Uttarakhand High Court
Kunwar Pranav Singh Champion And Others vs Speaker Legislative Assembly And ... on 9 May, 2016
Equivalent citations: AIR 2016 (NOC) 517 (UTR.)
Author: U. C. Dhyani
Bench: U. C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.826 of 2016 (M/S)
Sh. Subodh Uniyal & others ... Petitioners
vs.
Speaker Legislative Assembly & another ... Respondents
AND
Writ Petition No.828 of 2016 (M/S)
Kunwar Pranav Singh
"Champion" & others ... Petitioners
vs.
Speaker Legislative Assembly & another ... Respondents
Mr. C. A. Sundaram, Mr. Nageshwar Rao and Mr. Dinesh Dwivedi, Sr. Advocates assisted
by Mr. Rishabh Agarwal, Mr. Pratik Dwivedi and Mr. Vikas Bahuguna, Advocates present
for the petitioners.
Mr. Kapil Sibal and Mr. A. S. Rawat, Senior Advocates assisted by Mr.Kartikeya Hari Gupta,
Mr. K. C. Kaushik and Mr. Nizam Pasha, Advocates present for respondent no.1.
Mr. Amit Sibal, Senior Advocate assisted by Ms. Padmalakshmi Iyengar, Mr. Javedur
Rahman, Mr. Vinay Tripathi and Mr. Raveendra Bisht, Advocates present for respondent
no.2.
U. C. Dhyani, J.
1. Since the factual matrix of the above noted writ petitions and the law governing the field is the same, therefore, both the writ petitions are being decided together for the sake of brevity and convenience.
Reliefs Sought
2. By means of present writ petitions, the petitioners seek following reliefs, among others:
-2-"(a) Writ, order or direction in the nature of certiorari be issued quashing the notice(s) dated 19.03.2016 annexed as Annexure-1 alongwith the Order dated 27.03.2016 of the Speaker annexed as Annexure 11.
(b) Writ, order or direction in the nature of mandamus or any other writ, order or direction allowing the petitioners to participate in any voting of the legislature as ordered by the Governor, or for any other purposes."
Factual Matrix
3. The facts giving rise to the present writ petitions are that all the petitioners are the Members of Legislative Assembly (MLAs) of Uttarakhand and belong to the Indian National Congress Party as they were elected on the tickets of Indian National Congress. Smt. Indira Hridyesh, former Minister of Parliamentary Affairs (respondent no.2 herein) filed complaint against the petitioners before the Speaker with a prayer for disqualification of their membership of the House. On the basis of complaint filed by respondent no.2, the Speaker issued show cause notices to the petitioners on 19.03.2016 seeking their explanations as to why they should not be disqualified as Members of the Legislative Assembly. The show cause notices were to be replied latest by 5:00 PM on 26.03.2016. The notices reflect various acts of omissions and conduct of the petitioners inside and outside the House on 18.03.2016 when the Assembly was in Session. It was alleged in the notices that the petitioners raised slogans expressing their unity with the Opposition Party - Bhartiya Janata Party (BJP). The petitioners, who have been elected under the icon of Indian National Congress Party, went before His Excellency the Governor of the State and submitted a joint memorandum expressing their distrust against the Government and the Chief Minister. The memorandum presented before the Governor of Uttarakhand was signed by a group of 35 Members of the House (26 Members of BJP and 9 Members of Indian -3- National Congress/petitioners). The memorandum questioned the status of Appropriation Bill, 2016 and it was urged that despite 35 Members requesting for a voting by division, they were ignored by the Speaker. On 19.03.2016, a communication was sent to the Chief Minister to seek a vote of confidence in the Assembly at the earliest but not later than 28.03.2016.
4. It has also been alleged in the writ petitions that on 22.03.2016, the Speaker issued another notice(s) to the petitioners though backdated as 19.03.2016 making amendment in the original show cause notices. The petitioners moved an application on 23.03.2016 demanding certain documents and evidence, on the basis of which, the notices were issued to them. The petitioners further requested to extend sometime to file reply of the notices. Vide order dated 25.03.2016, the Speaker turned down the request of the petitioners and permitted the petitioners to inspect the file on 26.03.2016 between 11:00 AM to 1:00 PM.
5. Earlier, eight members out of nine aggrieved petitioners preferred two writ petitions, i.e., WPMS Nos.791 of 2016 and 792 of 2016 before this Court, being aggrieved against the show cause notices dated 19.03.2016 issued by the Speaker. The coordinate bench of this Court while dismissing the same on 25.03.2016 observed as under:
"10. After having heard learned counsels for the parties at some length, this Court is of the opinion that it would not be proper for this Court to interfere in any manner, at this stage, with the proceedings, which have been here initiated by the Speaker of the House, as there is absolutely no doubt that it is a matter relating to a question of "disqualification" on grounds of defection and the question of disqualification of a member of House is a question which can only be decided by the Speaker of the House and his decision is final. That the -4- decision of the Speaker would be quasi judicial in nature and it would be open to judicial review of the Superior Courts is a different matter altogether as that is a stage which has not been reached so far. It would therefore be wrong to interfere in any manner in these proceedings, or to express any opinion on any aspect of the matter, either on the submissions made by the petitioners or their rebuttal at the hands of respondent's counsel.
11. For the same reason, this Court also refrains from expressing any word of caution or advice relating to the proceedings, as doing so to a Constitutional authority, such as the Speaker of the House, who is already seized with the matter would be under the circumstances, wholly unconstitutional. ..............................
12. .................................
13. In view of the above observations, this Court is of the considered view that the relief sought by the petitioners in the present writ petitions cannot be granted to them."
6. Thereafter, the Speaker passed the impugned order dated 27.03.2016 disqualifying the petitioners' membership of the House. Hence, present writ petitions.
Reply to WPs by R-1
7. Pursuant to the writ petitions, counter affidavits have been filed by the respondents. In the counter affidavit filed by respondent no.1, it is stated that respondent no.1 is a Tribunal under the Tenth Schedule of the Constitution of India. The impugned order has been passed disqualifying the petitioners after following the principles of natural justice and after giving adequate opportunity of hearing to all the parties. The impugned order is a well-reasoned speaking order. It is further stated in the counter affidavit that the respondent no.1 does not wish to add or subtract to what has already been stated by him in the order -5- impugned. It is prayed by respondent no.1 that the contents of the impugned order may be read as part and parcel of affidavit filed by respondent no.1. It is also stated that the allegations pertaining to bias and haste are completely baseless and unfounded. The Speaker, being a constitutional authority and persona designata under Tenth Schedule of the Constitution, has conducted the disqualification proceedings without any political affiliation or leanings keeping in mind the high constitutional mandate entrusted upon him to decide the issue of disqualification under the Tenth Schedule. It has also been averred that the allegations of bias and malafides made against the respondent no.1 are baseless. In making such allegations, the petitioners might have been guided by their political motives and ambitions.
Reply to WPs by R-2
8. Respondent no.2 also filed the counter affidavit denying the allegations and contents made in the writ petitions. In the counter affidavit, respondent no.2 stated that the petitioners should have come before this Court with clean hands and the present writ petitions are based on willful suppression of material facts and documents. The salient features and synopsis of the impugned order passed under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution disqualifying the petitioners on the ground of 'voluntarily giving up their membership' of the Congress Party is intended to be brought to the attention of this Court. Respondent no.2, being the Chief Whip of the Congress Party in Uttarakhand, had initiated disqualification proceedings against the petitioners by filing complaint before the Speaker on 19.03.2016 and the impugned order was passed by following the provisions under the Members of Uttarakhand Legislative Assembly (Disqualification on Ground of Defection) Rules, 2005 (hereinafter referred to as the Rules, 2005). It is also stated in the -6- counter affidavit filed by respondent no.2 that the impugned order was passed after affording adequate opportunity of hearing to the petitioners and the impugned order is a well reasoned and detailed order, which discusses how the case of disqualification under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India is made out against the petitioners. The petitioners were not only allowed to inspect the record, but also provided with copies of documents as well as CD. It is further stated in the counter affidavit that the grounds raised in the writ petitions are vague and do not make out a case for any interference by this Court under Article 226 of the Constitution of India. The decision of Kihoto Hollohan vs. Zachillhu & others, 1992 Supp (2) SCC 651 has been referred to, besides other decisions of Hon'ble Supreme Court. Respondent no.2 has also stated in the counter affidavit that mere bald allegations will not suffice to get any reliefs from this Court. In para 7 of the impugned order, it has been mentioned that there was no evidence adduced by the petitioners. In para 11 of the impugned order, it has been stated that Rule 8(3) of the Members of Uttarakhand Legislative Assembly (Disqualification on Ground of Defection) Rules, 2005 has been complied with. The show cause notices to the petitioners and copy of the petition alongwith annexures were also sent to the petitioners' email addresses. The petition alongwith annexures were affixed at the petitioners' residences. Show cause notices and copy of the petition with annexures were also sent to their respective constituencies. In para 12 of the impugned order, a reliance has been placed upon various documents. In para 13 of the impugned order, the conduct of the petitioners on 26.03.2016 and 27.03.2016 have been noted. In paras 14 to 18, the case laws have been cited. In paras 21 to 23, the arguments of the petitioners have been dealt with. The judgment of Hon'ble Apex Court in Dr. Mahachandra Prasad Singh vs. Chairman Bihar -7- Legislative Assembly & others, (2004) 8 SCC 747 has been relied upon. In para 23 of the impugned order, the preliminary submissions of the petitioners have been discussed and dismissed and, in para 26, issues were framed and thereafter findings have been recorded. The decision of Hon'ble Supreme Court in Balchandra L. Jarkiholi & others vs. B. S. Yeddyurappa & others, (2011) 7 SCC 1 has been discussed and distinguished. What constitutes 'giving up of voluntarily membership' has been dealt with in paras 28 to 32 and has been concluded in para 33 of the impugned order. In paras 34 to 40, other allegations and evidence against the petitioners have been discussed. It is alleged that the petitioners have suppressed material facts and have come to the Court with 'unclean hands'. Respondent no.2, in her counter affidavit, has also highlighted the blatant false and misleading statements made in the writ petitions. The facts have been given in paras 54 to 83 of the counter affidavit thus filed by respondent no.2. Thereafter, parawise replies have been given denying the substantial facts and allegations made in the writ petitions. It is, eventually, prayed in the counter affidavit that the writ petitions should be dismissed.
