Supreme Court of India
BALCHANDRA L. JARKIHOLI & ORS.versusB.S. YEDDYURAPPA & ORS.
- Citation
- 2011 INSC 400
- Decided
- 13 May 2011
- Disposal
- Appeal(s) allowed
- Bench
- ALTAMAS KABIR
Holding
The Supreme Court held that the Speaker’s order disqualifying the appellants was invalid as the proceedings violated natural justice, the notice period was insufficient, and there was no proof that the appellants voluntarily relinquished their party membership, and therefore the disqualification application was dismissed.
Summary
Thirteen BJP MLAs wrote to the Governor withdrawing support from Chief Minister B.S. Yeddyurappa, prompting the Governor to ask the CM to prove his majority and the CM to file a disqualification application under the Tenth Schedule against them. The Speaker issued show‑cause notices, gave only three days to respond (instead of the seven days required by Rule 7(3) of the Disqualification Rules), and disqualified eleven of the MLAs, reasoning that they had voluntarily given up their party membership, while allowing two who retracted their letters to participate in the confidence vote. The MLAs challenged the Speaker’s order, alleging violation of natural justice, procedural irregularities, bias, and that they had not relinquished BJP membership. The Supreme Court held that the Speaker’s proceedings failed the tests of natural justice, the notice period was insufficient, and there was no evidence of voluntary resignation from the party; consequently, the disqualification order was set aside and the application dismissed.
Issues considered
- Did the appellants voluntarily give up their membership of the Bharatiya Janata Party, thereby attracting disqualification under paragraph 2(1)(a) of the Tenth Schedule?
- Was the three‑day period for responding to the show‑cause notices a violation of Rule 7(3) of the Karnataka Disqualification Rules, rendering the notices invalid?
- Did the Speaker act with bias or in hot haste, thereby breaching the principles of natural justice and fair play?
- What is the scope of judicial review of a Speaker’s order passed under paragraph 2(1)(a) of the Tenth Schedule?
- Is the Speaker’s order perverse or otherwise unsustainable on the facts?
Legislation cited
- Constitution of Indias. Article 136, s. Article 212, s. Article 226, s. Article 32, s. Tenth Schedule Paragraph 2(1)(a), s. Tenth Schedule Paragraph 5, s. Tenth Schedule Paragraph 6
- Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986s. Rule 6, s. Rule 7
Subjects
defectionTenth Scheduledisqualification of legislatorsnatural justiceprocedural fairnessjudicial reviewSpeaker's quasi‑judicial roleshow‑cause noticeparty membershipconfidence vote
Judgment
(2011] 10 S.C.R. 877
BALCHANDRA L. JARKIHOLI & ORS. A
v.
B.S. YEDDYURAPPA & ORS.
(Civil Appeal Nos.4444-4476 of 2011)
MAY 13, 2011
B
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
Constitution of India, 1950 - Tenth Schedule, Paragraph
2(1)(a) - Disqualification application against MLA on ground
of defection - Manner of disposal by the Speaker- Challenge C
to - Tests of natural justice and fair play - Respondent no. 1
was the Legislature Party Leader of BJP in the Kamataka
Legislative Assembly, and also the Chief Minister of the State
of Kamataka - 13 BJP MLAs including the appellants and
two others-'MPR' and 'NN' wrote to the Governor of the State D
that they were withdrawing support to the Government led by
Respondent no. 1 - Governor asked Respondent no. 1 to seek
vote of confidence on the floor of the House, and also
intimated the Speaker accordingly - Respondent no.1, as
leader of the BJP Legislature Party in the Legislative E
Assembly, filed Disqualification application before the
Speaker against all the said 13 MLAs - Speaker issued· Show-
Cause notices to all the said MLAs - Meanwhile 'MPR' and
'NN' retracted their stand, stating that they .,&ontinued to
support the Government led by Respondent no. 1 - Also, F
'KSE', State President of the BJP filed affidavit along with
supporting documents, adverse to the interests of the
appellants - Speaker disqualified the appellants reasoning
that they had voluntarily given up their membership of the BJP
by their acts and conduct, but did not disqualify 'MPR' and G
'NN' taking note of the retraction made by them - Justification
- Held: Except for the affidavit filed by 'KSE', State President
of the B.J.P., and the statements of 'MPR' and 'NN', there was
nothing on record in support of the allegations made in the
877 H
•
'-'
