the Appellants and holding that the order of the Speaker did not suffer from any infirmity, dismissed the Writ Petitions filed by the Appellants.
24. Mr. Justice N. Kumar, who, along with the Chief Justice, heard the writ petition filed by the Appellants herein, in his separate judgment, differed with the views expressed by the Chief Justice in regard to the interpretation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution. Observing that in a parliamentary democracy the mandate to rule the State is given not to any individual but to a political party, the learned Judge further observed that the Council of Ministers headed by the Chief Minister can continue in the office as long as they enjoyed the confidence of the majority of the Members of the House.
If the House expressed no confidence in the Chief Minister, it was not only the Chief Minister, but his entire Council of Ministers who cease to be in office. Regarding interpretation of the provisions of paragraph 2(1)(a) of the Tenth Schedule of the Constitution, Kumar,J., referred to the decisions rendered by this Court in - (1) Kihoto Hollohan Vs. Zachillhu & Ors. [(1992) Supp.2 SCC 651]; (2) G. Viswanathan Vs. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353]; (3) Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council & Ors. [(2004) 8 SCC 747]; and (4) Rajendra Singh Rana & Ors Vs. Swami Prasad Maurya & Ors. [(2007) 4 SCC 270], and held that from the scheme of the Tenth Schedule it was clear that the same applied only to a Member of the House. Such Member could be elected on the ticket of any political party or as an Independent, but a member of a political party who is elected as a Member of the House, would automatically become a member of the Legislature Party in the said House.
The learned Judge held that paragraph 2 of the Tenth Schedule deals with disqualification of Members of the House. The learned Judge also held that paragraph 2(1) deals with disqualification of a Member of a House who belongs to a political party, while paragraph 2(2) deals with disqualification of a Member of a House elected as an Independent. In the case of a Member of a House elected as an Independent candidate, the question of his voluntarily giving up his membership of a political party would not arise. Similarly, when he did not belong to any political party, the question of voting or abstaining from voting in such House contrary to the directions issued by the political party would not arise.
The learned Judge observed 32that once a person gets elected as an Independent candidate, the mandate of the voters is that he should remain independent throughout his tenure in the House and under no circumstances could he join any political party. However, in the case of a Member of the House belonging to a political party, the disqualification occurs when he voluntarily gives up the membership of that political party. It is because of the mandate of the people that he should continue to be the member of that political party which set him up as a candidate for the election. He was, however, free to give up his membership of the party, but for the said purpose he had to resign from the membership of the House as well as the membership of the political party and then contest the election in the vacancy caused because of his resignation and then only he would have an independent course of choice.
25. After analyzing the intent behind the inclusion of the Tenth Schedule to the Constitution, the learned Judge also observed that the anti-defection law was enacted to prevent floor crossing and destabilizing the Government which is duly elected for a term. If, however, a Member of the House voluntarily gave up his membership of a political party, the object of the anti-defection law was to prevent him from extending support to the opposition party to form the Government by his vote or to ensure that if he has resigned from the membership of a party, his support was not available for forming an alternative Government by the opposition party.
The learned Judge observed that if a Member violates the above conditions, the Parliament has taken care to see by enacting the Tenth Schedule that such Member would be instantly disqualified from being a Member of the House. Once the act of disqualification occurred, the question of condoning such act or taking him back to the party on his tendering an apology or expressing his intention to come back to the party, would not arise. Therefore, if the act falls within the ambit of paragraph 2(1)(a) of the Tenth Schedule, his membership becomes void. However, if such disqualification was incurred under paragraph 2(1)(b), such disqualification did not render his membership void but it was voidable at the option of the political party.
26. The learned Judge went on to further hold that when a Member of a House expressed his no-confidence in the leader of a Legislature Party and if he happened to be the Chief Minister who is heading the Council of Ministers and had written to the Governor in that regard, such act by itself would not amount to an act of floor crossing. Similarly, if the Governor, after taking note of the expression of no-confidence, was satisfied that the Chief Minister had lost majority support in the House, he could call upon the Chief Minister to prove his majority on the Floor of the House. It was further observed that if the Chief Minister, on such request, failed to establish that he enjoyed the support of the majority of the Members, his Ministry would fall, but such act of the Member of the House would not constitute `defection' under the Tenth Schedule.
