VGSJ

29.10.2010

ORDER

IN

WRIT PETITION Nos.32660-32670 OF 2010 (GM-RES)

CT/AD
 1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 29th DAY OF OCTOBER, 2010

BEFORE

THE HON'BLE MR. JUSTICE V.G. SABHAHIT

WRIT PETITION Nos.32660-32670 OF 2010 (GM-

RES)

BETWEEN:

1. SRI GOPALA KRISHANA ELUR,

AGED ABOUT 48 YEARS

2. SRI ANAND V. ASNOTIKAR,

AGED ABOUT 48 YEARS

3. SRI BALACHANDRA L. JARKIHOLI

AGED ABOUT 56 YEARS

4. DR. BAGALI SARVABHOOWMA S. BAGALI,

AGED ABOUT 58 YEARS

5. SRI BHARAMA GOUDA h. KAGE,

AGED ABOUT 53 YEARS

6. SRI Y. SAMPANGI,
AGED ABOUT 42 YEARS

7. SRI G.N. NANJUNDASWAMY,

AGED ABOUT 55 YEARS

8. SRI M.V. NAGARAJ

AGED ABOUT 49 YEARS
 2

9. SRI SHIVANAGAOUDA NAIK,

AGED ABOUT 46 YEARS

10. SRI SHANKER LINGE GOWDA,

AGED ABOUT 65 YEARS
SENIOR CITIZEN

11. SRI BELLUBBI,

AGED ABOUT 63 YEARS.

ALL ARE MEMBERS OF

LEGISLATIVE ASSEMBLY,

RESIDING AT KARNATAKA
LEGISLATIVE HOME.
VIDHANA SOUDHA,
BANGALORE. … PETITIONERS

(BY SRI. K.G. RAGHAVAN, SR.COUNSEL FOR SRIYUTHS

A.K.SUBBAIAH & A.S.PONNAPPA FOR PETITIONER NO.1;
SRI B V ACHARYA, SR.COUNSEL FOR SRI SHASHIKIRAN
SHETTY, FOR PETITIONERS-2 & 3;
SRI RAVIVARMA KUMAR, SR.COUNSEL FOR SRI
A.K.SUBBAIAH & PONNAPPA, FOR PETITIONERS-4 TO 11)

AND :

1 SRI B.S. YEDDIYURAPPA

CHIEF MINISTER,
VIDHANA SOUDHA, BANGALORE.

2 THE SPEAKER,
KARNATAKA VIDHANA SABHA
VIDHANA SOUDHA,
BANGALORE ... RESPONDENTS

(BY SRI. K. SOLI J. SORABJI, SENIOR COUNSEL

 3

ALONG WITH SRI SATYAPAL JAIN, SR.COUNSEL & SRI.

K.N. BHAT, SENIOR COUNSEL AND SRIYUTHS M.B.
NARAGUND, SRI. VIVEK S. REDDY, BHUPENDER YADAV,
VIKRAM PHADKE, VINOD KUMAR, PRASANNA KUMAR B.T.,
MURALIDHARA M. AND L.N. HEGDE, ADVOCATES)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE

226 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
A WRIT OR ORDER OF DIRECTION DECLARING THE ORDER
OF DISQUALIFICATION DATED 10.10.2010 PASSED BY
THE RESPONDENT NO.2 TO BE UNCONSTITUTIONAL,
ILLEGAL AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF
THE PETITIONERS UNDER ARTICLES 14, 16 AND 19 OF
THE CONSTITTUTION OF INDIA AND FOR BEING
VIOLATIVE OF SCHEDULE 10 OF THE CONSTITUTION AND
RULES MADE UNDER KARNATAKA ASSEMBLY, ETC.

THESE WRIT PETITIONS HAVING BEEN RESERVED

FOR DETERMINATION OF THE QUESTION REFERRED TO
THIS COURT ON 18-10-2010 BY THE ORDER OF THE
HON’BLE CHIEF JUSICE DATED 18-10-2010,HAVING BEEN
HEARD AND RESERVED FOR ORDERS, ON THIS DAY,
FOLLOWING ORDER IS PRONOUNCED:

ORDER

These writ petitions are placed before me in view of

the order of the Hon`ble Chief Justice dated 18.10.2010

passed in these writ petitions, wherein it is observed that

in the judgement delivered by the Division Bench on

18.10.2010, they had recorded a difference of opinion on

one of the issues and the said issue is placed for

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determination before me. The issue that is referred for

determination is as follows:-

“ Whether the impugned order dated

10.10.2010 passed by the Speaker of the
Karnataka State Legislative Assembly is in
consonance with the provisions of paragraph
2(1)(a) of the Tenth Schedule of the
Constitution of India ? ”

2. The material facts leading up to this reference

of the above said question for determination by this Court

are as follows:-

2.1 The petitioners had contested the Karnataka

Legislative Assembly election in 2008 on Bharatiya Janata

Party tickets and were declared elected. Among the

petitioners, two of them were working as Ministers in the

Cabinet headed by Sri B.S. Yadiyurappa, Chief Minister of

Karnataka. The petitioners submitted separate, but

identical letters to His Excellency, the Governor of

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Karnataka on 06.10.2010 along with five independent

candidates, who had been declared elected in the

Karnataka Assembly Election. One of such letters is

produced as Annexure `F` to the writ petitions, wherein

the petitioners herein and five other independent Members

of the Legislative Assembly, have expressed that they

were disillusioned with the functioning of the Government

headed by Sri B.S. Yadiyurappa. They averred that there

has been widespread corruption, nepotism in the

functioning of the Government headed by Sri B.S.

Yadiyurappa and a situation has arisen that the

governance of the State cannot be carried on in

accordance with the provisions of the Constitution of India

and Sri B.S. Yadiyurappa as Chief Minister has forfeited the

confidence of the people and in the interest of the State

and the people of Karnataka, the petitioners expressed

their lack of confidence in the Government headed by Sri

B.S. Yadiyurappa and as such, they are withdrawing their

support to the Government headed by Sri B.S.

Yadiyurappa, Chief Minister and requested the Governor to

 6

intervene and institute constitutional process as the

constitutional head of the State.

2.2 On the same day i.e., 06.10.2010, the

Governor of Karnataka, addressed a letter to the Chief

Minister stating that he had received letters from 14

Bharatiya Janata Party Members of Legislative Assembly

(MLAs.,), and five independent MLAs., withdrawing their

support to the Government and enclosed the list of MLAs.,

along with the letters submitted by them. The list

included seven Ministers in the Government at the time of

submitting the letter. The Governor has further stated

that considering the relative strength of different groups in

the Karnataka Legislative Assembly and in view of

withdrawal of support by the said 19 members, a

reasonable doubt had arisen about the support /

confidence the Government enjoyed in the Legislative

Assembly and wherefore, he requested the Chief Minister

to prove that he still continued to command the support of

the majority of the Members of the Legislative Assembly,

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by introducing and getting passed a suitable motion

expressing confidence in his Government, in the legislative

Assembly on or before 12.10.2010 by 5 p.m. and that he

has also requested the Hon`ble Speaker accordingly.

2.3 In view of the aforesaid letter of the Governor

dated 06.10.2010, Sri B.S. Yadiyurappa, who is the leader

of the Bharatiya Janata Party Legislature Party in the

Karnataka Legislative Assembly, made an application to

the Speaker of the Karnataka Legislative Assembly under

Rule 6 of the Karnataka Legislative Assembly

(Disqualification of Members on Ground of

Defection) Rules, 1986 (hereinafter referred to as `the

Rules`) on 06.10.2010 as per Annexure `H` to the writ

petitions to declare that the petitioners herein, who were

elected to the Karnataka Legislative Assembly on Bharatiya

Janata Party tickets and two other members of the

Legislative Assembly had incurred disqualification in view

of the Tenth schedule to the Constitution. It is averred in

the application that the petitioners herein were elected

 8

during the Karnataka Assembly Election held in 2008 on

the tickets issued by the Bharatiya Janata Party and the

Bharatiya Janata Party has unanimously elected him as the

leader of the Legislature Party and on the basis of the

same, he was appointed as the Chief Minister of Karnataka

by the Governor and thereafter, on his recommendation,

Ministers were appointed by the Governor. In view of the

letter received from the Governor dated 06.10.2010,

wherein it is stated that the petitioners herein and five

independent MLAs., have withdrawn support from the

Government and in the absence of any resolution passed

by the Bharatiya Janata Party Legislature Party and the

decision of the party in that regard, the letters submitted

by the petitioners to the Governor expressing withdrawal

of support to the Government would amount to

disqualification under the Tenth schedule to the

Constitution and wherefore, the petitioners should be

declared as disqualified. He referred to the action taken in

the similar circumstances and cited decisions in the cases

of Sri AVATAR SINGH BHADANA Vs. KHULDEP SINGH and

 9

SRI RAJESH VERMA Vs. SRI MOHAMMED SHAHID

AKHALAK, BSP and requested that on the basis of the

statements given by the petitioners in the electronic media

and the press and the letters given to the Governor, the

petitioners have to be disqualified under the 10th schedule

of the Constitution.

2.4 On receipt of the said application (Annexure

`H` to the writ petitions) from the leader of the Bharatiya

Janata Party legislature party, which has formed the

Government in the State of Karnataka, the Speaker

ordered issuance of show cause notices and show cause

notices were issued to the petitioners. One such show

cause notice is produced as per Annexure `D` to the writ

petition, wherein it is stated that in view of the application

filed by the leader of the Bharatiya Janata Party

Legislature Party alleging that the conduct of the

petitioners in submitting representation before the

Governor, withdrawing support from the Government led

by Bharata Janata Party in the absence of any resolution

 10

or decision of the BJP Legislature party in that regard,

would amount to disqualification of the petitioners under

Tenth Schedule to the Constitution and requested the

petitioners herein to submit their objections before 5 p.m.

on 10.10.2010 and if they did not file objections, the

matter would be considered ex parte.

2.5 The petitioners, in response to the show cause

notice issued by the Speaker, gave reply, which were

identical as per Annexure `E` to the writ petitions on

09.10.2010. The Speaker, after hearing the petitioners

passed an order on 10.10.2010 in Disqualification

Application No.1/2010 holding that the petitioners herein

had incurred disqualification under para (2)(1)(a) of the

tenth Schedule to the Constitution as they had voluntarily

given up their membership of the political party. Being

aggrieved by the said order, the writ petitioners who

belong to Bharatiya Janata Party and disqualified by the

order of the Speaker dated 10.10.2010, preferred these

writ petitions.
 11

2.6 The writ petitions were taken up for final

hearing by the Division Bench of this Court comprising of

Hon` ble Chief Justice and the learned Judge of this Court.

The contentions urged by the petitioners were considered

on the basis of the four questions which according to the

Bench arose for determination. Having regard to the

contentions urged in the writ petitions, the first contention

was based upon the Rules 6 and 7 of the Rules. The

second contention pertains to the plea of violation of Rules

of natural justice. The third contention pertains to the

question as to whether the impugned order passed by the

Speaker is in consonance with the provisions of para

(2)(1)(a) of the tenth Schedule of the Constitution of

India. The fourth contention pertains to mala fides alleged

in the writ petitions. The learned Chief Justice pronounced

judgement on 18.10.2010 and answered all the four

contentions against the petitioners and held that the order

of disqualification dated 10.10.2010 passed against the

petitioners by the Speaker of the Karnataka Legislative

 12

Assembly suffers from no infirmity and is fully justified in

terms of the provisions contained in the Tenth Schedule of

the Constitution and the writ petitions are accordingly,

liable to be dismissed. However, the learned Judge

constituting the Bench by a separate pronouncement on

the same day i.e., 18.10.2010 held that except on the

third contention regarding the interpretation to be placed

on para 2(1) (a) of the Tenth Schedule of the Constitution,

he is in agreement with the reasoning of the Hon`ble Chief

Justice on the rest of the contentions. The learned Judge

expressed his views on the said third contention and held

that the impugned order passed by the Speaker of the

Karnataka Legislative Assembly dated 10.10.2010 is in

violation of the constitutional mandate and suffers from

perversity and therefore, it cannot be sustained and

accordingly, impugned order of the Speaker has to be set

aside. Since there was divergence of opinion on the third

question and the decision of the Division Bench was

unanimous regarding contentions 1, 2 and 4, the third

contention on which, there was divergence of opinion has

 13

been referred to me for determination as the third Judge

and accordingly, these writ petitions are placed before me.

2.7 I have heard Sri K.G. Raghavan, the learned

senior counsel appearing for petitioner No.1 and Sri B.V.

Acharya, the learned senior counsel for petitioners 2 and 3

and Sri Ravi Verma Kumar, the learned senior counsel for

petitioners 4 to 11 and the arguments of Sri Soli J. Sorabji,

the learned senior counsel and Sri Satyapal Jain, the

learned senior counsel appearing for the respondents and

the reply arguments of the learned senior counsel

appearing for the petitioners.

2.8 The learned senior counsel Sri K.G. Raghavan

submitted that the petitioners have submitted a

representation to the Governor on 06.10.2010 and they

have not committed any act, which would lead to the

inference that they have voluntarily given up membership

of Bharatiya Janata Party, the political party from which,

they contested the election and were declared elected.

 14

They were only aggrieved by the conduct of the Chief

Minister, which was not in consonance with the principles

and policies of the Bharatiya Janata Party and wherefore,

they gave a letter to the Governor stating that they had

lost confidence in Sri B.S. Yadiyurappa, the Chief Minister

and the contents of the letters dated 06.10.2010 would

never give rise to any inference that they have voluntarily

given up the membership of Bharatiya Janata Party. The

learned senior counsel has taken me through the letters

given by the petitioners to the Governor dated

06.10.2010, the letter addressed by the Governor to the

Chief Minister on the basis of the said letters given by the

petitioners and the application filed by Sri B.S.

Yadiyurappa before the Speaker as the leader of the

Legislature Party dated 06.10.2010 and the show cause

notices issued by the Speaker pursuant to the said

application dated 07.10.2010 and the reply given by the

petitioners on 09.10.2010 and also the order passed by

the Speaker, which is impugned in the writ petitions. The

learned senior counsel submitted that initially, the hearing

 15

of the objections had been fixed before the Speaker on

10.10.2010 at 5 p.m. and the same was preponed to 3:30

p.m. and the disqualification application has been filed by

the Chief Minister only to prevent the petitioners from

voting in the vote of confidence that was to be moved on

11.10.2010 and except the letters given to the Governor

dated 06.10.2010 by the petitioners, no evidence was led

before the Speaker. The petitioners, being the members

of the Bharatiya Janata Party, the largest legislature party

in the State, were entitled to ventilate their grievances

before the Governor and they were not involved in any

anti-party activity and they had no intention whatsoever

to bring down the Government headed by Sri B.S.