878. SUPREME COURT REPORTS [2011) 10 S.C.R.
A Disqualification application - No presumption could be drawn
from the action of the appellants that they had voluntarily given
up their membership of the BJP - All along the appellants
emphasized their position that they not only continued to be
members of the BJP, but were also willing to support any
B Government formed by the BJP headed by any leader, other
than Respondent no. 1, as the Chief Minister of the State -
The Speaker acted in hot haste in disposing of the
Disqualification application filed by Respondent no. 1 - No
convincing explanation was given as to why notices to sho~
c 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· - The proceedings conducted by the
Speaker did not meet the twin tests of natural justice and fair
0 play - Procedure adopted by the Speaker seems to indicate
that he was trying to ensure that the appellants stood
disqualified prior to the date on which the Floor Test was to
be held, so that they could not participate and, in their
absence Respondent no. 1 was able to prove his majority in
the House - Also, although the same allegations, as were
E made against the Appellants by Respondent no.1, were also
made against 'MPR' and 'NN', their retraction was accepted
by the Speaker and they were, accordingly, permitted to
participate i• the Confidence Vote - The Speaker proceeded
in the matter as if he was required to meet the deadline set
F 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,
and in contravention of the basic principles that go hand-in-
hand with the concept of a fair hearing - Even if the
G Disqualification Rules were only directory in nature, sufficient
opportunity should have been given to the Appellants to meet
the allegations levelled against them - Affidavits, affirmeq by
'KSE', 'MPR' and 'NN', were served on the Advocates
appearing for the Appellants only on the date of hearing before
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 879
YEDDYURAPPA & ORS.
the Speaker and that too just before the hearing was to A
commence - Extraneous considerations writ large on the face
of the order of the Speaker and therefore the same has to be
set aside - Disqualification application filed by Respondent
no. 1 accordingly dismissed - Karnataka Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules, B
1986 - Rules 6 and 7. ·
Constitution of India, 1950 - Tenth Schedule,
Paragraphs 2(1)(a) and 6 - Power of the superior Courts to
judicially review order passed by Speaker under paragraph C
2(1 )(a) of the Tenth Schedule - Held: 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 - Judicial Review.
Constitution of India, 1950 - Tenth Schedule, Paragraph D
5 - Object of - Held: The object behind the paragraph 5 is to
enst..ire 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.
E
Respondent no.1 was the Legislature Party Leader
of the Bharatiya Janata Party (BJP) in the Karnataka
Legislative Assembly, and also the Chief Minister of the
State of Karnataka.
On 6th October, 2010, 13 BJP MLAs of the Karnataka F
Legislative Assembly including the appellants and two
others- MPR' and 'NN', wrote identical letters to the
Governor of the State stating that they were withdrawing
their support to the Government led by Respondent no.1.
Five independent MLAs also withdrew support to the said G
Government. The same day, the Governor addressed
letter to Respondent no.1 informing him of the
developments regarding the withdrawal of support by 13
BJP MLAs and 5 independent MLAs and requesting
H
880 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Respondent no.1 to seek vote of confidence on the floor
of the House on or before 12th October, 2010 by 5 p.m.
The Speaker was also requested accordingly.
On the very same day, Respondent no.1, as the
8 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, praying to declare that all the said
C 13 MLAs elected on BJP tickets had incurred
disqualification from the Legislative Assembly in view of
the Tenth Schedule to the Constitution.
The Speaker issued Show-Cause notices to all the
aforesaid 13 MLAs on 7th October, 2010, informing them
' D of the Disqualification Application filed by Respondent
no.1, but the appellants were not served with the notices
directly. Instead the notices were pasted on the outer
doors of their quarters in the IV.I.A complex. Time was
given to them till 5 p.m. on 10th October, 2010 (i.e. within
E 3 days), to submit their objections, if any, to the
application.
The appellants made objections stating that the
notice was in clear violation of the Disqualification Rules,
F 1986, especially Rules 6 and 7 thereof; that copies of the
disqualification petition and annexures thereto were not
forwarded with the Show-cause notice as required under
the Rules; that the appellants ought to have been given
a minimum notice period of 7 days' to reply and the
Speaker could only extend the period of 7 days, but could
G not curtail the time from 7 days to 3 days. In addition, the
appellants also sought to explain that they had chosen
to withdraw their support only to the Government headed
by Respondent no.1 as Chief Minister, as he was corrupt
and encouraged corruption, and not to the BJP itself,
H which could form another Government which could be
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 881
YEDDYURAPPA & ORS.
led by any other person, other than Respondent no.1, to A
whom the Appellants would extend support. Accordingly,
the appellants prayed for withdrawal of the Show-Cause
notices and for dismissal of the petition dated 6th
October, 2010 moved by Respondent no.1, alleging that
the same was made with ma/a fide intention and the B
oblique motive of seeking their disqualification and
thereby preventing them from voting on the confidence
motion.
· Meanwhile both 'MPR' and 'NN' retracted their stand, C
stating that they continued to support the Government
led by Respondent no.1 and had no intention of
withdrawing such support and accordingly prayed for
withdrawal of any action proposed against them. Also,
'KSE', State President of the BJP filed affidavit along with
supporting documents, which were adverse to the D
Appellants' interests.
The Speaker rejected the objections filed on behalf
of Appellants and thereafter went on to disqualify the
appellants under Paragraph 2(1)(afof the Tenth Schedule E
with immediate effect stating that 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 the appellants had voluntarily given up the F
membership of the party from which they were elected.
