Holding

The Speaker must accept a resignation that is voluntarily and genuinely tendered, and his discretion to reject it is subject to judicial review; he cannot impose a disqualification period extending to the end of the Assembly term.

Summary

The petitioners, elected members of the 15th Karnataka Legislative Assembly, tendered resignations after being accused of defying party whips, but the Speaker rejected their resignations and disqualified them under the Tenth Schedule, imposing a ban lasting until the end of the Assembly term. The Supreme Court examined whether the Speaker's discretion to reject resignations is subject to judicial review, the scope of "voluntary" and "genuine" resignation, and whether the Speaker can impose a disqualification period extending to the Assembly's expiry. The Court held that the Speaker must accept a resignation if it is voluntarily and genuinely tendered, and his satisfaction is reviewable on limited grounds; the Speaker cannot prescribe a disqualification period beyond what the Constitution allows. Consequently, the Court upheld the disqualification of the members but struck down the portion of the orders that extended the disqualification till the end of the term. The writ petitions were disposed of, with the orders on duration set aside.

Issues considered

Whether a writ petition under Article 32 challenging the Speaker's order is maintainable.
Whether the Speaker's rejection of resignations is subject to judicial review and what the scope of "voluntary" and "genuine" resignation entails.
Whether the Speaker can disqualify members till the expiry of the Legislative Assembly term under the Tenth Schedule.
Whether the matters raise a substantial question of law warranting reference to a larger bench.

Legislation cited

Constitution (Fifty‑second Amendment) Act, 1985s. Tenth Schedule
Constitution (Ninety-first Amendment) Act, 2003s. Articles 75(1B), 164(1B), 361B
Constitution (Thirty-third Amendment) Act, 1974s. Article 190(3)(b) proviso
Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986s. Rule 7(3)(b)
Representation of the People Act, 1951s. Section 36(2)
Rules of Procedure and Conduct of Business in Karnataka Legislative Assemblys. Chapter 22, Rule 202(2)

Subjects

anti-defection lawTenth Scheduleresignation of legislatorsdisqualificationSpeaker's powersArticle 32 writ jurisdictionjudicial reviewKarnataka Legislative Assemblyconstitutional law

Judgment

886 [2019]
SUPREME COURT 16 S.C.R. 886
REPORTS [2019] 16 S.C.R.

A SHRIMANTH BALASAHEB PATIL
v.
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS
B (Writ Petition (Civil) No. 992 of 2019)
NOVEMBER 13, 2019
[N. V. RAMANA, SANJIV KHANNA
AND KRISHNA MURARI, JJ.]
Constitution of India – Tenth Schedule; Arts.190(3)(b),
C
191(1), 191(2) – Acceptance/rejection of the resignation of the
members of the House by the Speaker – Scope of judicial review
u/Arts.32 – Writ petitioners were elected as members of the 15th
Karnataka Legislative Assembly – Though the BJP was the single
largest party, but could not form the Government – A coalition
D government of INC and JD(S) was formed – Disqualification
Petition No.1 of 2019 was instituted against the petitioners in
W.P.(C) No. 997/19 alleging that their conduct was in violation of
the whip issued by INC – Said petitioners submitted resignations
to the Speaker – Other petitioners also submitted their resignations
– No call taken by the Speaker on the resignations – Most of them
E
filed W. P.(C) No. 872/19 wherein Supreme Court inter alia directed
the Speaker to take decision qua the resignations forthwith – No
decision taken by the Speaker on the resignations – Further,
Disqualification Petition Nos.3-5 were filed against 13 petitioners
(Three in W.P (C) No. 1005/19 and 10 in W.P (C) Nos. 998/19,
F 1000/19, 1001/19, 1006/19 & 1007/19) – Disqualification Petition
Nos. 7 & 8 of 2019 were also filed – Chief Minister resigned on
losing the trust vote on 23.07.2019 – On 25.07.2019 and
28.07.2019, the Speaker passed the five impugned orders in the
above Disqualification Petitions rejecting the resignation of the
members asserting that they were not voluntary or genuine;
G
disqualifying all the Petitioners, the disqualification being till the
end of the 15th Legislative Assembly term – Held: Speaker, while
adjudicating a disqualification petition, acts as a quasi-judicial
authority – However, ordinarily, the party challenging the
disqualification is required to first approach the High Court as the
H
886
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 887
KARNATAKA LEGISLATIVE ASSEMBLY

same would be appropriate, effective and expeditious – Speaker’s A
scope of inquiry with respect to acceptance/rejection of a
resignation tendered by a member of the legislature is limited to
examine whether such a resignation was tendered voluntarily or
genuinely – Once it is demonstrated that a member is willing to
resign out of his free will, the speaker has no option but to accept
B
the resignation – In the present case, the Petitioners stated and
re-affirmed before the Speaker and this Court, in unequivocal
terms, that they voluntarily and genuinely resigned their
membership of the House – It is constitutionally impermissible for
the Speaker to take into account any extraneous factors while
considering the resignation – Satisfaction of the Speaker is subject C
to judicial review – Further, in light of the existing Constitutional
mandate, the Speaker is not empowered to disqualify any member
till the end of the term – Also, no substantial question of law exists
in the present matter, which needs reference to a larger bench –
Petitioners failed to show any illegality in the orders of the Speaker
D
– Orders dated. 25.07.2019 and 28.07.2019 passed by the Speaker
in Disqualification Petition Nos. 1, 3-5, 7 & 8 of 2019, are upheld
to the extent of the disqualification of the Petitioners therein,
however, the part of the orders detailing the duration of
disqualification, viz., from the date of the respective order till the
expiry of the term of the 15th Legislative Assembly of Karnataka E
is set aside – Rules of Procedure and Conduct of Business in
Karnataka Legislative Assembly – Chapter 22, r.202 (2) –
Constitution (Thirty- third Amendment) Act, 1974 – Constitution
(Fifty-second Amendment) Act, 1985 – Constitution (Ninety-first
Amendment) Act, 2003 – Arts. 75(1B), 164(1B) and 361B –
F
Karnataka Legislative Assembly (Disqualification of Members on
Ground of Defection) Rules, 1986 – r.7(3)(b) – Principles of
Natural Justice – Representation of the People Act, 1951 – s.36(2).
Constitution of India – Constitution (Thirty-third Amendment)
Act, 1974 – Proviso to Art.190(3)(b) – Respondents contended that
the acceptance/rejection of resignation is based on the subjective G
satisfaction of the Speaker which is immune from judicial review
– Held: Unable to agree with this contention – It is true that 33rd
Constitutional Amendment changed the constitutional position by
conferring discretion on the Speaker to reject the resignation –
However, such discretion is not unqualified, as the resignation can H
888 SUPREME COURT REPORTS [2019] 16 S.C.R.

A only be rejected if the Speaker is “satisfied that such resignation
is not voluntary or genuine” – Determination of whether the
resignations were “voluntary” or “genuine” cannot be based on
the ipse dixit of the Speaker, instead it has to be based on his
“satisfaction” – Even though the satisfaction is subjective, it has
to be based on objective material showing that resignation is not
B
voluntary or genuine – This satisfaction of the Speaker is subject
to judicial review.
Constitution of India – Art.190(3)(b) – Speaker’s duty under
– Scope of – Discussed.
C Constitution of India – Constitution (Ninety-first Amendment)
Act, 2003 – Arts. 75(1B), 164(1B) & 361B – Various
Disqualification Petitions were filed against the petitioners wherein
the Speaker passed the impugned orders – However, 15 of the 17
Petitioners had tendered their resignation from the House before
the disqualification petitions were adjudicated – Petitioners
D contended that the Speaker did not have the jurisdiction to deal
with disqualification petitions, as the Petitioners having resigned
were no longer members who could have been disqualified – Held:
This issue does not apply to the Pe-titioners in W. P. (C) No. 992/
19 and W. P. (C) No. 1003/19 as they did not tender their
E resignation – Further, if it is held that the disqualification
proceedings would become infructuous upon tendering resignation,
any member who is on the verge of being disqualified would
immediately resign and would escape from the sanctions provided
u/Arts. 75(1B), 164(1B) & 361B – Such an interpretation would
therefore not only be against the intent behind the introduction of
F the Tenth Schedule, but also defeat the spirit of the 91st
Constitutional Amendment – In addition, the decision of the
Speaker that a member is disqualified, relates back to the date of
the disqualifying action complained of – Constitution (Fifty-second
Amendment) Act, 1985 – Tenth Schedule.
G Constitution of India – Arts. 102(2), 164(1B), 168, 172,
190(3), 191(1), (2), 192, 361(B) – Scheme of the Constitution with
respect to State Legislatures – Discussed.
Constitution of India – Tenth Schedule; Arts.190(3)(b), 191
– Scope of the Speaker’s power on disqualification – Discussed.
H
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 889
KARNATAKA LEGISLATIVE ASSEMBLY

Constitution of India – Arts.191(1) and (2) – Contrast in A
phraseology between Arts.191(1) and 191(2) – Held: Exclusion of
the phrase “for being chosen as” a mem-ber in Art.191(2) suggests
that the disqualification under the Tenth Schedule is qualita-tively
and constitutionally different from the other types of
disqualification that are provided for u/Art. 191(1) – Phrase “for
B
being chosen as” has a specific connotation, meaning that a
person cannot become a member of the House, if suffering from a
disqualification u/Art.191(1) – At the same time, the absence of
these words in Art.191(2) suggests that a person who is no longer
a member due to disqualification under the Tenth Schedule does
not suffer from the additional infirmity of not being allowed to C
become a member subsequently – Therefore, such a person is not
barred from contesting elections – Representation of the People
Act, 1951 – ss.7-11, 36(2) – Constitution (Ninety-first Amendment)
Act, 2003 – Arts. 164(1B) & 361B.
Constitution of India – Tenth Schedule – Resignation and D
disqualification on account of defection under the said Schedule
– Held: Both result in vacancy of the seat held by the member in
the legislature, but further consequences envisaged are different.
Constitution of India – Disqualification under the Tenth
Schedule – Sanctions under Arts. 75(1B), 164(1B) and 361B – E
Held: Speaker is not empowered to disqualify any member till the
end of the term – However, a member disqualified under the Tenth
Schedule shall be subjected to sanctions provided u/Arts. 75(1B),
164(1B) & 361B which provides for a bar from being appointed
as a Minister or from holding any remunerative political post from
the date of disqualification till the date on which the term of his F
office would expire or if he is re-elected to the legislature,
whichever is earlier.
Constitution of India – Duty of constitutional functionaries
to uphold constitutionalism and constitutional morality –
Discussed. G
Constitution of India – Art.145(3) – Interpretation of – Held:
Two important phrases occurring in Art.145(3) are ‘substantial
question of law’ and ‘interpretation of the Constitution’ – Two
conditions can be culled out before a reference is made: (i) The
Court is satisfied that the case involves a substantial question of H
890 SUPREME COURT REPORTS [2019] 16 S.C.R.

A law as to the interpretation of this Constitution; (ii) The
determination of which is necessary for the disposal of the case –
Any question of law of general importance arising incidentally, or
any ancillary question of law having no significance to the final
outcome, cannot be considered as a substantial question of law –
Existence of substantial question of law does not weigh on the
B
stakes involved in the case, rather, it depends on the impact the
question of law will have on the final determination.
Words & Phrases – “voluntary” and “genuine” – Ambit of,
in context of Art.190(3)(b)– Constitution of India – Art. 190(3)(b)
- Explained.
C
Words & Phrases – ‘disqualification’ – Meaning of –
Constitution (Fifty-second Amendment) Act, 1985 – Tenth
Schedule.
Words & Phrases – “violation of constitutional mandate” –
D Held: Phrase “violation of constitutional mandate” speaks for itself
and does not need much elaboration. A “constitutional mandate”
can be understood as what is required under, or by, the
Constitution – In the context of the Tenth Schedule, and an order
of disqualification passed by the Speaker thereunder, the
“constitutional mandate” is therefore nothing but what is
E
constitutionally required of the Speaker – A “violation of
constitutional mandate” is merely an unconstitutional act of the
Speaker, one that cannot be defended on the touch-stone of the
Tenth Schedule and the powers or duties of the Speaker therein
and is in contravention or violation of the same – Constitution
F (Fifty-second Amendment) Act, 1985 – Tenth Schedule.
Disposing of the writ petitions, the Court
HELD: 1.1 Writ jurisdiction is one of the valuable rights
provided under Article 32 of the Constitution, which in itself
forms part of the basic structure of the Constitution. After the
G decision in the Kihoto Hollohan case, the Speaker, while
exercising the power to disqualify, is a Tribunal and the validity
of the orders are amenable to judicial review. On a perusal of
the judgment in the Kihoto Hollohan case, no explicit or implicit
bar is found to adjudicate the issue under the writ jurisdiction
H of this Court. The jurisdiction conferred on this Court by Article
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 891
KARNATAKA LEGISLATIVE ASSEMBLY

32 is an important and integral part of the basic structure of the A
Constitution of India and no act of Parliament can abrogate it or
take it away except by way of impermissible erosion of
fundamental principles of the constitutional scheme are settled
propositions of Indian jurisprudence. In any case, it is noted that
by challenging the order directly under Article 32, the
B
Petitioners have leapfrogged the judicial hierarchy as envisaged
under the Constitution. The manner in which the petitioners
have knocked on the doors of this Court is not appreciated.
Among other reasons, the present matter was proceeded to be
heard due to the peculiar facts presented before the Court,
wherein certain interim orders were passed herein by another C
Co-ordinate Bench of Supreme Court in Writ Petition (C) No.
872 of 2019 filed by some of the present petitioners. The Court
had heard the matter at some length on 25.09.2019 and
26.09.2019, when with the consent of the counsel of all the
parties, the matter was fixed for final hearing. Since a substantial
D
amount of time passed in the meanwhile, and to ensure that the
same exercise need not be repeated before the High Court, the
Court is left with no option but to hear these cases on merits.
[Paras 22, 26, 28 and 29] [925-A-B; 926-D-E-H; 927-A-C]
Kihoto Hollohan v. Zachillhu (1992) Supp 2 SCC
651 : [1992] 1 SCR 686 – followed. E

Tamil Nadu Pollution Control Board v. Sterlite
Industries (I) Ltd. 2019 SCC Online SC 221 – referred
to.
1.2 It is true that 33rd Constitutional Amendment changed F
the constitutional position by conferring discretion on the
Speaker to reject the resignation. However, such discretion is
not unqualified, as the resignation can only be rejected if the
Speaker is “satisfied that such resignation is not voluntary or
genuine”. Determination of whether the resignations were
“voluntary” or “genuine” cannot be based on the ipse dixit of G
the Speaker, instead it has to be based on his “satisfaction”.
Even though the satisfaction is subjective, it has to be based
on objective material showing that resignation is not voluntary
or genuine. When a member tenders his resignation in writing,
the Speaker must immediately conduct an inquiry to ascertain H
892 SUPREME COURT REPORTS [2019] 16 S.C.R.

A if the member intends to relinquish his membership. The inquiry
must be in accordance with the provisions of the Constitution
and the applicable rules of the House. This satisfaction of the
Speaker is subject to judicial review. The 33rd Constitutional
Amendment amended Article 190(3)(b) of the Constitution and
added a proviso. Thus, prior to the 33rd Constitutional
B
Amendment, there was no provision in the Article which required
the resignation to be accepted by the Speaker to become
effective. Originally, the position was that a member of a
Legislative Assembly could resign from office by a unilateral act,
and the acceptance of resignation was not required. First, as a
C starting principle, it has to be accepted that a member of the
Legislature has a right to resign. Nothing in the Constitution,
or any statute, prevents him from resigning. A member may
choose to resign for a variety of reasons and his reasons may
be good or bad, but it is his sole prerogative to resign. An
elected member cannot be compelled to continue his office if
D
he chooses to resign. The 33rd Constitutional Amendment does
not change this position. On the contrary, it ensures that his
resignation is on account of his free will. Second, the 33rd
Constitutional Amendment requires acceptance of resignation
by the Speaker. Thus, merely addressing a resignation letter to
E the Speaker would not lead to the seat automatically falling
vacant. The Speaker has to accept such resignation for the seat
to become vacant. However, as discussed above, the Speaker
has limited discretion for rejecting the resignation. If the
resignation is voluntary or genuine, the Speaker has to accept
the resignation and communicate the same. Third, the Speaker
F
can reject the resignation, if the Speaker is satisfied that
resignation was “not voluntary or genuine”. Fourth, although the
word “genuine” has not been defined, in this context, it would
simply mean that a writing by which a member chooses to resign
is by the member himself and is not forged by any third party.
G The word “genuine” only relates to the authenticity of the letter
of resignation. [Paras 35, 38-42] [928-D-F; 929-D-H; 930-A-B-
F-G]
Union of India v. Gopal Chandra Misra (1978) 2 SCC
301 : [1978] 3 SCR 12 ; Moti Ram v. Param Dev
H (1993) 2 SCC 725 : [1993] 2 SCR 250 – referred to.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 893
KARNATAKA LEGISLATIVE ASSEMBLY

1.3 Similarly, the word “voluntary” has not been defined. A
In this context, it would mean the resignation should not be
based on threat, force or coercion. The Speaker therefore has
a duty to reject the resignation if such resignation is based on
coercion, threat or force. The language of Article 190(3)(b) of
the Constitution does not permit the Speaker to inquire into the
B
motive of the resignation. When a member is resigning on
political pressure, he is still voluntarily doing so. Once the
member tenders his resignation it would be “voluntary” and if
the writing can be attributed to him, it would be “genuine”. In
this regard, there is no doubt that the Petitioners have
categorically stated and have re-affirmed before the Speaker and C
this Court, in unequivocal terms, that they have voluntarily and
genuinely resigned their membership of the House. This Court,
in the earlier Writ Petition, being Writ Petition (C) No. 872 of
2019, had also directed the Speaker to look into the resignation
of the members, but the same was kept pending. The Speaker
D
can reject a resignation only if the inquiry demonstrates that it
is not “voluntary” or “genuine”. The inquiry should be limited
to ascertaining if the member intends to relinquish his
membership out of his free will. Once it is demonstrated that a
member is willing to resign out of his free will, the Speaker has
no option but to accept the resignation. It is constitutionally E
impermissible for the Speaker to take into account any other
extraneous factors while considering the resignation. The
satisfaction of the Speaker is subject to judicial review. The
aforesaid observations clarify the scope of the Speaker’s duty
under Article 190(3)(b) of the Constitution. [Paras 43, 45 and
F
46] [930-G-H; 931-D-F; 932-F-H; 933-A-B]
2. The Tenth Schedule was brought in to cure the evil of
defection recognising the significant impact it has on the health
of our democracy. The 91st Constitutional Amendment also
strengthens the aforesaid view that the law needed further
strengthening in order to curb the evil of defection. The G
aforesaid amendment introduced Articles 75(1B), 164(1B) and
361B in the Constitution. These provisions bar any person who
is disqualified under the Tenth Schedule from being appointed
as a Minister or from holding any remunerative political post
from the date of disqualification till the date on which the term H
894 SUPREME COURT REPORTS [2019] 16 S.C.R.