Yadiyurappa as the Chief Minister. The learned senior

counsel further submitted that the petitioners had not

changed their loyalty to the party and they had only

expressed their dissent, which is the essence of the

democracy and it cannot be stifled by the way of the

disqualification application filed before the Speaker and the

order passed by the Speaker. The learned senior counsel

 16

further submitted that there is no averment made in the

disqualification application even before the Speaker that

the petitioners had voluntarily given up their membership

to Bharatiya Janata Party and no material whatsoever was

produced, which would lead to the conclusion that the

conduct of the petitioners would amount to voluntarily

giving up of their membership of the political party,

namely, Bharatiya Janata Party in the present case and the

order passed by the Speaker cannot at all be sustained as

it is perverse, being not based upon any evidence on

record. In the absence of any pleading or requisite

material averred in the application, the order passed by

the Speaker dated 10.10.2010 cannot at all be sustained.

He also submitted that except the letter given by the

petitioners on 06.10.2010 to the Governor, there was no

further material, which could be considered by the Speaker

and the said letter would not in any way, lead to the

inference that the petitioners had voluntarily given up the

membership of the legislature party, which they

represented, namely, Bharatiya Janata Party. The

 17

learned senior counsel submitted that the petitioners had

only expressed their dissent regarding the conduct of Sri

B.S. Yadiyurappa as the Chief Minister of Karnataka. They

had not withdrawn support from the Government. They

continued to be the members of the Bharatiya Janata Party

and no disqualification under para 2(1)(a) of the Tenth

Schedule to the Constitution could be attributed to the

petitioners as they had not voluntarily given up the

membership of the Bharatiya Janata Party and they had

only expressed their dissent. The learned senior counsel

further submitted that the affidavit of the President of the

Bharatiya Janata Party and the documents relied upon by

the Speaker could not have been relied upon by him as the

same were not confronted to the petitioners. In support of

his contention, he has relied upon the decision of the

Hon`ble Supreme Court in Holland Vs. (AIR 1993 SC.412)

(1982 Supplement 2 SCC 651). He has relied upon paras

9 and 10 at page 670 and also the contents of the paras

13 to 19 regarding the scope of judicial review and

regarding his contention that the order passed by the

 18

Speaker is subject to the judicial review of this Court in

exercise of jurisdiction under Articles 226 and 227 of the

Constitution of India. He has also relied upon the decision

of the Hon`ble Supreme Court in SCC 747 2004(8) SCC

747 and taken me through para 2 of the said judgement at

753. He has also relied upon para 9 of the said judgement

in support of his contention that the inference to be drawn

from the company of the petitioner regarding

disqualification under 2(1)(a) to the 10th Schedule should

be conclusive and unambiguous. Therefore, in the

absence of any positive evidence, any interference of

voluntarily giving up membership of the legislative party

could not have been drawn. He has also relied upon the

observations made by the Hon` ble Supreme Court in para

16 in Rajendra Rana (2007 (4) SCC 214). The learned

senior counsel further submitted that the interference that

were drawn is Avinash`s case and also the decision in

Rana`s case is not applicable to the facts of the case as in

the said case, there was specific conduct of the member of

the State Legislative Assembly which amounted to

 19

rescindment from the membership of the political party as

he had submitted the representation along with leader of

the opposition in the legislative and other persons

belonging to another party and he has expressed support

to them and in the present case, since the letter dated

6.10.2010 will never lead to the inference that the

petitioners have given up membership of the B.J.P., and

the inference drawn on the basis of the averments made in

the letter dated 6.10.2010 submitted to the Governor as

done by the Speaker cannot at all be sustained and

wherefore, the writ petitions are entitled to be allowed.

3. The learned senior counsel Sri B.V. Acharya,

appearing for petitioners 2 and 3 submitted that since the

disqualification of a sitting member of the said legislature

would entail serious consequences, the proof required to

be discharged by the applicant is beyond reasonable doubt

and cannot be proof on the basis of the preponderance of

probabilities and the legislators are entitled to benefit of

doubt and if two views are possible, on the basis of the

inference of the conduct, the view that is beneficial to the

 20

elected legislator should be accepted as the legislator

would be unseated even though he has been elected by

the voters in the constituency and will be disqualified as

the member of the State Legislature. The learned senior

counsel submitted that apart from the letter submitted by

the petitioner dated 6.10.2010 no evidence whatever has

been led before the Speaker constituting disqualification

under para 2(1)(a) on the basis of the letter dated

6.10.2010 submitted to the Governor no reasonable man

can infer that the petitioners have voluntarily given up the

membership of the Bharatiya Janata Party. The learned

senior counsel further submitted that the provisions of the

Tenth schedule would not restrict the power of judicial

review of this Court under Articles 226 and 227 of the

Constitution of India and there is no material whatever to

show that the petitioners herein have identified themselves

with the members of the other party and the inference

drawn by the speaker is baseless and the grievance of the

applicants was against the Chief Minister and not against

the government led by the B.J.P. The learned senior

 21

counsel further submitted that the Speaker could not have

taken into account the facts subsequent to 6.10.2010 and

no material, which was not confronted to the petitioners

would have been relied upon by the Speaker and

wherefore, the order of the Speaker, which has been

passed by not considering the reply given by the

petitioners and consideration of the events subsequent to

6.10.2010 and as no material, which was not confronted to

the petitioners would have been relied upon by the

Speaker, the impugned order cannot be sustained. The

learned senior counsel further submitted that in view of

Rules 6 and 7 of the Rules, when the petition was not in

prescribed form and did not disclose any material to

declare disqualification, the same ought to have been

rejected under Rule 7(2) of the Rules and it was not

necessary to issue show cause notice also and wherefore,

the entire enquiry itself is liable to be set aside and

consequent orders subsequent to orders culminating in the

order of the Speaker are liable to be set aside and

wherefore, the order of the Speaker, which has been

 22

passed by not considering the reply given by the

petitioners and on consideration of the events subsequent

to 6.10.2010 and the inference drawn on the basis of the

letter given to the Governor dated 6.10.2010 is perverse

and wherefore, liable to be set aside.

4. The learned senior counsel appearing for the

petitioners 4 to 11 Sri Ravi Verma Kumar, submitted that

the petitioners are the members of the B.J.P., and they

have been elected on the ticket issued by the said party,

they are accountable to the voters and also accountable

for implementation of the policies of the party, which has

been brought to power by the voters and the learned

senior counsel further submitted that no order of

disqualification can be passed when the legislators had

expressed their honest dissent about the conduct of the

Chief Minister leading the party in power and the learned

senior counsel referred to the provisions of the Articles

148, 170, 171 and 173 of the Constitution of India and

submitted that the Government legislative party, Speaker

 23

are all creatures of the Constitution and they cannot go

beyond the powers conferred upon by them by the

Constitution or cannot act ultra vires the Constitution. The

learned senior counsel has taken me through the defence

of petitioners in the reply and submitted that under Tenth

schedule to the Constitution elected person will not

become a member of the Legislature unless he subscribes

to the oath before some person authorized person in that

behalf. The oath of affiliation and prescribed forms set out

for the purpose and according to Form No.7 prescribed by

the legislature of the State is required to take oath in the

name of God or on solemn affirmation that he will bear

True faith and allegiance to the Constitution, uphold the

unity and integrity of India and wherefore, having taken

the oath of office owing allegiance to the Constitution of

India, the members of the Legislature have got right to

express their opinion and the dissent about the conduct of

the Chief Minister heading the legislative party and the

letter would clearly show that their letter was given by the

petitioners as B.J.P. M.L.As., and they had not ceased to

 24

be the members of the said party and even in the

application filed by the Chief Minister before the Speaker,

the petitioners have been described as members elected

on B.J.P ticket. There is no averment in the application

that the petitioners have voluntarily given membership of

the B.J.P. and what was expressed in the letters submitted

to the Governor on 06.10.2010 is only expression of

dissent by the disillusioned members of the party about

the conduct of the Chief Minister and not the Government

and there was no material whatever to infer that the

petitioners had voluntarily given up membership of the

legislative party and even in the reply given, it is averred

that they have continued to be members of B.J.P., and

they are only asking for change of leadership and not the

change of Government and wherefore, there was no

material whatever to interfere with the petitioners had

voluntarily given membership of the B.J.P.

5. The learned senior counsel further submitted that

the nature of proceeding before the Speaker is quasi

 25

criminal and heavy burden lies upon the applicant to prove

the disqualification, which would unseat a sitting member

against the mandate of the Constituency and the order of

Speaker cannot be arbitrary and without basis . He further

submitted that no witness has been examined before the

Speaker and the documents subsequent to 6.10.2010 have

been considered by the Speaker and the learned counsel

further submitted that the Chief Minister has referred to

the letter given by the petitioners on 5-10-2010 and

petitioners have not given any letter on 5-10-2010 and

therefore, initiation of show cause and entire proceedings

are vitiated.

6. Learned senior counsel has relied upon the

decision of this Court in R. Krishnappa Vs. State of

Karnataka (ILR 2008 KAR 2185) in support of his

contention that the proceedings before the Speaker is

quasi judicial in nature. The learned senior counsel further

submitted that the petitioners have specifically averred in

the reply statement that their grievance is against Sri B.S.

 26

Yadiyurappa and not against the B.J.P., which is the ruling

party in the State. In view of the provisions of the

Constitution, leader of the largest political party in the

legislature is appointed as Chief Minister by the Governor

and the other Ministers are appointed by the Governor on

the recommendation of the Chief Minister. Mere fact that

the petitioners including the persons, who are Ministers in

the Cabinet of Sri B.S. Yadiyurappa have expressed their

dissent cannot in any event or by any stretch of

imagination, lead to the inference of voluntarily submitting

the resignation to the B.J.P. and in the reply to the show

cause notice, the petitioners have specifically averred that

they continued to be members of the B.J.P. and they will

continue to support the B.J.P. if there is change of

leadership and any person other than B.S. Yadiyurappa is

elected as leader. The learned senior counsel further

submitted that the decision in Ravi Naik`s case (AIR 1994

SC(2) 641) and AIR SC 1558 and Vishwanath`s case is not

helpful to draw inference in the present case as in the said

case, there was specific material to draw inference to the

 27

effect that the member of the State Legislature had

voluntarily withdrawn from the membership of the political

party and the reply given has not been denied by any

rejoinder and the Speaker in his impugned order apart

from referring to the objection has not at all considered

the said objection and therefore, the order of the Speaker

is perverse for having not considered the relevant material

on record including the objections to the show cause notice

filed by the petitioner and in taking into account the

irrelevant facts. The learned senior counsel further

submitted that the complaint against the Chief Minister to

the Governor was common to the petitioners and two

B.J.P. M.L.As., and on the basis of the same material on

record letter dated 6.10.2010, the Speaker has not

disqualified persons at Sl. Nos.1 and 12 on the basis of the

affidavit filed by them and the statement of the applicant

and the President of the B.J.P. and same benefit ought to

have been extended to the petitioners also who were also

standing in the same position identical to the persons at

Sl. Nos.1 and 12 as the only material before the Speaker

 28

was letter dated 6.10.2010. The learned senior counsel

has relied upon the decision of the Hon`ble Supreme Court

in Vishwanath’s case (AIR 1996 SC 1268) and submitted

that even after the letter given to the Governor, the

petitioners have continued to be members of the B.J.P.

and they have never ceased to be the members of the said

party. The learned senior counsel further submitted that

the petitioners had independently submitted separate

letters to the Government and they had not gone to

submit letters to the Governor along with the members of

any other party, much less the members of the opposition

party and wherefore, the inference drawn by the Speaker

against the petitioner is baseless and perverse. The

learned senior counsel further submitted that the entire

reasoning given by the learned Judge of this Court

dissenting with the opinion of the Hon`ble Chief Minister is

justified having regard to the material on record as the

order passed by the Speaker cannot at all be sustained

and therefore, the petitions may be allowed.

 29

7. Sri Soli J. Sorabhjee, the learned senior counsel

appearing for the respondent submitted that the Hon`ble

Chief Justice and the learned Judge of this Court have

unanimously agreed on finding on contentions 1, 2 and 4

regarding violation of Rules 6 and 7, violation of the

principles of natural justice and malafide and the said

contentions are answered against the petitioners and only

point on which there was divergent opinion was on

contention No.3, which has been referred to this Bench..

The learned senior counsel further submitted that the only

contention that is required to be considered by this Court

is as to whether the order of the Speaker dated

10.10.2010 holding that the petitioners have incurred

disqualification under para (2)(1) (a) of the Tenth

Schedule is perverse. The learned senior counsel further

submitted that the nature of the proceeding before the

Speaker scope of judicial review are well settled in view of

the decision of the Hon`ble Supreme Court in KIHOTO’s

case and the order of the Speaker can be challenged only

on the ground of violation of constitutional provision (2)

 30

violation of the principles of natural justice and (3) mala

fides and perversity and all the contentions raised in that

behalf at contentions 1, 2 and 4 have been unanimously

held against the petitioners by the Division Bench and the

only other ground on which, the order of the Speaker could

be challenged is perversity of the order and since there

was divergence of opinion among the Hon`ble Chief Justice

and the learned Judge constituting the Bench, the said

question is referred to this Court as a third Judge for

determination of the question. The learned senior counsel

submitted that according to the dictionary meaning of

word `perversity` and the legal principles laid down by the

Hon`ble Supreme Court in Jagjit Singh’s case 2006(11)

SCC 1, paras 14, 15 and also at paras 42 and 43, the

proceeding before the Speaker cannot be compared to

any other Tribunal it is also not akin to the proceedings

before the arbitrator or any statutory body or quasi judicial

authorities and the order passed by the Speaker can be

said to be perverse only when the conclusion arrived at by

the Speaker is not reasonable and could not have been

 31

arrived at all and if two views are possible and if another

view is possible to be arrived at, apart from the view

arrived at by the learned Speaker in the impugned order,

the view taken by the Speaker should be confirmed and

the very fact that there are two divergent views regarding

interference of the conduct of the petitioners for

disqualification in para 2 (a)(i) of the Tenth schedule would

itself show that two views were possible to be arrived at

and therefore, view arrived at by the Speaker is entitled to

be confirmed. The learned senior counsel further

submitted that the Speaker has not only relied upon the

contents of the letter dated 6.10.2010, has also relied

upon the material that was produced before him, the

contents of which have not been disputed and the Speaker

was entitled to take all material into consideration before

passing order of disqualification as the facts alleged in the

complaint were not disputed and there is no averment in

the writ petition that the facts stated as undisputed by the

Speaker is not correct and they were disputed facts. The

learned senior counsel further submitted that the

 32

distinction between disqualification in paras 2(1)(a) and

2(1)(b) of the Tenth Schedule to the Constitution of India

is to be kept in mind as they are independent of each other

and dissent amounting to defection which is dealt with in

para 2(1)(b). The learned senior counsel further

submitted that the contention that burden of proof

required to be decided by the applicant is one beyond

reasonable doubt cannot be accepted and it is always open

to the Speaker to draw inference from the facts available

and the conduct of the petitioners on disqualification in

para (2)(1) of the Tenth schedule. The learned senior

counsel further submitted that the averments made in the

letter written by the Governor on 06.10.2010, the contents

of which have not been disputed and reiterated by the

petitioners in the reply statement and in the writ petition

would clearly show that they have withdrawn support from

the Government, which would lead only to the irresistible

conclusion that they have ceased to be the members of

the political party. The learned senior counsel further

submitted that the contentions urged in the letter of the

 33

Governor dated 06.10.2010 is incompatible with the

contention of the petitioners that they continue to be the

members of the legislative party as it is not open to the

petitioners, who also include two of the persons, who were

in the Cabinet of Sri B.S. Yaddiyurappa to contend that

they have lost confidence in the Chief Minister and

therefore, the Chief Minister should be changed. The

learned senior counsel submitted that the Governor cannot

take disciplinary action or remove the Chief Minister and

appropriate forum for the petitioners to ventilate their

grievances would be before the legislative party and the

only intention of the petitioners in submitting the

representation dated 6.10.2010 was to request the

Governor to initiate proceedings under Article 356 of the

Constitution of India. Through the words in the letter

petitioners have camouflaged the intention to bring down

the Government in power and the fact that the said

inference and the intention of the applicant has been

drawn by the Governor and show cause notice has been

issued stating that there is a doubt about the Governor

 34

enjoying the majority and requesting the Chief Minister to

seek vote of confidence would itself shows that they have

withdrawn support to the party. The contents of the letter,

which is on parimateria with the provisions of Article 356

of the Constitution of India that a situation has arisen that

the governance of the State cannot be carried in

accordance with the provisions of the Constitution and that

the Governor should intervene and institute the

constitutional process as the constitutional head of the

State would clearly show that the only intention of the

applicant was to bring down the Government and not mere

allegation made against the Chief Minister as no allegation

against the Chief Minister could be made to Governor who

has no power to take action against the Chief Minister.