The Speaker then took note of the retraction by 'MPR' and
'NN', and arrived at the decision that the said two MLAs
were not disqualified under the Tenth Schedule of the
Constitution. G
The Appellants filed writ petitions challenging the
decision of the Speaker, which were listed before the
Hon'ble Chief Justice of High Court and his companion
Judge (Hon'ble Mr. Justice N. Kumar). On account of
H
882 SUPREME COURT REPORTS (2011) 10 S.C.R.
A difference of opinion between the Hon'ble Chief Justice
and his companion Judge, the matter was referred to a
third Judge who concurred with the decision rendered
by the Chief Justice and as a result, per majority, the
order passed by the Speaker was upheld by the High
B Court.
In the instant appeals, the questions which arose for
consideration were:(a) Did the Appellants voluntarily give
up their membership of the BJP; (b) Since only three
C 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 Respondent no.1 introducing a whiff
D of bias as to the procedure adopted and (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 regc.rd to the provisions of
Article 212 thereof.
E
Allowing the appeals, the Court
HELD: 1.1. In the instant case, the Appellants had in
writing informed the Governor on 6th October, 2010, that
F having become disillusioned with the functioning of the
Government headed by Respondent no.1, they had
chosen to withdraw support to the Government headed
by Respondent no.1 and had requested the Speaker to
intervene and institute the constitutional process as
constitutional head of the State. The said stand was re-
G 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
H
BALCHANDRA L. JARKIHOLI & ORS. v. 8.S. 883
YEDDYURAPPA & ORS.
replies they had categorically indicated that nowhere in A
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, s
other than Respondent no.1, 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 c
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. The letter dated 6th
October, 2010, written by the Appellants to the Governor
0
clearly indicates that the authors thereof who had been
elected as a MLA on a BJP ticket, having become
disillusioned with the functioning of the Government
headed by Respondent no.1 on account of widespread
corruption, nepotism, favouritism, abuse of power and
misuse of Government machinery, were convinced that E
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 Respondent no.1
had forfeited the confidence of the people. The letter
further indicates that it was in the interest of the State and F
the people of Karnataka that the authors were expressing
their lack of confidence in the Government headed by
Respondent no.1 and that they were, accordingly,
withdrawing their support to the Government headed by
Respondent no.1 with a request to the Governor to G
intervene and institute the constitutional process as
constitutional head of the State. [Paras 74, 75) [934-D-H;
935-A-E]
1.2. Although, the language used in the letter dated H-
884 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 6th October, 2010 was similar to the language used in
Article 356 of the Constitution, but the same could not be
said to be an explicit invitation to the Governor to ·take
action in accordance with the said Article. The
"constitutional process", as hinted at in the said letter did
B 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 BJP was
not necessarily deprived of a further opportunity of
c forming a Government after a change in the leadership
of the legislature party. In fact, the same is evident from
tile 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
0 only continued to be members of the BJP, but would also
support any Government formed by the BJP headed by
any leader, other than Respondent no.1, as the Chief
Minister of the State. The conclusion arrived at by the
Speaker does not find support from the contents of the
E 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. [Para 76]
[935-E-H; 936-A-B]
1.3. The Speaker concluded that by leaving
F 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
Respondent no.1 and the formation of a new Government,
the Appellants had voluntarily given up their membership
G of the B.J.P. and were contemplating the formation of a
Government excluding the BJP. The Speaker 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
H by the Appellants. The Speaker apparently did not take
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 885
YEDDYURAPPA & ORS.
into consideration the rule of evidence that a person A
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 B
filed by 'KSE', 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 t~e allegations which had been
made therein. Significantly, the said affidavits had not c
been served on the Appellants. Since 'KSE' 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. Not
only did the Speaker's action amount to denial of the 0
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
Respondent no.1. If the Speaker wished to rely on the
statements of a third party which were adverse to the E
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 F
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 'KSE' as also the affidavits of the two
MLAs-, who had originally withdrawn support to the
Government led by Respondent no.1, but ·were later G
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, 'MPR' and 'NN' , were treated differently
H
886 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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 BJP, notwithstanding
B 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
c 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
Respondent no.1 in such a great hurry within the time
specified by the Governor to the Speaker to conduct a
0 Vote of Confidence in the Government headed by
Respondent no.1. Apparently, such a course of action
was adopted by the Speaker on 10th October, 2010, since
the Vote of Confidence on the Floor of the House was
slated for 12th October, 2010. The element of hot haste
E is also evident in the action of the Speaker in this regard
as well. [Para 77] [936-C-H; 937-A-H; 938-A]
1.4. Even if 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
F 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 documents relied
G upon by Respondent no.1, 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
H of the affidavit filed by 'KSE' , although, the Speaker relied
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 887
YEDDYURAPPA & ORS.