A of his of-fice would expire or if he is re-elected to the legislature,
whichever is earlier. The intent of the amendment is crystal
clear. The constitutional amendment sought to create addi-tional
consequences resultant from the determination that a person
was disqualified un-der the Tenth Schedule. If it is held that the
disqualification proceedings would become infructuous upon
B
tendering resignation, any member who is on the verge of being
dis-qualified would immediately resign and would escape from
the sanctions provided under Articles 75(1B), 164(1B) and 361B.
Such an interpretation would therefore not only be against the
intent behind the introduction of the Tenth Schedule, but also
C defeat the spirit of the 91st Constitutional Amendment. In
addition to the above, the decision of the Speaker that a member
is disqualified, relates back to the date of the disqualifying action
complained of. The disqualification relates to the date when such
act of defection takes place. The tendering of resignation does
not have a bearing on the jurisdiction of the Speaker in this
D
regard. Therefore, the aforesaid principle may be adopted
accordingly, wherein the taint of disqualification does not
vaporise, on resignation, provided the de-fection has happened
prior to the date of resignation. Resignation and disqualification
are distinct mechanisms provided under the law which result in
E vacancy. Further, the factum/manner of resignation may be a
relevant consideration while deciding the dis-qualification
petition. The submission of the Petitioners that the
disqualification pro-ceedings cannot be continued if the
resignations are tendered is not agreed with. Even if the
resignation is tendered, the act resulting in disqualification
F
arising prior to the resig-nation does not come to an end. The
pending or impending disqualification action in the present case
would not have been impacted by the submission of the
resignation letter, considering the fact that the act of
disqualification in this case have arisen prior to the members
G resigning from the Assembly. [Paras 50, 51, 54-56] [934-D-H;
936-C; 937-A-E-G]
Rajendra Singh Rana v. Swami Prasad Maurya (2007)
4 SCC 270 : [2007] 2 SCR 591 – relied on.
3.1 The dictionary meaning of the word ‘disqualification’
H is ‘to officially stop someone from being in a competition or
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 895
KARNATAKA LEGISLATIVE ASSEMBLY

doing something because they are not suitable, or they have A
done something wrong’. However, under the Tenth Schedule
this term occupies a specific meaning wherein, a member is
stopped from continuing to be a member of a legislative body, if
his actions fall in one of the conditions provided under paragraph
2. Article 191(1) of the Constitution provides for disqualification B
of a person (a) for being chosen as and (b) for being, a member
of the Legislative Assembly or the Legislative Council if his
actions or candidature attract the grounds therein. For
disqualification such as holding an office of profit, unsoundness
of mind, insolvency, etc., bars a person from continuing as a
member as well as from contesting elections. Article 191(2), on C
the other hand, bars a person only “for being a member” of the
Legislative Assembly or the Legislative Council. Article 192 of
the Constitution provides that the Governor will be the authority
for determination of disqualification on the grounds as contained
under Article 191(1) of the Constitution. In contrast, the decision D
as to disqualification on the ground as contained in Article 191(2)
of the Constitution vests exclusively in the Speaker in terms of
paragraph 6 of the Tenth Schedule. There is no dispute that
provisions under Tenth Schedule are relatable to disqualification
as provided under Articles 102(2) and 191(2) of the Constitution.
The disqualification of a member, apart from the political taint, E
results in two further restrictions as a means of punitive actions
against the members disqualified under the Tenth Schedule.
Paragraph 6 of the Tenth Schedule has an important bearing upon
extent of the judicial review in case of disqualification.
Disqualification is with respect to the status of being a member F
of the House and can only be considered by the Speaker if such
question, through a petition, is addressed/ referred to the
Speaker. It is apparent from the reading of paragraph 6 of the
Tenth Schedule that the decision of the Speaker on
disqualification under the Tenth Schedule is final. However, the
G
finality which is attached to the order of Speaker cannot be
meant to take away the power of this Court to review the same.
In the Kihoto Hollohan case this Court recognized the Speaker’s
role as a tribunal and allowed judicial review of the orders of
the same on the grounds provided therein. The Speaker, being
a constitutional functionary, is generally presumed to have H
896 SUPREME COURT REPORTS [2019] 16 S.C.R.

A adjudicated with highest traditions of constitutionalism. In view
of the same, a limited review was allowed for the courts to
adjudicate upon the orders passed by the Speaker under the
Tenth Schedule. Here, the difference in the meaning of the terms
‘final’ and ‘conclusive’ needs to be appreciate, in the context
B that the order of the Speaker is final but not conclusive and the
same is amenable to judicial review. Principles of natural justice
cannot be reduced into a straitjacket formula. The yardstick of
judging the compliance of natural justice, depends on the facts
and circumstances of each case. [Paras 60, 64-66, 68, 69 and 72]
[938-G-H; 939-A; 940-D-G; 941-F-H; 942-E-H; 943-F]
C
3.2 Further, the phrase “violation of constitutional
mandate” speaks for itself and does not need much elaboration.
A “constitutional mandate” can be understood as what is re-
quired under, or by, the Constitution. In the context of the Tenth
Schedule, and an order of disqualification passed by the Speaker
D thereunder, the “constitutional mandate” is therefore nothing
but what is constitutionally required of the Speaker. A “violation
of constitutional mandate” is merely an unconstitutional act of
the Speaker, one that cannot be defended on the touchstone of
the Tenth Schedule and the powers or duties of the Speaker
therein and is in contravention or violation of the same. On the
E
point of violation of constitutional mandate, although the Court
is of the opinion that there was an error committed by the
Speaker in deciding the disqualification petitions, the same does
not rise to a level which requires the Court to quash the
disqualification orders in their entirety. The specific error which
F the Court has identified relates to the period of disqualification
imposed by the Speaker in the impugned orders. However, this
error is severable, and does not go to the root of the
disqualification, and thus does not require the Court to quash
the disqualification orders in toto. The ground of malafides is
available to an individual challenging the order of the Speaker,
G
the onus of proof regarding the same is on the one who
challenges the said action and has a very heavy burden to dis-
charge. In the present case, although the Petitioners claimed
that the Speaker acted malafide, they have neither made any
specific allegation, nor can it be said that they have discharged
H the heavy burden that is required to prove that the ground of
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 897
KARNATAKA LEGISLATIVE ASSEMBLY

malafide is made out. The Petitioners have contended that the A
order of the Speaker is perverse; how-ever, they are not able
to specifically point out any such instance. “Perversity” has been
understood by this Court in a catena of judgments as relating
to a situation where the findings assailed before it have been
arrived at on the basis of no evidence, or thor-oughly unreliable
B
evidence, and no reasonable person would act upon it. The
impugned orders of the Speaker can be sustained from the
challenge made on the ground of perver-sity as the Respondents
have been able to show that there was sufficient material avail-
able before the Speaker to pass the impugned orders. Further,
on a consideration of the totality of the facts brought on record, C
it cannot be held that the findings of the Speaker are so
unreasonable or unconscionable that no tribunal could have
arrived at the same findings. The Petitioners did not even
controvert the material relied upon by the Speaker. In view of
the above, the Petitioners failed to show any illegality in the
D
orders of the Speaker. There is no gainsaying that the scope of
judicial review is limited to only grounds elaborated under the
Kihoto Hollohan case. In this regard, the Petitioners have not
been able to establish any illegality in the orders passed by the
Speaker. The Speaker had concluded based on material and
evidence that the members have voluntarily given up their E
membership of the party, thereby accruing disqualification in
terms of the Tenth Schedule, which facts cannot be reviewed and
evaluated by this Court in these writ peti-tions. So, the orders
of the Speaker to the extent of disqualification have to be
accepted. The Petitioners have submitted that the Speaker,
F
through the disqualification orders, has prohibited them from
contesting elections and becoming members of the House for
the remaining duration of the 15th Legislative Assembly of
Karnataka. [Paras 77-84] [945-B-F-H; 946-A-H; 947-E-G]

Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) G
3 SCC 184 : [2007] 1 SCR 317 ; E. P. Royappa v. State
of Tamil Nadu, (1974) 4 SCC 3 : [1974] 2 SCR 348 ;
Sub-Committee on Judicial Accountability v. Union of
India, (1991) 4 SCC 699 : [1991] 2 SCR 741 –
referred to.
H
898 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Griffith and Ryle on Parliament Functions, Practice
and Procedure (1989 edn., p.119) – referred to.
4.1 The Tenth Schedule of the Constitution while dealing
with disqualification on account of defection, does not specify the
consequences or period of such disqualification. In fact, the
B vacancy which results from the disqualification is provided under
Article 190(3) of the Constitution. Article 191 of the Constitution
provides for disqualification from the membership of the
Legislative Assembly or Legislative Council of a State generally.
Article 191(1) of the Constitution is a general provision
providing for the disqualification from the membership of the
C Legislative Assembly or the Legislative Council of a State on
the grounds mentioned therein. Article 191(2) of the
Constitution specifically provides that a person disqualified
under the Tenth Schedule is disqualified for being a member.
Article 191(2) of the Constitution, like the Tenth Schedule, does
D not provide that the “disqualification” is to operate for a
particular period or duration. Article 191(1) of the Constitution
provides that a person disqualified under any one of the clauses
of Article 191(1) is disqualified both “for being chosen as” and
“for being” a member of the house. In contrast, Article 191(2)
only uses the phrase “for being a member”, which is the language
E used in paragraph 2 of the Tenth Schedule. The exclusion of the
phrase “for being chosen as” a member in Article 191(2) of the
Constitution suggests that the disqualification under the Tenth
Schedule is qualitatively and constitutionally different from the
other types of disqualification that are provided for under Article
F 191(1) of the Constitution. The phrase “for being chosen as” has
a specific connotation, meaning that a person cannot become a
member of the House, if suffering from a disqualification under
Article 191(1) of the Constitution. At the same time, the absence
of these words in Article 191(2) of the Constitution suggests that
a person who is no longer a member due to disqualification under
G the Tenth Schedule of the Constitution does not suffer from the
additional infirmity of not being allowed to become a member
subsequently. Therefore, such a person is not barred from
contesting elections. This interpretation is further supported by
the language employed in Section 36(2) of the Representation
H of the People Act, 1951. Articles 164(1B) and 361B of the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 899
KARNATAKA LEGISLATIVE ASSEMBLY

Constitution, which were inserted by the 91st Constitutional A
Amendment, also show that disqualification under the Tenth
Schedule does not bar a person from contesting elections. Both
the above constitutional provisions specifically indicate the outer
period for which the consequences indicated therein would
extend, which is, either till the end of the term or till the
B
disqualified member is elected, whichever is earlier. The fact
that the phrase “whichever is earlier” is used in both these
provisions, indicates that the Constitution contemplates a
situation where an election takes place prior to the end of the
term of the House. Further, the term “election” as used in the
above provisions has not been constrained by any other word, C
which strengthens the view that a member who has been
disqualified under the Tenth Schedule is not barred from
contesting elections. Parliament by way of an enactment under
Article 191(1)(e) read with Entry 72 of the Union List in the
Seventh Schedule can make a law providing for disqualifications
D
of persons from contesting elections. It is in exercise of this
power that the Parliament enacted The Representation of the
People Act, 1951. The Preamble to the aforementioned Act
makes it evident that it was enacted for the purpose of
“providing qualifications and disqualifications for membership”
to the Houses of Legislature. Chapter II of Part II of the E
Representation of the People Act, 1951 provides for the
qualification for membership of the State Legislature while
Chapter III vide Sections 7 to 11 provides for disqualification
for membership of the Legislature. These sections not only
provide for the event of disqualification, but also provide for the
F
specific periods for which such disqualification shall operate. For
instance, under Section 8 of the Representation of the People
Act, 1951, different periods of disqualification are provided
depending on the specific offence an individual is convicted
under. However, the provisions do not provide for and deal with
disqualification under the Tenth Schedule. Clearly, Section 36 G
of the Representation of the People Act, 1951 also does not
contemplate such disqualification. Therefore, neither under the
Constitution nor under the statutory scheme is it contemplated
that disqualification under the Tenth Schedule would operate as
a bar for contesting re-elections. The language of clauses (1) and
H
900 SUPREME COURT REPORTS [2019] 16 S.C.R.

A (2) of Article 191, Articles 164(1B) and 361B are contrary to the
contention of the Respondents. The Speaker does not have any
explicit power to specify the period of disqualification under the
Tenth Schedule or bar a member from contesting elections after
disqualification until the end of the term of the Legislative
Assembly. When the express provisions of the Constitution
B
provide for a specific eventuality, it is not appropriate to read
an “inherent” power to confer additional penal consequences.
To do so, and accept the contention of the respondents, would
be against the express provisions of the Constitution. This
Court has repeatedly held that a person cannot be barred from
C contesting elections if he is otherwise qualified to contest the
same. Nothing can be added to the grounds of disqualification
based on convenience, equity, logic or perceived political
intentions. It is clear that the power to prescribe qualifications
and disqualifications for membership to the State Legislature
must be specifically provided for under the Constitution or by
D
the Parliament by enacting a law. Since neither the Constitution
nor any Act provides for defection to another party as a bar from
contesting further elections, reading such a bar into the nebulous
concept of the inherent powers of the Speaker is impermissible
and invalid. [Paras 90-98, 100, 101, 103, 106] [949-B-H; 950-
E A-G; 951-B-F; 952-A-C; 953-E-H; 954-A-B]
G. Narayanaswami v. G. Pannerselvam, (1972) 3 SCC
717 : [1973] 1 SCR 172 – referred to.
4.2 The Speaker, in exercise of his powers under the Tenth
F Schedule, does not have the power to either indicate the period
for which a person is disqualified, nor to bar someone from
contesting elections. The desirability of a particular rule or law,
should not in any event be confused with the question of
existence of the same, and constitutional morality should never
be replaced by political morality, in deciding what the
G Constitution mandates. [refer to Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217]. It is, therefore, held that part of the
impugned orders passed by the Speaker which specifies that the
disqualification will last from the date of the order to the expiry
of the term of the 15th Legislative Assembly of Karnataka to
H be ultra vires the constitutional mandate, and strike down this
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 901
KARNATAKA LEGISLATIVE ASSEMBLY

portion of the disqualification orders. However, this does not go A
to the root of the order, and as such, does not affect the aspect
of legality of the disqualification orders. [Paras 110, 111] [955-
F-G; 956-A-B]
Indra Sawhney v. Union of India, (1992) Supp 3 SCC
217 : [1992] 2 Suppl. SCR 454 - referred to. B
5.1 The two important phrases occurring in Article 145(3)
of the Constitution are ‘substantial question of law’ and
‘interpretation of the Constitution’. By reading the aforesaid
provision, two conditions can be culled out before a reference
is made: (i) The Court is satisfied that the case involves a C
substantial question of law as to the interpretation of this
Constitution; (ii) The determination of which is necessary for the
disposal of the case. It may be stated that the Court is not
persuaded for referring the present case to a larger bench as
the mandate of the aforesaid Article is that this Court needs to D
be satisfied as to the existence of a substantial question of law
on the Constitutional interpretation. However, this does not
mean that every case of constitutional interpretation should be
compulsorily referred to a Constitutional Bench. Question of
constitutional interpretation would arise only if two or more
possible constructions are sought to be placed on a provision. E
The ambit of this Court’s jurisdiction under Article 32 of the
Constitution is well settled, which does not merit any further
reference in this regard. The case mostly turns on the fact that
there is ample evidence to portray that the defection of these
Petitioners had occurred even before they resigned. In the F
impugned orders, the Speaker has made out a case that the acts
of the Petitioners indicated “voluntary giving up of membership”.
Therefore, the question as to the jurisdiction of the Speaker to
deal with disqualification after the members have tendered the
resignation does not arise, stricto sensu. In view of the aforesaid
factual scenario, there is no requirement to deal with the G
questions of law raised by the Respondents. In view of the
aforesaid discussion, the Court declines to refer the case to a
larger bench considering that there is no substantial question
of constitutional interpretation that arises in this case. [Paras
120, 121, 124-126 and 129] [959-B-E; 960-G; 961-B-D-H] H
902 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Abdul Rahim Ismail C. Rahimtoola v. State of Bombay,
AIR 1959 SC 1315 : [1960] SCR 285 ; Bhagwan
Swarup Lal Bishan Lal v. State of Maharashtra, AIR
1965 SC 682 : [1964] SCR 378 ; People’s Union for
Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC
399 : [2003] 2 SCR 1136 – referred to.
B
5.2 W.P. (C) NO. 992 OF 2019
The order of the Speaker does not suffer from perversity.
Even the petitioner has not submitted material to controvert the
findings recorded by the Speaker in the impugned order. With
C regard to the assertion that there was violation of principles of
natural justice would not also stand in view of the fact that the
Speaker has taken a holistic view and gave sound reasons to
disqualify the petitioner after providing him sufficient opportunity
to defend himself. Alleged violation of principles of natural justice
also do not carry any weight in view of the factual background
D of the case read in light of the fact that trust vote had to be voted
upon. [Para 134] [963-B-C]
5.3 W. P. (C) NO. 997 OF 2019
The Speaker in the impugned order has taken note of the
E surrounding circumstances, including the conduct of the
Petitioners from February 2019 onwards. The Speaker had
sufficient material before him to pass the order of disqualification.
There exist no infirmities in the order, which calls for our
indulgence and interference. [Paras 136-138] [963-H; 964-A-E]

F 5.4 W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007
OF 2019
The three Petitioners in Writ Petition (C) No. 1005 of 2019
were members of the JD(S), against whom a separate
Disqualification Petition No. 5 of 2019 was moved. The Speaker
passed a separate impugned order dated 28.07.2019 against
G
these Petitioners. Petitioners in Writ Petition (C) Nos. 998, 1000,
1001, 1006 and 1007 of 2019 were all members of the INC,
against whom Disqualification Petition Nos. 3 and 4 of 2019 were
moved. A common order dated 28.07.2019, disqualifying the 10
Petitioners, was passed by the Speaker. A notice of three days
H with an opportunity for hearing would have been sufficient in the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 903
KARNATAKA LEGISLATIVE ASSEMBLY

facts and circumstances of this case, when viewed in light of the A
deci-sion in the Ravi S Naik case. In this regard, the attention
of the Court was drawn to the fact that notices were sent to their
emails, and their permanent addresses within their constituency.
In view of the unique facts, it cannot be said that an opportunity
was not provided to the Petitioners to appear before the Speaker.
B
It is altogether a different mat-ter that the aforesaid Petitioners
were in Mumbai even though they were aware of the notice, and
some of them did not even bother to be represented before the
Speaker. In this light, it cannot be said that effective opportunity
was not granted to the Petitioners. Consequently, it cannot be
said as well that there has been a violation of principles of C
natural justice as against the aforesaid Petitioners. [Para 139-
140-143] [964-F-G; 965-F-H]
Ravi S. Naik v. Union of India, (1994) Supp 2 SCC
641 : [1994] 1 SCR 754 - referred to.
5.5 W.P. (C) NO. 1003 OF 2019 D

No reason and good ground is found to hold that the
findings in the impugned order are perverse and based on no
evidence. Rather the stand and plea taken by the Petitioner is
devoid of merit. Similarly, the plea predicated on the violation
of principles of natural justice must fail in the light of the above E
facts. The findings on allegations of not granting specific time
in all the above cases are based on the unique facts and
circumstances of each case. It should not be understood to mean
that the Speaker could cut short the hearing period. The
Speaker should give sufficient opportunity to a member before F
deciding a disqualification proceeding and ordinarily follow the
time limit prescribed in the Rules of the Legislature. [Paras 150,
151] [967-D-E]
6.1 In light of the discussion above, summary of law as held
herein is as follows: (a) The Speaker, while adjudicating a G
disqualification petition, acts as a quasi-judicial authority and the
validity of the orders thus passed can be questioned before this
Court under Article 32 of the Constitution. However, ordinarily,
the party challenging the disqualification is required to first
approach the High Court as the same would be appropriate,
effective and expeditious. (b) The Speaker’s scope of inquiry with H
904 SUPREME COURT REPORTS [2019] 16 S.C.R.

