Supreme Court of India
D. SUDHAKAR & ORS.versusD.N. JEEVARAJU & ORS.
- Citation
- 2012 INSC 52
- Decided
- 25 January 2012
- Disposal
- Appeal(s) allowed
- Bench
- ALTAMAS KABIR
Holding
An independent legislator may support a party government and serve as a minister without joining the party; the Speaker’s disqualification order, issued in violation of Rules 6 and 7 and the rules of natural justice, is vitiated and set aside.
Summary
Five legislators were elected to the Karnataka Legislative Assembly in 2008 as independents. They supported the Bharatiya Janata Party (BJP) government and served as cabinet ministers, but withdrew their support in October 2010, prompting the Speaker to disqualify them under paragraph 2(2) of the Tenth Schedule for "defection". The High Court upheld the disqualification. The Supreme Court examined (i) whether an independent MLA who supports a party government and joins its ministry has, by that act, joined the party; (ii) whether the Speaker complied with the Karnataka Disqualification Rules, especially the requirement of a seven‑day period to reply to show‑cause notices and service of affidavits; (iii) whether the Speaker’s order is amenable to judicial review despite the finality clause; and (iv) whether the Speaker acted with bias or mala‑tides. The Court held that extending support and serving as a minister does not amount to joining the party, that the Speaker violated Rules 6 and 7 and the principles of natural justice, and that the order is subject to judicial review. Consequently, the disqualification orders were set aside.
Issues considered
- Whether an independent MLA who extends support to a party government and becomes a minister has joined that political party within the meaning of paragraph 2(2) of the Tenth Schedule.
- Whether the Speaker complied with the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, particularly the requirement of a seven‑day period to reply to show‑cause notices and service of affidavits.
- Whether the Speaker’s order is subject to judicial review notwithstanding the finality clause in paragraph 2 of the Tenth Schedule.
- Whether the Speaker acted with mala‑tides or bias in disposing of the disqualification applications.
Legislation cited
- Constitution of Indias. Article 136, s. Article 212, s. Article 226, s. Article 32, s. Article 75(3), s. Tenth Schedule – Paragraph 2(2)
- Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986s. Rule 3, s. Rule 4, s. Rule 6, s. Rule 7(3)
Subjects
defectionTenth Scheduledisqualification of legislatorsindependent MLApolitical party affiliationnatural justiceprocedural fairnessjudicial reviewKarnataka Legislative Assembly
Judgment
[2012] 2 S.C.R. 330
A D. SUDHAKAR & ORS.
v.
D.N. JEEVARAJU & ORS.
(Civil Appeal Nos.4510-4514 of 2011)
JANUARY 25, 2012.
B
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
KARNATAKA LEGISLATIVE ASSEMBLY
(DISQUALIFICATION OF MEMBERS ON GROUND OF
C DEFECTION) RULES, 1986:
rr:6 and 7 - Extension of support by appellants-
. Independents to BJP led Government and joining
Government as Cabinet Ministers ~ Withdrawal of support by
0 appellants - Speaker of Legislative Assembly disqualifying
them on the ground that they had joined BJP after their
elections as independent candidates - Held: Extension of
support by Independents to or joining the government as
Minister by independents would not by itself mean that the
E independents have joined the political party which formed the
government - There was no evidence to show that the
appellants were accepted and treated as members of the BJP
- The appellants while participating in the meetings of the
BJP Legislature Party were treated differently from members
of BJP and were considered to be only lending support to the
F Government led by 'Y' without losing their independent status
- Mere participation in the rallies or public meetings
organised by the BJP would not mean that the appellants had
joined the BJP - Even in the Registers maintained by the
Speaker under rr. 3 and 4, the appellants were shown as
G Independents - Thus, by extending support to 'Y' in the
formation of the BJP led government, the appellants cannot
be said to have sacrificed their independent identities - In
view of finding that the appellants had not joined any political
party, the order of disqualification passed by the Speaker was
H 330
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 331
against the Constitutional mandate in paragraph 2(2) of the A
Tenth Schedule of the Constitution - Constitution of India,
1950 - Tenth Schedule.
rr. 6 and l - Disqualification application against
appellants on the ground that having joined BJP led 8
government after their elections as independent candidates
they violated para 2(2) of the Tenth Schedule of the
Constitution - Show-Cause Notices issued by Speaker -
Validity of - Held: Evidence on record that Show-Cause
-Notices issued to appellants Were not in conformity with the C
provisions of rr. 6 and 7 as the appellants were not given 7
days' time to reply to Show-Cause Notices as contemplated
u/r. 7(3) of Rules - The Speaker wrongly relied upon the
affidavit filed by_ the State President of the BJP, although there
was nothing on record to support the a/legations which were
made therein - In fact, the said affidavit was not served on D
the appellants - Thus failure of the Speaker to cause service
of copies of the affidavit affirmed by the State President of the
BJP amounted to denial of natural justice to the appellants,
besides revealing a partisan attitude in the Speaker's
approach in disposing of the Disqualification Application - E
Speaker's order being in violation of rr. 6 and 7 and rules of
natural justice , such violation resulted in prejudice to
appellants - Even if rr. 6 and 7 were only directory and not
mandatory, violation of rr. 6 and 7 resulting in violation of rules
of natural justice vitiated the order of the Speaker and held F
liable to be set aside
CONSTITUTION OF /NOIA, 1950: Tenth Schedule -
Paragraph 2 - Held: The expression of finality in paragraph
2 of the Tenth Schedule to the Constitution did not bar the G
jurisdiction of the superior Courts under Articles 32, 226 and
. 136 of the Constitution to judicially review the order of the
Speaker - Under paragraph 2 of the Tenth Schedule to the
Constitution, the Speaker discharges quasi-judicial functions,
which makes an order passed by him in such capacity,
H
subject to judicial review.
332 SUPREME COURT REPORTS (2012] 2 S.C.R.
A The appellants were elected to the 13th Karnataka
Legislative Assembly as independent candidates in the
elections held in May 2008. The appellants declared their
support to 'Y' who was elected as the leader of the
Bharatiya Janata Party (B.J.P.) Legislature Party. On 30th
B May, 2008, 'Y' was sworn in as Chief Minister of Karnataka
along with the appellants as Cabinet Ministers and on
4.6.2008, he proved his majority in the House.
On 6th October, 2010, the appellants submitted
separate letters to the Governor of Karnataka expressing
C . their lack of confidence in the Government headed by 'Y'
and withdrawal of their support. The Governor on the
very same day wrote a letter to the Chief Minister
regarding the withdrawal of support of the appellants (5
independent MLAs) and 13 B.J.P. MLAs and requesting
D him to prove his majority on the Floor of the House on
or before 12th October, 2010 by 5.00 p.m. On the very
same day, 'Y' as the leader of the B.J.P. in the Legislative
Assembly, filed an application before the Speaker under
Rule 6 of the Karnataka Legislative Assembly
E (Disqualification of Members on Ground of Defection)
Rules, 1986, for a declaration that all the 13 MLAs elected
on B.J.P. tickets along with two other independent MLAs,
had incurred disqualification under the Tenth Schedule
to the Constitution. Immediately thereafter, on 7th and 8th
F October, 2010, the Speaker issued Show-Cause Notices
to the concerned MLAs and the appellants informing
them of the Disqualification Application filed by 'Y' and
also informing them that by withdrawing support to the
Government led by 'Y', they were disqualified from
G continuing as Members of the House. They and the B.J.P.
MLAs to whom show-cause notices were issued were
given time till 5.00 p.m. on 10th October, 2010, to submit
their objection, if any, to the said application. Another
disqualification application was filed by the voters from
H the constituencies represented by the appellants. After
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 333
concluding the hearing on 10th October, 2010 by 5.00 A
p.m., the Speaker passed detailed orders holding that the
appellants and the other MLAs stood disqualified as
Members of the House. The Full Bench of the High Court
upheld the said order of disqualification.
B
The question which arose for consideration in the
instant appeals was whether by extending support to 'Y'
in ·the formation of the BJP led government, the
appellants sacrificed their independent identities.
Allowing the appeals, the Court c
HELD: 1.1. There was no evidence to show that the
appellants had at any time joined the B.J.P. Even as
independents, the appellants could extend support to a
government formed by a political party and could 0
become a Minister in such government. Ther~ is no legal
bar against such exten.sion of support or joining the
government. Hence, such extension of support or joining
the government as Minister by an independent would not
by itself mean that the appellants have joined the political E
party which formed the government. There was also no
evidence to show that the appellants were accepted and
treated as rnembers of the B.J.P. by that political party.