By such act, the political party which had formed the Government, would not lose its right to form a Government again. It is not as if the Governor can recommend the imposition of President's Rule under Article 356 of the Constitution or call upon the leader of the opposition to form an alternative Government after the fall of the earlier Government. Before embarking upon either of the two options, the Governor was expected to explore the possibility of formation of an alternative Government. The Speaker could call upon the leader who enjoyed the majority support of the Members of the House to form an alternative Government. In such case it was open to the political party, whose Government had fallen on the Floor of the House, to once again stake a claim before the Governor, either with the same leader or another leader elected by the party, by showing the majority support of the Members of the House.
In that a situation, the stability of the Government of the political party is not disturbed. On the other hand, what is disturbed by such an act is the Government of the political party with a particular leader in whom the Members of the House belonging to the same political party have no confidence. But this would not mean that the member of the political party to which the Chief Minister belonged had given up his membership of the political party. Other provisions have been made in the Constitution for dealing with such dissenting members. In such a case, by issuing a whip, those who had expressed their no-confidence in the leader of the House, can be directed to vote in his favour 37at the time of voting on the floor of the House. Once such direction is given, the member concerned can neither abstain from voting nor vote contrary to the direction.
If he does so, he incurs disqualification under paragraph 2(1)(b) of the Tenth Schedule to the Constitution. The learned Judge observed further that, in fact, the said provision also provides for such an act being condoned so that by persuasion or by entering into an understanding, their support could still be relied upon by the party to save the Government before voting or in forming a fresh Government after such voting, if in the voting the Government fails. The said dissent amounts to the dissent within the party itself.
27. The learned Judge observed that the two grounds set out in paragraph 2 of the Tenth Schedule to the Constitution are mutually exclusive and operate in two different fields. While paragraph 2(1)(a) deals 38with the Member who voluntarily walks out of the party, paragraph 2(1)(b) deals with the Member who remains in the party but acts in a manner which is contrary to the directions of the party. The learned Judge, however, went on to observe that if a Member voluntarily gives up his membership from the party, then paragraph 2(1)(b) is no longer attracted. In either event, it is the political party which is aggrieved by such conduct. However, it was left to the party to condone the conduct contemplated in paragraph 2(1)(b), but such conduct would have to be condoned within 15 days from the date of such voting or abstention.
28. Having dealt with the various decisions referred to hereinabove, the learned Judge came to the conclusion that it was clear that an act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up the membership of the political party. Similarly, his act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to a voluntary act of giving up the membership of the political party. The learned Judge further observed that deserting the leader and deserting the Government is not synonymous with deserting the party. If a Minister resigned from the Ministry, it would not amount to defection. What constitutes defection under paragraph 2(1)(a) of the Tenth Schedule is deserting the party. The learned Judge observed that dissent is not defection and the Tenth Schedule while recognising dissent prohibits defection.
29. The learned Judge also considered the case of Shri M.P. Renukacharya and Shri Narasimha Nayak, who were among the 13 members against whom the disqualification petition had been filed by the Chief Minister. The learned Judge pointed out that 40along with the Appellants herein, the aforesaid two members had also signed a representation which had been given to the Governor and if such an act would amount to voluntarily giving up the membership of a political party and the case fell within paragraph 2(1)(a), the disqualification becomes automatic and the membership of such persons becomes void. The question of those members retracting their steps and reaffirming their confidence in the Chief Minister and the Party President confirming the same on a subsequent date, is of no consequence. The learned Judge held that the same yardstick had not been applied for the Appellants and the two other members against whom the disqualification petition filed by the Chief Minister was dismissed.
30. Expressing his views with regard to the manner in which the Speaker had acted in the matter in hot haste, the learned Judge referred to paragraphs 180, 181 and 182 of the decision rendered by this Court in Kihoto Hollohan's case (supra), which was the minority view, but had suggested that the office of the Speaker which was attached with great dignity should not be made the target of bias since his tenure as Speaker is dependent on the will of the majority of the House. While holding that right to dissent is the essence of democracy, for the success of democracy and democratic institutions honest dissent is to be respected by persons in authority. On the basis of his aforesaid conclusions, the learned Judge held that the order of the Speaker impugned in the writ petition was in violation of the constitutional mandate and also suffered from perversity and could not, therefore, be sustained. The impugned order of the Speaker was, therefore, set aside by the learned Judge.