Admittedly, the Governor has no such power and prayer in

the letter on 6.10.2010 would also show that the Governor

should initiate action according to the Constitution and on

the same day 6.10.2010, the Governor has addressed a

letter to the Chief Minister expressing doubt as to whether

the government enjoying the confidence of the majority in

 35

the legislature and has requested the Chief Minister to

move the vote of confidence to prove the majority on or

before 12.10.2010 and wherefore, the only irreresistible

conclusion that can be drawn by the contents of the letter

and the material on record is that the petitioners had

voluntarily given up the membership of the B.J.P. The

learned senior counsel further submitted that having given

the letter on 06.10.2010 withdrawing support to the

Government run by B.J.P. when the petitioners were

elected on B.J.P., ticket and two of them were Ministers in

the Cabinet and therefore, there is collective responsibility

of the petitioners as they are also part of the Cabinet

accountable regarding the conduct of the members of the

Cabinet, they cannot make an application making

allegation against the members of the same Cabinet or the

Chief Minister heading the Cabinet, which would

necessarily lead to the only inference that the applicants

are withdrawing their support to the Government. The

learned senior counsel further submitted that the said

contention of the petitioners that they have still continued

 36

to be the members of the B.J.P. despite withdrawing

support to the Government led by B.J.P., is incompatible

with the continuance of the membership as they cannot

say that they are still members of the B.J.P., and the

Government led by B.J.P. should be brought down. It is

not open to the petitioners to contend that they have not

left B.J.P. at all when they have given letter to the

Governor that they have withdrawn support to the said

legislative party. The learned senior counsel further

submitted that the order of the Speaker having taken note

of the contents of the letter given by the petitioners to the

Governor dated 06.10.2010 and other material on record,

which is not disputed by the petitioners, would lead to the

only conclusion that the petitioners have acquired

disqualification by voluntarily resigning from the B.J.P.

The learned senior counsel further submitted that the

petitioners cannot be whistleblowers and still continue to

be in the party and wherefore, the action of the petitioners

cannot be protected by saying that they are the whistle

blowers who are working in the party and there is no

 37

perversity in the order passed by the Speaker. The learned

senior counsel has relied upon by the observations in

Vishwanath’s case AIR 1996 SC 1268 in support of his

contention and further submitted that there is no

perversity in the order passed by the Speaker and

wherefore, the only ground upon which the petitioners

could have challenged the order of the speaker is baseless

and the question has to be answered against the

petitioners by confirming the order passed by the Speaker.

8. Sri Satyapal Jain, the learned senior counsel

appearing for the respondent submitted that he adopts the

submissions already made by Sri Soli Sorabjee, the

learned senior counsel and further submitted that the

conduct of the petitioners can never be countenanced. The

petitioners gave letters to the Governor on 06.10.2010,

withdrawing support to the Government and they are not

even served with the show cause notice by the Speaker is

baseless and the question is to be answered against the

petitioners by confirming the order passed by the Speaker.

 38

9. The learned senior counsel further submitted that

even after service of show cause notice by the Speaker,

they did not personally appear before the Speaker and

they appeared through counsel and petitioners were

missing and they were traveling from place to place and

were seen along with the members of the opposition in the

Electronic media and the press statement and the news

published in the news papers would show that they had

associated themselves with the members of the opposition

persons not belonging to B.J.P. The learned senior counsel

further submitted that the petitioners cannot blow hot and

blow cold as they cannot contend that they have no

confidence in the Government, which is alleged by the

legislative party, to which they belong and they cannot

also contend that they continue to be the members of the

legislative party, namely, B.J.P. He has relied upon the

Full Bench decision of the Allahabad High Court, wherein

the Constitutional validity of the Tenth Schedule to the

Constitution was challenged and the same has been

 39

referred to in KIHOTO`s case, wherein the constitutional

validity of the Tenth schedule had been challenged and

submitted that from the conduct of the petitioners,

disqualification can be inferred voluntarily giving up

membership need not be express, but, can also be implied

from the conduct of the parties, and the petitioners,

among whom two are Ministers and accountable as the

members of the Cabinet cannot contend that they have no

confidence in the leader of the cabinet and Government by

making unfounded allegations against the leader of the

legislative party and try to bring down the Government on

camouflage of expressing dissent only on the leader of the

Cabient. Sri B.S. Yadiyurappa. If at all the petitioners had

any grievance against the Chief Minister and not against

the party, they should have expressed their views in the

appropriate forum before the party or in the house and

could not have gone to submit letter to the Governor by

camouflaging the contents of the letter with an intention

that the Governor may initiate proceedings under Article

356 of the Constitution of India. In Full Bench decision of

 40

Allahabad High Court (AIR 1987 PUNJAB AND HARYANA),

he has referred to paras 18, 21 and 23 of the said

judgement. He further submitted that the Speaker can

also take into account the personal knowledge as he will be

chairing the legislative session and he would be knowing

the conduct of the parties and in the present case, having

regard to the conduct of the parties, one and the only

inference that can be drawn in that the petitioners have

voluntarily given up membership of their legislative party

and therefore, incurred disqualification in para 2(1)(a) of

the Tenth schedule to the Constitution and the order

passed by the Speaker after affording opportunity to the

petitioners can never be said to be perverse and as the

inference arrived at by the Speaker is justified and the

only inference that could be drawn having regard to the

conduct of the petitioners and any view can be arrived at

on the basis of the material on record and the view arrived

at by the Speaker should be respected and should not be

interfered with under the writ jurisdiction of this Court.

 41

10. In reply to the arguments of the learned senior

counsel appearing for the respondents, Sri B.V. Acharya,

learned senior counsel appearing for petitioners 2 and 3

submitted that the scope of interference with the order

passed by the Speaker cannot be restricted and the power

of this Court under Articles 226 and 227 of the Constitution

of India cannot be curtailed. He further submitted that the

order passed by the Speaker is perverse and the same is

not based upon the relevant material and it is based upon

the irrelevant material, which could not be taken into

account by the Speaker. No evidence was led before the

Speaker apart from the letters dated 06.10.2010 given by

the petitioners to the Governor, wherein they had

ventilated their grievance with regard to the conduct of Sri

B.S. Yadiyurappa and not against the Government and

wherefore, the inference drawn by the Speaker is baseless,

arbitrary and perverse and therefore, liable to be set aside.

11. Sri Ravi Verma Kumar, the learned senior

counsel appearing for petitioners 4 to 11 submitted that

 42

the petitioners have only ventilated their grievance against

B.S. Yeddiyurappa and they have not withdrawn support to

the B.J.P government nor withdrawn their membership

from the said legislature party and they continue to be the

members as stated in the reply and the order of the

Speaker does not consider the contentions in the reply to

the show cause notice and is based upon the irrelevant

material and conduct of the petitioners subsequent to

06.10.2010 is taken into account and hence impugned

order is perverse and liable to be set aside. The

petitioners are entitled to express their dissent as they

owe responsibility to the persons, who have voted them

and when the Chief Minister is not interested in the

implementation of the policy of the party, it is always

open to the petitioners to express their dissent and it

cannot be equated with defection and the petitioners have

never involved themselves in any anti-party activity and

dissent is the essence of democracy and if such conduct of

the petitioners is tried to be stifled down, the very basis of

the democracy would be defeated and wherefore, the

 43

order passed by the Speaker is perverse and liable to be

set aside. The learned senior counsel further submitted

that the disqualification order could not have been passed

in anticipation that the petitioners would not cast their

vote in the favour of the Government. The confidence

motion, was proposed to be moved in the Legislature on

11.10.2010 and the order has been passed only to scuttle

the honest dissent of the petitioners and to prevent them

from voting on 11.10.2010.

12. Sri K.G. Raghavan, the learned senior counsel

appearing for the petitioner No.1 submitted that the order

passed by the Hon`ble Speaker is perverse. The learned

senior counsel further submitted that in view of the

judgement of the Hon`ble Supreme Court in Jagjit Singh’s

case cited supra as observed at page 26 para 18, the

provisions of the part 2 of the Tenth Schedule to the

Constitution does not affect the right of expression and

conscience and wherefore, mere expression of dissent of

the petitioners against the leader of the legislature party

 44

and requesting for change of leadership can never amount

to withdrawal of membership from the political party.

Therefore, the order passed by the Speaker cannot at all

be sustained and the same is liable to be dismissed.

13. The question that is referred for determination

before this Court is as follows:

“ Whether the impugned order

dated 10.10.2010 passed by the Speaker
of the Karnataka State Legislative
Assembly is in consonance with the
provisions of paragraph 2(1)(a) of the
Tenth Schedule of the Constitution of
India ? ”

14. There is difference of opinion only on the above

said question between the Hon’ble Chief Justice and the

learned Judge constituting the Bench and so far as other

contentions on point Nos.1,2 & 4 are concerned, the

judgment is unanimous.

15. Before the Tenth Schedule to the Constitution

was introduced by the Constitution (Fifty-second

Amendment) Act, 1985 with effect from 1-3-1985

 45

(hereinafter called the ‘Amendment Act’), it is necessary to

narrate the legislative history leading to the said

amendment for including Tenth Schedule to the

Constitution.

On December 8, 1967, the Lok Sabha had passed an

unanimous Resolution in the following terms.

5. “(A) high-level Committee consisting of

representatives of political parties and
constitutional experts be set up immediately by
government to consider the problem of
legislators changing their allegiance from one
party to another and their frequent crossing of
the floor in all its aspects and make
recommendation in this regard.”

The said Committee known as the “Committee on

Defections” in its report dated January, 7 1969, interalia
observed:

“6. Following the Fourth General Election, in

the short period between March 1967 and
February 1968, the Indian political scene was
characterized by numerous instances of change
of party allegiance by legislators in several
States. Compared to roughly 542 cases in the
entire period between the First and Fourth
General Election, at least 438 defections
occurred in these 12 months alone. Among
Independents, 157 out of a total of 376 elected
joined various parties in this period. That the
lure of office played a dominant part in
decisions of legislators to defect was obvious
from the fact that out of 210 defecting
 46

legislators of the States of Bihar, Haryana,

Madhya Pradesh, Punjab, Rajasthan, Uttar
Pradesh and West Bengal, 116 were included
in the Council of Ministers whichthey helped to
bring into being by defections The other
disturbing features of this phenomenon were:
multiple acts of defections by the same person
or set of persons (Haryana affording a
conspicuous example); few resignations of the
membership of the legislature or explanations
by individual defectors, indifference on the part
of defectors to political proprieties,
constituency preference or public opinion; and
the belief held by the people and expressed in
the press that corruption and bribery were
behind some of these defections.”

“8 Keeping in view the recommendations of

the Committee on Defections, the Constitution
(Thirty-second Amendment) Bill, 1973 was
introduced in the Lok Sabha on May 16, 1973.
It provided for disqualifying a Member from
continuing as a Member of either House of
Parliament or the State Legislature on his
voluntarily giving up his membership of the
political party by which he was set up as a
candidate at such election or of which he
became a Member after such election, or on
his voting or abstaining from voting in such
House contrary to any direction issued by such
political party or by any person or authority
authorized by it in this behalf without obtaining
prior permission of such party, person or
authority. The said Bill, however, lapsed on
account of dissolution of the House.
Thereafter, the Constitution (Forty-eight
Amendment) Bill, 1979 was introduced in the
Lok Sabha which also contained similar
provisions for disqualification on the ground of
 47

defection. This Bill also lapsed and it was

followed by the Bill which was enacted into the
Constitution (Fifty-second Amendment) Act,
1985.

The objects and reasons appended to the Bill which was

adopted as the Constitution (Fifty-second Amendment)

Act, 1985 reads as follows:

“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 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.”

16. The Tenth Schedule to the Constitution reads as

follows:

“TENTH SCHEDULE

[Articles 102 (2) and 191 (2)]

PROVISIONS AS TO DISQUALIFICATION ON
GROUND OF DEFECTION

1. Interpretation:- In this Schedule, unless the

context otherwise requires,-

(a) ‘House’ means either House of parliament

or the Legislative Assembly or, as the
 48

case may be, either House of the

Legislature of a State;

(b) ‘Legislature party’, in relation to a member

of a House belonging to any political party
in accordance with the provisions of
paragraph 2 or paragraph 4, means the
group consisting of all the members of that
House for the time being belonging to that
political party in accordance with the said
provisions;
(c) ‘original political party’, in relation to a
member of a House, means the political
party to which he belongs for the purposes
of sub-paragraph (1) of paragraph 2;

(d) ‘paragraph’ means a paragraph of this

Schedule.

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-

(a) if he has voluntarily gives up his

membership of such political party;

(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 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 abstention.
 49

Explanation:- for the purposes of this sub-

paragraph,-

(a) an elected member of a House shall be

deemed to belong to the political party, if
any, by which he was set up as a
candidate for election as such member;

(b) a nominated member of a House shall,-

(i) where he is a member of any

political party on the date of his
nomination as such member, be
deemed to belong to such political
party;

(ii) in any other case, be deemed to

belong to the political party of which
he becomes, or, as the case may be,
first becomes, a member before the
expiry of six months from the date
on which he takes his seat after
complying with the requirements of
article 99 or, as the case may be
article 188.

(2) An elected member of a House who has

been elected as such otherwise than as a
candidate set up by any political party
shall be disqualified for being a member
of the House if he joins any political party
after such election.

(3) A nominated member of House shall be

disqualified for being a member of the
House if he joins any complying with the
 50

requirements of article 99 or, as the case

may be, article 188.