A respect to acceptance or rejection of a resignation tendered by
a member of the legislature is limited to examine whether such
a resignation was tendered voluntarily or genuinely. Once it is
demonstrated that a member is willing to resign out of his free
will, the speaker has no option but to accept the resignation. It
B is constitutionally impermissible for the Speaker to take into
account any extraneous factors while considering the
resignation. The satisfaction of the Speaker is subject to judicial
review. (c) Resignation and disqualification on account of
defection under the Tenth Schedule, both result in vacancy of
the seat held by the member in the legislature, but further
C consequences envisaged are different. (d) Object and purpose
of the Tenth Schedule is to curb the evil of political defection
motivated by lure of office or rather similar considerations which
endanger the foundation of our democracy. By the 91st
Constitutional Amendment, Articles 71 (1B), 164(1B) and 361B
D were enacted to ensure that a member disqualified by the
Speaker on account of defection is not appointed as a Minister
or holds any remunerative political post from the date of
disqualification or till the date on which his term of office would
expire or he/she is re-elected to the legislature, whichever is
earlier. (e) Disqualification relates back to the date when the act
E of defection takes place. Factum and taint of disqualification
does not vaporise by tendering a resignation letter to the
Speaker. A pending or impending disqualification action does not
become infructuous by submission of the resignation letter, when
act(s) of disqualification have arisen prior to the member’s
F resignation letter. (f) In the earlier Constitution Bench judgment
of Kihoto Hollohan, the order of the Speaker under Tenth
Schedule can be subject to judicial review on four grounds: mala
fide, perversity, violation of the constitutional mandate and order
passed in violation of natural justice. (g) Findings on allegations
of not granting specific time in all the above cases are based on
G
the unique facts and circumstances of the case. It should not be
understood to mean that the Speaker could cut short the hearing
period. The Speaker should give sufficient opportunity to a
member before deciding a disqualification proceeding and
ordinarily follow the time limit prescribed in the Rules of the
H Legislature. (h) In light of the existing Constitutional mandate,
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 905
KARNATAKA LEGISLATIVE ASSEMBLY

the Speaker is not empowered to disqualify any member till the A
end of the term. However, a member disqualified under the
Tenth Schedule shall be subjected to sanctions provided under
Articles 75(1B), 164(1B) and 361B of Constitution, which
provides for a bar from being appointed as a Minister or from
holding any remunerative political post from the date of B
disqualification till the date on which the term of his office would
expire or if he is re-elected to the legislature, whichever is
earlier. (i) There is a growing trend of the Speaker acting against
the constitutional duty of being neutral. Further horse trading
and corrupt practices associated with defection and change of
loyalty for lure of office or wrong reasons have not abated. C
Thereby the citizens are denied stable governments. In these
circumstances, there is need to consider strengthening certain
aspects, so that such undemocratic practices are discouraged and
checked. (j) The existence of a substantial question of law does
not weigh on the stakes involved in the case, rather, it depends D
on the impact the “question of law” will have on the final
determination. If the questions having a determining effect on
the final outcome have already been decided by a conclusive
authority, then such questions cannot be called as “substantial
questions of law”. In any case, no substantial question of law
exists in the present matter, which needs reference to a larger E
bench. [Para 152] [967-F-H; 968-A-H; 969-A-H]
6.2 The following order is passed: Orders dated
25.07.2019 and 28.07.2019 passed by the Speaker in
Disqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019, are
upheld to the extent of the disqualification of the Petitioners F
therein. However, the part of Speaker’s orders detailing the
duration of disqualification, viz., from the date of the respective
order till the expiry of the term of the 15th Legislative Assembly
of Karnataka, is accordingly set aside. [Paras 153] [970-A-C]
Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC G
1621 : [1963] SCR 778 ; Naresh Shridhar Mirajkar
v. State of Maharashtra AIR 1967 SC 1 : [1966] SCR
744 – followed.
Jagjit Singh v. State of Haryana (2006) 11 SCC 1 ;
D. Sanjeevayya v. Election Tribunal, Andhra Pradesh H
906 SUPREME COURT REPORTS [2019] 16 S.C.R.

A AIR 1967 SC 1211 : [1967] SCR 489 ; N.S. Vardachari
v. G. Vasantha Pai, (1972) 2 SCC 594 : [1973] 1 SCR
886 – relied on.
U.P. State Spinning Co. Ltd. v. R.S. Pandey (2005) 8
SCC 264 : [2005] 3 Suppl. SCR 603 ; State of Uttar
B Pradesh v. Mohammad Nooh AIR 1958 SC 86 : [1958]
SCR 595 ; Harbanslal Sahnia v. Indian Oil
Corporation Ltd. (2003) 2 SCC 107 ; Maneka Gandhi
v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR
621 ; Delhi Transport Corporation v. D.T.C. Mazdoor
Congress (1991) Supp 1 SCC 600 : [1990] 1 Suppl.
C SCR 142 ; State (NCT of Delhi) v. Union of India
(2018) 8 SCC 501 : [2018] 7 SCR 1 ; R.S. Dass v.
Union of India, (1986) Supp SCC 617 : [1987] SCR
527 ; Balachandra L. Jarkhiholi v. B. S. Yeddyurappa,
(2011) 7 SCC 1 : [2011] 10 SCR 877 ; Mayawati v.
Markandeya Chand, (1998) 7 SCC 517 : [1998] 2
D
Suppl. SCR 204 ; Public Interest Foundation v. Union
of India (2019) 3 SCC 224 : [2018] 10 SCR 14 –
referred to.
Case Law Reference
[2005] 3 Suppl. SCR 603 referred to Para 20
E
[1958] SCR 595 referred to Para 20
(2003) 2 SCC 107 referred to Para 20
[1992] 1 SCR 686 followed Para 21
[1978] 2 SCR 621 referred to Para 23
F [1963] SCR 778 followed Para 24
[1966] SCR 744 followed Para 24
(2006) 11 SCC 1 relied on Para 25
[1978] 3 SCR 12 referred to Para 38
[1993] 2 SCR 250 referred to Para 38
G
[1990] 1 Suppl. SCR 142 referred to Para 52
[2018] 7 SCR 1 referred to Para 53
[2007] 2 SCR 591 relied on Para 53
[1967] SCR 489 relied on Para 55
H [1987] SCR 527 referred to Para 72
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 907
KARNATAKA LEGISLATIVE ASSEMBLY

[1994] 1 SCR 754 referred to Para 73 A
[2011] 10 SCR 877 referred to Para 74
[2007] 1 SCR 317 referred to Para 77
[1974] 2 SCR 348 referred to Para 79
[1991] 2 SCR 741 referred to Para 79 B
[1998] 2 Suppl. SCR 204 referred to Para 81
[1973] 1 SCR 172 referred to Para 101
[1973] 1 SCR 886 relied on Para 102
[1992] 2 Suppl. SCR 454 referred to Para 110 C
[1960] SCR 285 referred to Para 123
[1964] SCR 378 referred to Para 123
[2003] 2 SCR 1136 referred to Para 123
[2018] 10 SCR 14 referred to Para 128 D
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
992 of 2019.
[Under Article 32 of The Constitution of India]
With E
Writ Petition (C) Nos. 997, 1000, 998, 1005, 1003, 1001, 1007,
1006 of 2019.
Mukul Rohatgi, V. Giri, K.V. Vishwanathan, Gangadhar R.
Gurumath, C.A. Sundaram, Sajan Poovayya, Rakesh Dwivedi, Kapil
Sibal, Dr. Rajeev Dhavan, Devadutt Kamat, K. Shashikiran Shetty, Sr. F
Advs., Shubhranshu Padhi, Kush Chaturvedi, Sandeep Patil, Ms. Prerna
Priyadarshini, Apoorv Singhal, Ms. Priyashree Sharma PH, Ashish
Yadav, Rakshit Jain, Ms. S. Shankar, Ms. Palak Mahajan, Ms. Diksha
Rai, T. V. Ratnam, Devraje Gowda G., Vikram Hegde, Ms. Rohini
Musa, Zaffar Inayat, Abhishek Gupta, Shantanu Lakhotia, Kashi V.,
G
Pratibhanu Kharolla, Ms. Raksha Agarwal, Ms. Hima Lawrence,
Mishra Saurabh, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms.
Ayiala Imti, Prateek Kumar, Eklavya Dwivedi, Sunil Fernandes, Nizam
Pasha, Javedur Rehman, Ms. Priyansha Indra Sharma, Ashwin G. Raj,
Ms. Siddhi Padia, Mahesh Thakur, Ms. Sheffali Chaudhary, Mrs.
Vipasha Singh, Vybhav Ramesh, Advs. for the appearing parties. H
908 SUPREME COURT REPORTS [2019] 16 S.C.R.

A JUDGMENT
Table of Contents
Introduction A
Contentions B
B
Issues C
Maintainability of Writ Petition D
Rejection of Resignations E
Disqualification Proceedings After Resignation F
C
Validity of Disqualification order G
Power of the Speaker to direct disqualification
till the expiry of the term H
Reference to Constitution Bench I
D
Individual Cases J
Conclusions K

N. V. RAMANA, J.

E A. INTRODUCTION
1. Reflecting on Indian parliamentary democracy, the words of
André Béteille, Professor Emeritus of Sociology, need to be observed:
“In a parliamentary democracy, the obligations of
constitutional morality are expected to be equally binding on
F the government and the opposition. In India, the same
political party treats these obligations very differently when
it is in office, and when it is out of it. This has contributed
greatly to the popular perception of our political system as
being amoral…”1
Although the framers of the Constitution entrusted ‘we the
G people’ with the responsibility to uphold the constitutional values having
attained freedom, the question which begs herein to be answered is to
what extent we have discharged our duty and sustained our democratic
and constitutional obligations.
1
André Béteille, ‘Constitutional Morality’, Economic and Political Weekly, Volume
H 43 (40)(4th October 2008).
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 909
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

2. In this context, the questions arising in this batch of Writ A
Petitions concern the importance of party politics in a democracy and
the requirement to have stability within the government to facilitate good
governance, as mandated under the Constitution. We need to keep in
mind that the separating line between dissent and defection requires to
be made apparent, so that democratic values are upheld in balance with
other constitutional considerations. In an endeavor to maintain such B
balance, the role of the Speaker is critical in maintaining the balance
between democratic values and constitutional considerations. In this
regard, this Court’s role is only to ascertain whether the Speaker, as a
neutral member, upheld the tradition of his office to uphold the
Constitution.
C
3. These Writ Petitions are filed against five different orders
passed by the Speaker of the Karnataka Legislative Assembly: two
orders dated 25.07.2019 in Disqualification Petition No. 01 of 2019 and
Disqualification Petition No. 07 of 2019 respectively; two orders dated
28.07.2019 in Disqualification Petition No. 05 of 2019 and
Disqualification Petition No. 08 of 2019 respectively; and a common D
order dated 28.07.2019 in Disqualification Petition Nos. 3 and 4 of 2019.
4. Brief facts which are necessary for the disposal of the present
petitions are that the results of the 15th Karnataka Legislative Assembly
were declared on 15.05.2018. The contesting political parties secured
the following seats: E
Party Seat Won

Bahujan Samaj Party 1

Bharatiya Janata Party [BJP] 104 F

Indian National Congress [INC] 78

Janata Dal (Secular) [JD(S)] 37

Karnataka Pragnyavantha Janatha Party [KPJP] 1 G

Independent 1

Total 222
H
910 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 5. The Petitioners herein were elected as members of 15 th
Karnataka Legislative Assembly, as per the details given below:
W.P. (C) NO. PETITIONERS(S) PARTY CONSTITUENCY
992/2019 Shrimanth Balasaheb Patil INC Kagawad
997/2019 1. Ramesh Jarkhiholi INC 1. Gokak

B 2. Mahesh Kumathalli 2. Athani
998/2019 1. Pratap Gouda Patil INC 1. Maski
2. B.C. Patil 2. Hirekerur
3. Arbail Shivaram Hebbar 3. Yellapur
4. S.T. Somashekhar 4. Yeshvanthapura
5. B.A. Basvaraja 5. KR Pura
C
6. Munirathna 6. RR Nagar
1000/2019 Dr. K. Sudhakar INC Chikkaballapur
1001/2019 Anand Singh INC Vijayanagara
1003/2019 R. Shankar KPJP Ranebennur
Independent
D 1005/2019 1. A.H. Vishwanath JD(S) 1. Hunsur
2. K. Gopalaiah 2. Mahalakshmi Layout
3. K.C. Narayanagowda 3. Krishanarajapet
1006/2019 Roshan Baig INC Shivajinagar
1007/2019 N. Nagaraju MTB INC Hosakote
E
6. Though the BJP was the single largest party, its attempt to
form the Government was not successful. A coalition government of
INC and JD(S) was formed under the leadership of Mr. Kumaraswamy
(one of the Respondents herein). This Government had a short life of
about 14 months. The events leading up to the resignation of the Chief
F Minister, on losing the trust vote on 23.07.2019, after several days delay,
form the backdrop to the case of the present Petitioners.
7. On 11.02.2019 Disqualification Petition No. 1 of 2019 was
instituted against Ramesh L. Jarkhiholi, Mahesh Iranagaud Kumathalli,
Umesh G. Jadhav and B. Nagendra. The main allegations against the
G aforesaid persons were that they did not participate in the meetings of
the party and the proceedings of the Assembly session held from
06.02.2019 onwards, and the conduct of all the aforesaid members’ was
in violation of the whip issued by the INC in this regard. Thereafter,
Petitioners in Writ Petition (C) No. 997 of 2019, Ramesh L. Jarkhiholi
and Mahesh Iranagaud Kumathalli, are said to have submitted their
H resignations to the Speaker on 06.07.2019.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 911
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

8. Other Petitioners, including, Dr. K. Sudhakar, Pratap Gouda A
Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekar, B.A.
Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C.
Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baig
submitted their resignations from the membership of the House between
01.07.2019 to 11.07.2019. B
9. However, the Speaker did not take any call on the resignation
of the above persons. Aggrieved by the fact that their resignations were
not accepted, and with the impending trust vote being inevitable, most
of the above persons approached this Court by way of a Writ Petition,
being Writ Petition (C) No. 872 of 2019. This Court, on 11.07.2019, in C
the aforesaid Writ Petition directed the Speaker to take a decision qua
the resignations forthwith, and further directed the same to be laid before
this Court. The relevant extract of the said order is as under:-
“....Having regard to the facts of the case, we permit the
petitioners, ten in number, to appear before the Hon’ble Speaker D
of the Karnataka Legislative Assembly at 6.00 p.m. today. We
request the Hon’ble Speaker to grant an audience to the ten
petitioners at the said time. The petitioners, if they so wish and
are so inclined, shall intimate the Hon’ble Speaker of the
Assembly their decision to resign, in which event, the Hon’ble E
Speaker shall take a decision forthwith and, in any case, in the
course of the remaining part of the day. Such decision of the
Hon’ble Speaker as may be taken in terms of the present order,
be laid before the Court tomorrow (12.07.2019)...”
10. Meanwhile, on 11.07.2019, members of the INC withdrew F
their disqualification complaint against B. Nagendra in Disqualification
Petition No.1 of 2019. The Speaker, it appears, did not take any decision
on the resignation in spite of the order of this Court. Simultaneously, a
whip was issued by the INC and the JD(S) on 12.07.2019 calling upon
their members to attend proceedings, and cautioning the members of
disqualification if they failed to attend the same. Further, Disqualification G
Petition Nos. 3, 4 and 5 were filed against Dr. K. Sudhakar, Pratap
Gouda Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekhar,
B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C.
Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baig
between 10.07.2019 to 12.07.2019. H
912 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 11. Subsequently, when the aforesaid Writ Petition came up for
hearing on 12.07.2019, this Court passed the order as under:
“Having regard to the weighty issues that have arisen and the
incomplete state of facts, as indicated above, we are of the view
that the matter should be considered by the Court further on 16th
B July, 2019.
In the meantime, the status quo as on today, with regard
to the ten petitioners, be maintained, namely, that neither
the issue of resignation nor the issue of disqualification will
be decided by the Hon’ble Speaker.
C This order has been passed by this Court only to enable the Court
to decide the larger constitutional questions arising as indicated
above.”
(emphasis supplied)
12. Further, this Court on 17.07.2019, passed the following order:
D
“The issue arising in the case is whether resignations submitted
by Members of the Legislative Assembly at a point of time earlier
than petitions for their disqualification under the Tenth Schedule
of the Constitution should have priority in the decision making
process or whether both sets of proceedings should be taken up
E simultaneously or the disqualification proceedings should have
precedence over the request(s) for resignation.
Arguments have been advanced by the learned counsels for the
parties on the touchstone of Articles 164, 190, 191, 212 and 361B
and the Tenth Schedule of the Constitution. We have considered
F the same. Constitutional principles should not receive an
exhaustive enumeration by the Court unless such an exercise is
inevitable and unavoidable to resolve the issues that may have
arisen in any judicial proceeding.
In the present case, having regard to the stage at which the
G above issues are poised in the light of the facts and circumstances
surrounding the same, we are of the view that the aforesaid
questions should receive an answer only at a later stage of the
proceedings. The imperative necessity, at this stage, is to
maintain the constitutional balance and the conflicting and
competing rights that have been canvassed before us. Such
H an interim exercise has become prudent in view of certain
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 913
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

time frame exercise(s) that is in the offing in the A
Karnataka Legislative Assembly, particularly, the no trust
motion against the present Government, which we are told
is due for being taken up on 18th July, 2019. In these
circumstances, the competing claims have to be balanced
by an appropriate interim order, which according to us,
should be to permit the Hon’ble Speaker of the House to B
decide on the request for resignations by the 15 Members
of the House within such time frame as the Hon’ble
Speaker may consider appropriate. We also take the view
that in the present case the discretion of the Hon’ble Speaker
while deciding the above issue should not be fettered by C
any direction or observation of this Court and the Hon’ble
Speaker should be left free to decide the issue in
accordance with Article 190 read with Rule 202 of the
Rules of Procedure and Conduct of Business in Karnataka
Legislative Assembly framed in exercise of the powers
under Article 208 of the Constitution. D
The order of the Hon’ble Speaker on the resignation issue, as
and when passed, be placed before the Court.
We also make it clear that until further orders the 15 Members
of the Assembly, ought not to be compelled to participate in the
E
proceedings of the ongoing session of the House and an option
should be given to them that they can take part in the said
proceedings or to opt to remain out of the same. We order
accordingly.”
(emphasis supplied)
F
13. Disqualification Petition No. 7 of 2019 was filed against R.
Shankar on 16.07.2019 and Disqualification Petition No. 8 of 2019 was
filed against Shrimanth Balasaheb Patel on 20.07.2019. The Speaker
thereupon issued emergent notices between 18.07.2019 to 20.07.2019
to all the Petitioners regarding the pending disqualification petitions to
G
appear before him on the date of hearing fixed for 23.07.2019 and
24.07.2019. The notices did not refer to the resignation letters which
had been submitted by 15 Petitioners, who are parties to the Writ Petition
(C) No. 872 of 2019 filed before this Court. The Petitioners have alleged
that the period given in the aforesaid notices was too short and in fact
some of them had not even received notices within time to respond. H
914 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 14. While the aforesaid disqualification petitions/resignation letters
were pending, the INC on 20.07.2019 had again issued a whip requiring
their members of the Legislative Assembly to attend the proceedings
of the House on 22.07.2019.
15. The trust vote was finally taken up for consideration on
B 23.07.2019. The 17 Petitioners did not attend the House. As a result,
the INC and JD(S) coalition Government, under the leadership of Mr.
Kumaraswamy was in a minority, resulting in the resignation of Mr.
Kumaraswamy as Chief Minister.
16. Further, as detailed above, on 25.07.2019 and 28.07.2019, the
C Speaker passed the five impugned orders in Disqualification Petition
Nos. 1, 3, 4, 5, 7 and 8 of 2019. In these orders, the Speaker:
a. Rejected the resignation of the members asserting that
they were not voluntary or genuine
b. Disqualified all the Petitioners, and
D
c. Disqualified the Petitioners till the end of the 15th
Legislative Assembly term
17. Aggrieved, by the aforesaid disqualifications, all the Petitioners
herein have approached this Court under Article 32 of the Constitution.
E B. CONTENTIONS
LEARNED SENIOR COUNSEL MR. MUKUL
ROHATGI ON BEHALF OF PETITIONERS IN W.P. (C)
NOS. 997, 998, 1006 AND 1007 OF 2019
Learned Senior Counsel Mr. Mukul Rohatgi, argued that
F
the members of the house have an indefeasible right to
resign but the speaker went beyond his constitutionally
mandated duty and gave an opinion on the motive of
the members and wrongfully rejected the resignations
tendered by them. On the contrary, the speaker has to
G accept the resignation once it has been tendered in the
correct format.
Explaining the connection between resignation and
disqualification under the Tenth Schedule of the
Constitution, Mr. Rohatgi stressed that once resignation
H was validly tendered, there was no question of the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 915
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

Speaker exercising his jurisdiction to disqualify a A
member. Disqualification under the Tenth Schedule was
only with respect to a person who was a member, and
not otherwise.
The learned Senior Counsel challenging the legality of
the disqualification order submitted that the same can B
be interfered with, if the Court finds that the order is
perverse, results from non-application of mind, or is in
violation of principles of natural justice. It was contended
that in the present case, all three of the above infirmities
are made out in the disqualification order of the Speaker.
C
The Speaker, in issuing “emergent” notice returnable in
3-4 days is in contravention of the requirement for 7
days’ notice under the Karnataka Legislative Assembly
(Disqualification of Members on Ground of Defection)
Rules, 1986. This makes the order of the Speaker bad
for non-compliance of the principles of natural justice, D
particularly when the Petitioners had only sought time
of 4 weeks to produce documents.
Lastly, learned Senior Counsel vehemently submitted
that even if disqualification is held to be valid in law,
the same cannot take away the right of the Petitioners E
to contest in the upcoming elections, as there exists no
bar on the right to contest elections under Tenth
Schedule of the Constitution.
LEARNED SENIOR COUNSEL CA SUNDARAM ON
BEHALF OF PETITIONER IN W.P. (C) NO. 1000 OF F
2019
The learned Senior Counsel submitted that the
resignation tendered in the present case was resignation
from the House and not from the party.
G
If resignation is tendered under Article 190, the
Speaker’s role is limited to the extent of determining
voluntariness and genuineness of the same. The inquiry
of the Speaker as to the “voluntariness” is limited in its
scope to the question of whether the member was
coerced to resign or not. The enquiry as to H
916 SUPREME COURT REPORTS [2019] 16 S.C.R.