heavily on the contents thereof in arriving at the A
conclusion that the Appellants stood disqualified under
paragraph 2(1 )(a) of the Tenth Schedule to the
Constitution. Likewise, the Appellants were also not
supplied with the copies of the affidavits filed by 'MPR'
and 'NN' , whereby they retracted the statements which B
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 them on the basis of
such retraction, after having held in the case of the c
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 Respondent no.1. The
Speaker ignored the claim of the Appellants to be given
reasonable time to respond to the Show-Cause notices D ·
and also to the documents which were handed over to
the 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 E
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 'KSE',
'MPR' and 'NN' , but the time given to submit the Show-
Cause on 10th October, 2010, was preponed from 5.00
p.m. to 3.00 p.m., making it even more difficult for the F
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 te$t of
fairness when one takes into consideration the fact that G
various allegations had been made in the three affidavits
filed by 'KSE', 'MPR' and 'NN' , which could only be
answered by the Appellants themselves and not by their
Advocates. [Paras 84, 85) [943-A-H; 944-A-C]
H
888 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 1.5. 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
B date on which the Floor Test was to be held. Having
concluded the hearing on 10th October, 2010, by 5.00
p.m., the Speaker passed a detailed order in which
various judgments, both of Indian Courts and foreign
Courts, and principles of law from various authorities
c were referred to, on the same day, holding that the
Appellants had voluntarily given up their membership of
the BJP 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
0 Vote of Confidence took place on 11th October, 2010, in
which the disqualified members could not participate
and, in their absence Respondent no.1was able to prove
his majority in the House. [Para 86) [944-E-G)
1.6. Unless it was to ensure that the Trust Vote did
E 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 case and in Ravi
S. Naik's case, this Court had held that the
F 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 that such an irregularity should not be such
G so as to prejudice any authority who is affected adversely
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
H when except for the newspaper cuttings said to have
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 889
YEDDYURAPPA & ORS.
been filed by Respondent no.1 along with the A
Disqualification Application, there was no other evidence
at all available against the Appellants. [Para 87] [944-H;
945-A-C]
1.7. In the present case, the Disqualification
8
Application filed by Respondent no.1contained only bald
allegations, which were not corroborated by any direct
evidence. The application did not even mention the
provision under which the same had been made. By
allqwing 'KSE', who was not even a party to the
proceedings, and 'MPR' and 'NN' to file their respective C
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 D
Appellants, but on their 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. [Para 88]
(945-D-H; 946-A-C] E
1.8. Also, although the same allegations, as were
made against the Appellants by Respondent no.1, were
also made against 'MPR' and 'NN', their .retraction was
accepted by the Speaker, despite the view expressed by F
him that upon submitting the letter withdrawing support
-to the BJP Government led by Respondent no.1, all the
MLAs stood immediately disqualified under paragraph
2(1 )(a) of the Tenth Schedule to the Constitution, and ttiey
were, accordingly, permitted to participate in the G
Confidence Vote for reasons which are not required to
be spelt out. [Para. 89) (946-D-E]
Dr. Mahachandra Prasad Singh vs. Chairman, Bihar
Legislative Council & Ors. (2004) 8 SCC 747: 2004 (5) Suppl.
SCR 692; Ravi S. Naik v. Union of India (1994) Suppl.2 SCC H
890 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 641: 1994 (1) SCR 754 and Jagjit Singh v. State of Haryana
(2006) 11 sec 1: 2006 (1 O) Suppl. SCR 521 -
distinguished.
Rajendra Singh Rana & Ors. Vs. Swami Prasad Maurya
B & Ors. (2007) 4 SCC 270: 2007 (2) SCR 591; Kihoto
Hollohan Vs. Zachillhu & Ors. (1992) Supp.2 SCC 651: 1992
(1) SCR 686; G. Viswanathan Vs. Hon'b/e Speaker Tamil
Nadu Legislative Assembly, Madras & Anr. (1996) 2 SCC
353: 1996 (1) SCR 895; S. Partap Singh Vs. State of Punjab
C (1964) 4 SCR 733; State of M.P. Vs. Ram Singh (200.0) 5
SCC 88: 2000 (1) SCR 579; B.R. Kapur Vs. State of T.N.
(2001) 7 SCC 231: 2001 (3) Suppl. SCR 191; Nazir Ahmad
Vs. King Emperor 63 Indian Appeals 372; State of U.P. Vs.
Singhara Singh (1964) 4 SCR 485; Union of India v. Tulsiram
Patel (1985) 3 sec 398: 1985 (2) Suppl. SCR 131;
D E:angramsinh P. Gaekwad v. Shantadevi P. Gaekwad (2005)
11 SCC 314: 2005 (1) SCR 624; E.P. Royappa Vs. State of
Tamil Nadu (1974) 4 SCC 3: 1974 (2) SCR 348 - referred
to.
E 2. 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
F 32, 226 and 136 of 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
G 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
H Constitution. [Para 90] [946-F-H; 947-A]
BALCHANDRA L. JARKIHOLI & ORS. v. S.S. 891
YEDDYURAPPA & ORS.