(4) Notwithstanding anything contained in the

foregoing provisions of this paragraph, a
person who, on the commencement of the
Constitution (Fifty-second amendment)
act, 1985, is a member of a House
(whether elected or nominated as such)
shall,-

(i) where he was a member of political

party immediately before such
commencement, be deemed, for the
purposes of sub-paragraph (1) of
this paragraph, to have been
elected as a member of such House
as a candidate set up by such
political party;

(ii) in any other case, be deemed to be

an elected member of the House
who has been elected as such
otherwise than as a candidate set
up by any political party for the
purpose of sub-paragraph (20 of
this paragraph or, as the case may
be, deemed to be a nominated
member of the House for the
purposes of sub-paragraph (3) of
this paragraph.

4. Disqualification on ground of defection

not to apply in case of merger:- (1) A member of
a House shall not be disqualified under sub-
paragraph (1) of paragraph 2 where his original
political party merges with another political party
and he claims that he and any other members of his
original political party-
 51

(a) have become members of such other political

party or, as the case may be, of a new
political party formed by such merger; or

(b) have not accepted the merger and opted to

function as a separate group, and from the
time of such merger, such other political
party or new political party or group, as the
case may be, shall be deemed to be the
political party to which he belongs for the
purposes of sub-paragraph (1) of paragraph
2 and to be his original political party for the
purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this

paragraph, the merger of the original
political party of a member of a House shall
be deemed to have taken place if, and only
if, not less than two –thirds of the members
of the legislature party concerned have
agreed to such merger.

5. Exemption:- Notwithstanding anything

contained in this Schedule, a person who has
been elected to the office of the Speaker or the
Deputy Speaker of the House of the People or the
Deputy Chairman of the Council of States or the
Chairman or the Deputy Chairman of the
Legislative Council of a State or the Speaker or
the deputy Speaker of the Legislative Assembly of
a State, shall not be disqualified under this
Schedule,-

(a) if he, by reason of his election to such

office, voluntarily gives up the
membership of the political party to which
he belonged immediately before such
election and does not, so long as he
 52

continues to hold such office thereafter,

rejoin that political party or become a
member of another political party; or

(b) if he, having given up by reason of his

election to such office his membership of
the political party to which he belonged
immediately before such election, rejoins
such political party after he ceases to hold
such office.

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, 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 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 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.

7. Bar of jurisdiction of courts:- Notwithstanding

anything in this Constitution, no court shall have any
jurisdiction in respect of any matter connected with
 53

the disqualification of a member of a House under

this Schedule.

8. Rules:- (1) Subject to the provisions of sub-

paragraph (2) of this paragraph, the Chairman or the
Speaker of a House may make rules for giving effect
to the provisions of this Schedule, and in particular,
and without prejudice to the generality of the
foregoing, such rules may provide for-

(a) the maintenance of registers or other records

as to the political parties if any, to which
different members of the House belong;

(b) the report which the leader of a legislature

party in relation to a member of a House
shall furnish with regard to any condonation
of the nature referred to in clause (b) of
sub-paragraph (1) of Paragraph 2 in respect
of such member, the time within which and
the authority to whom such report shall be
furnished;

(c) the reports which a political party shall

furnish with regard to admission to such
political party of any members of the House
and the officer of the House to whom such
reports shall be furnished; and

(d) the procedure for deciding any question

referred to in sub-paragraph (1) of
paragraph 6 including the procedure for any
inquiry which may be made for the purpose
of deciding such question.

(2) The rules made by the Chairman or the

Speaker of a House under sub-paragraph (1) of
this paragraph shall be laid as soon as may be
 54

after they are made before the House for a total

period of thirty days which may be comprised in
one session or in two or more successive
sessions and shall take effect upon the expiry of
the said period of thirty days unless they are
sooner approved with or without modifications or
disapproved by the House and where they are so
approved, they shall take effect on such
approval in the form in which they were laid or
in such modified form, as the case may be, and
where they are so disapproved, they shall be of
no effect.

(3) The Chairman or the speaker of a House

may, without prejudice to the provisions of
article 105 or, as the case may be, article 194,
and to any other power which he may have
under this Constitution direct that any wilful
contravention by any person of the rules made
under this paragraph may be dealt with in the
same manner as a breach of privilege of the
House.]

17. The constitutional validity of Tenth Schedule

introduced by Amendment Act, 1985 was challenged and

adjudicated by the Hon’ble Supreme Court in KIHOTO

HOLLOHAN vs ZACHILLHU & OTHERS (1992 Supp (2) SCC

651) (hereinafter called ‘KIHOTO’s case) and by order

dated November, 12 1991 operative portion of the order

was pronounced on findings and conclusions upholding the

constitutional validity of the amendment and of the

 55

provisions of the Tenth Schedule, except for paragraph 7

which was declared invalid for want of ratification in terms

of and as required by the proviso to Article 368(2) of the

Constitution and they have indicated that reasons for the

conclusions would follow later [(1992)1 SCC 309].

Thereafter, by order dated 18-2-1992 reasons for the

conclusions were set out. The majority judgment was

rendered by Hon’ble Sri Justice M N Venkatachalaiah for

himself , Honb’le Sri Justice K Jayachandra Reddy and

Hon’ble Sri Justice S C Agarwal and minority judgment was

rendered by Hon’ble Sri Justice J S Verma for himself and

Hon’ble Sri Justice L M Sharma.

18. In the majority judgment, contentions (A) to (H)

were formed for determination and the same were

answered as follows:

(A) The Constitution (Fifty-second

Amendment) Act, 1985, insofar as it
seeks to introduce the Tenth Schedule is
destructive of the basic structure of the
Constitution as it is violative of the
fundamental principles of Parliamentary
democracy, a basic feature of the Indian
constitutionalism and is destructive of
the freedom of speech, right to dissent
 56

and freedom of conscience as the

provisions of the Tenth Schedule seek to
penalise and disqualify elected
representatives for the exercise of these
rights and freedoms which are essential
to the sustenance of the system of
Parliamentary democracy.

(para 25 –53, page 674 to 688)

Answer to point ‘A’ : (Para 53 , page Nos.687-

688)
Re Contention (A)

“(T)hat the Paragraph 2 of the Tenth

Schedule to the Constitution is valid. Its
provisions do not suffer from the vice of
subverting democratic rights of elected
Members of Parliament and the Legislatures of
the States. It does not violate their freedom of
speech, freedom of vote and conscience as
contended.
The provisions of Paragraph 2 do not
violate any rights or freedom under Articles
105 and 194 of the Constitution.

The provisions are salutary and are

intended to strengthen the fabric of Indian
parliamentary democracy by curbing
unprincipled and unethical political defections.

The contention that the provisions of the

Tenth Schedule, even with the exclusion of
Paragraph 7, violate the basic structure of the
Constitution in that they affect the democratic
rights of elected Members and, therefore, of
the principles of Parliamentary democracy is
unsound and is rejected.”
 57

POINT (B) Having regard to

the legislative history and evolution of
the principles underlying the Tenth
Schedule, Paragraph 7 thereof in terms
and in effect, brings about a change in
the operation and effect of Articles 136,
226 and 227 of the Constitution of India
and, therefore, the Bill introducing the
amendment attracts the proviso to
Article 368 (2) of the Constitution and
would require to be ratified by the
Legislature of the States before the Bill is
presented for Presidential assent.

(paragraphs 54 to 62) ( pages 688 to

692)

Answer to point ‘B’: Para 62 (pages 691 to

692)

62. In the present case, though the

amendment does not bring in any change
directly in the language of Articles 136, 226
and 227 of the Constitution, however, in effect
paragraph 7 curtails the operations of those
articles representing matter falling under the
Tenth Schedule. There is a change in the
effect in Articles 136, 226 and 227 within the
meaning of clause (b) of the proviso to Article
368(2). paragraph 7, therefore, attracts the
proviso and ratification was necessary.
Accordingly, on Point (B) we hold:

“That having regard to the background

and evolution of the principles underlying the
Constitution (Fifty-second Amendment) Act,
 58

1985, insofar as it seeks to introduce the Tenth

Schedule in the Constitution of India, the
provisions of Paragraph 7 of the Tenth
Schedule of the Constitution in terms and in
effect bring about a change in the operation
and effect of Articles 136, 226 and 227 of the
Constitution of India and , therefore, the
amendment would require to be ratified in
accordance with the proviso to sub-article (2)
of Article 368 of the Constitution of India.”

POINTS (C) & (D)

(C) In view of the admitted non-

compliance with the proviso to Article
368(2) not only Paragraph 7 of the Tenth
Schedule, but also the entire Bill
resulting in the Constitution (Fifty-second
Amendment) Act, 1985, stands vitiated
and the purported amendment is
abortive and does not in law bring about
a valid amendment.

Or whether, the effect of such non-

compliance invalidates Paragraph 7 alone
and the other provisions which, by
themselves, do not attract the proviso do
not become invalid.

(D) That even if the effect of

non-ratification by the Legislature of the
States is to invalidate Paragraph 7 alone,
the whole of the Tenth Schedule fails for
non-severability. Doctrine of
severability, as applied to ordinary
statutes to promote their
 59

constitutionality, is inapplicable to
constitutional amendments.

(paras 63 to 77) (pages 692 to 699)

Answer to Points ‘C’ and ‘D’ (para 77 (page

699)

77. We accordingly hold on contentions

(C) and (D):

That there is nothing in the said

proviso to Article 368(2) which detracts
from the severability of a provision on
account of the inclusion of which the Bill
containing the amendment requires
ratification from the rest of the
provisions of such Bill which do not
attract and require such ratification.
Having regard to the mandatory
language of Article 368(2) that
‘thereupon the Constitution shall stand
amended’ the operation of the proviso
should not be extended to constitutional
amendments in a Bill which can stand by
themselves without such ratification.

That accordingly, the Constitution

(Fifty-second Amendment ) Act, 1985,
insofar as it seeks to introduce the Tenth
Schedule in the Constitution of India, to
the extent of its provisions which are
amenable to the legal-sovereign of the
amending process of the Union
Parliament cannot be overborne by the
proviso which cannot operate in that
area. There is no justification for the
view that even the rest of the provisions
of the Constitution (Fifty-second
 60

Amendment) Act, 1985, excluding

Paragraph 7 of the Tenth Schedule
become constitutionally infirm by reason
alone of the fact that one of its severable
provisions which attracted and required
ratification under the proviso to Article
368 (2) was not so ratified.

That Paragraph 7 of the Tenth

Schedule contains a provision which is
independent of , and stands apart from,
the main provisions of the Tenth
Schedule which are intended to provide a
remedy for the evil of unprincipled and
unethical political defections and,
therefore, is a severable part. The
remaining provisions of the Tenth
Schedule can and do stand
independently of Paragraph 7 and are
complete in themselves workable and are
not truncated by the excision of
Paragraph 7.

POINTS (E) & (F)

(E) That the deeming provision in

Paragraph 6(2) of the Tenth Schedule
attracts the immunity under Articles
122 and 212. The Speaker and the
Chairman in relation to the exercise of
the powers under the Tenth Schedule
shall not be subjected to the
jurisdiction of any Court.

The Tenth Schedule seeks to and does

create a new and non-justiciable area
of rights, obligations and remedies to
be resolved in the exclusive manner
envisaged by the Constitution and is
 61

not amenable to, but constitutionally

immune from curial adjudicative
processes.

(F) That even if Paragraph 7 erecting a bar

on the jurisdiction of Courts is held
inoperative, the Courts jurisdiction is,
in any event, barred as Paragraph 6(1)
which imparts a constitutional ‘finality’
to the decisions of the Speaker or the
Chairman, as the case may be, and
that such concept of ‘finality’ bars
examination of the matter by the
Courts.

(paras 78 to 111) (pages 699 to 711)

Answer to points ‘E’ and ‘F’: (para 111

(pages 711-712)

111. In the result, we hold on contentions

(E) and (F):

That the Tenth Schedule does not , in

providing for an additional grant (sic
ground) for disqualification and for
adjudication of disputed disqualifications,
seek to create a non-justiciable
constitutional area. The power to resolve
such disputes vested in the Speaker or
Chairman is a judicial power.

That Paragraph 6(1) of the Tenth

Schedule, to the extent it seeks to impart
finality to the decision of the
speakers/Chairmen is valid. But the
concept of statutory finality embodied in
Paragraph 6(1) does not detract from or
 62

abrogate judical review under Articles 136,

226 and 227 of the Constitution insofar as
infirmities based on violations of
constitutional mandates, mala fides, non-
compliance with Rules of Natural Justice
and pervesity, are concerned.

That the deeming provision in Paragraph

6(2) of the Tenth Schedule attracts an
immunity analogous to that in Articles
122(1) and 212(1) of the Constitution as
understood and explained in Keshav Singh
case to protect the validity of proceedings
from mere irregularities of procedure. The
deeming provision, having regard to the
words ‘be deemed to be proceedings in
Parliament’ or ‘proceedings in the
legislature of a State’ confines the scope of
the fiction accordingly.

The Speakers/Chairmen while exercising

powers and discharging functions under the
Tenth Schedule act as Tribunal adjudicating
rights and obligations under the Tenth
Schedule and their decisions in that
capacity are amenable to judicial review.

However, having regard to the

Constitutional Schedule in the Tenth
Schedule, judicial review should not cover
any stage prior to the making of a decision
by the Speakers/Chairmen. Having regard
to the constitutional intendment and the
status of the repository of the adjudicatory
power, no quia timet actions are
permissible, the only exception for any
interlocutory interference being cases of
interlocutory disqualifications or
suspensions which may have grave,
 63

immediate and irreversible repercussions

and consequence.

CONTENTION (G)

(G) The concept of free and fair elections as a

necessary concomitant and attribute of
democracy which is a basis feature includes
an independent impartial machinery for the
adjudication of the electoral disputes. The
Speaker and the Chairman do not satisfy
these incidents of an independent
adjudicatory machinery.

The investiture of the determinative and

adjudicative jurisdiction in the Speaker or
the Chairman, as the case may be, would,
by itself, vitiate the provision on the
ground of reasonable likelihood of bias and
lack of impartiality and therefore denies
the imperative of an independent
adjudicatory machinery. The Speaker and
Chairman are elected and hold office on
the support of the majority party and are
not required to resign their Membership of
the political party after their election to the
office of the Speaker or Chairman.

(paras 112 to 119) (pages 712 to 714)

Answer to Point ‘G’ (para 119 pages 714)

119. Accordingly, the contention that

the vesting of adjudicatory functions in the
Speakers/Chairmen would by itself vitiate
the provision on the ground of likelihood of
political bias is unsound and is rejected.
 64

The Speakers/Chairmen hold a pivotal

position in the scheme of Parliamentary
democracy and are guardians of the rights
and privileges of the House. They are
expected to and do take far-reaching
decisions in the functioning of Parliamentary
democracy. Vestiture of power to
adjudicate questions under the Tenth
Schedule in such constitutional functionaries
should not be considered exceptionable.