9. Legal pleas have also been taken in the counter affidavits of respondents, which will be discussed when the Court deals with rival contentions of the parties, as no useful purpose will be served by repeating them at various places in the text of this judgment.
Rejoinder Affidavit to the Counter Affidavits
10. In reply to the counter affidavits, the petitioners filed their rejoinder affidavit in Writ Petition No.828 of 2016 (M/S), in which the material allegations contained in the counter affidavits have been denied. It is stated in the rejoinder affidavit that the -8- deponent (Shri Shailendra Mohan Singhal) is doing pairavi on behalf of himself and other petitioners. It is further stated that there is and never was deliberate suppression of facts by the petitioners. The petitioners never tried to mislead the Court. Writ Petitions No.791 and 792 of 2016 (M/S) were filed by eight petitioners, out of the nine aggrieved MLAs. The alleged joint memorandum was given to the counsel of these eight MLAs on 25.03.2016 at the time of hearing of Writ Petitions No.791/2016 (M/S) and No.792/2016 (M/S), which is of no consequence as the document was unverified. The verification of the documents was required under Rule 7 of the Rules, 2005. Even on 26.03.2016, the respondents did not supply the copy of the alleged joint memorandum and, as such, the petitioners could not confirm or deny the joint memorandum since they had no idea about the memorandum on which the respondent no.1 was relying upon and, even in the morning of 27.03.2016, the copy of this memorandum was not supplied to all the petitioners. Moreover, the Speaker did not open his mouth at all either to accept the fact or to deny that the memorandum was not served during the course of hearing. Rule 7 of the Members of Uttarakhand Legislative Assembly (Disqualification on Ground of Defection) Rules, 2005 requires verification of all the documents and enclosures. The proof of alleged service of notices, etc. on the petitioners was never shown to them by respondent no.1 despite several requests. Respondent no.1 refused the prayer of inspection of the files made by counsel of the petitioners and, even now, the respondent no.1 or respondent no.2 has not filed the said record. The alleged joint memorandum was never a part of the documents, on the basis of which, the alleged notices were given. Even the affidavit of the then Chief Minister, which was filed with the Speaker on 26.03.2016 was given to the petitioners in the morning of 27.03.2016 itself. The alleged decision could not have been passed without giving an opportunity to study and -9- rebut the contents of documents. Even the joint memorandum would not bring the matter within the mischief of the provisions of the Tenth Schedule of the Constitution. Thereafter, parawise reply has been given, which, in a nutshell, states that the documents were not part of the alleged notices, the documents relied upon by the respondents had to be duly verified and only then documents should have been supplied to the petitioners for rebuttal. The petitioners were not duty bound to give reply of notices, which were not supplied to them. The alleged joint memorandum was not one of the annexures with the show cause notices, even as per own case of respondents. Non-filing of such documents, which were not even supplied, cannot be said to be suppression of facts and even now the alleged joint memorandum does not amount to having 'voluntarily giving up their membership of the Congress Party'. Moreover, the alleged joint memorandum was filed with the supplementary affidavit even before the interim relief application was pressed. Since the documents were not supplied to the petitioners, therefore, any allegations taking recourse to such documents are totally baseless. The alleged memorandum was not verified under Rule 7 of the Rules, 2005, therefore, there is no suppression of material facts. The filing of alleged documents on 25.03.2016 in the Court is of no relevance. The documents ought to have been supplied to the petitioners by the Speaker after due verification from the complainant. The message dated 23.03.2016 of the Governor was not addressed to the petitioners and a copy of the same is not in their possession. Issue regarding service of the relevant documents is required to be proved by the respondents. The Speaker has not forwarded the copy of the joint memorandum with the notices till the morning of 27.03.2016. There was no joint memorandum or collusion in the morning of 18.03.2016 as alleged by respondent no.2. It is once again emphasized in the rejoinder affidavit that the letter opposing and -10- criticizing the Chief Minister and the Speaker was submitted to the Governor. The same will not amount to voluntarily giving up membership from the Congress Party. The principles of natural justice were not followed. It is reiterated that the inspection of the relevant documents was denied to the petitioners. It is further stated that Shri Bhim Lal Arya, MLA violated the Whip of the floor by absenting himself on 18.03.2016 and a notice was given to him on 05.04.2016, but still no action has been taken.
Rival Submissions
11. Learned senior counsels for the petitioners argued that the Speaker acted against all principles of natural justice, inasmuch as the impugned order has been passed disqualifying the petitioners without following the principles of natural justice and without giving adequate opportunity of hearing to the petitioners. The impugned order was passed by the Speaker in undue haste. If no MLA is permitted to raise his grievance, the same will be an end of intra-party democracy. Some of the MLAs have expressed their lack of confidence in the Speaker, who, in turn, passed an order which is not sustainable in the eye of law. It is not a case of voting against the Whip.
12. Learned senior counsels for the petitioners submitted that the entire disqualification proceedings have been conducted by the Speaker in a manner to somehow prevent the petitioners from participating in the vote of trust to be held on 28.03.2016 as ordered by the Governor. The proceedings conducted by the Speaker were in the teeth of judgment of Hon'ble Supreme Court in Balchandra (supra). The petitioners had never given up the membership of the Indian National Congress by their conduct. It is submitted that the petitioners only sought to criticize the proceedings of the House, as the same was being conducted by the Speaker in utter disregard to business rules and established -11- norms. However, to avoid discussion, as also the call of division on the Money Bill, the Speaker had illegally passed it through a false voice vote. Such an act cannot be treated as having voluntarily given up their membership under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. The invocation of the said Schedule is clearly malafide and was only with the purpose of settling personal scores. It is also submitted that the petitioners were the elected representatives from the Indian National Congress Party and have been working for the welfare of the people.
13. Learned senior counsels for the petitioners further submitted that on the basis of notices issued by the Speaker under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution, it cannot be inferred that the petitioners have voluntarily given up the membership of a political party. The following frivolous causes have been set out in the impugned notices, according to petitioners:
"Cause A: Sloganeering within the House. (Note: This is protected by Article 19(1)(a) of the Constitution of India. The Speaker in the show cause notice has referred to sloganeering after the Speaker in the show cause notice has referred to sloganeering after the Speaker had left the chair. Obviously, on leaving the chair, the House stood adjourned and therefore sloganeering even if true, cannot be a cause for the frivolous allegation made against the petitioners. In any case, no evidence was provided of such sloganeering alongwith the show cause notice or even on submission of interim reply on 26.03.2016. Further, no opportunity was provided to the petitioners to make any comments. The petitioners submit that no opportunity was provided to the -12- petitioners to even explain the documents which was provided to the petitioners' counsel merely 30 minutes before the sham hearing conducted by the Speaker.
Cause B: Travelling in a bus with the opposition members. (Note: Travelling is protected by Article 19(1)(d) of the Constitution of India. Merely travelling with other Members of the House, even if some of them may be members of opposition, is no ground whatsoever. In any case, no evidence was provided alongwith the show cause notice or even on submission of interim reply on 26.03.2016 and no opportunity was provided to the petitioners to make any comments.