A “genuineness” only related to whether the resignation
letter was forged, or not actually made by the member.
Additionally, when a member hands over the letter of
resignation to the Speaker personally and informs the
Speaker that the same is voluntary and genuine, then
the Speaker has to accept the resignation immediately.
B
The learned Senior Counsel also submitted that the
motive behind the resignation is immaterial, as the
proviso to Article 190(3) of the Constitution restricts the
scope of inquiry by the Speaker only to voluntariness
and genuineness.
C
LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF
PETITIONER IN W.P.(C) NO. 1003 OF 2019
The learned Senior Counsel distinguished the case of
the Petitioner on the basis that he had never tendered
D his resignation. In spite of that, a separate disqualification
order was passed against him.
In the present case, the Petitioner belonged to KPJP.
Although the party had decided to merge with the INC
and had intimated the Speaker about the same, there
E was no formal order of merger. When the whip was
issued by the INC, the Petitioner herein requested the
Speaker to provide him with a separate seat with the
opposition members. But the Speaker refused the same,
recognizing the Petitioner to be affiliated with the INC.
F The learned Senior Counsel for the Petitioner brought
to the notice of the Court the letter of intimation issued
by the Executive Committee of his party directing him
to stay on the side of the opposition. Therefore, without
any formal order of merger, the Petitioner was not bound
by the whip issued by the INC.
G
LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF
PETITIONER IN W.P. (C) NO. 992 OF 2019
The case of the Petitioner can be distinguished factually
from the case of most of the other Petitioners as he had
H not tendered his resignation. When the whip was issued,
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 917
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

due to prevailing medical conditions, the Petitioner had A
to urgently travel to Mumbai, pursuant to which he failed
to participate in the proceedings of the House.
Although these facts were intimated to the Speaker with
supporting medical records, the Speaker passed the
order of disqualification in haste without giving due notice B
to the Petitioner. The learned Senior Counsel submitted
that such an ex parte order of disqualification, without
considering relevant material on record and placing
reliance upon extraneous circumstances, is untenable.
LEARNED SENIOR COUNSEL A.K GANGULY ON C
BEHALF OF PETITIONERS IN W.P.(C) NO. 1005 OF
2019
This Court, vide its order dated 17.07.2019 in Writ
Petition (C) No. 872 of 2019, granted liberty to the
Petitioners herein to either participate or opt out of the
D
proceedings of the ongoing session of the House. But
the aforesaid order was ignored by the political party
of the Petitioners herein by issuing the whip, and by the
Speaker in relying upon the same to disqualify the
Petitioners.
The learned Senior Counsel also submitted that the E
sanctity of the Petitioners’ resignation should be
protected. The order of disqualification rendered by the
Speaker is mala fide and is not supported by any cogent
reasons.
Learned Senior Counsel K.V. Vishwanathan on behalf of F
Petitioners in W.P. (C) No. 997 of 2019
The learned senior counsel submitted that on 11.02.2019,
a disqualification petition was filed against 4 MLAs
including Dr. Umesh Yadav and the Petitioners herein.
Subsequently, during the pendency of the said G
disqualification petition, Dr. Umesh Yadav submitted his
resignation which was accepted by the Speaker.
However, the Speaker, acting in a mala fide manner,
kept the resignation letter submitted by the Petitioners
herein pending until the disqualification petition was
decided. H
918 SUPREME COURT REPORTS [2019] 16 S.C.R.

A Despite the orders of this Court directing the Speaker
to decide the resignation, the Speaker kept the matter
pending till the decision on the disqualification petition.
The learned Senior Counsel further contended that the
Speaker wrongly took into consideration actions
B pursuant to the orders of this Court dated 17.07.2019,
wherein the Petitioners were granted the liberty not to
participate in the ongoing proceedings of the house.
LEARNED SENIOR COUNSEL SAJAN POOVAYYA ON
BEHALF OF PETITIONER IN W.P. (C) NO. 1001 OF
C 2019
The Petitioner was a member of the INC who had
resigned on 01.07.2019 in protest against certain land
dealing in his Constituency. However, he was put in the
same group as the other disqualified Petitioners by the
Speaker. The learned Senior Counsel contends that
D
omnibus statements and allegations have been rendered
in the disqualification order and the same was passed
without taking into consideration the documents
submitted by the Petitioner herein.
The learned Senior Counsel reiterated the earlier
E
contention that the actions of the Petitioner stood
protected by virtue of the interim order dated 17.07.2019
passed by a Co-ordinate Bench of this Court in Writ
Petition (C) No. 872 of 2019.
LEARNED SOLICITOR GENERAL TUSHAR MEHTA
F
ON BEHALF OF THE SPEAKER:
The learned Solicitor General submitted that members
of the House have the right to resign.
The learned Solicitor General submitted that this was a
G fit case for the matter to be remanded to the Speaker
for fresh hearing.
LEARNED SENIOR COUNSEL KAPIL SIBAL ON
BEHALF OF RESPONDENT NOS. 2 AND 3 IN W.P. (C)
NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007
H OF 2019
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 919
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

The learned Senior Counsel firstly stated that the A
impugned orders of disqualification can only be
challenged under Article 226 and not under Article 32
of the Constitution, as these are matters involving merely
statutory rights. There is no alleged violation of
fundamental rights which mandates the invocation of
B
jurisdiction under Article 32 of the Constitution. Further,
the Speaker is a quasi-judicial authority, the remedy
against whose order lies only under Article 226 of the
Constitution.
The learned Senior Counsel emphasized upon the
C
conduct of the Petitioners to prove that their resignations
were motivated. The counsel urged this Court to take a
note of the conduct of the members both prior and
subsequent to the act of resignation to comprehend the
motive behind such resignation. He stated that motive
has to be decided to determine the “genuineness” and D
“voluntariness” of the resignation, as it is the motive
which acts as an umbilical cord between the issues of
genuineness and voluntariness. In light of the same,
learned Senior Counsel pointed out that the Petitioners,
after tendering their resignation, never went to the
Speaker; rather they approached the Governor and the E
Supreme Court. It ought to be noted that the letters of
resignation were tendered collectively.
The power vested in the Speaker is a judicial exercise
of power. The Court’s discretion in this arena is quite
limited. Moreover, the Speaker, being the master of the F
House, can impose any restriction pursuant to the act
of disqualification. It ought to be noted that the acts of
disqualification took place within the House and
therefore it is well within the inherent powers of the
Speaker to impose any sanction consequent to the act G
of defection. Without such power of sanction, the
position of the Speaker is equivalent to that of a toothless
tiger.
Additionally, it was submitted that although the
Petitioners have repeatedly contended that the rules of H
920 SUPREME COURT REPORTS [2019] 16 S.C.R.

A natural justice have been violated, it ought to be noted
that rules of natural justice cannot be put in a straitjacket.
Although, these principles are immutable, yet they are
flexible, and are not confined to technical limits. The
Petitioners herein have to show some real injury or patent
perversity in the order of the Speaker.
B
Moreover, when the whip was issued with respect to a
motion of confidence, the members are duty bound to
accept the same. The Petitioners, by violating the whip,
have voluntarily given up membership of the party. Even
assuming that the liberty granted by this Court in the
C
earlier writ proceedings was correct, with respect to
non-compulsion of the members for attending the
Assembly, there was legal necessity to attend the
Assembly at such a determinative point. The learned
Senior Counsel made a distinction between ordinary
D whips and those which are more essential, which were
necessary for the survival of the Government- such as
those pertaining to a trust vote, a no-confidence motion,
or even a whip relating to the budget. He submitted that
such a whip must be followed per se, and that a member
could not refuse to appear/vote with respect to the
E same.
The learned Senior Counsel proceeded to distinguish
between consequences of resignation with that of
disqualification. He stated that sole purpose of the Tenth
Schedule is to check bulk defections. In light of the
F same, the Petitioners cannot be allowed to contest the
by-elections, as allowing them to contest dilutes the
effect of disqualification. There is a clear bar for
acceptance of the nomination of disqualified candidates
under Section 36 of The Representation of the People
G Act, 1951. Therefore, the disqualified members should
not be allowed to contest fresh elections.
The learned Senior Counsel also contended that the
Speaker has the power to disqualify under the Tenth
Schedule, which also includes the power of the Speaker
H to command that the member disqualified would not be
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 921
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

eligible to stand for re-election, on the seat falling vacant, A
till the end of the term of the House.
However, since the matter involves important questions
in relation to the power of the Speaker to decide the
parallel proceedings of resignation and disqualification,
the power of the Speaker to conduct inquiry as to the B
“voluntariness” and “genuineness”, the interpretation of
the terms “voluntary” and “genuine”, the relevant
material to be considered during an inquiry under Article
190(3) of the Constitution, the relevant period of inquiry,
etc., the same is required to be considered by a C
Constitution Bench.
LEARNED SENIOR COUNSEL DR. RAJEEV DHAVAN
ON BEHALF OF RESPONDENT NO. 2 IN W.P (C) NO.
1005 OF 2019
The learned Senior Counsel defended the order of D
disqualification by stating that the Speaker exercises
wide range of power while acting in an adjudicatory
capacity and the same should not be reduced to a
mechanical exercise. Therefore, while deciding the
issues regarding “genuineness” and “voluntariness” E
behind the act of resignation, the Speaker can look to
the series of events leading to the resignation so as to
decide the motive. Pursuant to the above submission,
the counsel stated that taking into totality of facts into
consideration there exist no ground to claim that the order
of the Speaker suffers from perversity or that the same F
was passed mala fide.
The learned Senior Counsel also submitted that there
exists no indefeasible right of resignation as these
Petitioners are acting in their constitutional capacity as
members of the Legislative Assembly. Moreover, the G
resignations rendered in the present case cannot be
qualified as resignation simpliciter, rather they indicate
resignation for the cause of defection and in such a
situation, the Speaker could not have turned a blind eye
to the activities of the Petitioners. H
922 SUPREME COURT REPORTS [2019] 16 S.C.R.

A LEARNED SENIOR COUNSEL DEVADUTT KAMAT
ON BEHALF OF RESPONDENT NOS. 2 AND 3 IN W.P.
(C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007
OF 2019
The learned Senior Counsel reiterated the views
B expressed above by the other learned Senior Counsel
and defended the orders of the Speaker stating that he
had duly complied with the orders of this Court by
deciding the resignations submitted by the Petitioners
under Article 190 of the Constitution. The learned Senior
C Counsel submitted that the orders dated 11.07.2019 and
17.07.2019 passed by a Co-ordinate Bench of this Court
in Writ Petition (C) No.872 of 2019 only requested the
Speaker to take a decision on the resignations as per
his discretion and within such time frame as he may
consider appropriate. Acceptance or rejection of the
D resignations is dependent on the condition that the same
are voluntary and genuine.
Further, the disqualification orders passed by the Speaker
were based on a totality of circumstances prevailing in
which the conduct of the Petitioners was questionable.
E The absence of the Petitioners from the proceedings of
the House, when the trust motion of their Government
was being discussed, clearly shows their intention to act
against the party interest. The disqualification orders
were based on cumulative facts including the absence
F of the Petitioners despite repeated notices to remain
present, and their actions and conduct in colluding with
the BJP to engineer the fall of the coalition government.
LEARNED SENIOR COUNSEL K. SHASHIKIRAN
SHETTY ON BEHALF OF RESPONDENT NOS. 2 AND
G 3 IN W.P. (C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006
AND 1007 OF 2019
Learned senior advocate supported the arguments
advanced by the learned senior advocate, Mr. Kapil
Sibal, and stated that the disqualification order could not
H be reviewed by this Court.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 923
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

Further, the Tenth Schedule is clear on the aspect of A
merger, wherein he pointed out that there is no need to
communicate the factum of merger to R. Shankar
[Petitioner in Writ Petition (C) No. 1003 of 2019].
LEARNED SENIOR COUNSEL RAKESH DWIVEDI ON
BEHALF OF ELECTION COMMISSION OF INDIA B
The learned Senior Counsel submitted that it has been
a matter of consistent practice that members disqualified
under the Tenth Schedule can participate in the next
elections. Any bar for a particular period is not
anticipated by law with respect to disqualification under C
the Tenth Schedule.
He further stated that the power of the Speaker is only
limited to the adjudication of the disqualification petition.
Any consequential action which flows from such
disqualification is beyond his jurisdiction. The Speaker
D
cannot, at will, provide any particular term of
disqualification. Disqualification, and the consequences
thereof, being punitive, have to be sanctioned by law.
When a member gets disqualified under the Tenth
Schedule, a consequential vacancy arises thereby.
However, it is impermissible for the Speaker to decide E
as to who can contest for the said vacancy.
C. ISSUES
18. In view of the arguments contended, following questions arise
for our consideration herein:
F
1. Whether the Writ Petition challenging the order of the
Speaker under Article 32 is maintainable?
2. Whether the order of the Speaker rejecting the
resignation and disqualifying the Petitioners is in
accordance with the Constitution? G
3. Even if the Speaker’s order of disqualification is valid,
does the Speaker have the power to disqualify the
members for the rest of the term?
4. Whether the issues raised require a reference to the
larger Bench? H
924 SUPREME COURT REPORTS [2019] 16 S.C.R.

A D. MAINTAINABILITY OF THE WRIT PETITION
19. At the outset, it must be noted that learned Senior Counsel,
Mr. Kapil Sibal has contended that this Court does not have the
jurisdiction under Article 32 of the Constitution of India to deal with
this matter. Further, learned Senior Counsel, Dr. Rajeev Dhavan, has
B supported the aforesaid argument by stating that no fundamental right
is violated, more so when the members of Parliament or Legislative
Assembly cannot invoke the ‘right to freedom of trade and profession’
under Article 19 (1)(g) of the Constitution of India.
20. The contours of this Court’s writ jurisdiction has been long
C established in several decisions of this Court. Where the law provides
for a hierarchy of appeals, the parties must exhaust the available
remedies before resorting to writ jurisdiction of this Court [See U.P.
State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264]. At the
same time, this Court in a catena of decisions has held that this doctrine
D is not a rule of law, but essentially a rule of policy, convenience and
discretion and thus not a compulsion and where there is failure of
principles of natural justice or where the orders or proceedings are
wholly without jurisdiction warrants, this Court may exercise its writ
jurisdiction even if the parties had other adequate legal remedies. [State
of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86; Harbanslal
E
Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107]
21. The learned senior counsel on behalf of the Respondents have
challenged the jurisdiction of this Court under Article 32 of the
Constitution by placing reliance on the Kihoto Hollohan v. Zachillhu,
F 1992 Supp (2) SCC 651, wherein this Court, while dealing with the
scope of judicial review stated as under:
“109. In the light of the decisions referred to above and the
nature of function that is exercised by the Speaker/Chairman
under Paragraph 6, the scope of judicial review under
G Articles 136, and 226 and 227 of the Constitution in
respect of an order passed by the Speaker/Chairman under
Paragraph 6 would be confined to jurisdictional errors only viz.,
infirmities based on violation of constitutional mandate, mala fides,
non-compliance with rules of natural justice and perversity.”

H (emphasis supplied)
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 925
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

22. We may note that writ jurisdiction is one of the valuable rights A
provided under Article 32 of the Constitution, which in itself forms part
of the basic structure of the Constitution. After the decision in the
Kihoto Hollohan case (supra), the Speaker, while exercising the power
to disqualify, is a Tribunal and the validity of the orders are amenable
to judicial review. On a perusal of the judgment in the Kihoto Hollohan
B
case (supra), we do not find any explicit or implicit bar to adjudicate
the issue under the writ jurisdiction of this Court.
23. The Petitioners are alleging violation of principles of natural
justice and their right to a fair hearing. Principles of natural justice and
right to fair hearing can be traceable to right to equality and rule of
C
law enshrined under Article 14 of the Constitution, read with other
fundamental rights [refer to Maneka Gandhi v. Union of India,(1978)
1 SCC 248].
24. A seven Judge Bench of this Court in the case of Ujjam
Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, held that writ
D
jurisdiction under Article 32 of the Constitution is available when
principles of natural justice are violated. This view was affirmed by a
nine Judge Bench of this Court in the case of Naresh Shridhar
Mirajkar v. State of Maharashtra, AIR 1967 SC 1, in the following
terms:
E
“54. The scope of the jurisdiction of this Court in dealing with
writ petitions under Article 32 was examined by a Special Bench
of this Court in Ujjam Bai v. State of Uttar Pradesh [(1963) 1
SCR 778]. This decision would show that it was common ground
before the court that in three classes of cases a question of the
enforcement of the fundamental rights may arise; and if it does F
arise, an application under Article 32 will lie. These cases are:
(1) where action is taken under a statute which is ultra vires the
Constitution; (2) where the statute is intra vires but the action
taken is without jurisdiction; and (3) where the action taken
is procedurally ultra vires as where a quasi-judicial G
authority under an obligation to act judicially passes an
order in violation of the principles of natural justice.”
(emphasis supplied)
25. In the context of disqualification orders, this Court has
exercised its writ jurisdiction under Article 32. A three Judge Bench of H
926 SUPREME COURT REPORTS [2019] 16 S.C.R.