The complainants before the Speaker had no grievance
about the appellants supporting the B.J.P. Government
and becoming Ministers in the government for more than F
two years. Only when the appellants withdrew support to
the government led by 'Y' and a Confidence Vote was
scheduled to be held, the issue of alleged disqualification
was raked up by the complainants. The appellants, even
while participating in the meetings of the B.J.P. G
legislature Party, were shown separately in a category
different from the other participants in such ·meetings,
which clearly indicated that the appellants, though
Ministers in the Government led by 'Y' were treated
differently from members of B.J.P. and were considered H
334 SUPREME COURT REPORTS (2012] 2 S.C'R.
A to be only lending support to the Government led by 'Y'
without losing their independent status. Mere
participation in the rallies or public meetings organised
by the B.J.P. would not mean that the appellants had
joined the B.J.P. The appellants who had been elected
B as Independents declared their support to 'Y' as Chief
Minister on 26th May, 2008. In the Notification dated 27th
May, 2008 constituting the Legislative Assembly, the
appellants were shown as Independents. In the statement
·submitted by the Leader of the B.J.P. Legislature Party,
C the names of appellants were not included in the list of
B.J.P. members. In the Registers maintained by the
Speaker under Rules 3 and 4 of the Disqualification
Rules, the appellants were shown as Independents and
at any time after they were sworn in as Ministers on 30th
May, 2008, no change was effected in the Registers. No
0
information was furnished either by the appellants or by
the B.J.P. Legislature Party to include the appellants
among B.J.P. members. Thus, as per the Records of the
Legislative Assembly, the appellants were not members
of B.J.P. when the order of disqualification was passed
E by the Speaker. [Paras 46-47] [359-B-H; 360-A-D]
1.2. By extending support to 'Y' in the formation of
the B.J.P. led government, the appellants cannot be said
to have sacrificed their independent identities. The fact
F that the said appellants also joined the Council of
Ministers would also not point to such an eventuality. It
is no doubt true that an independent legislator does not
always have to express his intention to join a party in
writing, but the mere extension of support to 'Y' and the
G decision to join his Cabinet were not sufficient to
conclude that the appellants had decided to join and/or
had actually joined the B.J.P. particularly on account of
the subsequent conduct in which they were treated
differently from the Members of the B.J.P. In view of
H finding that the appellants had not joined any political
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 335
party as alleged, the order of disqualification passed by A
the Speaker was against the Constitutional mandate in
para 2(2) of the Tenth Schedule of the Constitution. (Para
48] (360-E-H]
2. The Show-Cause Notices issued to the appellants
8
were not in conformity with the provisions of Rules 6 and
7 of the Karnataka Legislative Assembly (Disqualification
of Members on Ground of Defection) Rules, 1986,
inasmuch as, the appellants were not given 7 days' time
to reply to the Show-Cause Notices as contemplated
under Rule 7(3) of the said Rules. Without replying to the C
said objection raised, the Speaker avoided the issue by
stating that it was sufficient for attracting the provisions
of paragraph 2(2) of the Tenth Schedule to the
Constitution that the appellants had admitted that they
had withdrawn support to the Government led by 'Y'. The D
Speaker further recorded that the appellants had been
represented by counsel who had justified the withdrawal
of support to the Government led by 'Y'. Without giving
further details, the Speaker observed that the
Disqualification Rules h.ave been held to be directory and E
not mandatory. The Speaker wrongly relied upon the
affidavit filed by.the State President of the B.J.P., although
there was nothing on record to support the allegations
which had been made therein. In fact, the said affidavit
had not been served on the appellants. Since the State F
President of the B.J.P. was not a party to the
proceedings, the Speaker should have caused service of
copies of·the same on the appellants to meet the
allegations made therein. Coupled with the fact that the
Speaker had violated the provisions of Rule 7(3) of ~he G
Disqualification Rules in giving the appellants less than
7 days' time to reply to the Show-Cause Notices issued
to them, failure of the Speaker to cause service of copies
of the affidavit affirmed by the State President of the B.J.P.
amounted to denial of natural justice to the appellants, H
336 SUPREME COURT REPORTS [2012] 2 S.C.R.
A besides revealing a partisan attitude in the Speaker's
approach in disposing of the Disqualification Application
filed by 'Y'. If the Speaker had wanted to rely on the
statements made in the said affidavit, he should have
given the appellants an opportunity of questioning the
B deponent as to the truth of the statements made in his
affidavit. This conduct on the part of the Speaker also
indicated the hot haste with which he disposed of the
Disqualification Application, raising doubts as to the
bona fides of the action taken by him. The explanation
c given by the Speaker as to why the notices to show
cause had been issued to the appellants under Rule 7 of
the Disqualification Rules, giving the appellants only 3
days' time to respond to the same is not very convincing.
There was no compulsion on the Speaker to decide the
Disqualification Applications in such a great hurry, within
0
the time specified by the Governor for the holding of a
Vote of Confidence in the government headed by 'Y'.
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 to be held on 12th October, 2010 .
.E The Speaker's order was in violation of Rules 6 and 7 of
the Disqualification Rules and the rules of natural justice
and that such violation resulted in prejudice to the
appellants. Therefore, even if Rules 6 and 7 are only
directory and not mandatory, the violation of Rules 6 and
F 7 resulting in violation of the rules of natural justice has
vitiated the order of the Speaker and it is liable to be set
aside. [Para 50) [361-D-H; 362-A-H; 363-A-B]
3. Manner in which the Disqualification Applications
G were proceeded with and disposed of by the Speaker.
Apart from the faCt that the appellants were not given 7
days' time to file their reply to the Show-Cause Notices,
t~e High Court did not give serious consideration to the
fact that even service of the Show-Cause Notices on the
H appellants and the 13 MLAs belonging to the B.J.P. had
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 337
not been properly effected. Furthermore, the MLAs who A
were sought to be disqualified were also not served with
copies of th_e Affidavit filed by State President of the B.J.P.,
although the Speaker relied heavily on the contents
thereof in arriving at the conclusion that they stood
disqualified under paragraph 2(1 )(a)/2(2) of the Tenth B
Schedule to the Constitution. It is obvious from the
procedure adopted by the Speaker 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 13 8.J.P. MLAs stood disqualified prior c
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 detailed orders holding that the
appellants and the other MLAs stood disqualified as
Members of the House. The Vote of Confidence took
0
place on 11th October, 2010, in which the disqualified
Members could not participate, and in their absence 'Y!
wa~ able to prove his majority in the House. Unless it was
to ensure that the Trust Vote did not go against the Chief
Minister, there was hardly any reason for the Speaker to
have taken up the Disqualification Applications in such E
a great haste. [Para 51-53) [363-8; G-H; 364-A-B; E-H;
365-A]
4. On the question of justiciability of the Speaker's
order on account of the expression of finality in F
paragraph 2 of the Tenth Schedule to the Constitution, it
is now well-settled that such finality did not bar the
jurisdiction of the superior Courts under Articles 32, 226
and 136 of the Constitution to judicially review the order
of the Speaker. Under paragraph 2 of the Tenth Schedule G
to the Constitution, the Speaker discharges quasi-judicial
functions, which makes an order passed by him in such
capacity, subject to judicial review. [para 56) [365-E-F]
Rajendra Singh Rana & Ors. v. Swami Prasad Maurya H
338 SUPREME COURT REPORTS (2012] 2 S.C.R.
A & Ors. (2007) 4 SCC 270: 2007 (2) SCR 591; Dr.
Mahachandra Prasad Singh v. Chairman, Bihar Legislative
Council & Ors. (2004) 8 SCC 747: 2004 (5) Suppl. SCR 692;
Jagjit Singh v. State of Haryana (2006) 11 SCC 1: 2006 -(10)
Suppl. SCR 521; G. Vishwanath V. Speaker (1996) 3 SCC
B 353; Kihoto Hollohan v. Zachil/hu (1992) Supp.2 SCC 651:
1992 (1) SCR 686; Ravi S. Naik v. Union of India (1994)
Suppl.2 SCC 641: 1994 (1) SCR 754; Mayawati v.
Markandeya Chand (1998) 7 SCC 517: 1998 (2) Suppl. SCR
204; Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad
c (2005) 11 sec 314: 2005 (1) SCR 624; E.P. Royappa v.
State of Tamil Nadu (1974) 4 SCC 3: 1974 (2) SCR 348 -
referred to.
Case Law Reference: .
D 2007 (2) SCR 591 referred to Para 11,20
2004 (5) Suppl. SCR 692 referred to Para 11,29,32
2006 (10) Suppl. SCR 521 referred to Para 11,29,35
(1996) 3 sec 353 referred to Para 11,37
E
1992 (1) SCR 686 referred to Para 15, 20,31,
36,37
1994 (1) SCR 754 referred to Para 20,32,35
F 1998 (2) Suppl. SCR 204 referred to Para 20 '
2005 (1) SCR 624 referred to Para 33
1974 (2) SCR 348 referred to Para 33
G CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4510-4514 of 2011.