3. The proceedings conducted by the Speaker on the A
Disqualification Application filed by Respondent no.1do
not meet the twin tests of natural justice and fair play. The
Speaker proceeded in the matter as if he was required to
meet the deadline set by the Governor, irrespective of
whether, in the process, he was ignoring the B
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. [Para 91] [947-B·
D] C
4. 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 D
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 Respondent no.1 along with his
application, but it is hard to explain as,to how the E
affidavits, affirmed by 'KSE', 'MPR' and 'NN', were served
on the 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 F
has to be set aside. [Para 92] [947 -E-G]
5. 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 G
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 H
89'2 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Chairman of the Council of States or the Chairman or the
Deputy Chairman of the Legislative Council of the State
or the Speaker or the Deputy Speaker of the Legislative
Assembly of a State, shall not be disqualified under the
Schedule if he by reason of his election to such office,
B 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 politicai party. The object behind the said
c 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. [Para 93] [947-H; 948-A-D]
6. The order of the Speaker dated 10th October, 2010,
D 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 with the majority
judgment delivered by the High Court in the Writ Petitions,
and the portions of the judgment delivered by Hon'ble
E Justice N. Kumar concurring with the views expressed
by the Hon'ble Chief Justice of the High Court, upholding
the decision of the Speaker on the Disqualification
Application filed by Respondent no.1. Consequently, the
Disqualification Application filed by Respondent no.1 is
F dismissed. [Para 94] [948-E-F]
Case Law Reference:
1994 (1) SCR 754 distinguished Paras 13,19,20,
37,51,53, 54,
G 67,72,81,83,87
2006 (10) Suppl. SCR 521 distinguished Paras 14,53,_
59,88
2007 (2) SCR 591 referred to Paras 15,24,
H 48,56,59
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 893
YEDDYURAPPA & ORS.
2004 (5) Suppl. SCR 692 distinguished Paras 19,78, A
79,80,84,87
1992 (1) SCR 686 referred to Paras 24,30,38,47,
50,51,52,
54,61,72
B
1996 (1) SCR 895 referred to Para 24
2004 (5) Suppl. SCR 692 referred to Paras 24,37,47,
48,52, 54,67
(1964) 4 SCR 733 referred to Para 24 c
2000 (1) SCR 579 referred to Para 41
2001 (3) Suppl. SCR 191 referred to Para 41
63 Indian Appeals 372 referred to Para 41 D
(1964) 4 SCR 485 referred to Para 41
1985 (2) Suppl. SCR 131 referred to Para 43
2005 (1) SCR 624 referred to Para 55
E
1974 (2) SCR 348 referred to Para 55
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4444-4476 of 2011.
From the Judgment & Order dated 15.11.2010 of the F
Division Bench of High Court of Karnataka at Bangalore in Writ
Petition Nos. 32660-32670 of 2010.
WITH
C.A. Nos. 4522-4544 of 2011
G
C.A. Nos. 4477-4509 of 2011
Soli J. S.orabje and P.P. Rao, Jayashree Wad, Ashish
Wad, Tamali Wad, Sameer Abhyankar, Dipti Shikhar Srivastava
H
894 SUPREME COURT REPORTS [2011] 10 S.C.R.
A (for J.S. Wad & Co.) Prashant Kumar, Mahalaxmi Pavani,
Triveni Poteker, Bimala Devi, Purushottam Sharma Tripathi,
Apeksha Sharan, A.S. Ponnanna, A.P. Ranganatha (for Ajay
Sharma), Temple Law Firm, Bhupender Yadav, S.S.
Shamshery, Vikramjit Banejet, Pruhsh Kapur and S.N. Bhat for
B the appearing parties.
The Judgment of the Court was delivered by
. ALTAMAS KABIR, J. 1. Leave granted.
c 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
D 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
E 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
F 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
G 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
H functioning of the Government headed by Shri S.S.
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 895
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
Yeddyurappa and were convinced that a situation had arisen A
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 B
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,
c
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, D
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 E
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 F
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,
G
I remain
Yours faithfully,
Shri H.R. Bharadwaj,
His Excellency Governor of Karnataka,
Raj Bhavan, Bangalore."
H
896 SUPREME COURT REPORTS (2011] 10 S.C.R.
A 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,
8 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
C 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
D 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, fil~d an application before the
Speaker under Rule 6 of the Karnataka Legislative Assembly
E (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.
F
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
G 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
H the Tenth Schedule of the Constitution of India and it disqualified
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 897
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
them from continuing as Members of the Legislature. Time was A
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 B
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 C
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 D
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 E
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 F
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.
G
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-Cau.se notice. The notice dated H
7th October, 2010 called upon the Appellants to appear and
898 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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
8
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
C 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
D 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
E 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.
F
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
G 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
H of "defection" or within the scope of paragraph 2(1}(a} of the
Tenth Schedule or the scheme and object of the Constitution
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 899
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
of India. It was further emphasized that even prima facie, A
"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
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 C
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 D
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 E
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 F
any Government headed by a clean and e.fficient 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, G
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
H
900 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B
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
c 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 ac;tion proposed against him. He reiterated
D 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
E 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 aboye, the following two issues
F 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?
G (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
H party and having consented and supported the formation of a
BALCHANDRA L. JARKl.HOLI & ORS. v. B.S. 901
YEDDYURAPPA & ORS. ·[ALTAMAS KABIR, J.]