Cause C: Tendering a joint memorandum to the Governor. Without admitting the said joint memorandum, its authenticity as also without prejudice to the rights of the petitioners, even if the same is presumed to the correct for the sake of argument, even then criticism of the Chief Minister's style of functioning and the Speaker's partisan conduct can in no terms be treated as giving up the membership of the party. A bare reading of the said alleged joint memorandum will establish that at no point of time, the petitioners have stated that they have left Congress Party or have joined BJP or are ready to support any government to be formed by BJP or are not ready to support any congress government formed under the leadership of any other leader chosen by consensus but Shri Harish Rawat and, as such, it cannot be said that the said alleged joint memorandum shows any intention of voluntarily leaving the party. In any case, no -13- evidence was provided along with the show cause notice or even on submission of interim reply on 26.03.2016 and also no opportunity was provided to the petitioners to make any comments.
Cause D: Travelling in a commercial aircraft on which opposition members too were travelling. (Note: The petitioners boarded a commercial flight from Dehradun to Delhi. Merely there being presence of opposition members in the same commercial flight cannot provide any inference of anti-party activity. In any case, no evidence was provided alongwith the show cause notice or even on submission of interim reply on 26.03.2016 and no opportunity was provided to the petitioners to make any comments."
14. Learned senior counsels for the petitioners submitted that Paragraph 2(1)(a) of the Tenth Schedule of the Constitution is not to be readily inferred. It is constitutionally engrafted in the Tenth Schedule. Adequate opportunity must have been provided to the petitioners after the documents were provided to the noticee. However, the documents were provided merely 30 minutes before the hearing was held by the Speaker.
15. It is also submitted on behalf of the petitioners that Paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India can only be relied upon and set into motion if there is concrete facts emerging from the conduct of the members that they have acted against the ethos as also the principles of the party to which they belong. Merely making constructive criticism against individual member or high functionaries in an individual capacity cannot amount to 'having voluntarily given up the membership of the party'.
-14-16. Learned senior counsels for the petitioners contended that ex-facie Paragraph 2(1)(a) of the Tenth Schedule of the Constitution is not attracted. The impugned order was passed by respondent no.1 in undue haste; there was violation of principles of natural justice; relevant documents were shown before the Tribunal during the course of hearing only and were not supplied before the proceedings started. The conduct of respondent no.1 is ex-facie malafide and partisan. The Speaker is a Tribunal and acts in a quasi-judicial capacity and he should be free from bias. Learned senior counsels for the petitioners argued that it is a peculiar case in which respondent no.1 has defended himself. Normally, a Tribunal would not file its counter affidavit. Enough time was not granted to the petitioners to justify their claim. The approach of the Speaker was that he had to decide the matter by 27.03.2016, inasmuch as the floor test was scheduled for 28.03.2016, which is not permissible in view of the decision rendered by Hon'ble Supreme Court in Balchandra's case (supra). It smacks of undue haste. The very object of passing the impugned order was to put the petitioners away from the floor test. Learned senior counsels for the petitioners would also argue that he is advancing his arguments on the basis of admitted facts and not on the basis of disputed facts. Learned senior counsels for the petitioners would say that the petitioners were deprived of reasonable opportunity of hearing. They drew attention of this Court towards paras 56(b), 58 & 86 of the counter affidavit of respondent no.2. In para 56(b), it has been stated that the Appropriation Bill was passed by a voice vote on 18.03.2016. In para 86, it has been stated that the joint memorandum substantiates the disqualification under Paragraph 2(1)(a) of the Tenth Schedule. It is denied in the said para that the Speaker had illegally and falsely passed the Appropriation Bill by avoiding discussion through a voice vote. Under the constitutional -15- scheme, the decision of the Speaker in matters of passage of a Bill is final and cannot be gone into a court of law.
17. Learned senior counsel for the petitioners is pleased to read Annexure SA-5, a perusal of which shows that a group of 35 Members submitted a joint memorandum to His Excellency the Governor on the letterhead of the Leader of Opposition. The first para of Annexure SA-5 deals with facts. Learned senior counsel for the petitioners would submit that the petitioners alongwith other MLAs had simply written that the Speaker of Legislative Assembly has not adhered to the prescribed procedure for passing of the Bill, and the Government and the Speaker have ignored the feelings of 35 members, who demanded a division of votes. He would emphasize that, in the said letter, it was written 'That is why, these 35 members, which include 26 members of BJP and 9 of Congress continued to demand a division of votes. Due to this, the Appropriation Bill could not be passed and they voted against the Bill'.
18. The names of the petitioners figure at serial nos.27 to 35 of Annexure-SA5. Learned senior counsels for the petitioners submitted that if 35 MLAs have voted against the Appropriation Bill, how can it be passed? Petitioners' demand to vote for division is not a disqualification. How can it be said that the petitioners have left the Indian National Congress? It is further argued on behalf of the petitioners that the respondent no.1 in the impugned order has relied upon the decisions of Ravi S. Naik vs. Union of India & others, 1994 Supp (2) SCC 641 and Jagjit Singh vs. State of Haryana & others, (2006) 11 SCC 1, which are distinguishable from the facts of present case, inasmuch as in these cases, the MLAs have joined other party. In the instant case, only a voice of dissent was raised by the petitioners, which is essential to intra-party democracy, for otherwise, it will be an end of the democracy. The petitioners -16- have not been removed from the party. There is no notice to remove them from the party. They continued to be the Members of the Indian National Congress. They have not challenged the basic policy of the party to which they belong. They only say that the stewardship is bad. Learned senior counsel would emphasize that the petitioners have not voted against the Appropriation Bill. Assuming for granted what the respondent no.2 in her counter affidavit stated is correct, their case is that the Appropriation Bill was passed, which means that the petitioners have voted for it. Whether the same amounts to voluntarily giving up membership of the Congress Party? The case of the petitioners is that the Appropriation Bill was never put to vote. The anti-party activity is different from anti-Government activity. The test under Paragraph 2(1)(a) of the Tenth Schedule is a different test from Paragraph 2(1)(b) of the Tenth Schedule. The petitioners simply raised their voice of concern disapproving the way the Government was running. Learned senior counsels for the petitioners referred various paras of the judgment rendered by Hon'ble Apex Court in Balchandra's case (supra) to argue that their case is covered by the said decision. He would argue that the petitioners were distressed by a partisan attitude of respondent no.2. Learned senior counsel for the petitioners referred to paras 4, 5, 6 & 7 of the reply to the show cause notices (Annexure-6 to the writ petition) to argue that the petitioners have taken almost the same grounds, which were taken in Balchandra's case (supra). The petitioners also wanted to cross-examine the complainant, which opportunity was denied to them. Learned senior counsels for the petitioners argued that the petitioners wanted the party in good light, therefore, a voice of dissent was raised.
19. Learned senior counsel for the petitioners drew the attention of this Court towards para 16 of Writ Petition No.795 of -17- 2016 (M/S), in which it has been stated that on 18.03.2016, the Appropriation Bill was taken up for consideration and the same was passed. Further, the attention was drawn towards para 17 of the decision of Hon'ble Supreme Court in Mohmed Inayatullah vs. the State of Maharashtra, 1976 (1) SCC 828, in which the following was observed:
"17. It must be remembered that an inference under Section 114, illustration (a) should never be reached unless it is a necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused. ....................."
20. Learned senior counsel for the petitioners would argue that it is a strange case in which the Speaker is justifying his own order by filing an affidavit before this Court. The same demonstrates that there was perceptible tilt on his part towards one party. Learned senior counsels for the petitioners while referring to paras 115 to 116 of Kihoto Hollohan's case (supra) argued that very basis of the Tenth Schedule is 'trust' and dissent has not been completely wiped out in the said Schedule, for the concept of 'merger' is still there. Learned senior counsels also referred to para 11 of the impugned order to show the manner in which service was affected upon the petitioners. The joint memorandum was not referred to in the show cause notices. An application (Annexure-4 to WPMS No.828 of 2016) was given by the petitioners on 25.03.2016 requesting for evidence and documents, but in vain.
21. Learned senior counsels for the petitioners referred to paras 9, 10 and 20 of Writ Petition No.791 of 2016 (M/S). Cross- examination of respondent no.2 was demanded by the petitioners, which is reflected in pages 67, 73, 79 to 81, 130 & 131 -18- of Writ Petition No.828 of 2016 (M/S). Learned counsel for the petitioners also referred to paras 12, 65 & 66 of D. Sudhakar (2) & others vs. D. N. Jeevaraju & others, (2012) 2 SCC
708.