From the Judgment & Order dated 14.2.2011 of the High
Court of Karnataka at Bangalore in Writ Petition No. 32674-
32678 of 2010 (GM-RES).
H
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 339
WITH A
C.A. No. 4517-4521of2011.
P.P. Rao, K.K. Venugopal, Satpal Jain, P.S. Narsimha,
Dinesh Dwivedi, Jaideep Gupta, Soli J. Sorabji, Prashant
Kumar Mahalakshmi Pavani, Bimola Devi, Triveni Potekar, B
Ustav Sidhu, Apeksha Sharan, Filza Moonis, Amarjit Singh,
Bedi, Pooja Dhar, Gopal, Chandra Bhushan Prasad,
Bhupender Yadav, Ruchi Kohli, Saurabh Shamsherty, Anish
Kumar Gupta, M.B. Nargan, Deep Shikha Bharati, P.V.
Yogeshwaran, Vikramjeet Banerjee, M.B. Nargund, Prasanna c
Deshmukh, Rajeev Kr. Singh, Vikramjeet, Pritish Kapoor,
Jyotika Kalra for the appearing parties.
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. The operative portion of this D
judgment was pronounced on 13th May, 2011. The full text of
·the judgment is now being pronounced.
2. Civil Appeal Nos. 4510-4514 of 2011 arising out of
SLP(C) Nos. 5966-5970 of 2011 are filed by five Independent
Members of the Karnataka Legislative Assembly against a E
judgment of the Full Bench of the Karnataka High Court
upholding an order passed by the Speaker of the Karnataka
Legislative Assembly disqualifying them under Paragraph 2(2)
of Tenth Schedule of the Constitution of India on the ground that
they had joined the Bharatiya Janata Party (BJP) after their F
election to the Legislative Assembly as lndepe11dent
candidates. The said order of disqualification was passed by
the Speaker on Disqualification Application No.2 of 2010 filed
by Shri D.N. Jeevaraju, Chief Whip, BJP, Karnataka Legislative
Assembly and Shri C.T. Revi, Member of the Karnataka G
Legislative Assembly. Civil Appeal Nos. 4517-4521 of 2011
arising out of SLP(C) Nos. 5995-5999 of 2011 are filed by the
very same five Independent Members of the Karnataka
Legislative Assembly challenging the very same judgment of
the Full Bench of the Karnataka High Court upholding the order H
340 SUPREME COURT REPORTS [2012] 2 S.C.R.
A passed by the Speaker of the Karnataka Legislative Assembly
disqualifying them under Paragraph 2(2) of Tenth Schedule of
the Constitution of India. The said order was passed by the
Speaker on Disqualification Application Nos. 3 to 7 of 2010
filed by the voters from the constituencies represented by the
B five MLAs. Since the Speaker of the Karnataka Legislative
Assembly had passed a Common Order dated 10th October,
201 O on Disqualification Application Nos. 2 to 7 of 2010, the
impugned judgment of the Full Bench of the High Court also
was a Common Order passed in Writ Petition Nos. 32674-
C 32678/2010 and Writ Petition Nos. 33998-34002/2010.
Therefore the basic dispute in these Civil Appeals relates to
the validity of the order of disqualification passed by the
Speaker of the Karnataka Legislative Assembly against the
Appellants on Disqualification Application Nos. 2 to 7 of 2010.
D 3. The Appellants herein were elected to the Thirteenth
Karnataka Legislative Assembly as independent candidates in
the elections held in May, 2008. On 30th May, 2008, they were
sworn in as Ministers in the Cabinet of the government headed
by Shri B.S. Yeddyurappa, who was e!ected as the leader of
E the B.J.P. Legislature Party and was sworn in as the Chief
Minister of the State of Karnataka. On 6th October, 2010, the
Appellants submitted separate letters to the Governor of
Karnataka stating that having become disillusioned with the
functioning of the Government headed by Shri S.S.
F Yeddyurappa, in which there was widespread corruption and
nepotism, a situation had arisen where the governance of the
State could not be carried on in accordance with the provisions
of the Constitution of India. The Appellants also indicated that
Shri B.S. Yeddyurappa had, therefore, forfeited his right to
G continue as Chief Minister having lost the confidence of the
people and in the interest of the State and the people of
Karnataka, they were expressing their lack of confidence in the
Government headed by Shri B.S. Yeddyurappa and as such
they were withdrawing support to the Government headed by
H him as the Chief Minister. The Governor was also requested
D. SUDHAKAR & ORS. v. D.N. JEEVARAJIJ & ORS. 341
[ALTAMAS KABIR, J.] .
to intervene and institute the constitutional process as A
constitutional head of the State. On the same day, on the basis
of the letters written by the Appellants and others, the Governor
of Karnataka asked the Chief Minister to prove his majority on
the Floor of the House by 12th October, 2010.
4. On the very next day i.e. on 7th October, 2010, the B
Respondent Nos.1 and 3, namely, Shri D.N. Jeevaraju and Shri
C.T. Ravi, the Chief Whip and the General Secretary of the
Bharatiya Janata Party, respectively, filed Complaint No.2 of
2010 dated 6th October, 2010 with the Speaker of the
Karnataka Legislative Assembly under Rule 6 of the Karnataka C
Legislative Assembly (Disqualification of Members on Ground
of Defection) Rules, 1986, hereinafter referred to as the
"Disqualification Rules", to declare that the Appellants had
incurred disqualification on the ground of defection as
contained in the Tenth Schedule to the Constitution. On the D
basis of the said Disqualification Application, on 8th October,
201 O the Speaker issued Show-Cause Notices to the
Appellants informing them of the Disqualification Application
~
filed by the Chief Whip of the Bharatiya Janata Party and the
General Secretary thereof, indicating that despite having got E
elected as independent candidates, they became members of
the B.J.P. Legislature Party and also became Ministers and
thereby they violated Paragraph 2(2) of the Tenth Schedule to
the Constitution. The Appellants were informed that they had
acted in violation of paragraph 2(2) of the Tenth Schedule of F
the Constitution of India and it disqualified them from continuing
as Members of the Legislature. The Appellants were given time
till 5.00 p.m. on 10th October, 2010, to submit their objections,
if any, to the Disqualification Application either in writing or
presenting themselves in person, failing which it would be G
presumed that they had no explanation to offer and further action
would thereafter be taken ex-parte in accordance with law. In
the meanwhile on 9th October, 2010, Disqualification
Application Nos.3 to 7 were filed by some voters against the
Appellants and show-cause notices were issued by the
Speaker on the same day requiring the Appellants to submit H
342 SUPREME COURT REPORTS [2012] 2 S.C.R.
A their explanation before 5.00 p.m. on 10th October, 2010.
5. Having come to know about the show-cause notices
from the media, the Appellants through an Advocate submitted
a letter to the Speaker on 9th October, 2010, indicating that
they had come to learn from the media that the show-cause
B notices had been issued to them as per the orders of the
Speaker. In the said letter it was categorically stated that the
procedural requirements of Rule 7 of the Disqualification Rules
had not been complied with as copies of the Petition and
annexures were not supplied to the Appellants and a period of
C 7 days to submit the reply was not given to them. A specific
request was made to the Speaker to supply the said documents
and to grant a period of 7 days to submit the reply. Though the
documents were not supplied, the Appellants though their
Advocate submitted an interim reply on 10th October, 2010,
D during the proceedings before the Speaker. It was specifically
stated in the reply that it was submitted as an interim reply
without prejudice to and by way of abundant caution and
reserving the right of the Appellants to submit exhaustive reply.
6.The Appellants further submitted in the interim reply that
E 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 along with the show-cause notice. The
notice which was pasted on the doors of the MLA quarters in
F the MLA hostels at Bangalore, which were locked and used by
the legislators only when the House was in session, called upon
the Appellants to reply to the notice by 5.00 p.m. on 10th
October, 2010, which was in complete violation of Rule 7 of the
above-mentioned Rules which laid down a mandatory
G ·. procedure for dealing with the petition seeking disqualification
--. under the Rules. In fact, even the time to reply to the notices
was reduced to the severe prejudice to the Appellants. It was
pointed out that Rule 7 requires that the Appellants should have
been given 7 days' time to reply or within such further period
H as the Speaker may for sufficient cause allow. It was contended
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 343
[ALTAMAS KABIR, J.]
that under the said Rule the Speaker could only extend the time A
by a further period of 7 days, but could not curtail the same from
7 days to 3 days. It was the categorical case of the Appellants
that the minimum notice period of 7 days was a mandatory
requirement of the basic principles of natural justice in order
to enable a MLA to effectively reply to the Show-Cause Notice B
issued to him seeking his disqualification from the Legislative
Assembly. It was mentioned in the reply to the Show-Cause
Notice that issuance of such Show-Cause Notice within a
truncated period was an abuse and misuse of the constitutional
provisions for the purpose of achieving the unconstitutional c
object of disqualifying sufficient number of Members of the
Assembly from the membership of the House in order to prevent
them from participating in the Vote of Trust scheduled to be
taken by Shri B.S. Yeddiyurappa on the Floor of the House at
11 a.m. on 11th October, 2010. It was contended that the 0
Show-Cause Notice was ex-facie unconstitutional and illegal,
besides being motivated and malafide and devoid of
jurisdiction.