A this Court in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, has
explicitly held that a challenge to an order of disqualification under the
Tenth Schedule is available under the writ jurisdiction of this Court. This
Court held as under:
“11. The Speaker, while exercising power to disqualify Members,
B acts as a Tribunal and though validity of the orders thus
passed can be questioned in the writ jurisdiction of this
Court or High Courts, the scope of judicial review is limited as
laid down by the Constitution Bench in Kihoto
Hollohan v. Zachillhu [1992 Supp (2) SCC 651]. The orders can
be challenged on the ground of ultra vires or mala fides or having
C
been made in colourable exercise of power based on extraneous
and irrelevant considerations. The order would be a nullity if rules
of natural justice are violated.”
(emphasis supplied)
D 26. Reliance can be placed on the constitutional provisions and
debates thereupon which show that this Court can inquire into the
legitimacy of the exercise of the power. Dr. B.R. Ambedkar has
described Article 32 as the very soul of the Constitution - very heart
of it - most important Article. Moreover, the jurisdiction conferred on
this Court by Article 32 is an important and integral part of the basic
E
structure of the Constitution of India and no act of Parliament can
abrogate it or take it away except by way of impermissible erosion of
fundamental principles of the constitutional scheme are settled
propositions of Indian jurisprudence.
27. This Court, as the highest Constitutional Court, has to, and
F
has always, functioned in accordance with the applicable judicially
determined parameters while performing its constitutional duty to
judicially review the acts of constitutional functionaries. It has examined
questions of both fact and law, so long as it has been vested with the
power to do so. The scrupulous discharge of duties by all guardians of
G the Constitution include the duty not to transgress the limitations of their
own constitutionally circumscribed powers by trespassing into what is
properly the domain of other constitutional organs.
28. In any case, we note that by challenging the order directly
under Article 32, the Petitioners have leapfrogged the judicial hierarchy
H as envisaged under the Constitution [refer to Tamil Nadu Pollution
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 927
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

Control Board v. Sterlite Industries (I) Ltd., 2019 SCC Online SC A
221].
29. We do not appreciate the manner in which the petitioners
have knocked on the doors of this Court. Among other reasons, we
proceeded to hear the present matter due to the peculiar facts presented
before us, wherein certain interim orders were passed herein by another B
Co-ordinate Bench of this Court in Writ Petition (C) No. 872 of 2019
filed by some of the present petitioners. We had heard the matter at
some length on 25.09.2019 and 26.09.2019, when with the consent of
the counsel of all the parties, the matter was fixed for final hearing.
Since a substantial amount of time has passed in the meanwhile, and
to ensure that the same exercise need not be repeated before the High C
Court, we are left with no option but to hear these cases on merits.
30. Despite the fact that this Court has sufficient jurisdiction to
deal with disqualification cases under the writ jurisdiction, a party
challenging a disqualification order is required to first approach the High
Court as it would be appropriate, effective and expeditious remedy to D
deal with such issues. This Court would have the benefit of a considered
judicial verdict from the High Court. If the parties are still aggrieved,
then they may approach this Court.
31. Having ascertained that this Court has the jurisdiction to deal
with the subject matter of the present petitions, the question concerning E
the extent of judicial review can be taken up later, when we analyze
and discuss the aspects concerning the validity of the orders passed
by the Speaker, disqualifying the Petitioners and rejecting their
resignations.
E. REJECTION OF RESIGNATIONS F
32. In the present case, 15 of the 17 Petitioners had tendered
their resignation from the House before the disqualification petitions
were adjudicated. The Speaker vide orders dated 28.07.2019 in
Disqualification Petition Nos. 3 and 4 of 2019 and Disqualification
Petition No. 5 of 2019, and order dated 25.07.2019 in Disqualification G
Petition No. 1 of 2019, rejected the resignation of the Petitioners therein,
holding that they were not voluntary and genuine.
33. Mr. Kapil Sibal, learned Senior Counsel, has contended that
rejection of the resignation by the Speaker was appropriate as the same
was given only to frustrate the object of disqualification. He has H
928 SUPREME COURT REPORTS [2019] 16 S.C.R.

A submitted that the consideration before the Court is limited considering
the fact that the bonafides and motive of the Petitioners to resign was
appropriately dealt under Article 190(3)(b) of the Constitution. On the
other hand, the Petitioners have strenuously contended that the inquiry
required under Article 190(3)(b) of the Constitution is limited to
“voluntariness” and “genuineness”, and not the motive or the reason
B
for resignation.
34. The first question we need to consider concerns the scope
of judicial review with respect to acceptance/rejection of the resignation
by the Speaker. The Respondents have contended on this count that
C the Court cannot go into this aspect as the acceptance/rejection of
resignation is based on the subjective satisfaction of the Speaker, which
is immune from judicial review.
35. We are unable to agree with this contention. It is true that
rd
33 Constitutional Amendment changed the constitutional position by
D conferring discretion on the Speaker to reject the resignation. However,
such discretion is not unqualified, as the resignation can only be rejected
if the Speaker is “satisfied that such resignation is not voluntary or
genuine”. Determination of whether the resignations were “voluntary”
or “genuine” cannot be based on the ipse dixit of the Speaker, instead
it has to be based on his “satisfaction”. Even though the satisfaction is
E subjective, it has to be based on objective material showing that
resignation is not voluntary or genuine. When a member tenders his
resignation in writing, the Speaker must immediately conduct an inquiry
to ascertain if the member intends to relinquish his membership. The
inquiry must be in accordance with the provisions of the Constitution
F and the applicable rules of the House. This satisfaction of the Speaker
is subject to judicial review.
36. The next logical question which arises for consideration
concerns the ambit of the terms “voluntary” and “genuine” in Article
190(3)(b) of the Constitution. Prior to the 33 rd Constitutional
G Amendment, Article 190(3)(b) read as follows:
“(3) If a member of a House of the Legislature of a State—
(a) …..
(b) resigns his seat by writing under his hand addressed to
H the Speaker or the Chairman, as the case may be.”
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 929
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

37. The 33 rd Constitutional Amendment amended Article A
190(3)(b) of the Constitution and added a proviso. The revised clause
reads as follows:
“(3) If a member of a House of the Legislature of a State—
(a) …..
B
(b) resigns his seat by writing under his hand addressed to
the Speaker or the Chairman, as the case may be, and
his resignation is accepted by the Speaker or the
Chairman, as the case may be, his seat shall thereupon
become vacant:
C
Provided that in the case of any resignation referred to in sub
clause (b), if from information received or otherwise and after
making such inquiry as he thinks fit, the Speaker or the
Chairman, as the case may be, is satisfied that such resignation
is not voluntary or genuine, he shall not accept such resignation.”
D
rd
38. Thus, prior to the 33 Constitutional Amendment, there was
no provision in the Article which required the resignation to be accepted
by the Speaker to become effective. Originally, the position was that a
member of a Legislative Assembly could resign from office by a
unilateral act, and the acceptance of resignation was not required. [refer
E
to Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301; Moti
Ram v. Param Dev, (1993) 2 SCC 725]
39. First, as a starting principle, it has to be accepted that a
member of the Legislature has a right to resign. Nothing in the
Constitution, or any statute, prevents him from resigning. A member F
may choose to resign for a variety of reasons and his reasons may be
good or bad, but it is his sole prerogative to resign. An elected member
cannot be compelled to continue his office if he chooses to resign. The
33rd Constitutional Amendment does not change this position. On the
contrary, it ensures that his resignation is on account of his free will.
G
40. Second, the 33 rd Constitutional Amendment requires
acceptance of resignation by the Speaker. Thus, merely addressing a
resignation letter to the Speaker would not lead to the seat automatically
falling vacant. The Speaker has to accept such resignation for the seat
to become vacant. However, as discussed above, the Speaker has
limited discretion for rejecting the resignation. If the resignation is H
930 SUPREME COURT REPORTS [2019] 16 S.C.R.

A voluntary or genuine, the Speaker has to accept the resignation and
communicate the same.
41. Third, the Speaker can reject the resignation, if the Speaker
is satisfied that resignation was “not voluntary or genuine”. Herein, our
attention is drawn to the Chapter 22, Rule 202 (2) of the Rules of
B Procedure and Conduct of Business in Karnataka Legislative Assembly,
which is extracted as under:
“(2) If a member hands over the letter of resignation to the
Speaker personally and informs him that the resignation is
voluntary and genuine and the Speaker has no information or
C knowledge to the contrary, and if he is satisfied, the Speaker may
accept resignation immediately.”
(emphasis supplied)
The rule states that the Speaker has to take a call on the
D resignation letter addressed to him immediately, having been satisfied
of the voluntariness and genuineness. Reading the rule in consonance
with Article 190(3)(b) of the Constitution and its proviso, it is clear that
the Speaker’s satisfaction should be based on the information received
and after making such inquiry as he thinks fit. The aforesaid aspects
do not require roving inquiry and with the experience of a Speaker, who
E is the head of the House, he is expected to conduct such inquiry as is
necessary and pass an order. If a member appears before him and gives
a letter in writing, an inquiry may be a limited inquiry. But if he receives
information that a member tendered his resignation under coercion, he
may choose to commence a formal inquiry to ascertain if the resignation
F was voluntary and genuine.
42. Fourth, although the word “genuine” has not been defined,
in this context, it would simply mean that a writing by which a member
chooses to resign is by the member himself and is not forged by any
third party. The word “genuine” only relates to the authenticity of the
G letter of resignation.
43. Similarly, the word “voluntary” has not been defined. In this
context, it would mean the resignation should not be based on threat,
force or coercion. This is evident from the Statement of Objects and
Reasons of the 33rd Constitutional Amendment which is extracted
H below:
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 931
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

1. Articles 101 (3) (b), and 190 (3) (b) of the Constitution permit A
a member of either House of Parliament or a member of a House
of the Legislature of a State to resign his seat by writing under
his hand addressed to the Speaker or the Chairman, as the case
may be. In the recent past, there have been instances
where coercive measures have been resorted to for
B
compelling members of’ a Legislative Assembly to resign
their membership, if this is not checked, it might become
difficult for Legislatures to function in accordance with the
provisions of the Constitution. It is therefore, proposed to
amend the above two articles to impose a requirement as to
acceptance of the resignation by the Speaker or the Chairman C
and to provide that the resignation shall not be accepted by the
Speaker or the Chairman if he is satisfied after making such
inquiry as he thinks fit that the resignation is not voluntary or
genuine.
(emphasis supplied) D
The Speaker therefore has a duty to reject the resignation if such
resignation is based on coercion, threat or force.
44. Learned Senior Counsel, Mr. Kapil Sibal, has contended that
a Speaker, as a part of his inquiry, can also go into the motive of the
member and reject his resignation if it was done under political pressure. E
We are unable to accept this contention. The language of Article
190(3)(b) of the Constitution does not permit the Speaker to inquire into
the motive of the resignation. When a member is resigning on political
pressure, he is still voluntarily doing so. Once the member tenders his
resignation it would be “voluntary” and if the writing can be attributed F
to him, it would be “genuine”. Our view is also supported by the
debates on the 33rd Constitutional Amendment. It may be necessary to
quote the debate dated 03.05.1974 on the 33 rd Constitutional
Amendment, which is extracted below:
H.R. Gokhale: I do not want to reply elaborately to all the points G
because I know I will have to deal with these points when the
Bill comes up for consideration. In a way, I am thankful to the
Hon. Members. They have given me notice of what they are
going to say. I will deal with some points raised. Sir, the idea
that the Bill prevents any member from resigning is absolutely
wrong. On the contrary, the basis on which the Bill proceeds is, H
932 SUPREME COURT REPORTS [2019] 16 S.C.R.

A the right of resignation is protected and the idea of acceptance
of a resignation is also subject to a proviso that the acceptance
is in the normal course and the resignation can take place only
in the event of a conclusion being reached that either it is not
genuine or it is not voluntary. Therefore, to proceed on the basis
that the right of a Member to resign is taken away, is entirely
B
wrong. This can be seen if the bill is properly studied. The other
thing they said was, in the name of democracy, how do you
prevent people from resigning. Nobody is prevented from
resigning. On the contrary, the basic idea is, the ordinary right
of a person to say ‘I do not want to continue to be a Member of
C the House’ is maintained. But, is it a democratic way, when
a Member does not want to resign, people pressurise him
to resign- not political pressure but by threats of violence-
as had occurred in the recent past. The person has no
option but to resign. The Speaker has no option but to
accept the resignation in the present set-up. This is a matter
D
which was true in Gujarat. It may be true elsewhere. It was true
in Gujarat. It had happened. A large number of people, about 200-
300 people, went and indulged in acts of violence, held out threats
and under duress, signatures were obtained. In some cases,
Members were carried physically from their constituencies to the
E Speaker for giving resignations.
(emphasis supplied)
In this regard, there is no doubt that the Petitioners have
categorically stated and have re-affirmed before the Speaker and this
Court, in unequivocal terms, that they have voluntarily and genuinely
F resigned their membership of the House. This Court, in the earlier Writ
Petition, being Writ Petition (C) No. 872 of 2019, had also directed the
Speaker to look into the resignation of the members, but the same was
kept pending.
45. In view of our above discussion we hold that the Speaker
G can reject a resignation only if the inquiry demonstrates that it is not
“voluntary” or “genuine”. The inquiry should be limited to ascertaining
if the member intends to relinquish his membership out of his free will.
Once it is demonstrated that a member is willing to resign out of his
free will, the Speaker has no option but to accept the resignation. It is
H constitutionally impermissible for the Speaker to take into account any
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 933
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

other extraneous factors while considering the resignation. The A
satisfaction of the Speaker is subject to judicial review.
46. We are of the opinion that the aforesaid observations clarify
the scope of the Speaker’s duty under Article 190(3)(b) of the
Constitution, and answer the contention raised by the learned senior
counsel regarding the same. However, since we are deciding the B
question of disqualification, it might not be necessary to make any
observations on the merits of the petitioners’ plea regarding the non-
acceptance of their resignation letters, in view of our subsequent findings
on disqualification.
F. DISQUALIFICATION PROCEEDINGS AFTER C
RESIGNATION
47. It was also contended by the Petitioners that the Speaker
did not have the jurisdiction to deal with disqualification petitions, as
the Petitioners having resigned were no longer members who could have
been disqualified. This issue does not apply to the Petitioners in Writ D
Petition (C) No. 992 of 2019 and Writ Petition (C) No. 1003 of 2019
as they did not tender their resignation.
48. Before we proceed to record our reasons, it is pertinent to
reflect upon the statement of objects and reasons to the Constitution
(Fifty-second Amendment) Act, 1985 which states that the issue of E
defection has preoccupied the national conscience from the 1960s. The
importance of the same stems from the fact that it has the potential to
cause extensive damage to the democracy. In this regard, having
experienced earlier Governments falling due to such practice, the
legislature introduced the bill inserting the Tenth Schedule for F
discouraging such practice.
“The evil of political defections has been a matter of
national concern. If it is not combated, it is likely to
undermine the very foundations of our democracy and the
principles which sustain it. With this object, an assurance was G
given in the Address by the President to Parliament that the
government intended to introduce in the current session of
Parliament an anti-defection Bill. This Bill is meant for outlawing
defection and fulfilling the above assurance.”
(emphasis supplied) H
934 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 49. This court in the Kihoto Hollohan case (supra) has clearly
enunciated the purpose behind the introduction of the Tenth Schedule,
wherein it is stated that “the main purpose underlying the
constitutional amendment and introduction of the Tenth Schedule
is to curb the evil of defection which was causing immense mischief
B in our body politic.” The relevant extracts are presented below:
“9. This brings to the fore the object underlying the provisions in
the Tenth Schedule. The object is to curb the evil of political
defections motivated by lure of office or other similar
considerations which endanger the foundations of our
C democracy. The remedy proposed is to disqualify the
Member of either House of Parliament or of the State
Legislature who is found to have defected from continuing
as a Member of the House. The grounds of disqualification
are specified in Paragraph 2 of the Tenth Schedule.”

D (emphasis supplied)
50. Therefore, it can be clearly concluded that the Tenth Schedule
was brought in to cure the evil of defection recognising the significant
impact it has on the health of our democracy. The 91st Constitutional
Amendment also strengthens the aforesaid view that the law needed
E further strengthening in order to curb the evil of defection. The aforesaid
amendment introduced Articles 75(1B), 164(1B) and 361B in the
Constitution. These provisions bar any person who is disqualified under
the Tenth Schedule from being appointed as a Minister or from holding
any remunerative political post from the date of disqualification till the
date on which the term of his office would expire or if he is re-elected
F to the legislature, whichever is earlier.
51. The intent of the amendment is crystal clear. The constitutional
amendment sought to create additional consequences resultant from the
determination that a person was disqualified under the Tenth Schedule.
If we hold that the disqualification proceedings would become
G infructuous upon tendering resignation, any member who is on the verge
of being disqualified would immediately resign and would escape from
the sanctions provided under Articles 75(1B), 164(1B) and 361B. Such
an interpretation would therefore not only be against the intent behind
the introduction of the Tenth Schedule, but also defeat the spirit of the
H 91st Constitutional Amendment.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 935
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

52. A five Judge Bench of this Court, in the case of Delhi A
Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1)
SCC 600 ruled that an inhibition under the Constitution must be
interpreted so as to give a wider interpretation to cure the existing evils.
The relevant extract has been provided below:
118. Legislation, both statutory and constitutional, is B
enacted, it is true, from experience of evils. But its general
language should not, therefore, necessarily be confined to
the form that that evil had taken. Time works changes,
brings into existence new conditions and purposes and new
awareness of limitations. Therefore, a principle to be valid C
must be capable of wider application than the mischief
which gave it birth. This is particularly true of the constitutional
constructions. Constitutions are not ephemeral enactments
designed to meet passing occasions. These are, to use the words
of Chief Justice Marshall, “designed to approach immortality as
nearly as human institutions can approach it ….”. In the D
application of a constitutional limitation or inhibition, our
interpretation cannot be only of ‘what has been’ but of ‘what
may be’. See the observations of this Court in Sunil
Batra v. Delhi Administration [(1978) 4 SCC 494: 1979 SCC
(Cri) 155]. E
(emphasis supplied)
53. In the case of State (NCT of Delhi) v. Union of India,
(2018) 8 SCC 501, a five Judge Bench of this Court articulated the
principles of constitutional interpretation, stating that Courts are obligated
to take an interpretation which glorifies the democratic sprit of the F
Constitution:
284.1. While interpreting the provisions of the Constitution, the
safe and most sound approach for the constitutional courts to
adopt is to read the words of the Constitution in the light of
the spirit of the Constitution so that the quintessential G
democratic nature of our Constitution and the paradigm of
representative participation by way of citizenry engagement
are not annihilated. The courts must adopt such an
interpretation which glorifies the democratic spirit of the
Constitution. H
936 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 284.5. The Constitution being the supreme instrument envisages
the concept of constitutional governance which has, as its twin
limbs, the principles of fiduciary nature of public power and the
system of checks and balances. Constitutional governance,
in turn, gives birth to the requisite constitutional trust
which must be exhibited by all constitutional functionaries
B
while performing their official duties.
(emphasis supplied)
54. In addition to the above, the decision of the Speaker that a
member is disqualified, relates back to the date of the disqualifying action
C complained of. The power of the Speaker to decide upon a
disqualification petition was dealt by a Constitution Bench of this Court
in Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC
270. This Court, reading the provisions of paragraphs 2 and 6 of the
Tenth Schedule, has clearly held that the Speaker has to decide the
question of disqualification with reference to the date it was incurred.
D The Court held that:
“34. As we see it, the act of disqualification occurs on a member
voluntarily giving up his membership of a political party or at the
point of defiance of the whip issued to him. Therefore, the act
that constitutes disqualification in terms of para 2 of the Tenth
E Schedule is the act of giving up or defiance of the whip. The
fact that a decision in that regard may be taken in the case
of voluntary giving up, by the Speaker at a subsequent
point of time cannot and does not postpone the incurring
of disqualification by the act of the legislator. Similarly, the
fact that the party could condone the defiance of a whip within
F 15 days or that the Speaker takes the decision only thereafter in
those cases, cannot also pitch the time of disqualification as
anything other than the point at which the whip is defied.
Therefore in the background of the object sought to be achieved
by the Fifty-second Amendment of the Constitution and on a true
understanding of para 2 of the Tenth Schedule, with reference
G to the other paragraphs of the Tenth Schedule, the position that
emerges is that the Speaker has to decide the question
of disqualification with reference to the date on which the
member voluntarily gives up his membership or defies the
whip. It is really a decision ex post facto...”
H (emphasis supplied)
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 937
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

55. As such, there is no doubt that the disqualification relates to A
the date when such act of defection takes place. The tendering of
resignation does not have a bearing on the jurisdiction of the Speaker
in this regard. At this point we may allude to the case of D.
Sanjeevayya v. Election Tribunal, Andhra Pradesh, AIR 1967 SC
1211, wherein this Court has held that:
B
“5.It is, therefore, not permissible, in the present case, to interpret
Section 150 of the Act in isolation without reference to Part III
of the Act which prescribes the machinery for calling in question
the election of a returned candidate. When an election petition
has been referred to a Tribunal by the Election Commission and
the former is seized of the matter, the petition has to be disposed C
of according to law. The Tribunal has to adjudge at the conclusion
of the proceeding whether the returned candidate has or has not
committed any corrupt practice at the election and secondly, it
has to decide whether the second respondent should or should
not be declared to have been duly elected. A returned candidate D
cannot get rid of an election petition filed against him by resigning
his seat in the Legislature, whatever the reason for his resignation
may be…”
Therefore, the aforesaid principle may be adopted accordingly,
wherein the taint of disqualification does not vaporise, on resignation,
E
provided the defection has happened prior to the date of resignation.
56. In light of the above, resignation and disqualification are
distinct mechanisms provided under the law which result in vacancy.
Further, the factum/manner of resignation may be a relevant
consideration while deciding the disqualification petition. We do not agree
with the submission of the Petitioners that the disqualification F
proceedings cannot be continued if the resignations are tendered. Even
if the resignation is tendered, the act resulting in disqualification arising
prior to the resignation does not come to an end. The pending or
impending disqualification action in the present case would not have
been impacted by the submission of the resignation letter, considering G
the fact that the act of disqualification in this case have arisen prior to
the members resigning from the Assembly.
G. VALIDITY OF DISQUALIFICATION ORDER
57. The Petitioners have challenged the orders passed by the
Speaker disqualifying them. The Speaker has, after a detailed analysis, H
938 SUPREME COURT REPORTS [2019] 16 S.C.R.