22. Attention of this Court is also drawn towards para 16 of the writ petitions, which is quoted hereinunder:
"16. That on the bare reading of the show cause notices no case is made out under paragraph 2 (a) of Schedule X of the Constitution of India. The disqualification on the ground of defection has serious consequences. It is a matter of survival for the petitioners and therefore, the provision describing disqualification has to be read strictly and further should require strict proof. As indicated above this charge is fully unjustified because necessary documents substantiating the charge as indicated above, have not yet been supplied, which is resulting in serious breach of principals of natural justice."
23. Attention of this Court is further drawn towards para 8 of Writ Petition No.791 of 2016 (M/S), which reads as under:
"8. That the Paragraph 4 of the Show cause notice refers to two instances of 18.03.2016. The narration of facts is totally incorrect and is denied. What had happened in fact was that on 18.03.2016 the Finance bill was to be presented and discussed by the Assembly. The agenda in this regard was "Item 28". Before that, the MLAs of the Bhartiya Janata Party had gone to the Governor with a request that the bill should be considered and put to voting by show of hand as the members were exercising the right of effecting 'division'. This request was made by the said MLAs on the apprehension that the Speaker would not be accepting their demand for 'division' and would be getting the Finance bill passed through voice -19- vote. It is nobody's case that the petitioners hade made a similar request to the Governor along with BJP MLAs. That when the item No.28 was presented on 18.03.2016, the Speaker had despite the fact that the 35 Members were seeking 'division', within 10 seconds without allowing any discussion, debate or voting declared that the bill has been passed by voice vote and left the chair ignoring all other items that were specified in the agenda after item 28. That the above act of the Speaker was highly biased and was intended to defeat the right of the members, to seek 'division' and voting, as they had serious differences on the bill. This agitated large number of members including the petitioners who went to the well of the house and sat there in protest. They were in all 35 members who had done so, which clearly meant that the voting was avoided with this strategy, defeating the very purpose of the Legislation and Legislature. This led to slogan raising against the Chief Minister by the member of opposition and a cry for this resignation because majority of members, 35 in numbers, were opposing the bill and wanted 'division' to enforce their right to vote."
24. Learned senior counsels for the petitioners concluded that the decisions of Jagjit Singh (supra), Dr. Mahachandra Prasad Singh (supra), Ravi S. Naik (supra) and Rajendra Singh Rana & others vs. Swami Prasad Maurya & others, (2007) 4 SCC 270 are on the one pole and the case of Balchandra's case (supra) is on the another pole. Which one is closer to them? There is, therefore, no escape from the conclusion that the decision rendered by Hon'ble Supreme Court in Balchandra's case (supra) is applicable to the facts of present writ petitions.
-20-[Note: These arguments are not exhaustive. The principal submissions shall be dealt with at an appropriate place, without specific reference, while adverting to the core issues.] **********
25. Learned senior counsels for respondents, at the very outset, raised a preliminary objection to the maintainability of the present writ petitions and argued that the writ petitions under Article 226 of the Constitution of India cannot be entertained. Learned senior counsels for respondents contended that the petitioners must come to the Court with utmost probity and due diligence, disclosing all material facts. Learned senior counsels for the respondents also submitted that the petitioners cannot jump or break the hierarchy of the Court. It is further emphasized that the joint memorandum was not relied upon by the Speaker. Rule 7 of the Rules, 2005 says that documents relied upon by the Speaker are required to be supplied to the parties concerned. Learned senior counsels for the respondents, therefore, submitted that in such a situation and looking to the conduct of the petitioners, they are not entitled to get any discretionary reliefs.
26. Learned senior counsels for respondents, therefore, submitted that no interference is called for in the impugned order, as it was passed after complying with the principles of natural justice and after giving seven days notice to the petitioners. It is further submitted by learned senior counsels for the respondents that there is no violation of principles of natural justice and there is no perversity in the order impugned.
27. Learned senior counsels for the respondents also brought para 122 of Kihoto Hollohan's case (supra) to the notice of this Court as below:
-21-"122. While construing paragraph 2(1)(b) it cannot be ignored that under the Constitution Members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House [Article 105(1) and Article 194(1)]. The disqualification imposed by Paragraph 2 (1) (b) must be so construed as not to unduly impinge on the said freedom of speech of a Member. This would be possible if Paragraph 2 (1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of government is likely to be brought about or is prevented, as the case may be, as the result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may entail disqualification under Paragraph 2 (1) (b), would have to be limited to a vote on motion of confidence or no confidence in the government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate."
28. Learned senior counsel further submitted that was it permissible for the petitioners to have said, in the joint memorandum, that they are against Shri Harish Rawat, Chief Minister and not against the Congress Party? The Chief Minister represents the party in power. He holds reins of the Government. The petitioners signed the memorandum with the Leader of Opposition knowing fully well that this was wholly unethical and they were not 2/3rd of the members of Indian -22- National Congress in Uttarakhand Legislative Assembly. Why did nine dissidents (petitioners) vote with BJP?
29. Learned senior counsels for the respondents drew the attention of this Court towards para 10 of the affidavit filed by the Joint Secretary, Ministry of Home Affairs, Government of India in Special Appeal No.64/2016 before the Division Bench of this Court. The same is quoted herein below:
"10. That thereafter, at around 11:30 PM, the Leader of Opposition along with 34 MLAs called the Hon'ble Governor at Raj Bhawan and handed over a letter signed by 35 MLAs which included 9 MLAs from the ruling Congress Party and 26 candidates from the Opposition Party, inter alia, stating and bringing into the notice of the Hon'ble Governor that the Appropriation Bill had not been passed in the House as it proceeded in a undemocratic manner. Vide the said letter, it was also intimated to the Hon'ble Governor that the Appropriation Bill was not passed because the Government failed to muster requisite majority in the House as the majority of the members voted against the said money bill. Accordingly, the Hon'ble Governor was informed that the Government has fallen and thus was required to be dismissed. Vide the said letter the Hon'ble Governor was also apprised that there were only 68 members present in the House out of which 35 of them were opposing the Appropriation Bill."
30. Learned senior counsels for the respondents referred to a document showing details of passengers of the Spice Jet Flight on 18.03.2016, which indicates that the most of the petitioners and BJP members travelled together in the same flight. They also drew attention of this Court towards Annexure No.SA-5 filed in WPMS No.826 of 2016 to say that the planning was already made in the morning of 18.03.2016 in view of the fact that the petitioners alongwith the Leader of Opposition wrote a letter to the Governor on 18.03.2016, which will be referred to by this Court in a shortwhile from now.
-23-31. It is contended by learned senior counsels for the respondents that no real prejudice is caused to the petitioners, if they had no access to some of the papers (although not admitted).
[Note: These arguments are not exhaustive. The principal submissions shall be dealt with, without specific reference, in subsequent paragraphs of this judgment while discussing the core issues.] Summary of WPs
32. To recapitulate, the writ petitions are based on the following grounds, viz.,
(i) Show cause notices dated 19.03.2016 issued by the Speaker under the Members of Uttarakhand Legislative Assembly (Disqualification on Ground of Defection) Rules, 2005 are in the teeth of the judgment of Hon'ble Apex Court in Yeddyurappa's case (supra).
(ii) Entire proceedings by the Speaker have been conducted in a manner to disqualify the petitioners just before the trust vote, as directed by His Excellency the Governor, to be held on 28.03.2016.
(iii) The petitioners have never given up their membership of the Indian National Congress through their conduct or otherwise.
(iv) The petitioners only sought to criticize the proceedings of the House, which was being run in an unconstitutional manner and in utter disregard to business rules.
(v) A discussion as well as division on the Money Bill was called for, which was passed by the Speaker through a false voice vote. Such an act cannot be treated as having voluntarily given up their membership under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution.
-24-(vi) The proceedings of the House were conducted by the Speaker in violation of the principles of natural justice. On the basis of the constructive criticism against the working of the Chief Minister and the Speaker, the petitioners were hounded.
(vii) Sloganeering in the House are protected under Article 19(1)(a) of the Constitution. The Speaker, in the show cause notices, has referred to the same, after he (Speaker) had left the chair. No evidence was provided alongwith show cause notices for the same. No opportunity of hearing was provided to the petitioners.
(viii) A sham hearing was conducted by the Speaker. Travelling in a bus with anybody much less the opposition leaders is protected by Article 19(1)(d) of the Constitution. No evidence was provided alongwith show cause notices to substantiate the same.
(ix) Tendering joint memorandum to the Governor, even if it is presumed to be correct, cannot be termed as 'voluntarily giving up membership of the party', for criticism of the Chief Minister's style of functioning and the Speaker's partisan conduct will not fall under the expression 'voluntarily giving up membership of the party'.
(x) In the joint memorandum, at no point of time, the petitioners have stated that they have left the Indian National Congress or have joined the Opposition (i.e. BJP) or are ready to support any Government to be formed by BJP or are not ready to support the Congress Government formed under the leadership of any other leader chosen by consensus, but for Shri Harish Rawat.