Government by the leader of the said party, the respondents, A
who are the Appellants herein, other than Shri M.P.
Renukacharya and Shri Naras.imha 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 B
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 c
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, D
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. Refe(ring to the Tenth Schedule and certain decisions E
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 F
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 G
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 H
902 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B [(1994) Suppl.2 sec 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
c 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
D 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 sec 1], wherein, it was expressed that to determine
whether an independent member had joined a political party,
E 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.
F 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
G 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.
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 903
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.)
16. The Speaker observed that the Appellants herein had A
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 B
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. c
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 D
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 E
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 F
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 G
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 paragrap,,
H
904 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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
H to have resulted in prejudice to the Appellants. Repeating the
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 905
YEDDYURAPPA & ORS. [AlTAMAS KABIR, J.]
reasons given by the Speaker to reject the objection of the A
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 s
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 C
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 D
Speaker deserved to be se~ 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 E
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 witb the said affidavit, they would F
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 G
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 H
906 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
c 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
D 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
E 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,
F 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
G 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
H not only the Chief Minister, but his entire Council of Ministers
BALCHANDRA L. JARKIHOLI & ORS. v. S.S. 907
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
who cease to be in office. Regarding interpretation of the A
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. Zachil/hu & Ors. ((1992)
Supp.2 SCC 651]; (2) G. Viswanathan Vs. Hon'ble Speaker
Tamil Nadu Legislative Assembly, Madras & Anr. ((1996) 2 s
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 c
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
0
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 E
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 F
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 G
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 H
908 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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.
B
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
C 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
D 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
E 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.
F 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
G 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,
H after taking note of the expression of no-confidence, was
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 909
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
satisfied that the Chief Minister had lost majority support in the A
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 B
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 c
of the opposition to form an alternative Gov~rnment 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 0
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
E
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 F
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 G
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 ~isqualification under paragraph 2(1)(b) of the Tenth H
910 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H defection under paragraph 2(1 )(a) of the Tenth Schedule is
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 911
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
deserting the party. The learned Judge observed that dissent A
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
8
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 C
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 D
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.
E
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 F
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 G
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 H
912 SUPREME COURT REPORTS (2011] 10 S.C.R.
A 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 :-
8
"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
C 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
0 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 th~t the Appellants herein had voluntarily resigned from
their membership of the Bharatiya Janata Party by their conduct,
E 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,
F 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
G 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
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 913
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
Chief Minister on 11th October, 2010. Learned counsel also A
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 B
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 c
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 D
evidence was at all annexed to the said application.
34. In addition to the above, Mr41'Jariman 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 E
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 F
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 G
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 tiie said Rules, the
Appellants were given only three days' time to respond to the H
914 SUPREME COURT REPORTS [2011] 10 S.C.f\
A 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 actio!ls of the
Appellants were in violation of paragraph 2(1 )(a) of the Tenth
Schedule of the Constitution, although no such specific
B 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
c 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
0
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
E 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
F 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
G 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
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 915
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
Government led by Shri Yeddyurappa. Mr. Nariman submitted A
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 B
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 C
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 D
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, E
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 F
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. G
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
H
916 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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
B 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
c 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. Refei;ring to the decisions which had been mentioned
by the Speaker in his order, Mr. Nariman pointed out that both
D 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 questio1ed not only on the ground
of violation of the Rules, but in the facts of the case itself. It was
E 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
F 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
G 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 Ho//ohan's case {supra) and urged that the order of
H disqualification passed against the Appellants for merely_
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 917
YEDDYURAPPA & ORS. [AlTAMAS KABIR, J.]
expressing their disagreement with the manner of functioning A
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 B
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 c
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 D
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 E
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 F
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.
G
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 H
918 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
s 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 SJP. However, even
c 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.
0
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
E 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
F 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 S.S. Yeddyurappa with
withdrawing support to the SJP Government. According to Mr.
Rao, the Appellants were only doing their duty as conscious
G citizens to expose the corruption and nepotism in the
Government led by Shri S.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
H had also been expressed. Mr. Rao contended that it is a well-
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 919
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
settled principle of law that when a power is conferred by the A
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 B
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 c
guidelines and viol!'ltion 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 D
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 E
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 F
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 G
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 Yeddyarappa in complete H
920 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
C 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
D 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 ma/a fide
and devoid of jurisdiction.
E 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.
F
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.
G
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
H when such allegations of bias or ma/a fide had not been denied
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 921
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
by Shri B.S. Yeddyurappa. A
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 B
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 C
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 D
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 E
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 F
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 G
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 paragrapn 6(1) of the
Tenth Schedule is not the decision of the House nor is it subject H
922 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B pointed out that paragraph 100 of the decision in Kihoto
Hol/ohan'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
c 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)
0
had been considered by a Bench of 3 Judges of this Court in
Mayawati Vs. Markandeya Ch •.md [(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.