CONTENTION (H)

(H) That even if Paragraph & of the

Tenth Schedule is held not to bring about
a change or affect Articles 136, 226 and
227 of the Constitution, the amendment
is unconstitutional as it erodes and
destroys judicial review which is one of
the basis features of the Constitution.

Answer to Point ‘H’: (para 120 page

714)

120. In the view we take of

the validity of Paragraph 7 it is
unnecessary to pronounce on the
contention whether judicial review is a
basic feature of the Constitution and
Paragraph 7 of the Tenth Schedule
violates such basic structure.
 65

However, in the minority judgment rendered, it was

observed as follows:

129: The unanimous opinion according to the

majority as well as the minority is that
paragraph 7 of the Tenth Schedule enacts a
provision for complete exclusion of judicial
review including the jurisdiction of the
Supreme Court under Article 136 and of the
High Courts under Articles 226 and 227 of the
Constitution and, therefore, it makes in terms
and in effect a change in Article 136, 226 and
227 of the Constitution which attracts the
proviso to clause (2) of Article 368 of the
Constitution; and therefore, ratification by the
specified number of State legislatures before
the Bill was presented to the President for his
assent was necessary, in accordance
therewith. The majority view is that in the
absence of such ratification by the State
Legislatures, it is paragraph 7 alone of the
Tenth Schedule which is unconstitutional ; and
it being severable from the remaining part of
the Tenth schedule, paragraph 7 alone is liable
to be struck down rendering the Speaker’s
decision under Paragraph 6 that of a judicial
tribunal amenable to judicial review by the
Supreme Court and the High Courts under
Articles 136, 226 and 227. The minority
opinion is that the effect of invalidity of
Paragraph 7 of the Tenth Schedule is to
invalidate the entire Constitution (Fifty-second
Amendment) Act, 1985 which inserted the
Tenth Schedule since the President’s assent to
the Bill without prior ratification by the State
Legislatures is non est. The minority view also
is that Paragraph 7 is not severable from the
remaining part of the Tenth schedule and the
 66

Speaker not being an independent adjudicatory

authority for this purpose as contemplated by
a basic feature of democracy, the remaining
part of the Tenth Schedule is in excess of the
amending powers being violative of a basic
feature of the Constitution. In the minority
opinion, we have held that the entire
Constitution (Fifty-second Amendment) Act,
1985 is unconstitutional and an abortive
attempt to make the constitutional amendment
indicated therein.

It may also be noted here that paragraph 3 of the Tenth

Schedule was omitted by the Constitution (Ninety-first

Amendment) Act, 2003 with effect from 1-1-2004 and

paragraphs 3,4 and 5 were introduced.

19. I have given detailed anxious consideration to

the contentions of the learned Sr.counsel appearing for the

parties and scrutinized the material on record and perused

the judgment of the Division Bench dated 18-10-2010

resulting in reference of contention No.3 to this Court.

20. It is clear on consideration of the arguments of

the learned Sr.Counsel appearing for the petitioners that

they have reiterated the grounds urged in the writ petition

and reasoning in the judgment of the learned Single Judge

 67

differing with the judgment of the Hon’ble Chief Justice

dated 18-10-2010 and arguments of the learned

Sr.Counsel appearing for the respondents is reiteration of

the argument made before the Division Bench and

reasoning of the Hon’ble Chief Justice in the judgment

dated 18-10-2010. It has to be noted at the outset that

this Court is required to answer the only question as

referred to above as the judgment of the Division Bench is

unanimous on contention Nos.1,2 & 4 and referred

question relates to contention No.3 only.

21. The contention of the learned Sr.counsel

appearing for the petitioners regarding procedural

irregularity committed by the Speaker, that no precise

statement of facts was made in the application given to the

Speaker which was not properly verified and ought to have

been rejected under Rule 7(2) and there was no ground

whatever made out for issuing show cause notice has been

already considered and negatived by the unanimous

decision of the Division Bench in view of the principles laid

down in KIHOTO’s case and decision of the Apex Court in

 68

Dr.MAHACHANDRA PRASAD SINGH vs CHAIRMAN, BIHAR

LEGISLATIVE COUNCIL [(2004)8 SCC 747] (paras 16, 17 &

18) and the principles laid down by the Apex Court in RAVI

S NAIK vs UNION OF INDIA (AIR 1994 SC 1558) (paras 18

& 26) wherein the contentions that have been urged by

the learned Sr.counsel appearing for the petitioners while

arguing contention No.(1) has been negatived and even

otherwise, it is clear that the said contention would not in

any way affect the validity of the order passed by the

Speaker as unanimously held by the Division Bench.

22. The Supreme Court, in Dr.MAHACHANDRA

PRASAD SINGH vs CHAIRMAN, BIHAR LEGISLATIVE

COUNCIL [(2004)8 SCC 747], has made the following

observations:

“ The purpose of Rules 6 and 7 is only this

much that the necessary facts on account of
which a member of the House becomes
qualified for being a member of the House
under paragraph 2, may be brought to the
notice of the Chairman. There is no lis between
the person moving the petition and the
member of the House who is alleged to have
incurred a disqualification. It is not an
adversarial kind of litigation where he may be
required to lead evidence. Even if he
 69

withdraws the petition it will make no

difference as a duty is cast upon the Chairman
or the Speaker to carry out the mandate of the
constitutional provision viz., the Tenth
Schedule.”

23. In the case of RAVI S NAIK vs UNION OF INDIA

(AIR 1994 SC 1558) the following principles have been laid

down by the Hon’ble Supreme Court:

“18. The submission of Shri. Sen is that

the petitions that were filed by Khalap before
the Speaker did not fulfil the requirements of
clause (a) of sub-rule (5) of Rule 6 inasmuch
as the said petiton did not contain a concise
statement of the material facts on which the
petitioner (Khalap ) was relying and further
that the provisions of clause b) of sub-rule (5)
of Rule 6 were also not complied with
inasmuch as the petitions were not
accompanied by copies of the documentary
evidence on which the petitioner was relying
and the names and addresses of the persons
and the list of such information as furnished by
each such person. It was also submitted that
the petitions were also not verified in the
manner laid down in the Code of Civil
Procedure for the verification of pleadings and
thus there was non-compliance of sub-rule (6)
of Rule 6 also and that in view of the said
infirmities the petitions were liable to be
dismissed in view of sub-rule (2) of Rule 7.
We are unable to accept the said contention of
Shri. Sen. The Disqualification Rules have
been framed to regulate the procedure that is
to be followed by the Speaker for exercising
the power conferred on him under sub-
 70

paragraph (1) of paragraph 6 of the Tenth

Schedule of the Constitution. The
Disqualification Rules are, therefore,
procedural in nature and any violation of the
same would amount to an irregularity in
procedure which is immune from judicial
scrutiny in view of sub-paragraph (2) of
paragraph 6 as construed by his Court in
Kihoto Hollohan’s case (1992 AIR SCW 3497)
(supra). Moreover, the filed of judicial review
in respect of orders passed by the Speaker
under sub-paragraph (1) of paragraph 6 as
constructed by this court in Kihoto Hollahan’s
case (supra) is confined to breaches of the
constitutional mandates, mala fides, non-
compliance with Rules of Natural Justice and
perversity. We are unable to uphold the
contention of Shri. Sen that the violation of the
Disqualification Rules amounts to violation of
constitutional mandates. By doing so we
would be elevating the Rules to the status of
the provisions of the Constitution which is
impermissible. Since the Disqualification Rules
have been framed by the Speaker in exercise
of the power conferred under paragraph 8 of
the Tenth Schedule they have a status
subordinate to the Constitution and cannot be
equated with the provisions of the
Constitution. They cannot therefore, be
regarded as constitutional mandates and any
violation of the Disqualification Rules does not
afford a ground for judicial review of the order
of the Speaker in view of the finality clause
contained in sub-paragraph (1) of paragraph 6
of the Tenth Schedule as construed by this
Court in Kihoto Hollohan case (1992 AIR SCW
3497) (supra).”
 71

24. There is no merit in the contentions of learned

Sr. counsel appearing for the petitioners that burden

required to be discharged by the applicant before the

Speaker in a disqualification proceeding is the burden to be

discharged by the prosecution in criminal case i.e., proof

beyond reasonable doubt and that if two views are possible

on the material on record, the view which is favourable to

the legislators should be adopted. The Apex Court has laid

down the contours and characters of proceedings before

the Speaker in a disqualification proceedings in KIHOTO’s

case as follows:

“ In the present case, the power to decide

disputed disqualification under Paragraph 6(1)
is pre-eminently of a judicial complexion.”

Further, in para 98 of the majority judgment in KIHOTO’s

case, it has been laid down as follows:

98. But then is the Speaker or the Chairman

acting under Paragraph tribunal? “All tribunals
are not courts, though all courts are tribunals”.
The word “courts” is used to designate those
tribunals which are set up in an organised
State for the Administration of Justice. By
Administration of Justice is meant the exercise
of judicial power of the State to maintain and
 72

uphold rights and to punish “wrongs”.

Whenever there is an infringement of a right or
an injury, the courts are there to restore the
vinculum juris, which is disturbed. (see
Harinagar Sugar mills Ltd. v. Shyam Sundar
Jhunjhunwala). In that case Hidayatullah, J.
Said: (SCR p. 362)

100. By these well known and accepted

tests of what constitute a Tribunal, the
Speaker or the Chairman, acting under
paragraph 6 (1) of the Tenth Schedule is a
Tribunal.

25. In JAGJIT SINGH vs STATE OF HARYANA &

OTHERS [(2006) 11 SCC 1] the Hon’ble Supreme Court

has laid down the same principles at paras 15 to 17.

26. The Apex Court in Dr.MAHACHANDRA PRASAD

SINGH vs CHAIRMAN, BIHAR LEGISLATIVE COUNCIL

[(2004)8 SCC 747], apart from reiterating the principles

laid down in KIHOTO’s case regarding scope of judicial

review and the nature of proceedings, has further held as

follows:

“It may be noticed that the nature and

degree of inquiry required to be conducted for
various contingencies contemplated by
 73

Paragraph 2 of the Tenth Schedule may be

different. So far as clause (a) of Paragraph
2(1) is concerned, the inquiry would be a
limited one, namely, as to whether a member
of the House belonging to any political party
has voluntarily given up his membership of
such political party. The inquiry required for
the purpose of clause (b) of Paragraph 2(1)
may, at times, be more elaborate.

The purpose of Rules 6 and 7 is only this

much that the necessary facts on account of
which a member of the House becomes
qualified for being a member of the House
under paragraph 2, may be brought to the
notice of the Chairman. There is no lis between
the person moving the petition and the
member of the House who is alleged to have
incurred a disqualification. It is not an
adversarial kind of litigation where he may be
required to lead evidence. Even if he
withdraws the petition it will make no
difference as a duty is cast upon the Chairman
or the Speaker to carry out the mandate of the
constitutional provision viz., the Tenth
Schedule.”

In view of the above said principles laid down by the

Hon’ble Supreme Court about the nature of proceedings

and degree of proof required to be discharged is well

settled.

27. Having regard to the above said principles laid

down by the Supreme Court, it is not possible to accept

 74

the contention of learned Sr.counsel appearing for the

petitioners that the averment made in the complaint

should be proved beyond reasonable doubt and if there is

any doubt, benefit of the same should be given to the

legislator. On the other hand, observations made by the

Hon’ble Supreme Court would show that it has laid down

the character and nature of the proceedings and has

further observed that where two views are possible to be

arrived at, the mere ground that better view could have

been arrived at would not be a ground to disturb the order

passed by the Speaker disqualifying the legislator. In

JAGJITH SINGH’s case referred supra, the Supreme Court

has observed as follows:

“The conclusions reached by the Speaker

cannot be held to be unreasonable, assuming
that two views were possible.”

Since the contentions regarding violation of Rules 6 & 7

and violation of principles of natural justice and malafide

alleged have been answered against the petitioners by the

unanimous decision of the Division Bench and the only

 75

question to be considered by this Court is as to whether

the order of the Speaker disqualifying the petitioners under

Part 2(a) of the Tenth Schedule is perverse as to call for

interference in exercise of writ jurisdiction of this Court.

28. Before considering the contention of learned

Sr.counsel appearing for the parties, it is necessary to find

out as to when the order of the learned Speaker

disqualifying the Legislator can be said to be perverse.

The Hon’ble Supreme Court in MAYAWATI vs MARKANDEYA

CHAND & OTHERS (AIR 1998 SC 3340) has laid down as

follows:

“104. In ASSOCIATED PROVINCIAL PICTURE

HOUSES LTD. vs. WEDNESBURY
CORPORATION (1947) 2 ALL ENGLAND
REPORTS 680, LORD GREENE, M.R. dealt with
a case where the proprietors of a Cinema
Theatre sought a declaration that a condition
imposed by the Wednesbury Corporation on
grant of permission for Sunday performances
to be held in that cinema was ultra vires. The
Court dismissed the action. The relevant
passage in the judgment reads as follows:

“In the present case we have heard

a great deal about the meaning of the
word “unreasonable”. It is true that
discretion must be exercised reasonably.
What does that mean? Lawyers familiar
 76

with the phraseology commonly used in

relation to the exercise of statutory
discretions often use the word
“unreasonable” in a rather
comprehensive sense. It is frequently
used as a general description of the
things that must not be done. For
instance, a person entrusted with a
discretion must direct himself properly in
law. He must call his own attention to
the matters which he is bound to
consider. He must exclude from his
consideration matters which are
irrelevant to the matter that he has to
consider. If he does not obey those
rules, he may truly be said, and often is
said, to be acting “unreasonably”.
Similarly, you may have something so
absurd that no sensible person could
ever dream that it lay within the power
of the authority………

After referring to a judgment of Theatre

de Luxe (Halifax) Ltd. v. Gledhill (5) (1915) 2
KB 49 the learned judge observed:

“I do not find in any of the

language that he used any
justification for thinking that it is
for the court to decide the question
of reasonableness rater than the
local authority. I do not read him
as in any way dissenting from the
view which I have ventured to
express, that the task of the Court
is not to decide what it thinks in
reasonable, Court is not to decide
what it thinks is reasonable, but to
decide whether the condition
 77

imposed by the local authority is

one which no reasonable authority,
acting within the four corner of
their jurisdiction, could have
decided to impose”.

105. In “Judicial Review of Admini-strative

Action” 5th ed. At P.549 it is stated as follows:

“ “Unreasonableness” is
sometime used to denote
particularly extreme behavior, such
as acting in bad faith, or a decision
which is “perverse” or “absurd” –
implying that the decision-maker
has “taken leave of his senses” ”.

106. In CCSU v. Minister for Civil Service,

(1984) 3 All ER 935 Lord Diplock observed:

“by irrationality’ I mean

what can by now be succinctly
referred to as ‘Wednesbury
unreasonableness’ (see Associated
Provincial Picture House Ltd. v.
Wednesbury Corporation, (1947) 2
All ER 680: (1948) 1 KB 223. It
applies to a decision which is so
outrageous in its defence of logic
or accepted moral standards that
no sensible person who had applied
his mind to the question to decide
could have arrived at it”.