31. On account of such difference of opinion between the Chief Justice and his companion Judge, the matter was referred to a third Judge to consider the following issue :- "Whether the impugned order dated 10.10.2010 passed by the Speaker of the Karnataka State Legislative Assembly is in consonance with the provisions of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India."
32. On the basis of the said reference, the matter was referred to the Hon'ble Mr. Justice V.G. Sabhahit, who by his judgment and order dated 29th October, 2010, concurred with the decision rendered by the Chief Justice upholding the order passed by the Speaker. As a result, the majority view in the writ petitions was that the Hon'ble Speaker was justified in holding that the Appellants herein had voluntarily resigned from their membership of the Bharatiya Janata Party by their conduct, which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution and were 43rightly disqualified from the membership of the House.
33. Mr. R.F. Nariman, learned Senior Advocate, appearing for the Appellants in SLP(C)Nos.33123-33155 of 2010, Balchandra L. Jarkiholi & Ors. Vs. B.S. Yeddyurappa & Ors. (now appeals), questioned the order of the Speaker dated 10th October, 2010, disqualifying the Appellants from membership of the House, on grounds of mala fide and violation of Rules 6(5)(b) and 7(3) of the Disqualification Rules, 1986, as also the principles of natural justice. Contending that the order passed by the Speaker on 10th October, 2010, was vitiated by mala fides, Mr. Nariman submitted that the same had been passed with the oblique motive of preventing the Appellants from participating in the Trust Vote which was to be taken by the Chief Minister on 11th October, 2010. Learned counsel also submitted that the letters dated 6th March, 2010, addressed by the Appellants individually along with Shri M.P. Renukacharya and Shri Narasimha Nayak to the Governor did not even suggest that they had intended to leave the Bharatiya Janata Party or to join another political party but that they were disillusioned with the functioning of the Government under Shri B.S. Yeddyurappa and had, therefore, decided to withdraw support to the Government headed by him. Furthermore, apart from mentioning that the Appellants had written to the Governor withdrawing their support to the Government, the Disqualification Application does not also contain any averment that the Appellants had met any person from any other political party. Although certain press statements had been mentioned in the petition, the same had not been annexed to the application. Mr. Nariman submitted that, in fact, no documentary evidence was at all annexed to the said application.
34. In addition to the above, Mr. Nariman also pointed out that the Disqualification Application had not been properly verified in terms of Rules 6(6) of the Disqualification Rules, 1986, and that the said application was, therefore, liable to be rejected on such ground also. Instead of rejecting the application or even returning the same for proper verification, the Speaker chose to ignore the shortcomings and issued Show-Cause notices to the Appellants in undue haste with the oblique motive of disqualifying them from the membership of the House prior to the Trust Vote to be taken on 11th October, 2010.
Applications sans annexures were not even served on the Appellants, but merely pasted on the doors of the official residence of the Appellants which were locked since the Assembly was not in session. Mr. Nariman submitted that the Appellants were granted time till 5.00 p.m. on 10th October, 2010, to respond to the Show-Cause notices although Rule 7(3) provided for seven days' time or 46more to respond to such an application. Instead, in complete violation of the said Rules, the Appellants were given only three days' time to respond to the Show-Cause notices and even more serious objection was taken by Mr. Nariman that it was in the Show-Cause notices that for the first time, it was stated that the actions of the Appellants were in violation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution, although no such specific averment had been made by the Respondent No.1 in his application.
It was urged that on account of the short time given by the Speaker to the Appellants to respond to the Show-Cause notices, they could only submit an interim reply of a general nature and it had been categorically mentioned that on receipt of all the documents on which reliance had been placed, a detailed response would be given to the Show-Cause notices. Mr. Nariman contended that certain documents were made available to the learned Advocate of the Appellants just before the hearing was to be conducted before the Speaker on 10th October, 2010, which contained facts which could be answered only by the Appellants personally. However, since the Appellants were not available in Karnataka at the relevant point of time, it was not possible for the learned Advocate appearing on their behalf to respond to the issues raised in the additional documents.