E 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
F 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,
G 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
H the part of the Speaker to decide an application seeking
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 923
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
disqualification cannot be said to be merely in the realm of A
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 B
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. c
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
i?sues which, according to him, had arisen in the Appeals for D
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 E
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 vthether judicial review is available F
against an alleged breach of the said Rules?
(iii) Whether the Speaker's order impugned herein is·
mala fide?
G
(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 H.
924 SUPREME COURT REPORTS [2011] 10 S.C.R.
A (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
8
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
C 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
D confined to infirmities based on (a) violation of constitutional
mandate; (b) mala tides; (c) non-cJmpliance 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)
E of the Tenth Schedule to the Constitution and that on account
of the decision in Kihoto Hol/ohan'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.
F 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
G 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
H
BALCHANDRA L JARKIHOLI & ORS. v. S.S. 925
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
with the provisions of the Constitution and could not, therefore, A
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 8
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 C
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 D
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.
E
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 F
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, G
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 H
926 SUPREME COURT REPORTS [2011] 10 S.C.R.
A ·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.
B
54. Mr. Sorabjee urged that this Court in Kihoto
Hol/ohan'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,
C 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
D 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
E 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
F
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, with.out any material in support
of such allegations, could not and did not amount to mala fides
G 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 sec 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.
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 927
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
56. Mr. Sorabjee submitted that coupled with the allegation A
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 B
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 c
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
0
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 E
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 F
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 G
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.
H
928 SUPREME COURT REPORTS (2011] 10 S.C.R.
A 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.
B
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
C 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
D 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 c :-riduct of the Mernber that
he had voluntarily given up his membership of the political party
E 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).
F 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
G 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
H
BALCHANDRA L. JARKIHOLI & ORS. v. 8.S. 929
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
of the Assembly, coupled with the request to the Governor to A
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.
B
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 C
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 D
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 E
· 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, F
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 conspirir'g with the
opposite p~rty. G
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
H
930 SUPREME COURT REPORTS (2011] 10 S.C.R.
A 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
B 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 MLA$ 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
c 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
0 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
E which takes a collective decision relating to policy stands or
falls together and any individual member of the Governmen!
cannot show a face which is different from that of the Cabinet,
as anything contrary would contribute to serious weakening of
the Government itself.
F 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.
G 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.
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 931
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
64. In addition to the submissions made by Mr. Sorabjee, A ·
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 B
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 C
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. D
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.
E
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. F
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). G
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 H
932 SUPREME COURT REPORTS [2011] 10 S.C.R.
A Yeddyurappa, they should have taken up the matter within the
party without writing to the Governor withdrawing their support
to the Bharatiya Janata Party Gov~rnment led by Shri
Yeddyurappa. Mr. Jain submitted that it was quite obvious from
the letters written by the Appellants to the Governor that they
s 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.
c 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
D 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
E
said notices vitiated?
(c) Did the Speaker act in hot haste in disposing of the·
Disqualification Application filed by Shri S.S.
Yeddyurappa introducing a whiff of bias as to the
F 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?
G
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
H disillusioned with the functioning of the Government headed by
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 933
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
Shri B.S. Yeddyurappa. According to them, there was A
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 B
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). c
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 D
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 E
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.
F
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 G
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 H
934 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
8
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
C 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
D 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-
E 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 ot 6th October,
F 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 t.hey 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
G 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
H State was rid of a corrupt Chief Minister, that the letter had been
BALCHANDRA L. JARKIHOLI & ORS. v. S.S. 935
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
submitted to the Governor on 6th October, 2010. A
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
8
as a MLA on a Bharatiya Janata Party ticket, having become
disillusioned with the functioning of the Government headed by
Shri S.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 C
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 D
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.
E
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 F
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 G
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
H
936 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
C 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
D membership of the B.J.P. and were contemplating the formation
of a Government excluding the Bh<>ratiya 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
E 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
F 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
G 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
H the Speaker's action amount to denial of the principles of
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 937
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
natural justice to the Appellants, but it also reveals a partisan A
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 B
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, c
arise as to why the Speaker did not send copies of the affidavit
affirmed and filed by Sh.ri 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 0
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,
E
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 F
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 G
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
October, 2010, since the Vote of Confidence on the Floor of
the House was slated for 12th October, 2010. The element of H
938 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
8
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
C aside only on the ground of departure therefrom. Even if less
than seven days' time is given to reply to the Show-Cause
notice, t~e legislator must not be prejudiced or precluded from
giving an effective reply to such notice.
D 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
E 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
F 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).
G 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
H
BALCHANDRA L JARKIHOLI & ORS. v. B.S. 939
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
A
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 B
petition, he had not suffered any prejudice in not being provided
with a copy.of the letter from the leader of the Indian National
Congress on which reliance had been placed by the Chairman.
The distinguishing feature of the facts of Mahachandra Prasad
Singh's case and this case is that the facts in the former case C
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. D
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 E
respect of the two Civil Appeals, namely, Civil Appeal No.2904
of 1993 filed by Ravi S. Naik and Civil Appeal No.3309of1993
filed by Shri Sanjay Bandekar and Shri Ratnakar Chopdekar.