The joint memorandum was never intended to voluntarily giving up the membership of the Indian National Congress.
-25-(xi) Travelling of petitioners in a commercial aircraft, in which the opposition members were also travelling, will not constitute any anti-party activity. However, neither the evidence was provided alongwith show cause notices nor any opportunity of hearing was provided to the petitioners.
(xii) In law, Paragraph 2(1)(a) of the Tenth Schedule is not to be readily 'inferred'. An adequate opportunity of hearing must be provided to an affected party after the documents are provided to the noticee. In the instant case, the documents were provided merely 30 minutes before the hearing was done by the Speaker.
(xiii) It has to be specifically demonstrated that the petitioners went against the ideology of the political party, to which they belong.
(xiv) The legality and validity of notices dated 19.03.2016 issued by the respondent no.1, based on the complaint made by respondent no.2 to respondent no.1 on 18.03.2016 alongwith the entire proceedings leading the final order dated 27.03.2016 of the Speaker are under challenge in the present writ petitions.
(xv) There is no apparent or direct termination of relationship between the petitioners and their political party, i.e., Indian National Congress. By their conduct, they cannot be deemed to have relinquished the membership of the Indian National Congress.
(xvi) Giving up of their membership cannot be inferred on the basis of joint memorandum even if the same is presumed to be correct. On a bare reading of show cause notices, no case is made out under Paragraph 2(1)(a) of the Tenth Schedule. The presumption of voluntarily giving up the membership of the party cannot be drawn on the basis of the same.
-26-(xvii) Para 114 of Yeddyurappa's case (supra) refers to the letters written by the MLAs to the Governor criticizing the Government and the Chief Minister and requesting the Governor to institute constitutional process in accordance with the Constitution. Hon'ble Supreme Court did not accept the claim that the membership of the party had been relinquished voluntarily by the MLAs. Paras 120 to 123 of Yeddyurappa's case (supra) have also been relied upon in the writ petitions.
(xviii) The Speaker's act was not free from bias or malafide. He acted in a partisan manner without following rule of law.
(xix) A 'no confidence motion' had been moved against the Speaker on 18.03.2016. The said motion was to come up for consideration as per first proviso to Article 179(c) of the Constitution after 14 days, i.e. after 28.03.2016. When 'no confidence motion' had already been moved against the Speaker, the Speaker could not have changed the composition of Assembly as the voting under Article 179(c) of the Constitution can be made by all the then members of the Assembly, implying, membership of the House which exists on the date of motion. The order was passed by the Speaker in haste and with pre-
determination to disqualify the petitioners. The instances were given in para 23 of Writ Petition No.828 of 2016 (M/S).
(xx) The impugned order was never served upon the petitioners, although the same was made available on the website only on 28.03.2016. Legislative powers of the Speaker were suspended on 27.03.2016 at around 5:00 PM. The petitioners came to know through media reports on 27.03.2016 that the orders have been passed -27- by the Speaker disqualifying the membership of the petitioners from the party.
What is Tenth Schedule of the Constitution?
33. Tenth Schedule of the Constitution deals with the provision as to disqualification on ground of defection. For the purpose of our discussion, the same reads as follows:
"PROVISIONS AS TO DISQUALIFICATION OF GROUND OF DEFECTION
1. Interpretation. - ..........................
2. Disqualification on ground of defection - (1) Subject to the provisions of paragraphs 3, 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 given up his membership of such political party: or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized 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.
3. Omitted
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 and he claims that he and any other members of his original political party - .................. (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.
Whether judicial review is permissible?
34. Article 212 of the Constitution puts an embargo in the following manner:
"212. Courts not to inquire into proceedings of the Legislature. - (1) The validity of any proceedings in the -28- Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
35. But, in para 153 of Balchandra L. Jarkiholi & others vs. B. S. Yeddyurappa & others, (2011) 7 SCC 1, Hon'ble Supreme Court has clarified thus:
"153. On the question of justiciabiltiy of the Speaker's order on account of the expression of finality in paragraph 6 of the Tenth Schedule to the Constitution, it has now been well-settled that such finality did not include the powers of the superior Courts under Articles 32, 226 and 136 of the Constitution to judicially review the order of the Speaker. Under paragraph 2(1)(a) of the Tenth Schedule, the Speaker functions in a quasi-judicial capacity, which makes an order passed by him in such capacity, subject to judicial review. The scope of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, therefore, enables the Speaker in a quasi- judicial capacity to declare that a Member of the House stands disqualified for the reasons mentioned in para 2(1)(a) of the Tenth Schedule to the Constitution."
Thus, it is held that the judicial view is permissible under the law.
Scope of Judicial Review
36. The scope of judicial review has been determined in the decision of Hon'ble Supreme Court in Kihoto Hollohan vs. Zachillhu & others, 1992 Supp (2) SCC 651, which is as below:
"Thus, 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 abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based -29- on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned."
[Emphasis supplied] Whether the instant case is similar or dissimilar to Balchandra's case (supra)?
37. A joint memorandum dated 18.03.2016, in the instant case, reads as follows:
"The leader of Opposition met you today on 18.03.2016 morning and requested you to forward the message to Speaker of the Legislative Assembly to seek a division of votes on the proposed Income & Expenditure Appropriation Bill for financial year 2016-17 as introduced in the Assembly as the Government is in minority and is being run in an unconstitutional manner.
As per our apprehension, the Speaker of Legislative Assembly has not adhered to the prescribed procedure for passing of the Bill and has disregarded the majority. The Government and the Speaker, Legislative Assembly have ignored the feelings of the 35 members who had demanded a division of votes. That is why these 35 members, which include 26 members of the Bhartiya Janta Party and 9 of Congress continued to demand a division of votes. Due to this the Appropriation Bill could not be passed and they voted against the Bill. At that time the strength in the House was 68 as Shri Bhim Lal Arya (BJP) and Shri Sarbat Kareem Ansari (BSP) were absent.
It is clear from the above facts that the Appropriation Bill was not passed and the Government is in Minority.
You are, therefore, requested that in exercise of the constitutional powers conferred on you the Cabinet of Shri Harish Singh Rawat be dismissed."
The contents of the letter sent in Balchandra's case (supra) read thus:
"His Excellency, I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Shri B. S. Yeddyurappa. There have been widespread corruption, nepotism, favouritism, abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri B.S. Yeddyurappa and a situation has arisen that the governance of the State cannot be carried on in accordance with the -30- provisions of the Constitution and Shri Yeddyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka I hereby express my lack of confidence in the government headed by Shri B.S.Yeddyurappa and as such I withdraw my support to the Government headed by Shri B.S. Yeddyurappa the Chief Minister. I request you to intervene and institute the constitutional process as constitutional head of the State.
With regards, I remain Yours faithfully, Shri H.R. Bharadwaj, His Excellency Governor of Karnataka, Raj Bhavan, Bangalore."
38. We will advert to the question thus posed, in subsequent paragraphs of this judgment, at an appropriate place.
39. Thus, the question for determination of this Court is - whether the case of the petitioners is covered by Paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India or not?
Determination
40. At the very outset, it will be apposite to refer para 111 of the decision of Hon'ble Apex Court in Kihoto Hollohan vs. Zachillhu & others, 1992 Supp (2) SCC 651 as follows:
"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 nonjusticiable 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 abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, 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's Case -31- Spl.Ref. No.1, [1965] 1 SCR 413, 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, immediate and irreversible repercussions and consequence."
41. It, therefore, follows that the power of judicial review is limited in respect of the disqualification order passed under Tenth Schedule of the Constitution. Hon'ble Apex Court in Kihoto Hollohan vs. Zachillhu & others, 1992 Supp (2) SCC 651 held that the judicial review of a disqualification order passed under the Tenth Schedule of the Constitution would be limited to (i) the violation of constitutional mandate, (ii) malafides, (iii) the non-compliance with the rules of natural justice, and (iv) perversity.
42. The Speaker, in the instant case, has passed the order disqualifying the petitioners on three important grounds, viz., (a) the petitioners travelled in a bus with the Leaders of Opposition Party, (b) they travelled in a commercial aircraft on which opposition members were also travelling, and (c) they tendered a joint memorandum to the Governor. The notice was also given by the Speaker to the petitioners regarding sloganeering within the House. Let us assume, at present, for the sake of arguments -32- that travelling in a commercial aircraft on which Members of Opposition Party too were travelling was a coincidence. Let us also assume that the petitioners travelled with the Members of Opposition Party in a bus, which was provided by the administration. The gravamen of petitioners' disqualification is tendering a joint memorandum to the Governor, among other grounds. Let us see what this letter is all about.