7. In addition to the above, it was also sought to be
explained that it was not the intention of the Appellants to E
withdraw support to the government formed by the B.J.P., but
only to the Government headed by Shri Yeddiyurappa. It was
contended that withdrawal of support from the Government
headed by Shri B.S. Yedd.iyurappa as the Chief Minister of
Karnataka, did not fall within the scope and purview of the Tenth F
Schedule to the Constitution of India. In the reply, the Appellants
categorically denied the allegation that they had joined the
Bharatiya Janata Party. It was asserted that they remained
independents and they had not joined any political party
including Bharatiya Janata Party. It was claimed that they were G
always treated as 'independents only. It was urged that the
conduct of the Appellants did not fall within the meaning of
"defection" or within the scope of para 2(2) of the Tenth
Schedule of Constitution of India or the Scheme and object
thereof. However, on 10th October, 2010 itself, the Speaker H
344 SUPREME COURT REPORTS [2012] 2 S.C.R.
A passed an order "disqualifying the Appellants from the post of
MLA for violation of Para 2 of the Tenth Schedule of the
Constitution of India with immediate effect." The said
disqualification is the subject matter of this litigation.
8. At this juncture, it is necessary to take note of the fact
8 that 13 MLAs, belonging to the Bharatiya Janata Party, had also
withdrawn their support to the Government led by Shri B.S.
Yeddyurappa and had made the same request to the Governor,
as had been made by the Appellants herein, for initiating the
constitutional process in the wake of their withdrawal of support
C to the Government led by Shri B.S. Yeddyurappa. This had
resulted in the filing of Disqualification Application No.1 by Shri
Yeddyurappa against the said MLAs and ultimately in their
disqualification from the membership of the House. The Civil
Appeals challenging their disqualification has been heard by
D this Court and judgment has been reserved. Learned counsel
for the Appellants submits that the same issues as were
involved in the earlier cases are also involved in the present
case, except that while in the case involving the 13 B.J.P.
MLAs, the allegation made against them was that they had
E voluntarily left the Bharatiya Janata Party, in the present case
the allegation against the Appellants is that having got elected
as independent candidates they had joined the Bharatiya
Janata Party by extending support to Shri B.S. Yeddyurappa
and by joining his Ministry as Cabinet Ministers. The same
F grievances as were raised by the i 1 B.J.P. MLAs who were
disqualified have been raised by the Appellants herein. It has
been reiterated on behalf of the Appellants that the very basic
requirements of natural justice and administrative fair play had
been denied to them. On the other hand, not only were they not
G served with notice of the disqualification proceedings, but they
were not even given sufficient time to deal with the allegations
made against them. According to the Appellants, the
proceedings before the Speaker, who had acted in hot haste
in disqualifying the Appellants before the Vote of Confidence
H was to be taken by Shri B.S. Yeddyurappa, had been vitiated
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 345
[ALTAMAS KABIR, J.]
as a result of such conduct on the part of the Speaker. A
9. Appearing in support of the Civil Appeals arising out of
SLP(C) Nos.5966-5970 of 2011, Mr. P.P. Rao, learned Senior
Advocate, contended that by not allowing the Appellants
sufficient time to even reply to the Show-Cause Notices issued
to them, in violation of Rule 7 of the Karnataka Legislative 8
Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986, the Appellants had been deprived of
a valuable opportunity to meet the allegations, although their
membership of the House depended on a decision on the said
allegations and their response thereto. Mr. Rao also submitted C
that apart from being denied a proper hearing in terms of the
statutory rules, the High Court had erroneously interpreted the
provisions of paragraph 2(2) of the Tenth Schedule to the
Constitution of India in holding that the Appellants had joined
the Bharatiya Janata Party, as alleged by the complainants. Mr. D
Rao submitted that it had been alleged that the Appellants had
joined the Bharatiya Janata Party either when prior to the
formation of the Ministry they had given individual letters of
support to Shri Yeddyurappa as the leader of the B.J.P.
Legislature Party, or when they had joined the Cabinet as E
Ministers in the B.J.P. Government led by Shri B.S.
Yeddyurappa.
10. Mr. Rao then urged that the High Court had also
misconstrued the concept of whips b~ing issued to ensure
compliance by Members of a particular political party, who were F
also Members of the Legislature Party of the said political party.
Mr. Rao urged that such whip had been issued to the
Appellants, who as Members of the Government may have
acted in terms thereof, but that did not mean that the Appellants
had formally joined the Bharatiya Janata Party, as had been G
concluded by the Speaker.
11. Mr. Rao contended that neither the Speaker nor the
High Court had addressed these issues correctly in relation to
the evidence available before him, as had been observed by H
346 SUPREME COURT REPORTS [2012] 2 S.C.R.
A the Constitution Bench in Rajendra Singh Rana & Ors. vs,
Swami Prasad Maurya & Ors. [(2007) 4 SCC 270]. Mr. Rao
submitted that events subsequent to the date on which an
independent Member joins a political party is not material for
a decision as to whether the particular Member had, in fact,
B joined the political party or not. Mr. Rao also urged that neither
the decision in the case of Dr. Mahachandra Prasad Singh
Vs. Chairman, Bihar Legislative Council & Ors. [(2004) 8 SCC
747), nor the decision in the case of Jagjit Singh Vs. State of
Haryana [(2006) 11 SCC 1], had any application to the facts
c of this case, since in the said cases what was sought to be
explained by this Court is that the Speaker could not give a
finding regarding disqualification on the basis of conduct
subsequent to the date on which a M.L.A. becomes disqualified
from being a Member of the House. It was also observed that
when the view taken by the Tribunal is a reasonable one, the
0
Court would be slow to strike down the view regarding
disqualification on the ground that another view was better. Mr.
Rao urged that in the instant case, reliance by the Speaker on
the decision of this Court in the case of G. Vishwanath Vs.
Speaker [(1996) 3 sec 353), is not of much assistance to the
E Respondents, because even from the conduct of the
Appellants, it could.not be said that they had joined the B.J.P.
Legislature Party. •Mr. Rao urged that the fact that the
Appellants had attended meetings of the B.J.P. Legislature
Party was of little he1p to the Respondents since in the
F Attendance Register of the meetings they had been shown as
independent Members and a separate group under the heading
"Independent Co-Members".
12. Mr. Rao urged that the Appellants had always been
G treated as a separate group from the B.J.P. Legislature Party
and it is only in connection with this case that the Respondents
had attempted to show that the Appellants had joined the
Bharatiya Janata Party and by withdrawing support from the
B.J.P. Government led by Shri B.S. Yeddyurappa, they had
H incurred disqualification under paragraph 2(2) of the Tenth
Schedule to the Constitution.
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 347
[ALTAMAS KABIR, J.]
13. Mr. Rao also contended that the Whip issued by the A
Chief Whip of the B.J.P. Legislature Party did not form part of
the documents produced before the Speaker, and, in any event,
no Whip was served on the Appellants nor had they signed such
a Whip. Therefore, the allegation that they had acted in
accordance with such Whip did not and could not arise and the B
finding of the Speaker to the contrary, was perverse. Mr. Rao
added that the Whips which have been subsequently brought
on record in W.P.(C)Nos.32674-32678 of 2010, reveal that
when the Whips were addressed to the ruling party Members,
including the Ministers, they were addressed as Members of c
the Party, whereas the remaining five Whips were addressed
to the Appellants as Hon'ble Ministers.
14. Mr. Rao also submitted that in the Whips issued to the
Appellants nowhere had it been indicated that they had joined
the Bharatiya Janata Party. Mr. Rao urged that the positive case D
made out by the Respondents in the application for
. disqualification was that the Appellants had joined the B.J.P.
before they were sworn in as Ministers of Cabinet rank on 30th
May, 2008, and not that they joined the B.J.P. later before the
issuance of Whips on 29th December, 2009. Mr. Rao repeated E
his earlier contention that the question before the Speaker for
consideration was whether the Appellants had joined the B.J.P.
before their being sworn in on 30th May, 2008, or not. It was
submitted that it was beyond the Speaker's jurisdiction to
decide any matter other than what had been indicated in the F
Disqualification Application.