A categorically concluded that the present Petitioners have voluntarily
given up membership of the party, through their undisputed conduct.
58. To examine the above contention, we need to refer to the
scheme of Tenth Schedule and other provisions of the Constitution.
There is no dispute that in India, since the framing of the Constitution,
B there was a constant demand for formulating a law on defection. It
may be noted that India was one of the first countries to legislate on
an Anti-Defection Law. Following the example of India, many other
countries including Israel, Canada etc. have followed suit.
59. Relevant provisions of Paragraph 2 of the Tenth Schedule
C provide that:
“2. Disqualification on ground of defection.—
(1) Subject to the provisions of paragraphs 4 and 5, a member
of a House belonging to any political party shall be disqualified
for being a member of the House—
D
(a) if he has voluntarily given up his membership of such
political party; or
(b) if he votes or abstains from voting in such House
contrary to any direction issued by the political party to
which he belongs or by any person or authority
E
authorised by it in this behalf, without obtaining, in either
case, the prior permission of such political party, person
or authority and such voting or abstention has not been
condoned by such political party, person or authority
within fifteen days from the date of such voting or
F abstention.”
That the Speaker can disqualify a member belonging to any
political party if he has voluntarily given up his membership of such
political party or if he votes against the wishes of his party. It is in this
regard that an appropriate meaning needs to be given to the term
G disqualification.
60. The dictionary meaning of the word ‘disqualification’ is ‘to
officially stop someone from being in a competition or doing something
because they are not suitable, or they have done something wrong’.
However, under the Tenth Schedule this term occupies a specific
H meaning wherein, a member is stopped from continuing to be a member
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 939
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

of a legislative body, if his actions fall in one of the conditions provided A
under paragraph 2.
61. In order to analyze the case at hand, we need to briefly refer
to and understand the scheme of the Constitution with respect to State
Legislatures. Article 168 of the Constitution provides that for every State
there shall be a Governor and two Houses of Legislature namely B
Legislative Council and Legislative Assembly or where only one such
Legislative House is there, then a Legislative Assembly. Under Article
172 of the Constitution every Legislative Assembly unless sooner
dissolved shall continue for five years from the date appointed for its
first meeting. In order to secure the membership of the State Legislature,
such members must comply and conform to three distinct qualifications C
enlisted under Article 173.
62. Article 190(3) of the Constitution provides that the seat
belonging to a member of the Legislative Assembly becomes vacant if
such a member becomes subject to any disqualification as mentioned
in clause (1) or (2) of Article 191 of the Constitution, or he resigns his D
seat by writing under his hand addressed to the Speaker, and his
resignation is accepted by the Speaker in terms of the proviso to Article
190(3) of the Constitution.
63. Article 191 provides for disqualification of a membership
which may be reduced as under: E
“191. Disqualifications for membership.—
(1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative
Council of a State—
F
(a) if he holds any office of profit under the Government
of India or the Government of any State specified in the
First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its
holder;
G
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any H
940 SUPREME COURT REPORTS [2019] 16 S.C.R.

A acknowledgment of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament.
Explanation.—For the purposes of this clause, a person shall
B
not be deemed to hold an office of profit under the Government
of India or the Government of any State specified in the First
Schedule by reason only that he is a Minister either for the Union
or for such State.
(2) A person shall be disqualified for being a member of the
C
Legislative Assembly or Legislative Council of a State if he is
so disqualified under the Tenth Schedule.”
64. It is interesting to note that Article 191(1) of the Constitution
provides for disqualification of a person (a) for being chosen as and
(b) for being, a member of the Legislative Assembly or the Legislative
D
Council if his actions or candidature attract the grounds therein. We
can therefore easily infer from the usage of language under Article
191(1) that for disqualification such as holding an office of profit,
unsoundness of mind, insolvency, etc., bars a person from continuing
as a member as well as from contesting elections. Article 191(2), on
E the other hand, bars a person only “for being a member” of the
Legislative Assembly or the Legislative Council. This difference in
phraseology would be explained later when we consider the part of the
order of the Speaker which disqualified the present Petitioners for the
rest of the legislative term.
F 65. Article 192 of the Constitution provides that the Governor
will be the authority for determination of disqualification on the grounds
as contained under Article 191(1) of the Constitution. In contrast, the
decision as to disqualification on the ground as contained in Article 191(2)
of the Constitution vests exclusively in the Speaker in terms of
paragraph 6 of the Tenth Schedule. There is no dispute that provisions
G
under Tenth Schedule are relatable to disqualification as provided under
Articles 102(2) and 191(2) of the Constitution.
66. At this point we need to observe Article 164 (1B) and 361B
of the Constitution. Article 164(1B) of the Constitution reads as under:
H “164. Other provisions as to Members
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 941
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

... A
(1B). A member of the Legislative Assembly of a State or either
House of the Legislature of a State having Legislative Council
belonging to any political party who is disqualified for being a
member of that House under paragraph 2 of the Tenth Schedule
shall also be disqualified to be appointed as a Minister under B
clause (1) for duration of the period commencing from the date
of his disqualification till the date on which the term of his
office as such member would expire or where he contests
any election to the Legislative Assembly of a State or
either House of the Legislature of a State having
Legislative Council, as the case may be, before the expiry C
of such period, till the date on which he is declared
elected, whichever is earlier.”
Article 361B of the Constitution reads as under:
“361B. Disqualification for appointment on remunerative D
political post.-
A member of a house belonging to any political party who is
disqualified for being a member of the House under paragraph
2 of the Tenth Schedule shall also be disqualified to hold any
remunerative political post for duration of the period E
commencing from the date of his disqualification till the
date on which the term of his office as such member would
expire or till the date on which he contests an election to
a House and is declared elected, whichever is earlier.”
(emphasis supplied) F
From a perusal of the above provisions, it is clear that the
disqualification of a member, apart from the political taint, results in two
further restrictions as a means of punitive actions against the members
disqualified under the Tenth Schedule.
67. Having understood the meaning and ambit of disqualification, G
we now need to concern ourselves with the extent of judicial review
of the order of the Speaker passed under the Tenth Schedule.
68. Paragraph 6 of the Tenth Schedule has an important bearing
upon extent of the judicial review in case of disqualification, and the
same is reproduced as under: H
942 SUPREME COURT REPORTS [2019] 16 S.C.R.

A “6. Decision on questions as to disqualification on ground
of defection.—
(1) If any question arises as to whether a member of a House
has become subject to disqualification under this Schedule, the
question shall be referred for the decision of the Chairman or,
B as the case may be, the Speaker of such House and his decision
shall be final:
Provided that where the question which has arisen is as to
whether the Chairman or the Speaker of a House has become
subject to such disqualification, the question shall be referred for
C the decision of such member of the House as the House may
elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in
relation to any question as to disqualification of a member of a
House under this Schedule shall be deemed to be proceedings
D
in Parliament within the meaning of Article 122 or, as the case
may be, proceedings in the Legislature of a State within the
meaning of Article 212.”
Disqualification is with respect to the status of being a member
E of the House and can only be considered by the Speaker if such
question, through a petition, is addressed/ referred to the Speaker. It is
apparent from the reading of paragraph 6 of the Tenth Schedule that
the decision of the Speaker on disqualification under the Tenth Schedule
is final.

F 69. However, the finality which is attached to the order of
Speaker cannot be meant to take away the power of this Court to
review the same. In the Kihoto Hollohan case (supra) this Court
recognized the Speaker’s role as a tribunal and allowed judicial review
of the orders of the same on the grounds provided therein. The Speaker,
being a constitutional functionary, is generally presumed to have
G adjudicated with highest traditions of constitutionalism. In view of the
same, a limited review was allowed for the courts to adjudicate upon
the orders passed by the Speaker under the Tenth Schedule. Here, we
need to appreciate the difference in the meaning of the terms ‘final’
and ‘conclusive’, in the context that the order of the Speaker is final
H but not conclusive and the same is amenable to judicial review.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 943
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

70. Now we come to the principles that have been evolved by A
Courts in deciding a challenge to the order passed by Speaker in exercise
of his powers under the Tenth Schedule of the Constitution. In the
Kihoto Hollohan case (supra) this Court, while upholding the
constitutionality of the Tenth Schedule of the Constitution, held that the
finality clause under paragraph 6(2) of the Tenth Schedule limits the
B
scope of judicial review available to an aggrieved person to certain
limited grounds. This Court, in this context, held that:
“109. In the light of the decisions referred to above and the
nature of function that is exercised by the Speaker/Chairman
under Paragraph 6, the scope of judicial review under Articles
136, and 226 and 227 of the Constitution in respect of an order C
passed by the Speaker/Chairman under Paragraph 6 would be
confined to jurisdictional errors only viz., infirmities based
on violation of constitutional mandate, mala fides, non-
compliance with rules of natural justice and perversity.”
(emphasis supplied) D

71. The Petitioners contend that the principles of natural justice
were breached when the Speaker provided for a three-days’ notice, in
derogation of Rule 7(3)(b) of the Karnataka Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules, 1986,
wherein a seven-day period is prescribed. On the contrary, the E
Respondents have emphatically stressed on the fact that there was
adequate opportunity given to the disqualified members to make out their
case before the Speaker.
72. Principles of natural justice cannot be reduced into a
straitjacket formula. The yardstick of judging the compliance of natural F
justice, depends on the facts and circumstances of each case. In the
case of R.S. Dass v. Union of India, (1986) Supp SCC 617, this Court
made following observations:
“25. It is well established that rules of natural justice are not
rigid rules, they are flexible and their application depends upon G
the setting and the background of statutory provision, nature of
the right which may be affected and the consequences which
may entail, its application depends upon the facts and
circumstances of each case....”
(emphasis supplied) H
944 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 73. This Court in the case of Kihoto Hollohan case (supra) held
that the Speaker decides the question as to the disqualification in an
adjudicatory disposition. This view received further elaboration by this
court in the case of Ravi S. Naik v. Union of India, 1994 Supp (2)
SCC 641 at page 653:
B “20...An order of an authority exercising judicial or quasi-
judicial functions passed in violation of the principles of
natural justice is procedurally ultra vires and, therefore,
suffers from a jurisdictional error. That is the reason why in
spite of the finality imparted to the decision of the Speakers/
Chairmen by paragraph 6(1) of the Tenth Schedule such a decision
C is subject to judicial review on the ground of non-compliance with
rules of natural justice. But while applying the principles of
natural justice, it must be borne in mind that “they are not
immutable but flexible” and they are not cast in a rigid
mould and they cannot be put in a legal straitjacket.
D Whether the requirements of natural justice have been
complied with or not has to be considered in the context
of the facts and circumstances of a particular case.”
(emphasis supplied)
74. At this point, the Petitioners have placed reliance on the case
E of Balachandra L. Jarkhiholi v. B. S. Yeddyurappa, (2011) 7 SCC
1 and argued that in that case, this Court had struck down the
disqualification order solely on the basis of the fact that only three days’
notice was given to the members. However, it is relevant to point out
here, that in the Ravi S. Naik case (supra), a disqualification order
F wherein the Speaker had granted two days’ notice to the members was
upheld. The question, therefore, is not the number of days that were
given by the Speaker for answering the show-cause notice, rather to
see whether an effective opportunity of hearing was provided. This
brings us back to the point already reiterated that the principle of natural
justice is not a straitjacket formula.
G
75. In this context, this aspect needs to be adjudicated in the
individual facts and circumstances having regard to the fact as to
whether the members received notice of hearing, the reason for their
absence and their representation before the Speaker. Therefore, we
will deal with the individual cases later, having regard to the law laid
H down. [Refer to Chapter J]
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 945
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

76. The second contention raised by some of the Petitioners is A
that the order of the Speaker was passed in violation of the constitutional
mandate. We are of the considered view that such contention cannot
be sustained.
77. The phrase “violation of constitutional mandate” speaks for
itself and does not need much elaboration. A “constitutional mandate” B
can be understood as what is required under, or by, the Constitution.
For instance, in the Raja Ram Pal v. Hon’ble Speaker, Lok Sabha,
(2007) 3 SCC 184, the phrase “constitutional mandate” is used in this
sense:
“360...On a plain reading, Article 122(1) prohibits “the validity C
of any proceedings in Parliament” from being “called in question”
in a court merely on the ground of “irregularity of procedure”.
In other words, the procedural irregularities cannot be used by
the court to undo or vitiate what happens within the four walls
of the legislature. But then, ‘procedural irregularity’ stands in
D
stark contrast to ‘substantive illegality’ which cannot be found
included in the former. We are of the considered view that this
specific provision with regard to check on the role of the judicial
organ vis-à-vis proceedings in Parliament uses language which
is neither vague nor ambiguous and, therefore, must be treated
as the constitutional mandate on the subject, rendering E
unnecessary search for an answer elsewhere or invocation of
principles of harmonious construction.”
(emphasis supplied)
In the context of the Tenth Schedule, and an order of
F
disqualification passed by the Speaker thereunder, the “constitutional
mandate” is therefore nothing but what is constitutionally required of
the Speaker. A “violation of constitutional mandate” is merely an
unconstitutional act of the Speaker, one that cannot be defended on the
touchstone of the Tenth Schedule and the powers or duties of the
Speaker therein and is in contravention or violation of the same. G
78. On the point of violation of constitutional mandate, although
we are of the opinion that there was an error committed by the Speaker
in deciding the disqualification petitions, the same does not rise to a level
which requires us to quash the disqualification orders in their entirety.
The specific error which we have identified relates to the period of H
946 SUPREME COURT REPORTS [2019] 16 S.C.R.

A disqualification imposed by the Speaker in the impugned orders.
However, this error is severable, and does not go to the root of the
disqualification, and thus does not require us to quash the disqualification
orders in toto. Our findings on this issue highlighted above are dealt
with in separate section of this judgment, for the sake of clarity.
B 79. The third contention of the Petitioners is that the orders of
the Speaker were passed with malafides, and therefore, the same needs
to be quashed. While there is no gainsaying that the ground of malafides
is available to an individual challenging the order of the Speaker, the
onus of proof regarding the same is on the one who challenges the said
action and has a very heavy burden to discharge. [See E. P. Royappa
C v. State of Tamil Nadu, (1974) 4 SCC 3; Raja Ram Pal case (supra);
Sub-Committee on Judicial Accountability v. Union of India, (1991)
4 SCC 699]. In the present case, although the Petitioners claimed that
the Speaker acted malafide, they have neither made any specific
allegation, nor can it be said that they have discharged the heavy burden
D that is required to prove that the ground of malafide is made out.
80. The Petitioners have contended that the order of the Speaker
is perverse; however, they are not able to specifically point out any such
instance. “Perversity” has been understood by this Court in a catena
of judgments as relating to a situation where the findings assailed before
it have been arrived at on the basis of no evidence, or thoroughly
E unreliable evidence, and no reasonable person would act upon it.
81. Although, the learned Senior Counsel Dr. Rajeev Dhavan
contended that the “some material” test needs to be applied to determine
perversity. However, we are not expressing any opinion on this issue
as in the earlier case of Mayawati v. Markandeya Chand, (1998) 7
F SCC 517, a three-Judge Bench of this Court expressed different views
on the same. In our opinion, the impugned orders of the Speaker can
be sustained from the challenge made on the ground of perversity as
the Respondents have been able to show that there was sufficient
material available before the Speaker to pass the impugned orders.
G Further, on a consideration of the totality of the facts brought on record
before us, it cannot be held that the findings of the Speaker are so
unreasonable or unconscionable that no tribunal could have arrived at
the same findings. Additionally, it may be noticed that the counsel for
the Petitioners did not even controvert before us, the material relied
upon by the Speaker. In view of the above, the Petitioners failed to
H show any illegality in the orders of the Speaker.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 947
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

82. Before we conclude we need to refer to Griffith and Ryle A
on Parliament Functions, Practice and Procedure (1989 edn., p. 119)
say:
“Loyalty to party is the norm, being based on shared
beliefs. A divided party is looked on with suspicion by the
electorate. It is natural for Members to accept the opinion B
of their Leaders and Spokesmen on the wide variety of
matters on which those Members have no specialist
knowledge. Generally Members will accept majority decisions
in the party even when they disagree. It is understandable
therefore that a Member who rejects the party whip even on a
single occasion will attract attention and more criticism than C
sympathy. To abstain from voting when required by party
to vote is to suggest a degree of unreliability. To vote
against party is disloyalty. To join with others in abstention
or voting with the other side of conspiracy.”
(emphasis supplied) D
83. There is no gainsaying that the scope of judicial review is
limited to only grounds elaborated under the Kihoto Hollohan case
(supra). In this regard, the Petitioners have not been able to establish
any illegality in the orders passed by the Speaker. The Speaker, in our
view, had concluded based on material and evidence that the members E
have voluntarily given up their membership of the party, thereby
accruing disqualification in terms of the Tenth Schedule, which facts
cannot be reviewed and evaluated by this Court in these writ petitions.
So, we have to accept the orders of the Speaker to the extent of
disqualification.
F
H. POWER OF THE SPEAKER TO DIRECT
DISQUALIFICATION TILL THE EXPIRY OF THE
TERM
84. The Petitioners have submitted that the Speaker, through the
disqualification orders, has prohibited them from contesting elections and
becoming members of the House for the remaining duration of the 15 th G
Legislative Assembly of Karnataka.
85. The impugned disqualification orders not only disqualify the
Petitioners, but also indicated the time period for which they would be
disqualified, viz., from the date of the order till the expiry of the term
of the 15th Legislative Assembly of Karnataka. H
948 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 86. Learned counsel for the Petitioners have specifically
challenged this finding by asserting that the Speaker did not have the
jurisdiction. They contended that the Speaker’s orders have the effect
of disqualifying them from contesting elections and “being chosen” as
members. Learned Senior Counsel asserted that the Constitutional
B provisions, particularly Articles 361B and 164(1B) of the Constitution,
clarify that the disqualification of a member under the Tenth Schedule
does not bar him from contesting elections, and on a member being re-
elected the bar under the two Articles comes to an end.
87. Learned Senior Counsel, Mr. Kapil Sibal, defended the orders
C of the Speaker barring the disqualified members till the end of the term
of the Legislative Assembly. He contended that the Speaker was within
his jurisdiction, as the master of the House, to punish the members for
having indulged in anti-party activities. While the learned Senior Counsel
was unable to point to any specific provision in the Constitution allowing
the same, he submitted that the Speaker has the inherent power to
D maintain the integrity and decorum of the House. The learned Senior
Counsel gave the example of the power of the Speaker to take action
against a member who commits a crime in the well of the House, despite
the absence of any specific provision allowing him to do the same. The
learned Senior Counsel lastly submitted that unless the Speaker had
E such a power, the anti-defection law would be a toothless law and that
constitutional morality requires such interpretation.
88. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for
the Election Commission of India submitted that as a matter of practice,
the Election Commission has always allowed a person disqualified under
F the Tenth Schedule to participate in the next election. The learned Senior
Counsel substantiated his position by indicating from the provisions of
the Tenth Schedule of the Constitution that the Speaker has only been
given a limited jurisdiction therein, that is, to decide on the question of
disqualification. The consequences of the same, however, are separately
provided for under the Constitution, and the Speaker does not have the
G
power to decide the same. The learned Senior Counsel also took us
through the phrasing of Article 191 of the Constitution, which provides
for disqualification, and Section 36 of the Representation of the People
Act, 1951 to indicate that disqualification under the Tenth Schedule is
not included in the Representation of the People Act, 1951 as a ground
H for rejecting the nomination of a candidate. Finally, the learned Senior
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 949
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