107. In Nottinghamshire Country Council v.

Secretary of the Environment and another appeal,
(1986) I All ER 199 Lord Scarman observed a
follows:
 78

“Such an examination by a
Court would be justified only if a
prima facie case were to be shown
for holding that the Secretary of
State had acted in bad faith or for
an improper motive, or that the
consequences of his guidance were
so absurd that he must have taken
leave of his senses”.

108. In Tata Cellular v. Union of India, (1994)

6 SCC 651 : (1994 AIR SCW 33440, a Three judge
Bench of this Court to which one of us (M. M.
Punchhi, J., as His Lordship then was) was a party,
the law was stated thus:

“… Shortly put, the grounds upon

which an administrative action is
subject to control by judicial review
can be classified as under:

(i) Illegality: This means

the decision-maker
must understand
correctly the law that
regulates his decision-
making power and
must give effect to it.

(ii) Irrationality, namely,

Wednesbury
unreasonableness.

(iii) Procedural
impropriety”.
 79

109. In Union of India v. G. Ganayutham,

(1997) 7 SCC 463: (1997 AIR SCW 3464) this Court
has interpreted reasonableness and rationality which
are two grounds for judicial review. The court
referred to the rule in Wednesbury (supra) and
observed:

“Therefore to arrive at a decision

on “reasonableness” the Court has to
find out if the administrator has left out
relevant factors or taken into account
irrelevant factors. The decision of the
administrator must have been within the
four corners of the law, and not one
which no sensible person could have
reasonably arrived at, having regard to
the above principles, and must have
been a bona fide one. The decision could
be one of many choices open to the
authority but it was for that authority to
decide upon the choice and not for the
Court to substitute its view”.

29. The order of the Speaker dated 10-10-2010

impugned in these writ petitions disqualifying the

petitioners as per Part 2(1)(a) of the Tenth Schedule to the

Constitution has to be considered in the light of the

principles laid down by the Hon’ble Supreme Court and in

the light of the contentions of learned Sr.counsel appearing

for the petitioners to find out as to whether the order

passed by the Speaker dated 10-10-2010 is perverse as to

 80

call for interference which would answer the question

referred to this Court.

30. Before considering the contentions of learned

Sr.counsel appearing for the parties, it is necessary to

reproduce the contents of the letter given by the

petitioners, contents of which have not been disputed and

in fact, have been reiterated in the reply given to the show

cause notice to the petitioners as also the reply given by

the petitioners.

31. It is necessary to reproduce the letter dated 6-

10-2010 given by the petitioners though separately having

identical contents which reads as follows:

His Excellency

I was elected as an MLA on BJP ticket. I being

an MLA of the BJP got disillusioned with the
functioning of the Government headed by Shri. B.S.
Yediyurappa. There have been widespread
corruption, nepotism, favourtism abuse of power,
misusing of government machinery in the functioning
of the government headed by Chief Minister Shri.
B.S. Yedirupaa and a situation has arisen that the
governance of the State cannot be carried on in
accordance with the provisions of the constitution
and Shri. Yediyurappa as Chief Minister has forfeited
the confidence of the people. In the interest of the
 81

State and the people of Karnataka I hereby express

my lack of confidence in the government headed by
Shri. B.S. Yediurappa, Chief Minister, I request you
to intervene and institute the constitutional process
as constitutional head of the State”.

In response to the letter given by the petitioners to the

Governor of Karnataka, the Governor of Karnataka, on 6-

10-2010 issued a letter to the Chief Minister which reads

as follows:

“Dear Chief Minister,

Letters from 14 BJP MLAs and

5independent MLAs have been submitted to
me today, withdrawing their support to the
Government. List of MLAs whose letters were
submitted is enclosed. This includes 7
Ministers in the Government at the time of
submitting the letter. Considering the relative
strengths of different groups in Karnataka
Legislative Assembly with the withdrawal of
support of 19 members, a reasonable doubt
has arisen about the support your Government
enjoys in the Legislative Assembly.

In view of this, I request you to prove

that you still continue to command the support
of the majority of the Member of the
Legislative Assembly by introducing and
getting passed a suitable motion expressing
confidence in your Government, in the
Legislative Assembly on or before 12.10.2010
 82

by 5.00 p.m. I have also requested the

Hon’ble Speaker accordingly.

With warm regards,

Yours sincerely,

Sd/-

(H.R.BHARDWAJ)
Governor of Karnataka.

The application given to a Speaker by the Chief

Minister dated 6-10-2010 under Rule 6 of the Karnataka ..

Rules reads as follows:

“ Subject: Disqualification of membership

of the conduct of the following members of the
Legislative Assembly.

1. The following members have contested the

2008 election as BJP candidates and have
been elected as member of BJP Party.

2. The BJP Legislature Party has unanimously

elected me as the Leaders of Legislature
Party & on the strength of that position I
have formed the government & carrying out
administration as Chief Minister of the
State.

3. The following Members of the B J P

Legislature Party on 06/10/2010 have
submitted letter to the honorable Governor
stating that they have withdrawn support to
 83

the government headed by me. This matter

has been communicated to me by the
governor vide his letter dated 06.10.2010
enclosed under annexure 1 & further by
intimating the honorable Governor that
support has been withdrawn to the
Government in the absence of any
resolutions of the legislature party & any
decision of the party they have clearly
violated Schedule 10 of Constitution of India
& because of this they are hereby humbly
pray to disqualify with immediate effect
their membership & issue suitable orders.

4. I would like to bring to your notice example

under similar circumstances action taken in
the Cases of Shir. Avatar Singh Bhadand
V/s Khuldep singh & Shri. Rajesh Verma
V/s Shri. Mohammed Shahid Akhalak, BSP
where in actions have been taken merely on
press reports.

5. Due to the Statements made by

Respondents before press & electronic
media & as per the gist of the letter sent by
Honorable Governor it roves the violation of
Schedule 10 of the Constitution.

6. In view of that:

1. Shri. M.P. Renukacharua, MLA, Honnali

Constituency
2. Shri. Gopalakrishna Belur, MLA Sagar
Constituency
3. Shri. Anand Asnotiker, MLA Karvara
Constituency
4. Shri. Balachandra Jarakiholi, MLA
Arabhavi Constituency
 84

5. Dr. Bagali Sarvabowma N. MLA Indi

Constituency
6. Shri. Bharamagowda H. Kage, MLA
Kagawada Constituency
7. Shri. Y. Sampangi, MLA, KGF
Constituency
8. G.N. Nanjunda Swamy, MLA Kolegala
Constituency
9. Shri M.V. Nagaraj, MLA Nelamangala
Constituency
10. Belubbi Sangappa Kalapa, MLA Basavana
Bagevadi Constituency
11. Shivana Gowda Nayak, MLA Devadurag
Constituency
12. Narasimha Nayak (Raju Gowda), MLA
Surapura Devadurag Constituency
13. H.S. Shankaralingegowda, MLA,
Chamaraj Devadurag Constituency

7. The above members have become

ineligible to continue as legislations as per
Schedule 10 of the Constitution of India.

8. Hence I humbly pray to disqualify from

membership with immediate effect the
above Members & Issue Suitable Orders.”

A perusal of the petition filed by the Chief

Minister reveals, that all the 13 respondents
impleaded in the disqualification petition (including
the 11 petitioners herein), were liable to be
disqualified on the basis of the letters dated
06.10.2010 addressed by them to the Governor of
the State of Karnataka, as also, on account of the
consequential letter dated 06.10.2010 written by the
Governor of the State of Karnataka to him (the Chief
Minister). In the disqualification petition reference
 85

was also made to reports in the press and electronic

media, to show, that the petitioners had violated the
provisions contained in the Tenth Schedule of the
Constitution of India.

On receipt of the said letter by the Chief Minister to the

Speaker, the following show cause notice was issued by

the Speaker on 7-10-2010.

“Shri. B.S. Yeddiyurappa, the Leader of the

Legislative Party of Bhartiya Janata Party and
also Chief Minister has submitted a letter on
06.10.2010 under Rule-6 of Karnataka
Legislative party Disqualification Rules 1986
and has stated in his petition that you being a
Member of Legislative Assembly elected on
Bharatiya Janata Party without any resolution
or order from the party have submitted a letter
to His Excellency Governor on 05.10.2010
withdrawing support to the Government
headed by him. This is in violation of para
2(1) (a) of the 10th Schedule of the
Constitution of India. Hence, he has submitted
a petition to disqualify you from the
membership of the Legislature”.

“Therefore, you have been given time till

5.00 p.m. of 10th Oct. 2010 to reply if you
have anything to say on the petition. In this
regard, you are hereby informed to appear in
person and make your statement either orally
or in writing before the Speaker. In case, if you
fail, it will be construed that you have nothing
 86

to say and future legal steps will be taken ex

parte”.

32. The petitioners have replied to the show cause

notice issued by the Speaker on 9-10-2010 as per

Annexure-E to the writ petition. It is contended in the

reply statement that since they have been given time till

5.00 p.m. of 10-10-2010, they are submitting their interim

reply with liberty reserved to them to give an exhaustive

reply after going through enclosures to the show cause

notice as and when supplied. It is contended that there is

violation of Rules 6 & 7 of the Rules. The intention behind

issuing of show cause notice is an abuse and misuse of the

Constitutional provisions for the purpose of achieving the

unconstitutional object of disqualifying sufficient number of

members of the Assembly including the petitioners from

membership and preventing them in participating in the

Vote of Trust scheduled to be tabled on the floor of the

house at 11.00 a.m. on 11-10-2010 and wherefore, the

show cause notice is exfacie not only unconstitutional and

illegal but motivated, malafide and devoid of jurisdiction.

 87

It was further averred that averment made in the letter

dated 6-10-2010 would not amount to voluntarily giving

up membership of the political party – Bharatiya Janata

Party on whose ticket petitioners are elected to the

Legislative Assembly. The petitioners are dissatisfied with

the functioning of the Government headed by Sri B S

Yadiyurappa and there is widespread corruption,

nepotism, favouritism, abuse of power and misuse of

Government machinery in the functioning of the

Government headed by the Chief Minister and now a

situation has arisen that the governance of the State

cannot be carried on in accordance with the provisions of

the Statute and Sri B S Yadiyurappa has forfeited the

confidence of the people and in the interest of State and

the people of Karnataka, they express lack of confidence

in the government headed by Sri B S Yadiyurappa and as

such they are withdrawing support to the Government

headed by Sri B S Yadiyurappa as the Chief Minister and

they are not withdrawing support from the Government

and they have not left Bharatiya Janata Party at all and
 88

therefore, incurring any disqualification would not arise.

The said contents of the letter given to the Governor

withdrawing the support to the Government headed by Sri

B S Yadiyurappa would not attract disqualification under

Part 2(1)(a) of the Tenth Schedule. It was also contended

that letter was written to the Governor to salvage the

image and reputation of the Bharatiya Janata Party and

nowhere in the letter it is stated that Legislators have

given up membership of Legislative Party – Bharatiya

Janata Party and in fact, the letter is made to cleanse the

who has been acting as a corrupt despot in violation of

Constitution of India and contrary to the interests of the

people of the State and if he is allowed to continue, he will

completely destroy the credibility of BJP not only in the

State of Karnataka but in the entire nation and they

continue to support BJP and will continue to be part of the

BJP or any Government formed by BJP which is headed by

any leader other than Sri B S Yadiyurappa as Chief Minister

of the State. As such, any act by no stretch of imagination,

contents of letter would not amount to disqualification as

 89

nowhere the petitioners have stated that they are leaving

the party but they are withdrawing support from the

Government headed by Sri B S Yadiyurappa. The Speaker

after considering the contentions of the parties, has passed

the order dated 10-10-2010 holding that petitioners have

incurred disqualification under Part 3 of Tenth Schedule to

the Constitution as their conduct gives rise to inevitable

inference that petitioners have voluntarily given up

membership of Bharatiya Janata Party – the political party

from which they have elected.

33. It is well settled that scope of disqualification

contemplated under Part 2 (1)(a) and 2(1)(b) is entirely

different and is independent of each other. In the present

case, the finding of the Speaker is that petitioners have

incurred disqualification under Part 2(1)(a) of the Tenth

Schedule. It is well settled that in order to conclude that

the petitioners have voluntarily given up the membership

of the political party Bharatiya Janata Party , it is not

necessary that they should expressly submit their

resignation as the fact of voluntarily giving up membership

 90

of the Legislative Party may be express or implied as held

by the Hon’ble Supreme court in JAGJITH SINGH’s case

cited supra. It may also be inferred from the conduct of

the petitioners and material on record is not disputed by

the learned counsel appearing for the petitioners.

However, according to the learned counsel for the

petitioners, facts placed before the contents of the letter

dated 6-10-2010 does not lead to an inference muchless

any inevitable inference that petitioners have voluntarily

given up membership of Bharatiya Janata Party whereas,

according to the Speaker, the conduct and contents of the

letter dated 6-10-2010 given to the Governor of Karnataka

would lead to the only inference that they have voluntarily

given up membership of the Bharatiya Janata Party. The

distinction between disqualification under para 2(1)(a) and

(b) of Tenth schedule has to be borne in mind while

considering the validity of the order as to whether the

order passed by the Speaker is perverse as to call for

interference in these writ petitions, it is necessary to bear

in mind the distinction that provisions of part 2(1)(a) and

 91

2(1)(b) constitute separate cause of action for

disqualification and are independent of each other. The

said provisions of Part 2(1)(a) and 2(1)(b) cannot better

be evaluated than in the words of Hon’ble Justice M N

Venkatachalaiah in KIHOTO’s case wherein it has been laid

down by rendering the majority judgment as follows:

“10. Paragraph 2(1) relates to a Member of

the House belonging to a political party by which he
was set up as a candidate at the election. Under
Paragraph 2 (1) (a) such a Member would incur
disqualification if he voluntarily gives up his
membership of such political party. Under clause (b)
he would incur the disqualification if he votes or
abstains from voting in the House contrary to “any
direction” issued by the political party to which he
belongs or by any person or authority authorised by
it in this behalf without obtaining, in either case,
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
abstention. This sub-para would also apply to a
nominated member who is a Member of a political
party on the date of his nomination as such Member
or who joins a political party within six months of his
taking oath.

11. Paragraph 2(2) deals with a member who

has been elected otherwise than as a candidate set
up by any political party and would incur the
disqualification if he joins any political party after
such election. A nominated Member of a House
 92

would incur his disqualification under sub-para (3) if

he joins any political party after the expiry of six
months from the date of which he takes his seat.

13. These provisions in the Tenth Schedule

give recognition to the role of political parties in the
political process. A political party goes before the
electorate with a particular programme and it sets up
candidates at the election on the basis of such
programme. A person who gets elected as a
candidate set up by a political party is so elected on
the basis of the programme of that political party.
The provisions of Paragraph 2(1) (a) proceed on the
premise that political propriety and morality demand
that if such a person, after the election, changes his
affiliation and leaves the political party which had set
him up as a candidate at the election, then he should
give up his membership of the legislature and go
back before the electorate. The same yardstick is
applied to a person who is elected as an Independent
candidate and wishes to join a political party after
the election.