There is a certain degree of similarity between the facts of the
latter appeal and this case. At the relevant time, the Congress
(I) initially formed the Government with the support of one F
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 G
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 Dem~cratic
Front, staked his claim to form a Government, but no further H
940 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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
B Members, who had joined the Congress Democratic Front
inspite of being Members of the Maharashtrawadi Gomantak
Party. By his order dated 13th December, 1990, the Speaker
disqualified the said two Members from the House on the
ground of defection.
c 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
D 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
E 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 March, 1991, and the
earlier order dated 13th December, 1990, was set aside.
Similarly, Shri Ravi Naik also filed an application for review of
F 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
G 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.
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 941
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
83. It was in the appeal filed by Shri Bandekar and Shri A
Chopdekar that the issue of voluntary resignation from
membership of the Maharashtrawadi Gomantak Party fell for
consideration of the High Court, while in Ravi S. Naik's case
the question was whether a valid split of the aforesaid party had
been effected with Shri Naik forming a new party with seven B
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 c
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
0
political party, even though he/she had not tendered his/her
resignation from the membership of that party. However, the
Division Bench of the High Court approved the said proposition
in the facts and circumstances of that case, where, after the
Government was initially formed, there was an exodus from the
principal party resulting in the formation of a new party which E
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 F
further, but they had also made it known to the public that they
had voluniarily 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 G
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 Member of the
said party and no document had been produced by the H ·
942 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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.
c 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
D 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
E 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
F 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
G issued Show-Cause notices to the aforesaid MLAs _informing
them of the Disqualification Application filed by Shri B.S.
Yeddyurappa and informing them that by submitting letters to
the Governor withdrawing support to the Government led by
Shri Yeddyurappa, they had violated paragraph 2(1}(a) of the
H Tenth Schedule to the Constitution and were, therefore,
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 943
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
disqualified from continuing as Members of the House. The A
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 B
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 c
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 0
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 E
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 F
Disqualification Application against 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 G
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 H
944 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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
B to submit the Show-Cause on 10th October, 2010, was
preponed from 5.00 p.m. to 3.00 p.m., making it even more
difficult for the Appellants to respond to the Show-Cause
notices in a meaningful manner. The explanation given by the
Speaker that the Appellants had filed detailed replies to the
c 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.
0
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
E disqualified prior to the date on which the Floor Test was to be
held. Having concluded the hearing on 10th October, 2010, by
5.00 p.m., the Speaker passed a detailed order in which
various judgments, both of Indian Courts and foreign Courts,
and principles of law from various authorities were referred to,
F 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
G 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
H
BALCHANDRA L. JARKIHOLI & ORS. v. S.S. 945
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.)
for the Speaker to have taken up the Disqualification A
Application in such a great hurry. Although, in Mahachandra
Prasad Singh's 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 B
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 c
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. D
88. We are quite alive to the decision in Jagjit Singh's case
(supra), where it was held that failure to provide documents
relied upon by the Speaker to the concerned Member, whose
membership of the House was in question, and denying him
the right of cross-examination, did not amount to denial of E
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 F
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 G
Disqualification Application filed by Shri Yeddyurappa
contained only bald allegatrons, which were not corroborated
by any direct evidence. The application did not even mention
the provision under which the same had been made. By allowing
Shri K.S. Eswarappa, w~o was not even a party to the H
946 SUPREME COURT REPORTS [2011] 10 S.C.R.
A 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
B 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
c but hold that the conduct of the proceedings by the Speaker
and the decision given by the Speaker on the basis thereof did
not meet even the parameters laid down in Jagjit Singh's case
(supra).
89. We cannot also lose sight of the fact that although the
D 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
E 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.
F
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 the Constitution to
G 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,
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 94 7
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
enables the Speaker in a quasi-judicial capacity to declare that A
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
8
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, C
proceeded in the matter as if he was required to meet the
deadline set by the Governor, irrespective of whether, in the
process, he was ignoring the constitutional norms set out in the
Tenth Schedule to the Constitution and the Disqualification
Rules, 1986, and in contravention of the basic principles that
go hand-in-hand with the concept of a fair hearing. D
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 E
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 F
as to how the affidavits, 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 G
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 H
948 SUPREME COURT REPORTS [2011) 10 S.C.R.
A 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
s or the Deputy Chairman of the Legislative Council of the State
or the Speaker or the Deputy Speaker of the Legislative
Assembly of a State, shall not be disqualified under the
Schedule if he by reason of his election to such office, voluntarily
gives up the membership· of the political party to which he
c 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
D 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
E the Tenth Schedule to the Constitution is set aside along 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
F of the Speaker on the Disqualification Application No.1 of 2010
filed by Shri S.S. Yeddyurappa. Consequently, the
Disqualification Application filed by Shri S.S. Yeddyurappa is
dismissed.
95. There will be no order as to costs.
G
S.S.S. Appeals allowed.
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