Counsel submitted that barring someone from contesting elections is a A
very serious penal power which cannot be resorted to by the Speaker
in absence of an express and specific provision of law.
89. The crucial question which arises is whether the power of
the Speaker extends to specifically disqualifying the members till the
end of the term? B
90. The Tenth Schedule of the Constitution while dealing with
disqualification on account of defection, does not specify the
consequences or period of such disqualification. In fact, the vacancy
which results from the disqualification is provided under Article 190(3)
of the Constitution. The scope of the Speaker ’s powers on C
disqualification requires us to examine the other provisions of the
Constitution and relevant statutory provisions.
91. Article 191 of the Constitution provides for disqualification
from the membership of the Legislative Assembly or Legislative Council
of a State generally. Article 191(1) of the Constitution is a general D
provision providing for the disqualification from the membership of the
Legislative Assembly or the Legislative Council of a State on the
grounds mentioned therein. Article 191(2) of the Constitution
specifically provides that a person disqualified under the Tenth Schedule
is disqualified for being a member. It is relevant to note that Article
191(2) of the Constitution, like the Tenth Schedule, does not provide E
that the “disqualification” is to operate for a particular period or duration.
92. The contrast in phraseology between Article 191(1) and Article
191(2) of the Constitution is crucial for deciding the present controversy.
Article 191(1) of the Constitution provides that a person disqualified
under any one of the clauses of Article 191(1) is disqualified both “for F
being chosen as” and “for being” a member of the house. In contrast,
Article 191(2) only uses the phrase “for being a member”, which is
the language used in paragraph 2 of the Tenth Schedule. The exclusion
of the phrase “for being chosen as” a member in Article 191(2) of
the Constitution suggests that the disqualification under the Tenth G
Schedule is qualitatively and constitutionally different from the other
types of disqualification that are provided for under Article 191(1) of
the Constitution. The phrase “for being chosen as” has a specific
connotation, meaning that a person cannot become a member of the
House, if suffering from a disqualification under Article 191(1) of the
Constitution. At the same time, the absence of these words in Article H
950 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 191(2) of the Constitution suggests that a person who is no longer a
member due to disqualification under the Tenth Schedule of the
Constitution does not suffer from the additional infirmity of not being
allowed to become a member subsequently. Therefore, such a person
is not barred from contesting elections.
B 93. This interpretation is further supported by the language
employed in Section 36(2) of the Representation of the People Act,
1951, which provides for when a returning officer may reject the
nomination of a candidate. Section 36(2)(a), of the Representation of
the People Act, 1951 states that the nomination may be rejected if a
candidate is disqualified “for being chosen” to fill the seat under Article
C 191 of the Constitution, echoing the language employed in Article 191(1),
and not Article 191(2) of the Constitution.
94. Apart from the above, Articles 164(1B) and 361B of the
Constitution, which were inserted by the 91st Constitutional Amendment,
also show that disqualification under the Tenth Schedule does not bar
D a person from contesting elections. Both the above constitutional
provisions specifically indicate the outer period for which the
consequences indicated therein would extend, which is, either till the
end of the term or till the disqualified member is elected, whichever is
earlier. The fact that the phrase “whichever is earlier” is used in both
E these provisions, indicates that the Constitution contemplates a situation
where an election takes place prior to the end of the term of the House.
Further, the term “election” as used in the above provisions has not
been constrained by any other word, which strengthens the view that
a member who has been disqualified under the Tenth Schedule is not
barred from contesting elections.
F
95. Parliament by way of an enactment under Article 191(1)(e)
read with Entry 72 of the Union List in the Seventh Schedule can make
a law providing for disqualifications of persons from contesting elections.
It is in exercise of this power that the Parliament enacted The
Representation of the People Act, 1951. The Preamble to the
G aforementioned Act makes it evident that it was enacted for the purpose
of “providing qualifications and disqualifications for membership” to the
Houses of Legislature.
“An Act to provide for the conduct of elections to the Houses
of Parliament and to the House or Houses of the Legislature of
H each State, the qualifications and disqualifications for
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 951
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

membership of those Houses, the corrupt practices and other A
offences at or in connection with such elections and the decision
of doubts and disputes arising out of or in connection with such
elections.”
(emphasis supplied)
96. Chapter II of Part II of the Representation of the People B
Act, 1951 provides for the qualification for membership of the State
Legislature while Chapter III vide Sections 7 to 11 provides for
disqualification for membership of the Legislature. These sections not
only provide for the event of disqualification, but also provide for the
specific periods for which such disqualification shall operate. For C
instance, under Section 8 of the Representation of the People Act, 1951,
different periods of disqualification are provided depending on the
specific offence an individual is convicted under.
97. However, the provisions do not provide for and deal with
disqualification under the Tenth Schedule. Clearly, Section 36 of the D
Representation of the People Act, 1951 also does not contemplate such
disqualification. Therefore, neither under the Constitution nor under the
statutory scheme is it contemplated that disqualification under the Tenth
Schedule would operate as a bar for contesting re-elections. The
language of clauses (1) and (2) of Article 191, Articles 164(1B) and
361B are contrary to the contention of the Respondents. E

98. Given this position, we conclude that the Speaker does not
have any explicit power to specify the period of disqualification under
the Tenth Schedule or bar a member from contesting elections after
disqualification until the end of the term of the Legislative Assembly.
F
99. It is necessary for us to look at the submission of the learned
Senior Counsel, Mr. Kapil Sibal, that the Speaker can still be said to
have inherent powers which allows him to pass restrictions like the one
impugned herein. On this point, the counsel for the Petitioners argued
that such a broad inherent power does not exist with the Speaker. He
contended that even for granting leave of absence, the Speaker is G
required to present the same before the Legislative Assembly, which
needs to accept the leave application before leave of absence is actually
granted.
100. We are unable to agree with the contention of the learned
Senior Counsel, Mr. Kapil Sibal, that the power of the Speaker to bar H
952 SUPREME COURT REPORTS [2019] 16 S.C.R.

A a disqualified member from contesting re-election is inherent to his role
and is required to be read into the Constitution to prevent the Speaker
from becoming toothless. When the express provisions of the
Constitution provide for a specific eventuality, it is not appropriate to
read an “inherent” power to confer additional penal consequences. To
do so, and accept the contention of the respondents, would be against
B
the express provisions of the Constitution.
101. This Court has repeatedly held that a person cannot be
barred from contesting elections if he is otherwise qualified to contest
the same. This legal position is vividly illustrated by the Constitution
Bench ruling in G. Narayanaswami v. G. Pannerselvam, (1972) 3
C SCC 717. In dealing with the question as to whether a non-graduate
was qualified to be a candidate for the graduate constituency for the
Legislative Council, when such a requirement was not prescribed either
by the Constitution or the Parliament, this Court reversed the judgment
of the Madras High Court which required the candidate to be a graduate.
D This Court held that when the law does not require such a qualification,
it cannot be imposed by the Courts, and observed that:
“20. We think that the language as well as the legislative history
of Articles 171 and 173 of the Constitution and Section 6 of the
Representation of People Act, 1951, enable us to presume a
E deliberate omission of the qualification that the representative of
the graduates should also be a graduate. In our opinion, no
absurdity results if we presume such an intention. We cannot infer
as the learned Judge of the Madras High Court had done, from
the mere fact of such an omission and opinions about a supposed
scheme of “functional representation” underlying Article 171 of
F our Constitution, that the omission was either unintentional or that
it led to absurd results. We think that, by adding a condition
to be necessary or implied qualifications of a
representative of the graduates which the Constitution-
makers, or, in any event the Parliament, could have easily
G imposed, the learned Judge had really invaded the
legislative sphere. The defect, if any, in the law could be
removed only by law made by Parliament.
(emphasis supplied)
102. Similarly in the case of N.S. Vardachari v. G. Vasantha
H Pai, (1972) 2 SCC 594, a three-judge bench of this Court reiterated
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 953
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

the above position, and held that once a candidate possesses the A
qualifications and is not subject to any of the disqualifications specified
in the law, he is qualified to be a candidate and any other consideration
becomes irrelevant. The Court held that:
“18. The Representation of the People Act, 1950 prescribes
qualifications for being enrolled as an elector. Sections 8 to 10- B
A of the Act set out the grounds which disqualify a person from
being a candidate. If a person possesses all the qualifications
prescribed in the Constitution as well as in the Act and has not
incurred any of the disqualifications mentioned therein then he
is qualified to be a candidate. It may look anomalous that a non-
graduate should be a candidate in a Graduates’ constituency. But C
if a candidate possesses the qualifications prescribed and
has not incurred any of the disqualifications mentioned in
the Constitution or in the Act other consideration becomes
irrelevant. That is the ratio of the decision of this Court
in Narayanaswamy case.” D
(emphasis supplied)
103. It is clear that nothing can be added to the grounds of
disqualification based on convenience, equity, logic or perceived political
intentions.
E
104. It is the contention of the Respondents that the Court should
consider desirability of having a stricter model of disqualification wherein
a person who has jumped the party lines should not be encouraged and
should be punished with severe penal consequences for attempting to
do so. Further, learned Senior Counsel, Mr. Kapil Sibal, has termed the
actions of the Petitioners as a constitutional sin. F
105. We do not subscribe to such an extreme stand taken by the
learned Senior Counsel, considering the fact that such extreme stand
could have a chilling effect on legitimate dissent. In any case, such a
change in the policy cannot be looked into by this Court, as the same
squarely falls within the legislative forte. Any attempt to interfere is G
better termed as reconstruction, which falls beyond the scope of legal
interpretation by the Courts. [refer to G. Narayanaswami case
(supra)]
106. It is clear that the power to prescribe qualifications and
disqualifications for membership to the State Legislature must be H
954 SUPREME COURT REPORTS [2019] 16 S.C.R.

A specifically provided for under the Constitution or by the Parliament
by enacting a law. Since neither the Constitution nor any Act provides
for defection to another party as a bar from contesting further elections,
reading such a bar into the nebulous concept of the inherent powers of
the Speaker is impermissible and invalid. Without commenting on
whether the Speaker has inherent powers or not, a Constitution Bench
B
of this Court in the Raja Ram Pal case (supra), while holding that
certain unwritten powers inure with the Parliament under Article 105(3)
of the Constitution, went on to observe even in case of expulsion, the
expelled candidate is not barred from contesting re-election.
107. Viewed from a different angle, although the Constitution
C may not say everything, this Court is mandated to expound the unsaid.
However, such elaboration cannot be done in derogation of separation
of powers and in a drastic or radical fashion. In this context, Benjamin
Constant, a prominent Swiss-French political writer, wrote in 1814 that:
“Constitutions are seldom made by the will of men. Time makes
D them. They are introduced gradually and in an almost
imperceptible way. Yet there are circumstances in which it
is indispensable to make a constitution. But then do only
what is indispensable. Leave room for time and
experience, so that these two reforming powers may direct
E your already constituted powers in the improvement of what is
done and the completion of what is still to be done.”
(emphasis supplied)
108. The contention of the Respondents that the political
exigencies required such measures to be taken needs to be rejected.
F The Constitutional silences cannot be used to introduce changes of such
nature.
109. In Kihoto Hollohan (supra), this Court observed:
48. The learned author, referring to cases in which an elected
Member is seriously unrepresentative of the general constituency
G
opinion, or whose personal behaviour falls below standards
acceptable to his constituents commends that what is needed is
some additional device to ensure that a Member pays heed to
constituents’ views. Brazier speaks of the efficacy of the device
where the constituency can recall its representative. Brazier says:
H [Ibid. at 52, 53]
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 955
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

“What sort of conduct might attract the operation of the recall A
power? First, a Member might have misused his Membership
of the House, for example to further his personal financial
interests in a manner offensive to his constituents. They might
consider that the action taken against him by the House (or,
indeed, lack of action) was inadequate …. Thirdly, the use of B
a recall power might be particularly apt when a Member
changed his party but declined to resign his seat and fight
an immediate by-election. It is not unreasonable to expect a
Member who crosses the floor of the House, or who joins a
new party, to resubmit himself quickly to the electors who
C
had returned him in different colours. Of course, in all those
three areas of controversial conduct the ordinary process of
reselection might well result in the Member being dropped as his
party’s candidate (and obviously would definitely have that result
in the third case). But that could only occur when the time for
reselection came; and in any event the constituency would still D
have the Member representing them until the next general election.
A cleaner and more timely parting of the ways would be
preferable. Sometimes a suspended sentence does not meet the
case.”
E
49. Indeed, in a sense an anti-defection law is a statutory
variant of its moral principle and justification underlying
the power of recall. What might justify a provision for recall
would justify a provision for disqualification for defection.
Unprincipled defection is a political and social evil...
F
(emphasis supplied)
110. From the above, it is clear that the Speaker, in exercise of
his powers under the Tenth Schedule, does not have the power to either
indicate the period for which a person is disqualified, nor to bar someone
from contesting elections. We must be careful to remember that the G
desirability of a particular rule or law, should not in any event be
confused with the question of existence of the same, and constitutional
morality should never be replaced by political morality, in deciding what
the Constitution mandates. [refer to Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217] H
956 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 111. We, therefore, hold that part of the impugned orders passed
by the Speaker which specifies that the disqualification will last from
the date of the order to the expiry of the term of the 15th Legislative
Assembly of Karnataka to be ultra vires the constitutional mandate,
and strike down this portion of the disqualification orders. However,
B this does not go to the root of the order, and as such, does not affect
the aspect of legality of the disqualification orders.
112. Before parting, having ascertained the ambit of the
Speaker’s power, the only regret this bench has, is with respect to the
conduct and the manner in which all the constitutional functionaries have
C acted in the current scenario. Being a constitutional functionary, the
Constitution requires them and their actions to uphold constitutionalism
and constitutional morality. In this regard, a functionary is expected to
not be vacillated by the prevailing political morality and pressures. In
order to uphold the Constitution, we need to have men and women who
will make a good Constitution such as ours, better. In this regard, Dr.
D Ambedkar on 25.11.1949 stated that:
… ‘As much defence as could be offered to the Constitution
has been offered by my friends Sir Alladi Krishnaswami Ayyar
and Mr T.T. Krishnamachari. I shall not therefore enter into the
merits of the Constitution. Because I feel, however good a
E Constitution may be, it is sure to turn out bad because
those who are called to work it, happen to be a bad lot.
However bad a Constitution may be, it may turn out to be
good if those who are called to work it, happen to be a
good lot. The working of a Constitution does not depend wholly
F upon the nature of the Constitution. The Constitution can provide
only the organs of State such as the Legislature, the Executive
and the Judiciary. The factors on which the working of those
organs of the State depend are the people and the political
parties they will set up as their instruments to carry out
their wishes and their politics. Who can say how the people
G of India and their parties will behave? Will they uphold
constitutional methods of achieving their purposes or will they
prefer revolutionary methods of achieving them? If they adopt
the revolutionary methods, however good the Constitution may
be, it requires no prophet to say that it will fail. It is, therefore,
H futile to pass any judgment upon the Constitution without
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 957
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

reference to the part which the people and their parties are likely A
to play.’
(emphasis supplied)
113. Dr. Rajendra Prasad reiterated the same on 26.11.1949, in
the following words:
B
… ‘Whatever the Constitution may or may not provide, the
welfare of the country will depend upon the way in which
the country is administered. That will depend upon the men
who administer it. It is a trite saying that a country can have
only the Government it deserves. Our Constitution has provisions
in it which appear to some to be objectionable from one point or C
another. We must admit that the defects are inherent in the
situation in the country and the people at large. If the people
who are elected are capable and men of character and
integrity, they would be able to make the best even of a
defective Constitution. If they are lacking in these, the D
Constitution cannot help the country. After all, a Constitution
like a machine is a lifeless thing. It acquires life because of the
men who control it and operate it, and India needs today nothing
more than a set of honest men who will have the interest of the
country before them.’
E
(emphasis supplied)
114. In view of the same, we can only point out that merely taking
the oath to protect and uphold the Constitution may not be sufficient,
rather imbibing the Constitutional values in everyday functioning is
required and expected by the glorious document that is our Constitution. F
Having come to conclusion that the Speaker has no power under the
Constitution to disqualify the members till the end of the term, we are
constrained to make certain observations.
115. In the end we need to note that the Speaker, being a neutral
person, is expected to act independently while conducting the
G
proceedings of the house or adjudication of any petitions. The
constitutional responsibility endowed upon him has to be scrupulously
followed. His political affiliations cannot come in the way of adjudication.
If Speaker is not able to disassociate from his political party and behaves
contrary to the spirit of the neutrality and independence, such person
does not deserve to be reposed with public trust and confidence. H
958 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 116. In any case, there is a growing trend of Speakers acting
against the constitutional duty of being neutral. Additionally, political
parties are indulging in horse trading and corrupt practices, due to which
the citizens are denied of stable governments. In these circumstances,
the Parliament is required to re-consider strengthening certain aspects
of the Tenth Schedule, so that such undemocratic practices are
B
discouraged.
I. REFERENCE TO CONSTITUTION BENCH
117. Mr. Kapil Sibal, learned Senior Counsel, has contended that
the matters herein involve substantial questions of law, which require a
C reference to a larger bench. To support his argument, he has referred
to Article 145 (3) of the Constitution to state that this Court is mandated
under law to refer the matters to a larger bench since a substantial
question of law concerning the interpretation of the Constitution has
arisen in the instant case.
D 118. At this juncture, it may be beneficial to quote Article 145(3)
of the Constitution:
“145. Rules of Court, etc.-
...
(3)The minimum number of Judges who are to sit for the purpose
E
of deciding any case involving a substantial question of law as
to the interpretation of this Constitution or for the purpose of
hearing any reference under Article 143 shall be five:
Provided that, where the Court hearing an appeal under any of
the provisions of this Chapter other than Article 132 consists of
F
less than five Judges and in the course of the hearing of the
appeal the Court is satisfied that the appeal involves a substantial
question of law as to the interpretation of this Constitution the
determination of which is necessary for the disposal of the appeal,
such Court shall refer the question for opinion to a Court
G constituted as required by this clause for the purpose of deciding
any case involving such a question and shall on receipt of the
opinion dispose of the appeal in conformity with such opinion.”
119. There is no doubt that the requirements under Article 145(3)
of the Constitution have never been dealt with extensively and, more
H often than not, have received mere lip service, wherein this Court has
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 959
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

found existence of case laws which have already dealt with the A
proposition involved, and have rejected such references. Normatively,
this trend requires consideration in appropriate cases, to ensure that
unmeritorious references do not unnecessarily consume precious judicial
time in the Supreme Court.
120. In any case, we feel that there is a requirement to provide B
a preliminary analysis with respect to the interpretation of this provision.
In this context, we need to keep in mind two important phrases
occurring in Article 145(3) of the Constitution, which are, ‘substantial
question of law’ and ‘interpretation of the Constitution’. By reading the
aforesaid provision, two conditions can be culled out before a reference C
is made:
i. The Court is satisfied that the case involves a substantial
question of law as to the interpretation of this
Constitution;
ii. The determination of which is necessary for the disposal D
of the case.
121. We may state that we are not persuaded for referring the
present case to a larger bench as the mandate of the aforesaid Article
is that this Court needs to be satisfied as to the existence of a substantial
question of law on the Constitutional interpretation. However, this does E
not mean that every case of constitutional interpretation should be
compulsorily referred to a Constitutional Bench.
122. Any question of law of general importance arising
incidentally, or any ancillary question of law having no significance to
F
the final outcome, cannot be considered as a substantial question of
law. The existence of substantial question of law does not weigh on
the stakes involved in the case, rather, it depends on the impact the
question of law will have on the final determination. If the questions
having a determining effect on the final outcome have already been
decided by a conclusive authority, then such questions cannot be called G
as “substantial questions of law”. In any case, no substantial question
of law exists in the present matter, which needs reference to a larger
bench. The cardinal need is to achieve a judicial balance between the
crucial obligation to render justice and the compelling necessity of
avoiding prolongation of any lis. H
960 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 123. Similar questions for reference to a larger bench had arisen
in the case of Abdul Rahim Ismail C. Rahimtoola v. State of
Bombay, AIR 1959 SC 1315, wherein this Court rejected the reference
as the questions sought to be referred were already settled by an earlier
five judge bench. Likewise, this Court in the case of Bhagwan Swarup
Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, held that
B
a substantial question of interpretation of a provision of the Constitution
cannot arise when the law on the subject has been finally and
effectively decided by this Court. The same is provided hereunder:
“11... Learned counsel suggests that the question raised involves
the interpretation of a provision of the Constitution and therefore
C the appeal of this accused will have to be referred to a Bench
consisting of not less than 5 Judges. Under Article 145(3) of the
Constitution only a case involving a substantial question of law
as to the interpretation of the Constitution shall be heard by a
bench comprising not less than 5 Judges. This Court held in State
D of Jammu and Kashmir v. Thakur Ganga Singh, AIR 1960 SC
356 that a substantial question of interpretation of a
provision of the Constitution cannot arise when the law on
the subject has been finally and effectively decided by this
Court…..As the question raised has already been decided by
this Court, what remains is only the application of the principle
E laid down to the facts of the present case. We cannot, therefore,
hold that the question raised involves a substantial question of
law as to the interpretation of the Constitution within the meaning
Article 145(3) of the Constitution.”
(emphasis supplied)
F
This Court sitting in a three Judge Bench in People’s Union for
Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399, has
reiterated the above principle.
124. In light of the above pronouncements, we observe that
G question of constitutional interpretation would arise only if two or more
possible constructions are sought to be placed on a provision. In spite
of the assertive arguments made by the learned Senior Counsel, Mr.
Kapil Sibal, we are guided by the decisions rendered by two
Constitutional Bench decisions of this Court in the Kihoto Hollohan
case (supra) and Rajendra Singh Rana case (supra). These decisions
H form the authoritative framework for understanding the Tenth Schedule
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 961
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