14. Paragraph 2 (1) (b) deals with a slightly

different situation i.e., a variant where dissent
becomes defection. If a member while remaining a
Member of the political party which had set him up
as a candidate at the election, votes or abstains from
voting contrary to “any direction” issued by the
political party to which he belongs or by any person
or authority authorised by it in this behalf he incurs
the disqualification. In other words, it deals with a
Member who expresses his dissent from the stand of
the political party to which he belongs by voting or
abstaining from voting in the House contrary to the
direction issued by the political party.”
 93

34. The provisions in the Tenth Schedule give

recognition to a political party in the political process. A

political party goes before the electorate with a particular

programme and it sets up candidates at the election on the

basis of such programme. A person gets elected as a

candidate set up by a political party is so elected on the

basis of the programme of that political party. The

provisions of para 2(1)(a) are based on principle that

political propriety and morality demand that if such a

person after the election changes his affiliation and leaves

the political party which had set him up as a candidate at

the election, he must give up his membership of the

legislature and go back before the electorate as laid down

in KIHOTO’s case.

35. It is clear from the analysis of para 2(1)(a) and

2(1)(b) of Tenth schedule as laid down by the Hon’ble

Supreme Court in KIHOTO’s case as culled out above that

para 2(1)(a) and 2(1)(b) constitute separate acts of

disqualification and they are independent of each other.

 94

The provisions of para 2(1)(a) is based on principle that

political propriety and morality demand but if such a

person after the election changes his affiliation and leaves

the political party which had set him up as a candidate at

the election, he must give up his membership of the

legislature and go back before the electorate. However,

para 2(1)(b) deals with slightly different situation i.e., a

variant where dissent becomes defection and therefore,

the disqualification contemplated by the legislator under

para 2(1)(a) and 2(1)(b) of Tenth Schedule are entirely

independent of each other and are not interconnected and

therefore the contention as to whether dissent is honest or

not and as to in what circumstances honest dissent would

amount to defection, would become necessary only where

disqualification is alleged under para 2(1)(b) to the Tenth

Schedule to the Constitution and for the purpose of

ascertaining the disqualification under para 2(1)(a), the

said defence are not available. Even otherwise, the

contention of learned Sr.counsel appearing for the

petitioners that for proving disqualification under para

 95

2(1)(a), the dissent which is honest and is not for any lure

of office or money would not amount to disqualification

unless the petitioners have given up their membership of

their political party and have voted against the party in the

House and therefore, honest dissent would amount to

defection only if there is whip issued by the party in the

legislature and unless that intention is realized, the

question of disqualifying member of the legislature under

part 2(1)(a) would not arise and also the contention that it

is fundamental right of the petitioner to express honest

dissent to save the party and its programmes and to

displace the dishonest Chief Ministers and also the

contention that the petitioners have been elected from the

particular constituency and they owe a duty to the

constituency and are expected to perform the wishes of

the constituency and they are entitled to express honest

dissent which is the essence of democracy and the dissent

expressing want of confidence in the leader of the political

party which has formed the government cannot be

equated to such a member giving up voluntary

 96

membership of the party and such a conduct is outside the

scope of para 21(1)(a), said contentions are based on the

lines of the reasoning given by the learned Judge

constituting the Bench while rendering divergent opinion

on contention No.3 which is referred to this Court, cannot

be accepted as these contentions have been argued while

the constitutional validity of the Tenth amendment

introduced by Amendment Act was challenged in KIHOTO’s

case and identical contentions and reasonings have been

answered against the petitioners and therefore,

observations made by the Hon’ble Supreme Court in

KIHOTO’s case is a complete answer to the contention of

the learned Sr.counsel for the petitioners and no further

reasoning is required for declining to accept the contention

of the learned Sr.counsel for the petitioners in this case.

36. The majority judgment in KIHOTO’s case

regarding the contention of the Sr.counsel appearing for

the petitioners in this case that the provisions of Tenth

schedule is held to be not violative of Article 19(1)(a) of

the Constitution and therefore, expression of honest

 97

dissent would not amount to misconduct and the said right

cannot be scuttled was also the argument in KIHOTO’s

case and while considering the said contention, Hon’ble

Supreme Court has laid down as follows:

“39. Shri Sharma contends that the

rights and immunities under Article 105(2) of
the Constitution which according to him are
placed by judicial decisions even higher than
the fundamental right in Article 19(1)(a), have
violated the Tenth schedule. There are at least
two objections to the acceptability of this
contention. The first is that the Tenth schedule
does not impinge upon the rights or
immunities under Article 105(2). Article
105(2) of the Constitution provides:

“105. Powers, privileges, etc. of the

Houses of Parliament and of the Members and
committees thereof ---- (2) No Member of
Parliament shall be liable to any proceedings in
any court in respect of anything said or any
vote given by him in Parliament or any
committee thereof, and no person shall be so
liable in respect of the publication by or under
the authority of either House of Parliament of
any report, paper, votes or proceedings”

40. The freedom of speech of a Member

is not an absolute freedom. That apart, the
provisions of the Tenth Schedule do not
purport to make a Member of a House liable in
any ‘Court’ for anything said or any vote given
by him in Parliament. It is difficult to conceive
how Article 105(2) is a source of immunity
 98

from the consequences of unprincipled floor-

crossing.

41. Secondly, on the nature and

character of electoral rights this Court in Jyoti
Basu v. Debi Ghosal observed (SCC p. 696
para 8)

“A right to elect,fundamental
though it is to democracy, is,
anomalously enough, neither a
fundamental right nor a common law
right. It is pure and simple, a statutory
right. So is the right to be elected. So is
the right to dispute an election. Outside
of statute, there is no right to elect, no
right to be elected and no right to
dispute an election. Statutory creations
they are, and therefore, subject to
statutory limitation.”

37. The contention that the legislators like the

petitioners are entitled to express their honest dissent

which would attract the disqualification as they have dual

obligation to the voters as well as the implementation of

the policy of the party and to what extent they can defy

the policies of the government which is of the legislative

party on whose ticket they were elected has been

considered in KIHOTO’s case as follows:

“43. Parliamentary democracy envisages

that matters involving implementation of
 99

policies of the government should be discussed

by the elected representatives of the people.
Debate, discussion and persuasion are,
therefore, the means and essence of the
democratic process. During the debates the
Members put forward different points of view.
Members belonging to the same political party
may also have, and may give expression to,
differences of opinion on a matter. Not unoften
the views expressed by the Members in the
House have resulted in substantial
modification, and even the withdrawal, of the
proposals under consideration. Debate and
expression of different points of view, thus,
serve an essential and healthy purpose in the
functioning of Parliamentary democracy. At
times such an expression of views during the
debate in the House may lead to voting or
abstinence from voting in the House otherwise
than on party lines.

44. But a political party functions on the

strength of shared beliefs. Its own political
stability and social utility depends on such
shared beliefs and concerted action of its
Members in furtherance of those commonly
held principles. Any freedom of its Members to
vote as they please independently of the
political party’s declared policies will not only
embarrass its public image and popularity but
also undermine public confidence in it which, in
the ultimate analysis, is its source of
sustenance --- nay, indeed, its very survival.
Intra-party debates are of course a different
thing. But a public image of disparate stands
by Members of the same political party is not
looked upon, in political tradition, as a
desirable state of things. Griffith and Ryle on
 100

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 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 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
smacks of conspiracy.”
(emphasis supplied)

Clause (b) of sub-para (1) of paragraph

2 of the Tenth schedule gives effect to this
principle and sentiment by imposing a
disqualification on a Member who votes or
abstains from voting contrary to “any
directions” issued by the political party. The
provision, however, recognizes two exceptions:
one when the Member obtains from the
political party prior permission to vote or
abstain from voting and the other when the
Member has voted without obtaining such
permission but his action has been condoned
by the political party. This provision itself
accommodates the possibility that there may
 101

be occasions when a Member may vote or

abstain from voting contrary to the direction of
the party to which he belongs. This, in itself
again, may provide a clue to the proper
understanding and construction of the
expression “any direction” in clause (b) of
paragraph 2(1) ---- whether really all
directions or whips from the party entail the
statutory consequences or whether having
regard to the extraordinary nature and sweep
of the power and the very serious
consequences that flow including the extreme
penalty of disqualification the expression
should be given a meaning confining its
operation to the contexts indicated by the
objects and purposes of the Tenth schedule.
We shall deal with this aspect separately.”

Further, the contention as to whether the petitioners who

are admittedly the legislators belonging to Bharatiya

Janata Party and were elected on the ticket issued by the

said party and two of whom are ministers in the cabinet

headed by Sri B S Yadiyurappa and the basis of forming

the Government was argued and has been considered by

the Hon’ble Supreme Court in KIHOTO’s case as follows:

“But in the area of the inter-relationship

between the constituency and its elected
representative, it is the avowed endeavour of
the latter to requite the expectations of his
voters. Occasionally, this might conflict with
his political obligations to the political party
 102

sponsoring him which expects ---- and exacts

in its own way ---- loyalty to it. This duality of
capacity and functions are referred to by two
learned authors thus.

“The functions of Members are of

two kinds and flow from the working of
representative government. When a
voter at a general election, in that hiatus
between parliaments, puts his cross
against the name of the candidate he is
most often consciously performing two
functions: seeking to return a particular
person to the House of Commons as
Member for that constituency; and
seeking to return to power as the
government of the country a group of
individuals of the same party as that
particular person. The voter votes for a
representative and for a government.
He may know that the candidate he
votes has little chance of being elected…

So far as his own personal views on freedom of

conscience are concerned, there may be
exceptional occasions when the elected
representative finds himself compelled to
consider more closely how he should act.
Referring to these dilemmas the authors say:

“…The first is that he may feel that the

policy of his party whether it is in office
or in opposition, on a particular matter is
not one of which he approves. He may
think this because of his personal
opinions or because of its special
consequences for his constituents or
outside interests or because it reflects a
general position within the party with he
 103

cannot agree. On many occasions, he

may support the party despite his
disapproval. But occasionally the
strength of his feeling will be such that
he is obliged to express his opposition
either by speaking or by abstaining on a
vote or even by voting with the other
side. Such opposition will not pass
unnoticed and, unless the matter is
clearly one of conscience, he will not be
popular with the party whips.”

Further, in para 47 of the said judgment, the Supreme

Court has quoted with approval the following

observations of Rodney Brazier “once returned to the

House of Commons the Member’s party expects him to be

loyal and this is not entirely unfair or improper, for it is the

price of the party’s label which secured his election”.

38. There is also no merit in the contention that

proof the expression of dissent wound not amount to

defection. The said dissent or defection should for the lure

of the office or profit has to be proved before the legislator

is disqualified was also argued before the Hon’ble Supreme

Court and the Hon’ble Supreme Court in KIHOTO’s case

has observed as follows:

 104

“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. It is perceived as such by the
legislature. People, apparently, have grown
distrustful of the emotive political exultations
that such floor-crossings belong to the sacred
area of freedom of conscience, or of the right
to dissent or of intellectual freedom. The anti-
defection law seeks to recognize the practical
need to place the properties of political and
personal conduct – whose awkward erosion
and grotesque manifestations have been the
bane of the times ---- above certain theoretical
assumptions which in reality have fallen into a
morass of personal and political degradation.”

39. The Hon’ble Supreme Court has further held

while repealing the contention of learned counsel for the

petitioners in the case as to what is the object of declaring

individual legislator as disqualified whereas exempting the

group of requisite number of legislators defecting from the

party which is excluded, by observing as follows:

“51. This exercise to so hold up the

provision as such crass imperfection is
performed by Shri Jethmalani with his wonted
forensic skill. But we are afraid what was so
attractively articulated, on closer examination,
is, perhaps, more attractive than sound. The
underlying premise in declaring an individual
 105

act of defection as forbidden is that lure of

office or money could be presumed to have
prevailed. Legislature has made this
presumption on its own perception and
assessment of the extant standards of political
proprieties and morality. At the same time
legislature envisaged the need to provide for
such “floor-crossing” on the basis of honest
dissent. That a particular course of conduct
commended itself to a number of elected
representatives might, in itself, lend credence
and reassurance to a presumption of bona
fides. The presumptive impropriety of motives
progressively weakens according as the
numbers sharing the action and there is
nothing capricious and arbitrary in this
legislative perception of the distinction
between ‘defection’ and ‘split’.

40. In view of the above said principles laid

down by the Supreme Court, the contention of

learned Sr.counsel appearing for the petitioners that

unless dissent or defection is for lure of office or

profit or money and is not with the intention of

protecting the interest of the party, would not attract

disqualification, cannot be accepted as there is

presumption that conduct of the legislator amounting

to disqualification under para 2 is based upon the

principles of political propriety and morality and it is

 106

presumed that such conduct or defection is for lure

of money or office. Therefore, the contention of the

learned Sr.counsel appearing for the petitioners that

Tenth schedule recognizes dissent but prohibits

defection and dissent would become defection only

when the said defection is to the object with the

ulterior motive of lure of money or office need not be

proved to attract disqualification. Further, it may

also be noted here that the observation made by the

Hon’ble Supreme Court in KIHOTO’s case referred to

above would clearly show that question of dissent

and defection would be relevant only for the purpose

of finding disqualification under para 2(1)(b) and not

under para 2(1)(a).

In view of the above said reasoning, the contentions

of the learned Sr.counsel appearing for the petitioners as

referred to above, cannot be accepted.

41. The only point that is required to be considered

is as to whether the conduct of the petitioners amounts to

disqualification as defined in para 2(1)(a) of the Tenth

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schedule i.e., voluntary giving up of membership of the

political party.

42. On scrutiny of the material on record namely,

identical letters given by the petitioners to the Governor

dated 6-10-2010 and the letter written by the Governor of

Karnataka to the Chief Minister dated 6-10-2010 and the

application filed by Sri B S Yadiyurappa as the leader of

the legislative party in the legislative assembly for

disqualification of the petitioners under para 2 of the Tenth

schedule; the show cause notice issued to the petitioners

and the reply given by the petitioners to the said notice as

also the order passed by the Speaker disqualifying the

petitioners under para 2(1)(a) of the Tenth schedule of the

Constitution, it is clear that disqualification of the

petitioners was sought for on the basis of the letter given

by the petitioners on 6-10-2010 to the Governor and their

conduct and other material produced along with the

application. It is necessary to reproduce the contents of

the letter given by the petitioners to the Governor along

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with five other independent legislators from the Karnataka

Legislative Assembly which reads as follows:

“His Excellency

I was elected as an MLA on BJP ticket. I

being an MLA of the BJP got disillusioned with
the functioning of the Government headed by
Shri. B.S. Yediyurappa. There have been
widespread corruption, nepotism, favourtism
abuse of power, misusing of government
machinery in the functioning of the
government headed by Chief Minister Shri.
B.S. Yedirupaa and a situation has arisen that
the governance of the State cannot be carried
on in accordance with the provisions of the
constitution and Shri. Yediyurappa as Chief
Minister has forfeited the confidence of the
people. In the interest of the State and the
people of Karnataka I hereby express my lack
of confidence in the government headed by
Shri. B.S. Yediurappa, Chief Minister, I request
you to intervene and institute the
constitutional process as constitutional head of
the State”.