It was submitted that the Speaker acted against all principles of natural justice and the propriety in taking on record the affidavit affirmed by the State President of the Bharatiya Janata Party Shri K.S. Eswarappa, with the sole intention of supplying the inadequacies in the Disqualification Application filed by Shri Yeddyurappa. In addition, the Speaker also took into consideration the statements of retraction made by Shri M.P. Renukacharya and Shri Narasimha Nayak and allowed the same, whereafter they proceeded to make allegations against the 48Appellants that they had intended to remove the BJP Government and to support any Government led by Shri H.D. Kumaraswamy. Mr. Nariman submitted that the Speaker had applied two different yardsticks as far as the Appellants and Shri M.P. Renukacharya and Shri Narasimha Nayak are concerned, despite the fact that they too had written identical letters to the Governor withdrawing support to the Government led by Shri Yeddyurappa. Mr. Nariman submitted that once Shri M.P. Renukacharya and Shri Narasimha Nayak had written to the Governor expressing their decision to withdraw support to the Government headed by Shri Yeddyurappa, the provisions of paragraph 2(1)(a) of the Tenth Schedule came into operation immediately and the Speaker was no longer competent to reverse the same.
35. Mr. Nariman submitted that the action taken by the Speaker on the Disqualification Application filed against Shri M.P. Renukacharya and Shri 49Narasimha Nayak made it obvious that such steps were taken by the Speaker to save the membership of the said two MLAs to enable them to participate in the Trust Vote. It was also submitted that to make matters worse, the Speaker took personal notice about the statements allegedly made by the Appellants to the effect that they wanted to topple the BJP Government and to form a new Government with the others. It was submitted that while performing an adjudicatory function under the Tenth Schedule, while holding a highly dignified office, all personal knowledge which the Speaker may have acquired, should not have been taken into consideration in taking a decision in the matter. In this regard, Mr. Nariman referred to the decision of this Court in S. Partap Singh Vs. State of Punjab [(1964) 4 SCR 733], wherein it was held that if while exercising a power, an authority takes into account a factor which it was not entitled to, the exercise of the power would be bad. However, where the purpose sought to be achieved are mixed, some relevant and some not germane to the purpose, the difficulty is resolved by finding the dominant purpose which impelled the action and where the power itself is conditioned by a purpose, such exercise of power was required to be invalidated.
36. Mr. Nariman submitted that at every stage the Speaker had favoured Shri Yeddyurappa and even though Rule 7(2) of the 1986 Rules provided for the dismissal of the petition which did not comply with the requirements of Rule 6, as in the present case, the Speaker did not do so. Even the period of seven days' which was required to be granted to allow the Appellants to respond to the Show-Cause notices, only three days' time was given to the Appellants to submit their response which could be done only in a hurried manner for an interim purpose and despite the request made by the Appellants to the Speaker to postpone the date in order to give the Appellants a proper opportunity of responding to the allegations contained in the Show-Cause notices, such request was turned down thereby denying the Appellants a proper opportunity of representing their case, particularly when neither the Show-Cause notices nor the Disqualification Application filed by Shri Yeddyurappa along with all annexures had been supplied to the Appellants.
37. Referring to the decisions which had been mentioned by the Speaker in his order, Mr. Nariman pointed out that both in Mahachandra Prasad Singh's case and also in Ravi S. Naik's case (supra), this Court had held that the 1986 Rules were only directory in nature and that as a result the order dated 10th October, 2010, could be questioned not only on the ground of violation of the Rules, but in the facts of the case itself. It was pointed out that in Mahachandra Prasad Singh's case it had never been disputed that the petitioner therein had been elected to the Legislative Council on an Indian National Congress ticket and had contested Parliamentary elections as an independent candidate. It was submitted that it was in such background that this Court had held that non-supply of a copy of the letter of the Leader of the Congress Legislative Party had not caused any prejudice to the petitioner. Mr. Nariman reiterated that the Appellants had all said in separate voices that they had not left the BJP and had only withdrawn support to the Government led by Shri Yeddyurappa and that they were ready to support any new Government formed by the BJP, without Shri Yeddyurappa as its leader.