15. On the question of scope of judicial review of the
Speaker's order, Mr. Rao submitted that although reliance had
been placed on paragraph 109 of the decision of this Court in
Kihoto Hollohan Vs. Zachillhu [(1992) Supp.2 SCC 651], G
wherein, it was held that judicial review of the order of the
Speaker should be confined to jurisdictional errors only, the
observations contained in paragraph 103 of the judgment had
not been noticed. Mr. Rao submitted that in the said paragraph,
it had been clarified that the finality clause in paragraph 6 of H
348 SUPREME COURT REPORTS [2012] 2 S.C.R.
A.the Tenth Schedule to the Constitution does not completely
exclude the jurisdiction of the Courts under Articles 136, 226
and 227 of the Constitution, though, it does have the effect of
limiting the scope of the Courts' jurisdiction under the said
provision. It was further observed that the principle applied by
8 the courts is that inspite of a finality clause it is always open to
the High Court or the Supreme Court to examine whether the
action of the authority is ultra vires the powers conferred on it
or whettier the power so exercised was in contravention of a
mandatory provision :of law. Mr. Rao urged that the judgment
C in Kihoto Ho/lohan's case (supra) could not be read
piecemeal, but would have to be read as a whole.
16. Mr. Rao submitted that in the instant case, the
Speaker's order had been made in violation of paragraph 2(2)
of the Tenth Schedule by erroneously equating the expression
o "Political Party" with the Government of the State. Mr. Rao also
submitted that the order of the Speaker had been passed in
disregard of the relevant statutory Rules, namely, the Karnataka
Disqualification Rules and without reconsidering the materials
available with the Speaker under the aforesaid Rules.
E 17. Mr. Rao then urged that the Speaker has also erred
in entertaining the· applications of voters in violation of Rule 6
of the aforesaid Rules and also Rule 7(3) which require the
Speaker to give a minimum of 7 days' time to reply to the show-
cause notice issued by him. Mr. Rao submitted that the order
F was also liable to be quashed on the ground of violation of the
principles of natural justice by not giving the Appellants a
reasonable opportunity to present their case effectively.
18. Mr. Rao lastly submitted that the order of the Speaker
was perverse and was tailored to suit the Government led by
G Stiri B.S. Yeddyurappa in the Vote of Confidence that was to
follow the day after the decision had been pronounced by the
s!>eaker. Mr. Rao also repeated his earlier submissions that
the' Speaker had proceeded in the matter in great haste to meet
the aforesaid deadline.
H
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 349
[ALTAMAS KABIR, J.]
19. Mr. Rao submitted that the Speaker had acted in a mala A
fide manner in order to bail out the Chief Minister and to save
his own Chair by not referring the case to the Committee of
Privileges having regard to the allegations of bias made by the
Appellants in their replies to the Show-Cause Notices and
deciding the case himself, while continuing to be a Member of B
the Bharatiya Janata Party while occupying the Chair of the
Speaker.
20. On the question as to whether the Disqualification Rules
were mandatory or directory, Mr. Rao submitted that the
decision in Ravi S. Naik Vs. Union of India [(1994) Suppl.2 C
sec 641] was per incuriam as it had not adverted to the
decision of the Constitution Bench in Kihoto Hollohan's case
(supra), wherein it had been held that the Speaker's decision
while exercising power under paragraph 6(1) of the Tenth
Schedule to the Constitution did not enjoy the immunity under D
Articles 122 and 212 from judicial scrutiny as had also been
pointed out by K. T. Thomas, J. in Mayawati Vs. Markandeya
Chand [(1998) 7 sec 517]. Mr. Rao urged that in any event,
the view expressed in Ravi S. Naik's case (supra) was no
longer good law after the subsequent Constitution Bench E
decision in Rajendra Singh Rana's case (supra), wherein it has
been laid down that the Speaker was expected to follow the
Rules framed under the Tenth Schedule which had been
approved by the Legislative Assembly. Mr. Rao urged that the
Speaker had all throughout treated th.e Appellants as F
independent Members as would be evident from the debates
of the Assembly.
21. Mr. Rao then submitted that the circumstances leading
to the disqualification of the Appellants was quite obviously
.stage-managed in order to help the Chief Minister to survive the G
\Confidence Vote on 11th October, 2010, by any means and the
same will be evident from the affidavits filed later by the voters
who had filed Disqualification Petitions, which exposed the
involvement of the Speaker and his Office as well as the Political
Advisor to the Chief Minister in inducing them to sign such H
350 SUPREME COURT REPORTS [2012] 2 S.C.R.
A applications. Mr. Rao submitted that the decision of the
Speaker having been taken in violation of paragraph 2(2) of
the Tenth Schedule, Rules 3, 4, 5, 6 and 7(3) of the Karnataka
Legislative Assembly (Disqualification of Members on Ground
of Defection) Rules, 1986, and the principles of natural justice,
B was perverse and mala fide and was not sustainable either on
facts or law.
22. Appearing for the Appellants in the Civil Appeals
arising out of SLP (C) Nos.5995-5999 of 2011, Mr. K.K.
Venugopal, learned Senior Advocate, reiterated the
C submissions made by Mr. P.P. Rao in the other set of appeals.
Mr. Venugopal submitted that merely because the Appellants
had joined the Council of Ministers in the Yeddyurappa
Government, it could not be contended that they had joined the
Bharatiya Janata Party. Mr. Venugopal submitted that in the
D past there had been several instances where Members elected
as independents to the Lok Sabha had served in the
Governments formed by Political Parties but had retained their
status as independent Members of the House. Mr. Venugopal
referred to the t\No instances when Mrs. Maneka Gandhi was
E elected to the Lok Sabha as an independent Member from
Pilibhit in Uttar Pradesh and had served as Minister at the
Centre in the Governments led by the Bharatiya Janata Party.
Similarly, Shri Biswanath Das, Shri S.F. Khonglam and Shri
Madhu Koda, who were all independent legislators, became
F Chief Ministers of the States of Orissa, Meghalaya and
Jharkhand.
. 23. Mr. Venugopal submitted that if by joining the
Yeddyurappa Ministry, the Appellants had shed their
independent status and had become Members of the· Bharatiya
G Janata Party, then they stood disqualified from the membership
of the House at that stage itself. Such a stand had not, however,
been taken by the complainants or even the opposition parties,
till the Governor directed a Vote of Confidence to be held on
12.10.2010. Mr. Venugopal submitted that the said position
H . would make it very clear that the Appellants continued to enjoy
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 351
[ALTAMAS KABIR, J.]
an independent status, although, they had extended their A
support to the B.J.P. Government led by Shri Yeddyurappa and
had also joined the Ministry as Cabinet Ministers.
24. Mr. Venugopal also repeated Mr. Rao's submissions
that even at the B.J.P. Legislature Party meetings the
8
independent status of the Appellants had been duly recognized
and in the said meetings they had been shown not as a part of
the Bharatiya Janata Party, but as a separate entity with
separate serial numbers. It was further urged that it could not
also be presumed that by joining the rallies of the Bhar.::'.1ya
Janata Party, the Appellants had joined the Party and had, C
therefore, laid themselves open to disqualification as Memberi:;
of the House under the provisions of the paragraph 2(2) of the
Tenth Schedule to the Constitution.
25. Mr. Venugopal lastly submitted that the Appellants had 0
denied receipt of the Whips said to have been issued to them
by the Chief Whip of the B.J.P. Legislature Party or having
acted in accordance therewith. Mr. Venugopal submitted that
by no stretch of imagination could it be assumed that the
Appellants by their aforesaid acts had joined the Bharatiya E
Janata Party or had even intended to do so. Mr. Venugopal
submitted that the impugned order of the Speaker was
motivated and made with the sole intention of disqualifying them
from participating in the Vote of Confidence which was to be
held on 11th October, 2010.
F
26. Appearing for the Respondent No.1 Shri D.N.
Jeevaraju and others in the Civil Appeals arising out of the
Special Leave Petitions filed by Shri D. Sudhakar and others,
Mr. Satpal Jain, learned Senior Advocate, submitted that one
single incident cannot always be a factor to determine as to G
whether an independent Member had joined a Political Party
or not and that there was no bar in taking cognizance of
subsequent events in order to arrive at such a conclusion. It was
submitted that even if it be held that the Appellants tiadjoined
the Bharatiya Janata Party by joining the Ministry, the Speaker H
352 SUPREME COURT REPORTS [2012] 2 S.C.R.
A was always entitled to consider the subsequent conduct of the
Appellants for purposes of corroboration of the earlier facts. Mr.
Jain submitted that paragraph 2(2) of the Tenth Schedule to the
Constitution makes it absolutely clear that on the joining of a
Political Party an independent stands disqualified, but a
B declaration to that effect could be made at a later stage.