43. The Leader of Opposition wrote a letter to the Governor on 18.03.2016 to which the petitioners were also signatories. English translation of the said letter reads as under:
"The leader of Opposition met you today on 18.03.2016 morning and requested you to forward the message to Speaker of the Legislative Assembly to seek a division of votes on the proposed Income & Expenditure Appropriation Bill for financial year 2016-17 as introduced in the Assembly as the Government is in minority and is being run in an unconstitutional manner.
As per our apprehension, the Speaker of Legislative Assembly has not adhered to the prescribed procedure for passing of the Bill and has disregarded the majority. The Government and the Speaker, Legislative Assembly have ignored the feelings of the 35 members who had demanded a division of votes. That is why these 35 members, which include 26 members of the Bhartiya Janta Party and 9 of Congress continued to demand a division of votes. Due to this the Appropriation Bill could not be passed and they voted against the Bill. At that time the strength in the House was 68 as Shri Bhim Lal Arya (BJP), Shri Ganesh Joshi (BJP) and Shri Sarbat Kareem Ansari (BSP) were absent.
It is clear from the above facts that the Appropriation Bill was not passed and the Government is in Minority.
You are, therefore, requested that in exercise of the constitutional powers conferred on you the Cabinet of Shri Harish Singh Rawat be dismissed. "
44. Let us now analyze important ingredients of this joint memorandum:
-33-(i) It says that the Leader of Opposition met the Governor in the morning of 18.03.2016.
(ii) A request was made to the Governor to forward a message to the Speaker.
(iii) Seeking a division of vote on Appropriation Bill
(iv) In their estimation, the Government is in
minority and is being run in an
unconstitutional manner.
(v) The Speaker has not adhered to the prescribed
procedure and has disregarded the majority.
(vi) 35 members, which include 26 members of BJP and 9 members of Congress Party, continued to demand for division of vote.
(vii) They voted against the Bill.
(viii) Appropriation Bill was not passed.
(ix) The Government is in minority.
(x) Cabinet of Shri Harish Rawat be dismissed.
45. Learned senior counsel for the parties would interpret the joint memorandum in their own way. Whereas the petitioners would argue that the said letter does not come within the periphery of Paragraph 2(1)(a) of the Tenth Schedule, the respondents would submit that it falls within the ambit of Paragraph 2(1)(a) of the Tenth Schedule.
46. Now, how to go about it? Any person may be swayed away by powerful arguments and equally powerful counter-arguments.
It is not easy to interpret the letter. Then, what should be done? The Court can decide a lis on the basis of evidence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The -34- Indian Evidence Act, 1872 therefore enables a Court to apply only the standards of a prudent man in judging what is deemed to be proved according to law. The expression 'fact' includes not only the physical act which can be perceived by the senses, but also the psychological fact or mental condition of which any person is conscious.
47. Now, let us see what a prudent man ought, under the circumstances of this case, would act upon the supposition that joint memorandum exists.
48. The petitioners referred to a meeting of the Leader of Opposition in the morning of 18.03.2016 to the Governor. Petitioners have appended their signatures on a letterhead of the Leader of Opposition. They complained to the Governor that the Speaker has not adhered to the prescribed procedure and has disregarded the majority. Which majority? According to them, majority of 35 members, which include 26 Members of BJP and 9 Members of Congress Party, who demanded a division of vote. The petitioners have clearly stated in the joint memorandum that they voted against the Bill, and since (the majority was against the Bill), therefore, the Appropriation Bill could not be passed. They also concluded, in the joint memorandum, that the Appropriation Bill was not passed and the Government is in minority. [Whether Appropriation Bill was passed or not, such fact is not under adjudication before this Court.] A request was, therefore, made that in exercise of constitutional powers conferred on the Governor, the Cabinet of Shri Harish Rawat be dismissed.
49. A prudent man would, therefore, in normal circumstances, would believe that the petitioners were not only aggrieved with the working of the Speaker, as also Shri Harish Rawat, but also -35- the fact they voted against the Bill and, therefore, say that the Appropriation Bill could not be passed. They also say that the Government is in minority. Although, they say in the letter that they are the Members of the Indian National Congress, but were not hesitant to say that they voted against the Bill, the Appropriation Bill was not passed and the Government is in minority.
50. Learned senior counsel for the petitioners would equate petitioners' action to that of the petitioners in Balchandra L. Jarkiholi & others vs. B. S. Yeddyurappa & others, (2011) 7 SCC 1. The contents of the letter sent in Yeddyurappa's case (supra) have also been quoted in one of the preceding paras of this judgment. Let us see what was observed by Hon'ble Supreme Court in Balchandra L. Jarkiholi & others vs. B. S. Yeddyurappa & others, (2011) 7 SCC 1 in view of the facts of that case. They read thus:
"114. The facts of the case reveal that the Appellants along with Shri M.P. Renukacharya and Shri Narasimha Nayak, wrote identical letters to the Governor on 6.10.2010, indicating that as MLAs of the Bharatiya Janata Party they had become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa. According to them, there was widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery in the functioning of the Government headed by Chief Minister, Shri Yeddyurappa, and that a situation had arisen when the governance of the State could not be carried on in accordance with the provisions of the Constitution. Accordingly, they were withdrawing their support from the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and to institute the constitutional process as the constitutional head of the State.
120. At this point let us consider the contents of the letter dated 6.10.2010, written by the Appellants to the Governor, which has been reproduced hereinbefore. The letter clearly indicates that the author thereof who had been elected as a MLA on a Bharatiya Janata Party ticket, having become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa on account of widespread corruption, nepotism, -36- favouritism, abuse of power and misuse of Government machinery, was convinced that a situation had arisen in which the governance of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people.
121. The letter further indicates that it was in the interest of the State and the people of Karnataka that the author was expressing his lack of confidence in the Government headed by Shri Yeddyurappa and that he was, accordingly, withdrawing his support to the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and institute the constitutional process as the constitutional Head of the State.
122. Although, Mr. Sorabjee was at pains to point out that the language used in the letter was similar to the language used in Article 356 of the Constitution, which, according to him, was an invitation to the Governor to take action in accordance with the said Article, the same is not as explicit as Mr. Sorabjee would have us believe. The "constitutional process", as hinted at in the said letter did not necessarily mean the constitutional process of proclamation of President's rule, but could also mean the process of removal of the Chief Minister through constitutional means. On account thereof, the Bharatiya Janata Party was not necessarily deprived of a further opportunity of forming a Government after a change in the leadership of the legislature party. In fact, the same is evident from the reply given by the Appellants on 9.10.2010, in reply to the Show-Cause notices issued to them, in which they had re-emphasized their position that they not only continued to be members of the Bharatiya Janata Party, but would also support any Government formed by the Bharatiya Janata Party headed by any leader, other than Shri B.S. Yeddyurappa, as the Chief Minister of the State. The conclusion arrived at by the Speaker does not find support from the contents of the said letter of 6.10.2010, so as to empower the Speaker to take such a drastic step as to remove the Appellants from the membership of the House.
123. The question which now arises is whether the Speaker was justified in concluding that by leaving Karnataka and going to Goa or to any other part of the country or by allegedly making statements regarding the withdrawal of support to the Government led by Shri Yeddyurappa and the formation of a new Government, the Appellants had voluntarily given up their membership of the B.J.P. and were contemplating the -37- formation of a Government excluding the Bharatiya Janata Party. The Speaker has proceeded on the basis that the allegations must be deemed to have been proved, even in the absence of any corroborative evidence, simply because the same had not been denied by the Appellants." [Emphasis supplied]
51. The instant case appears to be on different plane. The MLAs of Bhartiya Janata Party were disillusioned with the functioning of the Government headed by Shri B. S. Yeddyurappa on account of widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery in the functioning of the Government headed by Chief Minister, Shri Yeddyurappa. In the instant case also, the petitioners are disillusioned with the functioning of the Government headed by Shri Harish Rawat. They are equally disillusioned with the working of the Speaker. In Yeddyurappa's case (supra), the MLAs withdrew support to the Government headed by Shri B. S. Yeddyurappa with a request to the Governor to intervene and institute the constitutional process as constitutional head of the State. In Yeddyurappa's case (supra), they did not go to the Governor with the Members of the Opposition; they did not say that they voted against the Bill; they did not say that the Appropriation Bill could not be passed; and they did not say that the Government is in minority. The MLAs in Yeddyurappa's case only said that Shri B. S. Yeddyurappa, Chief Minister has forfeited the confidence of the people and, therefore, he expresses his lack of confidence in the Government head by Shri B. S. Yeddyurappa and, as such, he withdraws his support to the Government headed by him.