38. Mr. Nariman also referred to the decision of this Court in Kihoto Hollohan's case (supra) and urged that the order of disqualification passed 53against the Appellants for merely expressing their disagreement with the manner of functioning of the Respondent No.1 as Chief Minister, had not only impinged upon the Appellants' right of free speech, as guaranteed under Article 19(1)(a) of the Constitution, but from a bare reading of the letter dated 6th October, 2010, written by the Appellants to the Governor, it could not be held that the same indicated their intention to voluntarily give up the membership of the BJP. Mr. Nariman submitted that the impugned orders and the order of the Speaker dated 10th October, 2010, were unsustainable since they had been engineered to prevent the Appellants from participating in the Vote of Confidence fixed on 11th October, 2010.
39. Mr. P.P. Rao, learned Senior Advocate, who appeared for the Appellants in the Civil Appeals arising out of Special Leave Petition (Civil) Nos.33533-33565 of 2010, submitted that in order to attract the disqualification clause under paragraph 2(1)(a) of the Tenth Schedule, Shri Yeddyurappa had first to establish that the Appellants had voluntarily given up their membership of the BJP. It was submitted that in the Disqualification Application filed by Shri Yeddyurappa, there is no averment to the said effect and what has been averred is that the Appellants had withdrawn their support to his government and had informed the Governor of Karnataka about their decision, despite there being no decision in the party in this regard, which made such action a clear violation of the Tenth Schedule to the Constitution. Mr. Rao submitted that the Disqualification Application did not even refer to paragraph 2(1)(a) of the Tenth Schedule to the Constitution and that the same should, therefore, have been rejected by the Speaker in terms of Rule 6(2) of the 1986 Rules.
40. Reiterating Mr. Nariman's submissions, Mr. Rao submitted that withdrawal of support by the Appellants to the Government led by Shri Yeddyurappa did not amount to voluntarily relinquishing the membership of the BJP since the Government led by a particular leader and the political party are not synonymous. Mr. Rao also urged that asking the Governor to institute the constitutional process for replacing one Chief Minister by another, did not also amount to voluntary relinquishment of the membership of the party. According to Mr. Rao, withdrawal of support to the incumbent Chief Minister and intimation thereof to the Governor, could, at best, be said to be a pre-voting exercise in regard to the Vote of Confidence sought by the Chief Minister, but the question of disqualification will arise only if the Appellants voted in the House contrary to the directions of the whip issued by the BJP. However, even such a transgression could be condoned by the 56party within 15 days of such voting. Mr. Rao submitted that announcement of withdrawal of support to the Chief Minister before actual voting in violation of the whip would not bring the case within the ambit of paragraph 2(1)(a) of the Tenth Schedule to the Constitution and make him liable to disqualification.
41. Mr. Rao submitted that the minority view taken by N. Kumar, J. that "dissent" could not be regarded as defection was a correct view and did not amount to voluntarily relinquishing membership of the political party, since such act expresses a lack of confidence in the leader of the party, but not in the party itself. Quoting the minority view expressed by N. Kumar, J., Mr. Rao submitted that the object of paragraph 2(1)(a) was not to curb internal democracy or the right to dissent, since dissent is the very essence of democracy, but neither the Chief Justice nor V.G. Sabhahit, J. even adverted to such basic principle of Parliamentary democracy and erred in equating withdrawal of support to the Government led by Shri B.S. Yeddyurappa with withdrawing support to the BJP Government.