'
27. Mr. Jain reiterated the stand which had been taken on
behalf of the Respondent No.1 before the Speaker that the
Whip which had been issued by the Chief Whip was also meant
for the Appellants and had been served on them and they had
C also acted according to the said Whip. It was urged that this
was not a case of support being rendered to the B.J.P.
Government led by Shri Yeddyurappa, either from inside or
from the outside, but this was a case ·where the Appellants had
wilfully shed their independent status and had become Members
D of the ruling Bharatiya Janata Party and by such conduct they
stood disqualified as Members of the House by virtue of
paragraph 2(2) of the Tenth Schedule to the Constitution.
28. On the allegation with regard to the mala tides, Mr. Jain
submitted that the same would have to be considered in the
E light of the circumstances in which the order of the Speaker
came to be passed. It was submitted that once the question of
. '
disqualification of the Appellants was brought to his notice
before the Vote of Rsnfidence' was to take place, it became
the constitutional dutY:of'the Speaker to decide the same before
F the Vote of Confiden.Qe was taken in order to ensure that
persons who were not'i!ligible to vote, did not participate in the
Vote of Confidence to be taken on 11th October, 2010.
29. Mr. Jain referred to and relied on the decisions of this
G Court in Dr. Mahachandra Prasad Singh's case (supra)and
Jagjit Singh's case (supra) in support of his contention that in
order to incur disqualification under paragraph 2(2) of the Tenth
Schedule to the Constitution, it was not always necessary that
a written communication would have to be made to the Party
H in that regard.
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 353
[ALTAMAS KABIR, J.]
30. Mr. Jain also contended that in the translated copy of A
the Whip which had been issued by the Chief Whip of the B.J.P.
Legislature Party, the very vital words describing the Appellants
as Legislators of the Ruling Party had been .omitted. Mr. Jain
submitted that this fact had not been noticed by the High Court,
particularly, since the Whip was a single-line Whip. Mr. Jain B
submitted that the Whip had been issued to all Members of the
Bharatiya Janata Party and its Ministers in the same fashion
as it had been issued to the Appellants. Mr. Jain submitted that
the order of the Speaker disqualifying the Appellants from the
Membership of the House did not call for any interference and c
the Appeals were liable to be dismissed.
31. While dealing with the submissions of Mr. P.P. Rao
and Mr. Venugopal, Mr. Soli J. Sorabjee, learned Senior
advocate, who appeared for Shri C.T. Ravi, the Respondent
No.3 in the Civil Appeals arising out of the Special Leave D
Petitions filed by Shri D. Sudhakar and others, submitted that
the provisions of paragraph 6 of the Tenth Schedule to the
Constitution made it quite clear that the decision relating to
disqualification on ground of defection was final and,
accordingly, the scope of judicial review available against the E
order of the Speaker in exercise of powers under the Tenth
Schedule to the Constitution was extremely limited, as had been
indicated in Kihoto 'Hollohan's case (supra), and was confined
and limited to infirmities based on (a) violation of constitutional
mandate; (b) mala tides; (c) non-compliance with the rules of F ·
natural justice; and (d) perversity. Mr. Sorabjee submitted that
the Speaker's order impugned in the Appeals did not suffer from
any of the above-mentioned infirmities and hence no judicial
review was available to the Appellants in the present case.
32. Mr. Sorabjee also relied heavily on the decision of this G
Court in Ravi S. Naik's case (supra) and also in Dr.
Mahachandra Prasad Singh's case (supra), where the
Disqualification Rules framed by the Speaker in exercise of the
power conferred under paragraph 8 of the Tenth Schedule to
the Constitution, was held to enjoy a status which was H
354 SUPREME COURT REPORTS [2012] 2 S.C.R.
A subordinate to the Constitution and could not be equated with
the provisions of the Constitution. They could not, therefore, be
regarded as constitutional mandates and any violation of the
Disqualification Rules did not also afford a ground for judicial
review. Mr. Sorabjee submitted that the aforesaid questions
a were no longer res integra and had been authoritatively settled
by the aforesaid decision of this Court. ·
33. On the question of mala tides, Mr. Sorabjee submitted
that as had been observed by this Court in Sangramsinh P.
Gaekwad Vs. Shantadevi P. Gaekwad [(2005) 11 SCC 314],
C a series of repetitive and almost abusive allegations against
the Speaker was not sufficient to support a charge of mala tides,
especially when it is leveled against a high functionary such as
the Speaker. Mr. Sorabjee submitted that the law, as was also
stated by this Court in E.P. Royappa Vs. State of Tamil Nadu
D [(1974) 4 SCC 3], is clear that the burden of establishing mala
tides is very heavily on the person who alleges it, since the
allegations of mala tides are often more easily made than
proved. Mr. Sorabjee submitted that the Court could not and
should not uphold a plea of mala tides on the basis of mere
E probabilities.
34. On the' question of undue haste, which was one of the
pillars of the submissions relating to mala tides, Mr. Sorabjee
submitted that the Speaker was bound to a schedule which had
been set by the Governor for holding the Vote of Confidence
F and he, therefore, had no option but to reduce the time for the
Appellants to show cause as to why they should not be
disqualified from the membership of the House to a period
which was less than 7 days, as was stipulated under Rule 7 of
the Disqualification Rules.
G
35. On the question of natural justice, Mr. Sorabjee once
again referred to the observations made by this Court in Ravi
S. Naik's case (supra), wherein it was observed that the rules
of natural justice were not immutable but flexible. Mr. Sorabjee
H submitted that the same view had been reiterated in Jagjit
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 355
[ALTAMAS KABIR, J.]
Singh's case (supra) also. Mr. Sorabjee contended that even A
if a different view was possible from the view which had been
taken by the Speaker, unless the decision of the Speaker was
shown to be wholly perverse or contrary to the provisions of the
Constitution, the same ought not to be discarded and
substituted for a different view which this Court may also B
consider to be possible.
36. Mr. Sorabjee concluded on the note that the essence
of being an independent lies in his acting according to the
dictates of his independent conscience, untrammeled by the
dictates of the Whip of any political party. Accordingly, an C
independent could support a proposal of the Government or
oppose it, but that would be according to his independent
conscience and if such an independent member joins as a
Minister in the Government formed by a political party, his
independence is compromised and as indicated in Kihoto D
Hol/ohan's case (supra), it was for him to resign his
membership of the House and go back to the Electorate for a
fresh mandate.
37. While adopting Mr. Satpal Jain's and Mr. Sorabjee's
E
submissions, Mr. Jaideep Gupta, learned Senior Advocate,
who appeared for the Respondent Nos.4 and 5 in the Civil
Appeals. arising out of the Special Leave Petitions filed by Sri
Shivraj S. Thangadgi and others, submitted that the said
Respondents as voters of the Constituency which had elected
the Appellants as independents were aggrieved by the fact that F
the Appellants had acted in a manner which was contradictory
to the object underlining the provisions in the Tenth Schedule
to the Constitution, namely, to curb the evil of political defections
motivated by lure of office or other similar considerations which
endanger the foundation of our democracy. Mr. Gupta also G
relied on the decisions of this Court in Kihoto Hollohan's case
(supra) and G. Vishwanath's case (supra). Although, the locus
standi of the Respondent Nos.4 and 5 to maintain a complaint
under the Disqualification Rules was strongly disputed in the
absence of any mention of a voter having a right to file a H
356 SUPREME COURT REPORTS [2012] 2 S.C.R.
A complaint, Mr. Gupta submitted that even if no rules had been
framed by the Speaker under paragraph 8 of the Tenth
Schedule to the Constitution, the Speaker was still vested with
the authority to take action against an independent member on
information received by him. Mr. Gupta also relied on the
B decisions cited by Mr. Satpal Jain and Mr. Soli J. Sorabjee in
support of his aforesaid contention and submitted that the order
of the Speaker impugned in these appeals did not call for any
interference and the Appeals were, therefore, liable to be
dismissed.
C 38. Appearing for Shri B.S. Yeddyurappa in these appeals,
Mr. P.S. Narsimha, learned Senior Advocate, urged that the
allegations made against Shri Yeddyurappa of colluding with
the Speaker to obtain an order of disqualification of the
Appellants before the date scheduled for the Vote of
D Confidence in the House, was wholly unjustified and uncalled
for. Mr. Narsimha submitted that Shri Yeddyurappa was duty
bound to inform the Speaker of any incident or incidents that
may have.occurred after the Members had been elected to the
House, which would disqualify them from the membership
E thereof and Shri Yeddyurappa had, therefore, acted as part of
the duties of his office in informing the Speaker by way of the
Oj_squalification Application regarding the conduct of the
. Appellants as well as some of the other MLAs belonging to the
Bharatiya Janata Party.