and have been followed in a number of subsequent judgments and do A
not require reconsideration.
125. At the cost of repetition, we may note that the ambit of this
Court’s jurisdiction under Article 32 of the Constitution is well settled,
which does not merit any further reference in this regard. The
Respondents have contended that the disqualification issue cannot be B
dealt under the writ jurisdiction, however, we have already pointed out
that there is no bar for this Court to deal with the same as portrayed
by various precedents cited above.
126. The case mostly turns on the fact that there is ample
evidence to portray that the defection of these Petitioners had occurred C
even before they resigned. In the impugned orders, the Speaker has
made out a case that the acts of the Petitioners indicated “voluntary
giving up of membership”. Therefore, the question as to the
jurisdiction of the Speaker to deal with disqualification after the
members have tendered the resignation does not arise, stricto sensu.
D
In view of the aforesaid factual scenario, there is no requirement to
deal with the questions of law raised by the Respondents.
127. Further, the power of the Speaker to disqualify has been
interpreted in a number of cases, and the present case does not require
any broad-based reference which would only prolong the inevitable.
E
Such casual and cavalier references should not be undertaken by this
Court in view of conditions prescribed under Article 145(3) of the
Constitution, which mandates a responsibility upon this Court not to
indulge in excessive academic endeavors and preserve precious judicial
time, and effectively dispense justice in a timely fashion.
F
128. The last aspect, which relates to the power of the Speaker
to disqualify the members till the end of the term, has already been
dealt with extensively. At the cost of repetition, we may only point out
that the Respondents’ contention that a bar exists on the members till
the end of the term, falls within the domain of the legislature. Therefore,
we do not see any merit in referring the aforesaid case to a larger G
bench. [Refer to Public Interest Foundation v. Union of India,
(2019) 3 SCC 224]
129. In view of the aforesaid discussion, we decline to refer the
case to a larger bench considering that there is no substantial question
of constitutional interpretation that arises in this case. H
962 SUPREME COURT REPORTS [2019] 16 S.C.R.

A J. INDIVIDUAL CASES
W.P. (C) NO. 992 OF 2019
130. The Petitioner (Shrimanth Balasaheb Patil) accepts that he
was elected on the ticket of INC and claims that he proceeded to
Chennai for personal reasons without abstaining from his presence in
B
the ongoing Assembly Session. Admittedly, the Petitioner had abstained
from attending the proceedings in the Assembly on 18.07.2019 and
19.07.2019. Pursuant to the same, the disqualification petition was filed
against him on 20.07.2019 and he was further directed to appear for
hearing on 24.07.2019. Subsequently, the Petitioner had written a letter
C dated 23.07.2019 addressing the Speaker and seeking four weeks’ time
to file appropriate reply to the contents of the petition. Nevertheless,
the Hon’ble Speaker proceeded and passed the disqualification order
on 28.07.2019 which has been impugned in the instant petition.
131. It ought to be noted that the impugned order passed by the
D Hon’ble Speaker, refers to the communication/letters addressed by the
petitioner of having gone to Chennai, but due to discomfort and health
reasons had contacted his doctor friend and accordingly proceeded to
Mumbai where he was admitted. It also records that the petitioner had
attended the Assembly sessions on 12.07.2019 and 15.07.2019 but
thereafter had abstained from attending the session on 22.07.2019 for
E
which whip had been issued on 20.07.2019. It was also admitted that
no formal leave was granted to the Petitioner. The Speaker had earlier
rejected the leave of absence tendered by the Petitioner as the
documents issued by the private hospital did not inspire confidence.
Pertinently, the petitioner’s letter dated 19.07.2019 written to the
F Speaker was not countersigned by any doctors of the Hospital.
132. It is further recorded that the petitioner had not attended
the Assembly sessions on 18.07.2019, 19.07.2019, 22.07.2019 and
23.07.2019. So, the petitioner was aware that the motion seeking the
vote of confidence was on the floor of the Karnataka Legislative
G Assembly. The petitioner accepts that he had sent letter dated
23.07.2019, which refers to the disqualification petition. The petitioner
herein was clearly aware of the disqualification proceedings.
133. The objections filed to the writ petition also refer to the fact
that the INC, to test the loyalty of its Members, in view of the pending
H trust vote, had categorically informed the party members not to absent
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 963
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

themselves from the proceedings of the Assembly, failing which action A
under the Tenth Schedule would be taken.
134. We do not think that the order of the Speaker suffers from
perversity. Even the petitioner has not submitted material to controvert
the findings recorded by the Speaker in the impugned order. With regard
to the assertion that there was violation of principles of natural justice B
would not also stand in view of the fact that the Speaker has taken a
holistic view and gave sound reasons to disqualify the petitioner after
providing him sufficient opportunity to defend himself. Alleged violation
of principles of natural justice also do not carry any weight in view of
the factual background of the case read in light of the fact that trust
vote had to be voted upon. C

W. P. (C) NO. 997 OF 2019
135. The Petitioners were elected to the 15 th Karnataka
Legislative Assembly on the INC ticket. On 19.01.2019, show-cause
notices were issued to the Petitioners by INC for having failed to attend D
the party meeting on 18.01.2019, to which explanation was submitted
by the Petitioners claiming that due to personal exigencies and medical
reasons they could not attend the meeting. However, the Petitioners
again failed to attend the meeting held on 08.02.2019. The Petitioners
also did not attend the Budget session. On 08.02.2019, the Petitioner
No.1 (Ramesh Jarkhiholi) sought leave of absence in a letter addressed E
to the Speaker, due to his daughter’s wedding fixed for 24.02.2019.
Similarly, the Petitioner No. 2 (Mahesh Kumathalli) had also addressed
a letter seeking leave of absence due to ill-health. disqualification petition
was filed against the two Petitioners on 11.02.2019 on the ground that
the Petitioners had voluntarily given up membership of the political party, F
i.e. INC and incurred disqualification under paragraph 2(1)(a) of the
Tenth Schedule. Thereupon, notices were issued to the Petitioners on
14.02.2019, who duly filed their response disputing the contents of the
disqualification petition on 20.02.2019. While the disqualification petition
was pending, the two Petitioners submitted their resignation to the
Speaker along with ten other MLAs belonging to INC/JD(S) on G
06.07.2019. The Petitioners were thereupon given notice to appear
before the Speaker on 11.07.2019 in connection with the disqualification
petition.
136. The Speaker in the impugned order has taken note of the
surrounding circumstances, including the conduct of the Petitioners from H
964 SUPREME COURT REPORTS [2019] 16 S.C.R.

A February 2019 onwards. It ought to be noted that sufficient opportunity
of hearing was accorded to the Petitioners herein who had also filed
their responses. It ought to be noted that, vide notice dated 16.01.2019,
a meeting of the INC legislative party was called for 18.01.2019. The
notice stated that the members must compulsorily attend the meeting
otherwise action would be taken against them under the Tenth Schedule.
B
The Petitioners did not attend the party meeting on 18.01.2019.
Admittedly, the Petitioners also refrained from attending the subsequent
general body meeting dated 06.02.2019 as well as Assembly Sessions
from 06.02.2019. The resignations were submitted by the Petitioners
nearly four months after the Disqualification Petition had already been
C filed.
137. One of the contentions raised by the Petitioners is predicated
on the order of the Speaker in the case of Dr. Umesh Yadav who was
also named and served with the disqualification petition filed on
11.02.2019. Dr. Umesh Yadav had tendered his resignation on
D 04.03.2019, which was accepted by the Speaker on 01.04.2019.
Therefore, the Petitioners claim parity and equal treatment. The
contention deserves to be rejected as the Speaker has given detailed
reasons to why he was not bound by the case of Dr. Umesh Yadav’s
resignation.
E 138. As observed earlier, the Speaker had sufficient material
before him to pass the order of disqualification. There exist no infirmities
in the order, which calls for our indulgence and interference.
W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007 OF
2019
F 139. The three Petitioners in Writ Petition (C) No. 1005 of 2019
were members of the JD(S), against whom a separate Disqualification
Petition No. 5 of 2019 was moved. The Speaker passed a separate
impugned order dated 28.07.2019 against these Petitioners.
140. Petitioners in Writ Petition (C) Nos. 998, 1000, 1001, 1006
G and 1007 of 2019 were all members of the INC, against whom
Disqualification Petition Nos. 3 and 4 of 2019 were moved. A common
order dated 28.07.2019, disqualifying the 10 Petitioners, was passed by
the Speaker.
141. Both the above orders are being dealt with together as there
H are certain commonalities in the facts and circumstances which need
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 965
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

to be noted and highlighted, which led to the decision of the Speaker. A
Between 01.07.2019 and 11.07.2019, the Petitioners resigned from their
posts as members of the Legislative Assembly. However, the Speaker
did not adjudicate upon their resignation. Aggrieved by the fact that the
Speaker was not taking a decision, ten Petitioners approached this Court
in WP (C) No. 872 of 2019, wherein this Court on 11.07.2019, passed
B
an order directing the Speaker to take the decision forthwith. The
Speaker, on the other hand, did not take the decision. The other five
Petitioners impleaded themselves in the pending Writ Petition (C) No.
872 of 2019 and again, on 17.07.2019, this Court granted protection to
the Petitioners with respect to being compelled to participate in the
proceedings of the House. As the Speaker, did not conduct the floor C
test, R. Shankar [Petitioner in Writ Petition (C) No. 1003 of 2019]
approached this Court in Writ Petition (C) No. 929 of 2019, wherein
this Court passed following order on 23.07.2019:
“It has been stated that the Speaker expects and is optimistic
that the Trust Vote would be taken up by the House in the Course D
of the day, perhaps later in the evening. We, therefore, adjourn
the matter till tomorrow.
142. In this regard, it was imperative for the Speaker to pass
orders in view of the urgency indicated by this Court. In these facts
and circumstances, the reasonable opportunity of hearing needs to be E
assessed.
143. A notice of three days with an opportunity for hearing would
have been sufficient in the facts and circumstances of this case, when
viewed in light of the decision in the Ravi S Naik case (supra). In
this regard, our attention was drawn to the fact that notices were sent F
to their emails, and their permanent addresses within their constituency.
In view of the unique facts, it cannot be said that an opportunity was
not provided to the Petitioners to appear before the Speaker.
144. It is altogether a different matter that the aforesaid
G
Petitioners were in Mumbai even though they were aware of the notice,
and some of them did not even bother to be represented before the
Speaker. In this light, we cannot say that effective opportunity was not
granted to the Petitioners. Consequently, it cannot be said as well that
there has been a violation of principles of natural justice as against the
aforesaid Petitioners. H
966 SUPREME COURT REPORTS [2019] 16 S.C.R.

A W.P. (C) NO. 1003 OF 2019
145. The Petitioner (R. Shankar) claims that he is the sole elected
member of the House belonging to KPJP. As per the Petitioner, KPJP
had not merged with INC and consequently whip issued by the INC
on 11.07.2019 was not binding on the Petitioner. As a result, the
B Petitioner had not incurred any disqualification under the Tenth Schedule
of the Constitution.
146. The Petitioner, however, accepts that he had addressed a
letter dated 14.06.2019 to the Speaker that he was the only legislator
elected under the KPJP ticket and he had agreed to merge his party
C with the INC. The Petitioner had relied upon paragraph 4(2) of the
Tenth Schedule stating that since he is the sole elected member of his
party there is a deemed merger under the Tenth Schedule.
147. The Petitioner, however, claims that the said letter dated
14.06.2019 was not accepted by the Speaker and, therefore, would be
D inconsequential. He relied upon the letter dated 17.06.2019 written by
the Speaker requiring him to file on record resolution of merger passed
by KPJP, and to furnish documents as per legal requirements. It was
further stated that is stated that no such document was filed.
148. The impugned order passed by the Speaker, on the other
E hand, refers to the letter of the Speaker dated 25.06.2019 stating that
in terms of paragraph 4(2) of the Tenth Schedule, if two thirds of the
members of the party decides to merge with another party, that decision
would not attract provisions of the Tenth Schedule. As the Petitioner
had represented that he was the lone elected member of the KPJP and
had decided to merge with INC, appropriate steps had been initiated.
F
In this background, with effect from 25.06.2019, the Petitioner would
be considered as a member of the INC legislative party. The Petitioner
has disputed this letter and has stated that this letter was not addressed
to him but was addressed to the Leader of the Congress Legislature
Party and the President of the Karnataka Pradesh Congress Party. The
G letter dated 25.06.2019 is available on the file of the Speaker.
149. The contention of the Petitioner may have carried weight
in other circumstances, but we find that it is an accepted and admitted
position that the Petitioner, after giving letter dated 14.06.2019, had even
become a Minister in the Government then in power. Pertinently, the
H Petitioner does not deny the letter dated 14.06.2019 and the fact that
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 967
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

he had become a Minister. The impugned order passed by the Speaker A
further records that on 25.06.2019 a direction had been issued by the
Speaker to the Secretary, Karnataka Legislative Assembly, to treat the
Petitioner as a member of the INC and allot him a seat in the
forthcoming session. Further, on 08.07.2019, the Petitioner had addressed
a letter to the then Chief Minister tendering his resignation from the
B
Council of Ministers of which he was a part, with a request that his
resignation be accepted. This resignation was also personally given to
the Governor. On 12.07.2019, the Petitioner had addressed a letter to
the Speaker about withdrawing support to the Government and had
requested that he be allotted a seat on the floor in the opposite benches.
These aspects have been highlighted in the impugned order, which show C
that the contention of the Petitioner that the Speaker did not apply his
mind on the aspect of merger, is wrong and incorrect.
150. We do not find any reason and good ground to hold that
the findings in the impugned order are perverse and based on no
evidence. Rather the stand and plea taken by the Petitioner is devoid D
of merit. Similarly, the plea predicated on the violation of principles of
natural justice must fail in the light of the above facts.
151. Our findings on allegations of not granting specific time in
all the above cases are based on the unique facts and circumstances
of each case. It should not be understood to mean that the Speaker E
could cut short the hearing period. The Speaker should give sufficient
opportunity to a member before deciding a disqualification proceeding
and ordinarily follow the time limit prescribed in the Rules of the
Legislature.
F
K. CONCLUSION
152. In light of the discussion above, summary of law as held
herein is as follows:
a. The Speaker, while adjudicating a disqualification petition,
acts as a quasi-judicial authority and the validity of the G
orders thus passed can be questioned before this Court
under Article 32 of the Constitution. However, ordinarily,
the party challenging the disqualification is required to
first approach the High Court as the same would be
appropriate, effective and expeditious. H
968 SUPREME COURT REPORTS [2019] 16 S.C.R.

A b. The Speaker ’s scope of inquiry with respect to
acceptance or rejection of a resignation tendered by a
member of the legislature is limited to examine whether
such a resignation was tendered voluntarily or genuinely.
Once it is demonstrated that a member is willing to
B resign out of his free will, the speaker has no option but
to accept the resignation. It is constitutionally
impermissible for the Speaker to take into account any
extraneous factors while considering the resignation. The
satisfaction of the Speaker is subject to judicial review.

C c. Resignation and disqualification on account of defection
under the Tenth Schedule, both result in vacancy of the
seat held by the member in the legislature, but further
consequences envisaged are different.
d. Object and purpose of the Tenth Schedule is to curb the
D evil of political defection motivated by lure of office or
rather similar considerations which endanger the
foundation of our democracy. By the 91st Constitutional
Amendment, Articles 71 (1B), 164(1B) and 361B were
enacted to ensure that a member disqualified by the
Speaker on account of defection is not appointed as a
E
Minister or holds any remunerative political post from
the date of disqualification or till the date on which his
term of office would expire or he/she is re-elected to
the legislature, whichever is earlier.
e. Disqualification relates back to the date when the act
F
of defection takes place. Factum and taint of
disqualification does not vaporise by tendering a
resignation letter to the Speaker. A pending or impending
disqualification action does not become infructuous by
submission of the resignation letter, when act(s) of
G disqualification have arisen prior to the member’s
resignation letter.
f. In the earlier Constitution Bench judgment of Kihoto
Hollohan (supra), the order of the Speaker under Tenth
Schedule can be subject to judicial review on four
H grounds: mala fide, perversity, violation of the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 969
KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

constitutional mandate and order passed in violation of A
natural justice.
g. Our findings on allegations of not granting specific time
in all the above cases are based on the unique facts and
circumstances of the case. It should not be understood
to mean that the Speaker could cut short the hearing B
period. The Speaker should give sufficient opportunity
to a member before deciding a disqualification
proceeding and ordinarily follow the time limit prescribed
in the Rules of the Legislature.
h. In light of the existing Constitutional mandate, the C
Speaker is not empowered to disqualify any member till
the end of the term. However, a member disqualified
under the Tenth Schedule shall be subjected to sanctions
provided under Articles 75(1B), 164(1B) and 361B of
Constitution, which provides for a bar from being
appointed as a Minister or from holding any remunerative D
political post from the date of disqualification till the date
on which the term of his office would expire or if he is
re-elected to the legislature, whichever is earlier.
i. There is a growing trend of the Speaker acting against
the constitutional duty of being neutral. Further horse E
trading and corrupt practices associated with defection
and change of loyalty for lure of office or wrong reasons
have not abated. Thereby the citizens are denied stable
governments. In these circumstances, there is need to
consider strengthening certain aspects, so that such F
undemocratic practices are discouraged and checked.
j. The existence of a substantial question of law does not
weigh on the stakes involved in the case, rather, it
depends on the impact the “question of law” will have
on the final determination. If the questions having a G
determining effect on the final outcome have already
been decided by a conclusive authority, then such
questions cannot be called as “substantial questions of
law”. In any case, no substantial question of law exists
in the present matter, which needs reference to a larger
bench. H
970 SUPREME COURT REPORTS [2019] 16 S.C.R.

A 153. In view of the discussion above, we pass the following
order:
1. Orders dated 25.07.2019 and 28.07.2019 passed by the
Speaker in Disqualification Petition Nos. 1, 3, 4, 5, 7 and
8 of 2019, are upheld to the extent of the disqualification
B of the Petitioners therein.
2. However, the part of Speaker’s orders detailing the
duration of disqualification, viz., from the date of the
respective order till the expiry of the term of the 15th
Legislative Assembly of Karnataka, is accordingly set
C aside.
154. The Writ Petitions are disposed of in the afore-stated terms.
All pending applications are also accordingly disposed of.

Divya Pandey Writ Petitions disposed of.
D

E

F

G

H