According to Mr. Rao, the Appellants were only doing their duty as conscious citizens to expose the corruption and nepotism in the Government led by Shri B.S. Yeddyurappa. Mr. Rao referred to and relied upon the decisions of this Court in (1) State of M.P. Vs. Ram Singh [(2000) 5 SCC 88] and (2) B.R. Kapur Vs. State of T.N. [(2001) 7 SCC 231], wherein, such sentiments had also been expressed. Mr. Rao contended that it is a well-settled principle of law that when a power is conferred by the Statute and the procedure for executing such power is prescribed, the power has to be exercised according to the procedure prescribed or not at all. In this regard, Mr. Rao referred to the celebrated decision of the Privy Council in Nazir Ahmad Vs. King Emperor [63 Indian Appeals 372] and State of U.P. Vs. Singhara Singh [(1964) 4 SCR 485]. Mr. Rao urged that the 1986 Rules had a statutory flavour and had to be treated as part of the Representation of the Peoples Act, 1951. Going one step further, Mr. Rao also urged that the Rules and Administrative Instructions lay down certain norms and guidelines and violation thereof would attract Article 14 of the Constitution and even if the said Rules were directory, they had to be substantially complied with.
42. Mr. Rao also contended that the order of disqualification passed by the Speaker was vitiated by mala fide on the part of the Chief Minister Shri Yeddyurappa, who filed the application for disqualification with the deliberate intention of preventing the Appellants from participating in the Trust Vote to be taken on 11th October, 2010. It was urged that such mala fide acts on the part of 59the Speaker would be evident from the fact that although the Disqualification Application did not conform to Rules 6(4), (6) and (7) of the 1986 Rules read with Order VI Rule 15(2)(4) of the Code of Civil Procedure , the same was entertained by the Speaker and a separate page of verification was subsequently inserted, which ought not to have been permitted by the Speaker. Mr. Rao reiterated the submissions made by Mr. Nariman that the Disqualification Application was liable to be dismissed under Rule 7(2) of the aforesaid Rules which says that "if the petition does not comply with the requirement of Rule 6, the Speaker shall dismiss the petition and intimate the petitioner".
Despite the fact that the application was not properly verified, the same was not dismissed. Mr. Rao submitted that in blatant disregard of the above-mentioned Rules, the Speaker had entertained the defective petition filed by Shri Yeddyurappa in complete disregard of Rules 6 and 7 of the 1986 60Rules. It was submitted that the said steps were taken by the Speaker in a partisan manner and against the highest traditions of the Office of the Speaker with the obvious intention of bailing out the Chief Minister to whom he owed his Chair as Speaker, which he could lose if the Chief Minister failed to win the Vote of Confidence in the Assembly.
43. Mr. Rao repeated Mr. Nariman's submissions regarding the purported violation of Rule 7(3) of the 1986 Rules, but added that such breach not only amounted to violation of principles of natural justice but also in violation of Article 14 of the Constitution itself, as was held in Union of India Vs. Tulsiram Patel [(1985) 3 SCC 398]. Mr. Rao submitted that this was a clear case of abuse of constitutional powers conferred on the Speaker by paragraph 6 of the Tenth Schedule, with the sole motive of saving his own Chair and the Chair of the 61Chief Minister. The Show-Cause notice was not only unconstitutional and illegal, but motivated and mala fide and devoid of jurisdiction.
44. Referring to the judgment of the Chief Justice, which was in variance with the decision of N. Kumar, J., Mr. Rao urged that the Chief Justice had only noted and considered ground "K" to the Writ Petition, without considering grounds C, D, F, H and I, which dealt with the very maintainability of the Disqualification application on account of improper verification. Mr. Rao submitted that indecent haste with which the Disqualification Application was processed was clearly in violation of the mandate of Rule 7 of the 1986 Rules, which provided for at least 7 days' time to reply to a Show-Cause notice issued under Rule 6.
45. Mr. Rao also submitted that despite pointed references made to the corruption and nepotism in the Government led by Shri Yeddyurappa, the same 62has not been denied by Shri B.S. Yeddyurappa and this Court should draw an adverse inference when such allegations of bias or mala fide had not been denied by Shri B.S. Yeddyurappa.
46. Mr. Rao also repeated and reiterated Mr. Nariman's submissions regarding non-service of Notices and copies of the application and the annexures thereto on the Appellants and the introduction of the affidavit filed by Shri K.S. Eshwarappa and the Statements of Shri M.P. Renukacharya and Shri Narasimha Nayak without serving copies thereof on the Appellants and giving them reasonable opportunity to deal with the same. It was submitted that by adopting the procedure as mentioned a