43. The fact that the above said letter was

voluntarily handed over by the petitioners containing

identical averment and the prayer is not disputed. On the

other hand, the fact that petitioners along with two other

MLAs from BJP and five independent MLAs had voluntarily

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given above referred letter to the Governor on 6-10-2010

has been reiterated in the reply statement given by the

petitioners which is also identical and therefore, it is

necessary to analyse the contents of the above said letter

dated 6-10-2010 given by the petitioners to the Governor

of Karnataka to find out as to whether their conduct in

voluntarily submitting the letter to the Governor would

amount to disqualification of voluntarily resigning from

political party so as to constitute disqualification under

para 2(1)(a) of the Tenth schedule to the Constitution.

44. It is clear from the contents of the above letter

that the petitioners cannot dispute the contents of the said

letter in which they have clearly averred the following

facts:

(a) The petitioners were elected as MLA on

BJP ticket;

(b) The petitioners are disillusioned with the

functioning of the Government headed

by Sri B S Yadiyurappa and there is

widespread corruption, nepotism,

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favourtism abuse of power, misusing of

government machinery in the functioning

of the government headed by Chief

Minister Shri. B.S. Yadiyurappa.

(c) A situation has arisen that the

governance of the State cannot be

carried on in accordance with the

provisions of the constitution

(d) Shri. Yediyurappa as Chief Minister has

forfeited the confidence of the people;

(e) In the interest of the State and the

people of Karnataka petitioners express

their lack of confidence in the

government headed by Shri. B.S.

Yediurappa;

(f) Petitioners have withdrawn the support

to the Government headed by Sri B S

Yadiyurappa, the Chief Minister; and

(g) The petitioners have requested the

Governor to intervene and institute

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process as constitutional head of the

State.

45. It is well settled that the above said facts are not

disputed and are reiterated in the reply. Reiterating the

averments made in the letter, they further contend that

petitioners have not resigned from BJP at all and their

grievance is only against the Government headed by the

Chief Minister B S Yadiyurappa. In the reply, contents of

the letter have been quoted and reiterated contending that

giving of the said letter would not amount to

disqualification under para 2(1)(a) of the said scheme of

Tenth schedule to the Constitution. It is also averred in

the objection statement that the letter of withdrawal of

support dated 6-10-2010 to his Excellency, the Governor

of Karnataka cited supra was given being disillusioned with

the functioning of the Government headed by Sri B S

Yadiyurappa and there is widespread corruption, nepotism,

favouritism, abuse of power, misusing of government

machinery and these have made them to believe that the

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governance of the State cannot be carried on in

accordance with the provisions of the Constitution and as

such, Sri B S Yadiyurappa has forfeited the confidence of

the people and petitioners have withdrawn their support

from the Government headed by Sri B S Yadiyurappa as

Chief Minister and it is within their constitutional right to

do so in parliamentary democracy. In all the letters

replying to the show cause notice given by the petitioners,

it is averred as follows:

“I continue to support BJP and continued

to be part of BJP or any government formed by
BJP which is headed by any person other than
Sri B S Yadiyurappa as the Chief Minister of the
State. I am always a disciplined solder of BJP
and continue to support the government
headed by efficient person who can govern the
people of Karnataka according to the
Constitution and provide good governance to
the people.”

46. It is not disputed by the petitioners that among

the petitioners, two of the applicants namely, petitioner

Nos.2 and 3 were the Ministers in the cabinet headed by

Sri B S Yadiyurappa. It is also not disputed that identical

letters were given by each of the petitioners along with

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two other members of the legislative assembly from BJP

and five independent members of the legislative assembly

of the State legislature in Karnataka.

47. It is clear from the scheme of the Constitution

that recognition was given to political parties and political

proprieties in the political process by introducing Tenth

schedule to the Constitution by Amendment Act, 1985.

The averment made in the letter and the facts as

elucidated above would clearly show that according to the

petitioners, their complaint is against Sri B S Yadiyurappa

heading the BJP Government in Karnataka and that they

will continue to be in BJP and support the government

which is headed by any other person other than Sri B S

Yadiyurappa. The Governor has no power to direct

legislative party to change the Chief Minister or to change

the leader of the legislative party. Though the contents of

the letter would show that the petitioners were

disillusioned by the conduct of Sri B S Yadiyurappa as

Chief Minister and the conduct has been stated in the letter

stated above. The averment made in the letter elucidated

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above would clearly show that it is in consonance with the

wordings of Article 356 of the Constitution of India and it is

for the Government to initiate proper action to find out

about the confidence enjoyed by the ruling party in the

State namely BJP in the present case. The contents of

Article 356 would clearly show that the words occurring in

the said article of the Constitution which would enable the

Governor to initiate action under Article 356 of the

Constitution.

48. Article 356 deals with failure of constitutional

machinery in the State which enables the President on

receipt of report from the Governor of a State of

otherwise, is satisfied that a situation has arisen in which

the government of the State cannot be carried on in

accordance with the provisions of this Constitution.

(emphasis supplied)

The above sentences contained in Article 356 has

been reproduced in the letter given to the Governor dated

6-10-2010 as referred to above wherein it is stated “a

situation has arisen that the governance of the State

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cannot be carried on in accordance with the provisions of

the Constitution.” The prayer of the petitioners to the

Governor while giving the letter dated 6-10-2010 is “I

request you to intervene and institute the constitutional

process as the constitutional head of the State.”

Therefore, having regard to the contents of the above said

letter, it is clear that though petitioners are referred to the

conduct of Sri B S Yadiyurappa as Chief Minister of

Karnataka, the substance of the letter on which the

Governor was empowered to take action under the

constitution as the constitutional head of the State is that

a situation has arisen that the governance of the State

cannot be carried on in accordance with the provisions of

the constitution and therefore the Governor has initiated

proceedings under Article 356 of the Constitution. In fact,

in the present case, in response to the letter dated 6-10-

2010 given by the petitioners, the Governor of Karnataka

had addressed a letter to the Chief Minister which is culled

out supra stating that contents of the letter given to him is

enclosed to the letter dated 6-10-2010 and stated

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“considering the relative strength of different groups in

Karnataka Legislative Assembly with the withdrawal of

support of 19 Members, a reasonable doubt has arisen

about the support your Government enjoys in the

Legislative Assembly. In view of this, I request you to

prove that you still continue to command the support of

the majority of the Members of the Legislative Assembly

by introducing and getting passed a suitable motion

expressing confidence in your Government, in the

Legislative Assembly on or before 12-10-2010 by 5.00

p.m. I have also requested the Hon’ble Speaker

accordingly.” Therefore, it is clear that intention of the

petitioners in giving the letter to the Governor on 6-10-

2010 as referred to above was to bring to the notice of the

Governor that contingency has arisen for the Governor to

initiate action under Article 356 of the Constitution and

that they are withdrawing support from the Government.

The averment made in the reply statement would further

manifest the intention of the petitioners that they will

continue to be in BJP in the State legislature and if there is

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change in the leadership and if some person other than

Sri B S Yadiyurappa is elected as Chief Minister, they have

no intention to withdraw support from the government and

their intention in substance, was not to convey to the

Governor that the leadership of the party should be

changed and making allegations against Sri B S

Yadiyurappa, the Chief Minister heading the BJP

government but to request the Governor to initiate

proceedings under Article 356 of the Constitution against

BJP Government.

49. The leader of the legislative party who form the

Government is elected on the basis of collective wisdom of

political party in question, for changing the leadership,

right forum can only be within the political party and the

petitioners who contested on the ticket of Bharatiya Janata

Party in the Assembly elections and the party secured the

election to the State legislature and two of them have

been in the cabinet of Ministers and they are expected to

be loyal to the party is not unfair and improper, for loyalty

is the price of party’s label which secured their election to

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the legislature. When voters cast a vote to the petitioners,

they have cast their vote not only to elect the petitioners

but also with the expectation that the political party which

had set up the petitioners should come to power and

therefore, political propriety and morale demands that if

the conduct of the petitioners is incompatible with the

loyalty expected by the party and voters, they should incur

disqualification and they should go before the electorate as

they have voluntarily given up membership of the

legislative party as laid down by the Apex Court in

KIHOTO’s case. The petitioners cannot also contend that

they have no confidence in the government led by the

Chief Minister whom they have elected unanimously as a

leader of the legislative party and the government headed

by him and still contend that they continue to be the

members of Bharatiya Janata Party and therefore, the

conduct of the petitioners in contending that they continue

to be members of Bharatiya Janata Party and have not

incurred any disqualification and conduct of the petitioners

in writing letter to the Governor are incompatible and

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petitioners by their conduct cannot claim themselves as

whistleblowers.

50. The contents of the letter dated 6-10-2010 given

by the petitioners to the Governor along with the

independent members in the Karnataka Legislature is

voluntary and unequivocal and the said decision amounts

to breach of political propriety and morale as laid down in

KIHOTO’s case, their conduct is incompatible with the

contention of the petitioners that they still continue to be

the members of the Bharatiya Janata Party and the said

conduct would lead to the only inference that the

petitioners have incurred disqualification under para

2(1)(a) of the Tenth schedule and therefore, the

contention of the learned Sr.counsel appearing for the

petitioners on line with the dissenting opinion of the

learned Judge of the Division Bench that any member of

the House expresses that he has no confidence in the

leadership of the legislative party who happens to be the

Chief Minister cannot lead to inference of disqualification

in this case cannot be accepted. The contention that there

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is mere possibility that if the Chief Minister Sri B S

Yadiyurappa when seeks the vote of confidence, his

resolution is defeated, the Bharatiya Janata Party can still

form the Government as they are the largest party and

entitled to make a claim for forming the Government under

the leadership of some other leader would not in any

mitigate the conduct of the petitioners if their conduct

leads to inevitable inference of voluntarily giving up

membership of the party attracting the disqualification

under para 2(1)(a) of the Tenth schedule to the

Constitution. Therefore, the contention of learned

Sr.counsel appearing for the petitioners that they have

only sought for change of leadership and even if such

letter leads to the Governor calling upon Sri B S

Yadiyurappa to move the vote of confidence, the same

would not affect the legislative party from which the

petitioners have been elected and therefore, they have

not incurred disqualification cannot be accepted and the

acceptance of such contention would be a premium on the

breach of loyalty, political propriety and morale of the

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political party and would defeat the very object of enacting

para 2(1)(a) as a separate ground for disqualification.

51. There is also no merit in the contention of the

learned counsel appearing for the petitioners that on the

same material, the letter dated 6-10-2010 petitioners have

been declared as disqualified under para 2(1)(a) of the

Tenth schedule whereas, two members who had also given

identical letters along with the petitioners were not

disqualified and when once the Speaker has come to the

conclusion that the letter against the said persons at

Sl.Nos.1 and 12 – the persons who had given letter

identical to the letter given by the petitioners, would not

incur disqualification, the same benefit should be extended

to the petitioners.

52. It is clear from the material on record that the

said two persons had given letter with the petitioners but

they did not pursue the same. They did not give reply

reiterating the averments made in the letter dated 6-10-

2010 and the affidavit was filed before the Speaker by the

said two persons namely, Sri M.P.Renukacharya and Sri

 122

Narasimha Nayak (Rajugowda) and they have appeared

before the Speaker and stated that the letter was given by

them due to the pressure of others who had given

objection and Sri K S Eshwarappa, President of the

Bharatiya Janata Party has also filed an affidavit and the

said two members had explained the circumstances under

which the letter was given to the Governor and did not try

to reiterate the same and expressed their desire to support

the government headed by Sri B S Yadiyurappa and

therefore, the said two persons stand on a different footing

than the petitioners as the petitioners in their reply have

reiterated the averments of the letter dated 6-10-2010

and have also made certain averment in the reply

reiterating and reinforcing withdrawal of the support to the

government which is headed by Sri B S Yadiyurappa and

that they would vote for Bharatiya Janata Party only if any

other person other than Sri B S Yadiyurappa is elected as

leader of the legislative party and therefore, when the

petitioners do not stand on the same footing as that of the

said two persons, it is not open to the petitioners to

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contend that the same benefit should be extended to the

petitioners.

It is also well settled that the petitioners cannot be

permitted to resort to dual hat theory contending that they

are elected by the voters, they were elected on the basis

of their credibility having an expectation that they would

be fulfilling the aspirations of the voters and implementing

the manifesto of the Bharatiya Janata Party and therefore,

claiming precedence to the expectations of the voters over

the policy and political propriety and morale of the

philosophy of the party, it is not open to the petitioners to

contend that they will still vote for the leader of the

Bharatiya Janata Party any person other than Sri B S

Yadiyurappa as leader of the Bharatiya Janata Party and

the petitioners having given the letter to the Governor on

6-10-2010 which led to the Governor writing a letter to the

Chief Minister on the same day to seek for vote of

confidence, cannot contend that they will vote for any

leader of Bharatiya Janata Party other than Sri B S

Yadiyurappa which would necessarily mean that they will

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not vote in favour of the Government led by Sri B S

Yadiyurappa as the leader of the legislative party and the

Chief Minister as he has been unanimously elected as

leader of legislative party including petitioners. The said

conduct of the petitioners which is incompatible with the

continuance of their membership in the Bharatiya Janata

Party, would also lead to the inference of incurring

disqualification under para 2(1)(a) of the Tenth schedule to

the Constitution. The very existence of the political party

in the government and political propriety and morale would

be defeated by accepting the said contentions.

53. In view of the above said reasoning, it is clear

that contents of the letter given to the Governor dated 6-

10-2010 by the petitioners would lead to the inevitable

inference that the intention of the petitioners was to

voluntarily giving up of membership of Bharatiya Janata

Party and it is unnecessary to go into other material relied

upon by the Speaker could not have been relied upon.

Even otherwise, in view of the decision of the Hon’ble

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Supreme Court in JAGJITH SINGH’s case cited supra, it is

clear that though the petitioners have incurred

disqualification on 6-10-2010 itself, the decision is expost

facto and the speaker is entitled to take into account the

material produced before him which is not disputed by the

legislators against whom action is sought to be taken.

54. In view of the above reasoning and findings, I

answer the question referred for determination in the

affirmative against the petitioners by holding that the

impugned order dated 10-10-2010 passed by the Speaker

of the Karnataka Legislative Assembly is in consonance

with the provisions of Para 2(1)(a) of Tenth schedule to

the Constitution of India.

55. In view of my answer to the referred question, I

concur with the finding of Hon’ble Chief Justice on third

contention in the writ petitions in the order dated 18-10-

2010 which is referred for determination to this Court.

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The writ petitions may be placed before the Division

Bench for passing the final order.

(V.G. SABHAHIT)
JUDGE

suma/sp