52. There were also other reasons why the MLAs were saved from disqualification in B. S. Yeddyurappa's case (supra), which are not available in the instant case. It will be worthwhile -38- to reproduce some of the relevant paras of B. S. Yeddyurappa's case (supra):
151. As mentioned hereinbefore, the Disqualification Application filed by Shri Yeddyurappa contained only bald allegations, which were not corroborated by any direct evidence. The application did not even mention the provision under which the same had been made. By allowing Shri K.S. Eswarappa, who was not even a party to the proceedings, and Shri M.P. Renukacharya and Shri Narasimha Nayak to file their respective affidavits, the short-comings in the Disqualification Application were allowed to be made up. The Speaker, however, relied on the same to ultimately declare that the Appellants stood disqualified from the membership of the House, without even serving copies of the same on the Appellants, but on their learned Advocates, just before the hearing was to be conducted. If one were to take a realistic view of the matter, it was next to impossible to deal with the allegations at such short notice. In the circumstances, we cannot but hold that the conduct of the proceedings by the Speaker and the decision given by the Speaker on the basis thereof did not meet even the parameters laid down in Jagjit Singh's case (supra).
152. We cannot also lose sight of the fact that although the same allegations, as were made against the Appellants by Shri Yeddyurappa, were also made against Shri M.P. Renukacharya and Shri Narasimha Nayak, their retraction was accepted by the Speaker, despite the view expressed by him that upon submitting the letter withdrawing support to the BJP Government led by Shri Yeddyurappa, all the MLAs stood immediately disqualified under paragraph 2(1)(a) of the Tenth Schedule to the Constitution, and they were, -39- accordingly, permitted to participate in the Confidence Vote for reasons which are not required to be spelt out.
[Emphasis supplied]
53. The words 'voluntarily giving up membership' are not synonymous with 'resignation' and have a wider connotation. The same is reflected in para 11 of Ravi S. Naik vs. Union of India & others, 1994 Supp (2) SCC 641, which is as under:
"11. This appeal has been filed by Bandekar and Chopdekar who were elected to the Goa Legislative Assembly under the ticket of MGP. They have been disqualified from membership of the Assembly under order of the Speaker dated December 13, 1992 on the ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the judgment of the High Court it appears that disqualification on the ground of paragraph 2(1)(b) was not pressed on behalf of the contesting respondent and disqualification was sought on the ground of paragraph 2(1)(a) only. The said paragraph provides for disqualification of a member of a House belonging to a political party "if he has voluntarily given up his membership of such political party". The words voluntarily given up his membership"
are not synonymous with "resignation" and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs."
[Emphasis supplied]
54. It, therefore, follows that even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party, to which he belongs.
55. Further, an act of giving a letter requesting the Governor to call upon the Leader of the other side to form a Government itself would amount to an act of voluntarily given up the membership of the party on whose ticket the said members were elected. The Court is bound to protect the Constitution and its values and the -40- principles of democracy which is a basic feature of the Constitution. It will be useful to reproduce the observations made by Hon'ble Supreme Court in Rajendra Singh Rana & others vs. Swami Prasad Maurya & others, (2007) 4 SCC 270 as follows:
"34. As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up, by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the Legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty Second Amendment of the Constitution and on a true understanding of paragraph 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of paragraph 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. ..........................
45. .......................... we think that as a Court is bound to protect the Constitution and its values and the principles of democracy which is a basic feature of the Constitution, this Court has to take a decision one way or the other on the question of disqualification of the 13 MLAs based on their action on 27.8.2003 and on the materials available.
48. The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of -41- voluntarily giving up the membership of the party on whose ticket the said members had got elected. Be it noted that on 26.8.2003, the leader of their party had recommended to the Governor, a dissolution of the Assembly. The first eight were accompanied by Shivpal Singh Yadav, the General Secretary of the Samajwadi Party. In Ravi Naik (supra) this Court observed:
"A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from the membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs."
49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission of letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly, an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within paragraph 2(1)(a) of the Tenth Schedule. Then the only question is whether they had shown at least prima facie that a split had occurred in the original political party on 26.8.2003 and they had separated from it along with at least 24 others, so as to make up one-third of the legislature party." [Emphasis supplied]
56. The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:
"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation 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."
57. Democracy is a basic feature of the constitution. Whether any particular brand or system of Government by itself, has this -42- attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.
58. 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.
59. The manifesto of a political party is a statement of its policy. It is the promise of a future Government. The same was observed by Hon'ble Supreme Court in S. Subramaniam Balaji vs. State of Tamil Nadu & others, (2013) 9 SCC 659, which reads as below:
"61.2. Secondly, the manifesto of a political party is a statement of its policy. The question of implementing the manifesto arises only if the political party forms a Government. It is the promise of a future Government. It is not a promise of an individual candidate. Section 123 and other relevant provisions, upon their true construction, contemplate corrupt practice by individual -43- candidate or his agent. Moreover, such corrupt practice is directly linked to his own election irrespective of the question whether his party forms a Government or not. The provisions of the RP Act clearly draw a distinction between an individual candidate put up by a political party and the political party as such. The provisions of the said Act prohibit an individual candidate from resorting to promises, which constitute a corrupt practice within the meaning of Section 123 of the RP Act. The provisions of the said Act place no fetter on the power of the political parties to make promises in the election manifesto."
60. One may argue that deserting the leader and deserting the Government is not synonymous with deserting the party. What constitutes defection under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution is deserting the party. Dissent is not defection and the Tenth Schedule while recognizing dissent prohibits defection. The instant case is an illustration of the fact that the petitioners have not only deserted the leader and deserted the Government, but under the garb of dissent, they have, by their conduct, deserted the party, otherwise they would not have said in the joint memorandum that they voted against the Appropriation Bill, it was not passed, the Government is in minority and, therefore, the Cabinet of Shri Harish Rawat be dismissed. There is a thin line of difference between the deserting the Leader/Government and deserting the party. Dissent is permissible only so long as it does not tread into the realm of 'voluntarily relinquishing the membership of the party'. If dissent is permitted to unfathomable limit, then it will amount to deserting the party and would also tantamount to 'voluntarily giving up his membership of such political party' under Paragraph 2(1)(a) of the Tenth Schedule.
-44-61. Take for example, freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. But by the same breath, it puts certain restrictions on it. No right is absolute. Power tends to corrupt, and absolute power corrupts absolutely. There is no absolutism in any sphere of life. Right to freedom and expression, as also right to dissent, is part and parcel of intra-party democracy, but the moment it crosses the limit, by conduct or otherwise, by an overt act, the same may amount to deserting the party. The dispute in question is taking us to a photo finish. Rival contentions carry great force. However, the Court is bound to decide one way or the other. Professor Panick, in his book 'Judges' has said that the judging is a difficult task. Whereas the others seek to avoid it, a Judge has to do it. The same has to be done in accordance with law. This is called Judicial Decision Making.
62. The author of this judgment is reminded of a fact of the Indian history, while dictating this judgment. We may refer to the Indian Rebellion of 1857. Whereas, We Indians, call it 'India's First War of Independence', 'uprising of 1857', the British historians call it 'Sepoy Mutiny'. Everybody looks at things from his own point of view. Whereas the petitioners term their action as 'valid criticism' or 'dissent', the Speaker and the Chief Whip of the Indian National Congress in Uttarakhand would term it as 'voluntarily giving up their membership of such political party', which would attract Paragraph 2(1)(a) of the Tenth Schedule. The beauty lies in the eyes of beholder!
63. Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 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 -45- 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."
"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......
When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter. Whatever other part he may play, he will be a constituency M.P. As such, his job will be to help his constituents as individuals in their dealings with the departments of State. He must listen to their grievances and often seek to persuade those in authority to provide remedies. He must have no regard to the political leanings of his constituents for he represents those who voted against him or who did not vote at all as much as those who voted for him. Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great."
64. 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:
-46-"....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 which he 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.
The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines. Members, who are neither Ministers nor front-bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity. This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979. No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office. But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion."
65. Hon'ble Supreme Court beautifully sums up the essence of anti-defection law in Kihoto Hollohan vs. Zachillhu & others, 1992 Supp (2) SCC 651, as under:
"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 proprieties of political and personal conduct - whose awkward erosion and -47- grotesque manifestations have been the base of the times
- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end..."
are constitutional." [Emphasis supplied]
66. In the beginning, a preliminary objection was raised regarding the maintainability of present writ petitions. Since the Court is at the final stage of dictating the judgment, therefore, no useful purpose would be served by narrating those grounds. This Court holds that the writ petitions are maintainable.
67. An Appropriation Bill is a matter of policy decision and if any policy is attacked or if there is clear violation of the manifesto or if there is a fall of the Government, the same will attract Paragraph 2(1)(a) of the Tenth Schedule of the Constitution and will amount to 'voluntarily giving up the membership of the Party'.