F 39. Referring to the concept of collective responsibility of
the Council of Ministers as envisaged in Article 75 ofthe
Gonstitution, Mr. Narsimha submitted that as had been
commented upon in M.P. Jain's "Indian Constitutional Law",
(Sixth Edition), "a notable principle underlying the working of
G ' Parliamentary Government is the principle of collective
responsibility which represents ministerial accountability to the
legislature" and that Article 75(3) lays down that the Council of
Ministers shall be collectively responsible to the Lok Sabha: 'Mr.
Narsimha urged that the principle of collective responsibility
H ensured the unity of the Members of the Government and also
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 357
[ALTAMAS KABIR, J.]
made sure that each individual Minister took responsibility in A
regard to Cabinet decisions and to take action to implement
the same.
40. Mr. Narsimha submitted that as soon as the Appellants
joined the Ministry led by Shri Yeddyurappa as Ministers, they
divested themselves of their independent character and 8
became collectively responsible to the other Members of the
Cabinet and the Members of the State Assembly for
governance of the State.
41. Most of the grounds taken in the present set of appeals c
were also taken· in the Civil Appeals arising out of Special
Leave Petition Nos.33123-33155 of 2010 and other connected
appeals filed by Balachandra L. Jarkiholi and others. As
indicated hereinbefore the only point of difference between the
two sets of appeals is that while in the earlier set of appeals
0
· the issue involved was whether the Appellants had voluntarily
given up their membership of the Bharatiya Janata Party so as
to attract the disqualification provisions contained in paragraph
2(a) of the Tenth Schedule to the Constitution, in the present
set of appeals the question is whether the Appellants having
E
been elected as independent members of the Karnataka
Assembly had incurred disqualification from the membership
of the House in terms of paragraph 2(2) of the Tenth Schedule
of the Constitution by joining the Bharatiya Janata Party through
their acts of extending support to a government led by Shri B.S.
Yeddyurappa and becoming Ministers in the said government. F
42. From the facts as disclosed during the hearing and the
materials on record, it is the admitteq case of both the parties
that the Appellants had been elected to the 13th Karnataka
Legislative Assembly as independent candidates in the G
elections held in May 2008. It is also not disputed that
immediately after the declaration of the results of the Assembly
Elections on 25.5.2008, Shri B. S. Yeddyurappa secured letters
of support from the Appellants herein on 26th May, 2008, and
on the same day he addressed a letter to the Governor claiming H
majority
. ··' . .
support of the
,
House which included the support of the
, . , ..
358 SUPREME COURT REPORTS [2012) 2 S.C.R.
A Appellants herein, with a request to the Governor to appoint him
as Chief Minister of the State. It is also undisputed that on
30.5.2008 Shri Yeddyurappa was sworn in as Chief Minister
of Karnataka along with the Appellants as Cabinet Ministers
and on 4.6.2008, he proved his majority in the House.
B 43. The question with which we are concerned is whether
by their said acts, or acts subsequent thereto, the Appellants
could be said to have joined the Bharatiya Janata Party.
44. After having been sworn in as Ministers in the
c Government led by Shri Yeddyurappa, the Appellants
undisputedly attended meetings of the B.J.P. Legislature Party
and had also participated in rallies and public meetings which
had been conducted by the said party. The Speaker, as well
as the Full Bench of the High Court, came to the conclusion that
by offering letters of support to Shri Yeddyurappa and joining
0
his Council of Ministers, the Appellants had shed their
independent status and had joined the Bharatiya Janata Party,
and the same was subsequently corroborated by their further
action in attending the meetings of the B.J. P. Legislature Party
E and participating in its programmes. Both the Speaker and the
High Court, therefore, held that the Appellants had become
disqualified from the Membership of the House under
paragraph 2(2) of the Tenth Schedule of the Constitution.
45. In the absence of any written and/or documentary proof
F of the Appellants having joined the Bharatiya Janata Party, both
the Speaker and the High Court relied on the decision of this
Court in Ravi Naik's case (supra), which was subsequently
followed in Dr. Mahachandra Prasad Singh's case (supra) and
Jagjit Singh's case (supra), in which it was held that in order
G to incur disqualification under paragraph 2(2) of the Tenth
Schedule to the Constitution it was not always necessary that
a written communication would have to be made to the political
party in that regard. As far as issuance of Whip by the Chief
Whip of the Bharatiya Janata Party is concerned, such an act
H Yiould not ipso facto be taken as conclusive proof that the
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 359
[ALTAMAS KABIR, J.]
,'
Appellants had joined Bharatiya Janata Party. Furthermore, in A
the face of denial by the Appellants of hiving been served with
the Whip, there is nothing on record to prove that they were
actually received by the Appellants.
46. The decisions referred to hereinabove have settled
certain principles of law relating to interpretation of the B
provisions of the Tenth Schedule to the Constitution, but the said
principles have to be applied in each case in its own set of
facts. In the facts of this case, there is no material or evidence
to show that the Appellants had at any time joined the B.J.P.
Even as independents, the Appellants could extend support to C
a government formed by a political party and could become a
Minister in such government. There is no legal bar against such
extension of support or joining the government. Hence, such
extension of support or joining the government as Minister by
an independent does not by itself mean that he has joined the D
political party which formed the government. There is also no
evidence to show that the Appellants were accepted and
treated as members of the B.J.P. by that political party. It is to
be no~ed that the Petitioners before the Speaker had no
grievance about the Appellants supporting the B.J.P. E
Government and becoming Minis(ers in the government, for
more than two years. Only when the Appellants withdrew
support to the government led by Shri Yeddyurappa and a
Confidence Vote was scheduled to be held, the Petitioners
raked up the issue of alleged disqualification. The Appellants, F
even while participating in the meetings of the B.J.P.
Legislature Party, were shown separately in a category different
from the other participants in such meetings, which clearly
indicates that the Appellants, though Ministers in the
Government led by Shri Yeddyurappa, were treated differently G
from members of B.J.P. and were considered to be only
lending support to the Government led by Shri Yeddyurappa,
without losing their independent status. Mere participation in
the rallies or public meetings organised by the B.J.P. cannot
lead to the conclusion that the Appellants had joined the B.J.P.
H
360 SUPREME COURT REPORTS [2012] 2 S.C.R.
A 47. The results of the election were declared on 25th May,
2008. Sri B.S. Yeddyurappa was elected as Leader of the
B.J.P. Legislature Party on 26th May, 2008. The Appellants
who had been elected as Independents declared their support
to Sri Yeddyurappa as Chief Minister on 26th May, 2008. In the
B Notification dated 27th May, 2008 constituting the Legislative
Assembly, the Appellants were shown as Independents. In the
statement submitted by the Leader of the B.J.P. Legislature
Party, the names of Appellants were not included in the list of
B.J.P. members. In the Registers maintained by the Speaker
c under Rules 3 & 4 of the Disqualification Rules, the Appellants
were shown as Independents and at any time after they were
sworn in as Ministers on 30th May, 2008, no change was
effected in the Registers. No information was furnished either
by the Appellants or by the B.J.P. Legislature Party to include
the Appellants among B.J.P. members. Thus, as per the
0
Records of the Legislative Assembly, the Appellants were not
m.embers of B.J.P. when the order of disqualification was
passed by the Speaker.
48. We are unable to accept the submission made on
E behalf of the Respondents that by extending support to Shri
Yeddyurappa in the formation of the Bharatiya Janata Party led
government, the Appellants had sacrificed their independent
identities. The fact that the said Appellants also joined the
Council of Ministers does not also point to such an eventuality.
F It is no doubt true that an independent legislator does not
always have to express his intention to join a party in writing,
but the mere extension of support to Shri Yeddyurappa and the
decision to join his Cabinet, in our view, were not sufficient to
conclude that the Appellants had decided to join and/or had
actually joined the Bharatiya Janata Party, particularly on
G account of the subsequent conduct in which they were treated
differently from the Members of the Bharatiya Janata Party. In
view of our finding that the Appellants had not joined any political
party as alleged, the order of disqualification passed by the
Speaker was against the Constitutional mandate in para 2(2)
H of the Tenth Schedule of the Constitution.
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 361
[ALTAMAS KABIR, J.]
49. This leaves us with the other question as to whether A
the Speaker acted in contravention of the provisions of Rule
7(3) of the Disqualification Rules under which a Member of the
House, to whom a Show-Cause Notice is issued, has to be
given 7 days' time or more to reply to the Show-Cause Notice.
The question which immediately follows is whether the Speaker B
acted in hot haste in disposing of the Disqualification
Application against the Appellants for their disqualification from
the House. Yet another question which arises is with regard to
the '>Cope of judicial review of an order passed by the Speaker
under paragraph ?(2) of the Tenth Schedule to the Constitution, c
having regard to the provisions of Article 212 thereof.
. 50. There is no denying the fact that the Show-Cause
Notices Issued to the Appellants were not in conformity with the
provisions of Rules 6 and 7 of the Karnataka Legislative
Assembly (Disqualification of Members on Ground of D
Defection) Rules, 1986, inasmuch as, the Appellants were not
given 7 days' time to reply to the Show-Cause Notices as
contemplated under Rule 7(3) of the afOiesaid Rules. Without
replying to the said objection raised, the Speaker avoided the
issue by stating that it was sufficient for attracting the provisions E
of paragraph 2(2) of the Tenth Schedule to the Constitution that
the Appellants herein had admitted that they had withdrawn
support to the Government led by Shri B.S. Yeddyurappa. The
Speaker further reco[ded that the Appellants had been
represented by counsel who had justified the withdrawal of F
support to the Government led by Shri Yeddyurappa. Without
giving further details, the Speaker observed that the
Disqualification Rules had been held by this Court to be
directory and oot mandatory, as they were to be followed for
the sake of convenience. The provisions of Rule 7(3) of the G
Disqualification Rules were held by the High Court to be
directory in nature and that deviation from the said Rules could
not and did not vitiate the procedure contemplated under the
Rules, unless the violation of the procedure is shown to have
resulted in prejudice to the Appellants. The Speaker wrongly H
362 SUPREME COURT REPORTS [2012] 2 S.C.R.
A relied upon the affidavit filed by Shri K.S. Eswarappa, State
President of the B.J.P., although there was nothing on record
to support the allegations which had been made therein. In fact,
the said affidavit had not been served on the Appellants. Since
Shri K.S. Eswarappa was not a party to the proceedings, the
B Speaker should have caused service of copies of the same on
the Appellants to meet the allegations made therein. Coupled
with the fact that the Speaker had violated the provisions of Rule
7(3) of the Disqualification Rules in giving the Appellants less
than 7 days' time to reply to the Show-Cause Notices issued
c to them, failure of the Speaker to cause service of copies of
the affidavit affirmed by Shri K.S. Eswarappa amounted to
denial of natural justice to the Appellants, besides revealing a
partisan attitude in the Speaker's approach in disposing of the
Disqualification Application filed by Shri B.S. Yeddyurappa. If
D the Speaker had wanted to rely on the statements made in the
aforesaid affidavit, he should have given the Appellants an
opportunity of questioning the deponent as to the truth of the
statements made in his affidavit. This conduct on the part of
the Speaker also indicates the hot haste with which the
E Speaker disposed of the Disqualification Application, raising
doubts as to the bona fides of the action taken by him. The
explanation given by the Speaker as to why the notices to show
cause had been issued to the Appellants under Rule 7 of the
Disqualification Rules, giving the Appellants only 3 days' time
to respond to the same, is not very convincing. There was no
F compulsion on the Speaker to decide the Disqualification
Applications in such a great hurry, within the time specified by
the Governor for the holding of a Vote of Confidence in the
government headed by Shri B.S. Yeddyurappa. It would appear
that such a course of action was adopted by the Speaker on
G 10th October, 2010, since the Vote of Confidence on the Floor
of the House was to be held on 12th October, 2010. We have
no hesitation to hold that the Speaker's order was in violation
of Rules 6 & 7 of the Disqualification Rules and the rules of
natural justice and that such violation resulted in prejudice to
H the Appellants. Therefore, we hold that even if Rules 6 & 7 are
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 363
[ALTAMAS KABIR, J.]
only directory and not mandatory, the violation of Rules 6 & 7 A
resulting in violation of the rules of natural justice has vitiated
the order of the Speaker and it is liable to be set aside.
51. We are next faced with the question as to the manner
in which the Disqualification Applications were proceeded with
and disposed of by the Speaker. On 6th October, 2010, on B
receipt of identical letters from the Appellants withdrawing
support to the B.J.P. 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 of the 5 independent MLAs C
and 13 B.J.P. MLAs and requesting him to prove his majority
on the Floor of the House on or before 12th October, 2010 by
5.00 p.m. The Speaker was also requested to take steps
accordingly. On the very same day, Shri B.S. Yeddyurappa, as
the leader of the B.J.P. in the Legislative Assembly, filed an D
application before the Speaker under Rule 6 of the
Disqualification Rules, 1986, for a declaration that all the 13
MLAs elected on B.J.P. tickets along with two other
independent MLAs, had incurred disqualification under the
Tenth Schedule to the Constitution. lmmedi~tely thereafter, on E
7th October, 2010, the Speaker issued Show-Cause Notices
to the concerned MLAs informing them of the Disqualification
Application filed by Shri B.S. Yeddyurappa and also informing
them that by withdrawing support to the Government led by Shri
B.S. Yeddyurappa, they were disqualified from continuing as F
Members of the House in view of paragraph 2(1 )(a) of the Tenth
Schedule to the Constitution. On 7th October, 2010 itself,
Petitions were filed against the Appellants by the Respondents
and the Speaker on 8th October, 2010 issued show-cause
notices to the Appellants. The Appellants and the B.J.P. MLAs G
to whom show-cause notices were issued were given time till
5.00 p.m. on 10th October, 2010, to submit their objection, if
any, to the said application. Apart from the fact that the
Appellants were not given 7 days' time to file their reply to the
Show-Cause Notices, the High Court did not give serious H
364 SUPREME COURT REPORTS [2012] 2 S.C.R.
A consideration to the fact that even service of the Show-Cause
Notices on the Appellants and the 13 MLAs belonging to the
Bharatiya Janata Party had not been properly effected.
Furthermore, the MLAs who were sought to be disqualified
were also not served with copies of the Affidavit filed by Shri
B K.S. Eswarappa, although the Speaker relied heavily on the
contents thereof in arriving at the conclusion that they stood
disqualified under paragraph 2(1 )(a)/2(2) of the Tenth Schedule
to the Constitution. The MLAs were not supplied with copies
of the affidavits filed by Sri M.P. Renukacharya and Shri
c Narasimha Nayak, whereby they had retracted the statements
which they had made in their letters submitted to the Governor
on 6th October, 2010. What is even more glaring is the fact that
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
0
in the case of 13 MLAs belonging to the Bharatiya JanataParty
that they had violated the provisions of paragraph 2(1 )(a) of the
Tenth Schedule to the Constitution immediately upon their
intention to withdraw their support to the Government led by Shri
B.S. Yeddyurappa was communicated to the Governor.
E
52 . It is obvious from the procedure adopted by the
Speaker 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 13 B.J.P. MLAs stood
F 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 detailed orders, in which
various judgments, both of Indian Courts and foreign Courts,
and principles of law from various authorities were referred to,
G on the same day, holding that the Appellants and the other
MLAs stood disqualified as Members of the House. The Vote
of Confidence took place on 11th October, 2010, in which the
disqualified Members could not participate, and in their
absence Shri B.S. Yeddyurappa was able to prove his majority
in the House.
H
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 365
[ALTAMAS KABIR, J.)
53. Unless it was to ensure that the Trust Vote did not go A
against the Chief Minister, there was hardly any reason for the
Speaker to have taken up the Disqualification Applications in
such a great haste.
54.We cannot lose sight of the fact that although the same
allegations as had been made by Shri Yeddyurappa against 8
the disqualified B.J.P. MLAs, were made also against Shri M.P.
Renukacharya and Shri Narasimha Nayak, whose retraction
was accepted by the Speaker, despite the view expressed by
him that upon submitting the letter withdrawing support to the
8.J.P. Government led by Shri 8.S. Yeddyurappa, all the MLAs C
stood immediately disqualified under paragraph 2(1)(a) of the
Tenth Schedule to the Constitution, the said two legislators were
not disqualified and they were allowed to participate in the
Confidence Vote, for reasons which are obvious.
D
55. Therefore, we hold that the impugned order of the
Speaker is vitiated by mala tides.
56. On the question of justiciability of the Speaker's order
on account of the expression of finality in paragraph 2 of the
Tenth Schedule to the Constitution, it is now well-settled that E
such finality did not bar the jurisdiction of the superior Courts
under Articles 32, 226 and 136 of the Constitution to judicially
review the order of the Speaker. Under paragraph 2 of the Tenth
Schedule to the Constitution, the Speaker discharges quasi-
judicial functions, which makes an order passed by him in such F
capacity, subject to judicial review.
57. We are, therefore, unable to sustain the decision of the
Speaker, as affirmed by the High Court on all counts, and we,
ac~rdingly, allow the appeals and set aside the orders passed
by the Speaker on 11th October, 2010 and by the Full Bench G
of the High Court on 14th February, 2011. ·
58. There will, however, be no order as to costs.
D.~. Appeals allowed.
H
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