68. Every case has to be decided on its own merits. That is why the onerous task of judging has not been assigned to robots, but to Judges, so that they may apply their mind to the peculiar facts and circumstances of the case. During the course of arguments, the pendulum swung from one pole to another. In the beginning, it appeared that the case of the petitioners is covered by the decision of Hon'ble Supreme Court in Balchandra L. Jarkiholi & others vs. B. S. Yeddyurappa & others, (2011) 7 SCC 1, but with the advancement of arguments and unfolding of more facts, keeping in background the niceties of Paragraph 2(1)(a) of the Tenth Schedule, the pendulum swung and stuck to the other pole. The arguments of learned senior counsel for the petitioners were attractive at the first blush, but -48- on a closer scrutiny are, probably, more attractive than sound. The petitioners are clearly the victims of their own actions, probably not knowing fully well that it will take them so far. The Court is sympathetic to them. Such type of things happen when people assemble together. But, one should not forget that they are responsible law makers. They make the law, which is implemented by the Executive and is adjudicated by the Judiciary. The Fourth Estate, i.e. the Press, brings the actions of all wings of democracy to the notice of WE, THE PEOPLE OF INDIA.
69. This Court, subject to scrutiny of Speaker's action on the principles of natural justice, therefore, holds that the ingredients of Paragraph 2(1)(a) of the Tenth Schedule of the Constitution are met against the petitioners. By their conduct, it has been established that they have 'voluntarily given up membership of their political party', even if they have not become members of any other political party.
**********
70. The next question, which arises for consideration of this Court is, - whether the Speaker has observed the principles of natural justice or not? Whether sufficient opportunity of hearing has been given to them or not? If adequate opportunity of hearing has not been given, were the petitioners prejudiced by such an action of the Speaker? Such questions take us to the observations of Hon'ble Supreme Court in Yeddyurappa's case (supra) once again, as below:
"125. In our view, not only did the Speaker's action amount to denial of the principles of natural justice to the Appellants, but it also reveals a partisan trait in the Speaker's approach in disposing of the Disqualification Application filed by Shri B.S. Yeddyurappa. If the Speaker wished to rely on the statements of a third party which were adverse to the Appellants' interests, it was obligatory on his part to have given the Appellants an opportunity of questioning the deponent as to the -49- veracity of the statements made in the affidavit. This conduct on the part of the Speaker is also indicative of the "hot haste" with which the Speaker disposed of the Disqualification Petition as complained of by the Appellants.
130. In Dr. Mahachandra's case, a member of the Indian National Congress, who had been elected as a Member of the Legislative Council on the ticket of the Indian National Congress, contested a Parliamentary election as an independent candidate, which facts were part of official records and not merely hearsay, as in the present case. In the aforesaid circumstances, the Chairman held that by contesting as an Independent Candidate, the said Member had given up his membership of the Indian National Congress. It is in that context that it was held that since the Member had not disputed the allegations, but had, in fact, admitted the same in his writ petition, he had not suffered any prejudice in not being provided with a copy of the letter from the leader of the Indian National Congress on which reliance had been placed by the Chairman.
143. Even if as held by this Court in Dr. Mahachandra Prasad Singh's case (supra), Rules 6 and 7 of the Disqualification Rules are taken as directory and not mandatory, the Appellants were still required to be given a proper opportunity of meeting the allegations mentioned in the Show-Cause notices. The fact that the Appellants had not been served with notices directly, but that the same were pasted on the outer doors of their quarters in the MLA complex and that too without copies of the various documents relied upon by Shri Yeddyurappa, giving them three days' time to reply to the said notices justifies the Appellants' contention that they had not been given sufficient time to give an effective reply to the Show-Cause notices.
144. Furthermore, the Appellants were not served with copies of the affidavit filed by 'K. S. Eswarappa', although, the Speaker relied heavily on the contents thereof in arriving at the conclusion that the Appellants stood disqualified under para 2(1)(a) of the Tenth Schedule to the Constitution. Likewise, the Appellants were also not supplied with the copies of the affidavits filed by 'M. P. Renukacharya' and 'Narasinha Nayak' , whereby they retracted the statements which they made in their letters submitted to the Governor on 6.10. 2010.
145. The Speaker not only relied upon the contents of the said affidavits, but also dismissed the Disqualification Application against them on the basis of such retraction, after having held in the case of the Appellants that the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution were attracted immediately upon their -50- intention to withdraw their support to the Government led by Respondent no.1. The Speaker ignored the claim of the Appellants to be given reasonable time to respond to the Show-Cause notices and also to the documents which were handed over to the Advocates of the Appellants at the time of hearing of the Disqualification Application.
146. Incidentally, a further incidence of partisan behaviour on the part of the Speaker will be evident from the fact that not only were the Appellants not given an adequate opportunity to deal with the contents of the affidavits affirmed by 'KSE', 'MPR' and 'NN' , but the time given to submit the Show-Cause on 10th October, 2010, was preponed from 5.00 p.m. to 3.00 p.m., making it even more difficult for the Appellants to respond to the Show-Cause notices in a meaningful manner. The explanation given by the Speaker that the Appellants had filed detailed replies to the Show-Cause notices does not stand up to the test of fairness when one takes into consideration the fact that various allegations had been made in the three affidavits filed by 'KSE', 'MPR' and 'NN' , which could only be answered by the Appellants themselves and not by their Advocates.
147. The procedure adopted by the Speaker seems to indicate that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the Appellants and the other independent MLAs stood disqualified prior to the date on which the Floor Test was to be held. Having concluded the hearing on 10th October, 2010, by 5.00 p.m., the Speaker passed a detailed order in which various judgments, both of Indian Courts and foreign Courts, and principles of law from various authorities were referred to, on the same day, holding that the Appellants had voluntarily given up their membership of the BJP by their acts and conduct which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, whereunder they stood disqualified. The Vote of Confidence took place on 11th October, 2010, in which the disqualified members could not participate and, in their absence Respondent no.1was able to prove his majority in the House.
154. Having considered all the different aspects of the matter and having examined the various questions which have been raised, we are constrained to hold that the proceedings conducted by the Speaker on the Disqualification Application filed by Shri B.S. Yeddyurappa do not meet the twin tests of natural justice and fair play. The Speaker, in our view, proceeded in the matter as if he was required to meet the deadline set by the Governor, irrespective of whether, in the process, he was ignoring the constitutional norms set -51- out in the Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention of the basic principles that go hand-in-hand with the concept of a fair hearing.
71. Hon'ble Supreme Court in the aforesaid decision went on to add as follows:
"131. The distinguishing feature of the facts of Dr. Mahachandra Prasad Singh's case and this case is that the facts in the former case were admitted and were part of the official records, while in this case the allegations are highly disputed and are in the realms of allegation which were yet to be proved with corroborating evidence, though according to the Speaker, such allegations were not disputed.
148. Unless it was to ensure that the Trust Vote did not go against the Chief Minister, there was no conceivable reason for the Speaker to have taken up the Disqualification Application in such a great hurry. Although, in Mahachandra Prasad Singh's case and in Ravi S. Naik's case, this Court had held that the Disqualification Rules were only directory and not mandatory and that violation thereof amounted to only procedural irregularities and not violation of a constitutional mandate, it was also observed in Ravi S. Naik's case that such an irregularity should not be such so as to prejudice any authority who is affected adversely by such breach. In the instant case, it was a matter of survival as far as the Appellants were concerned. In such circumstances, they deserved a better opportunity of meeting the allegations made against them, particularly when except for the newspaper cuttings said to have been filed by Respondent no.1 along with the Disqualification Application, there was no other evidence at all available against the Appellants.
149. We are quite alive to the decision in Jagjit Singh's case (supra), where it was held that failure to provide documents relied upon by the Speaker to the concerned Member, whose membership of the House was in question, and denying him the right of cross-examination, did not amount to denial of natural justice and did not vitiate the proceedings. However, a rider was added to the said observation to the effect that the Speaker's decision in such a situation would have to be examined on a case-to-case basis." [Emphasis supplied] -52-
72. Hon'ble Supreme Court in Jagjit Singh's case (supra) held thus:
"13. The question whether reasonable opportunity has been provided or not cannot be put in a strait-jacket and would depend on the fact situation of each case.
14. At the outset, we may mention that while considering the plea of violation of principles of natural justice, it is necessary to bear in mind that the proceedings, under the Tenth Schedule, are not comparable to either a trial in a court of law or departmental proceedings for disciplinary action against an employee. But the proceedings here are against an elected representative of the people and the judge holds the independent high office of a Speaker. The scope of judicial review in respect of proceedings before such Tribunal is limited. We may hasten to add that howsoever limited may be the field of judicial review, the principles of natural justice have to be complied with and in their absence, the orders would stand vitiated. The yardstick to judge the grievance that reasonable opportunity has not been afforded would, however, be different. Further, if the view taken by the Tribunal is a reasonable one, the Court would decline to strike down an order on the ground that another view is more reasonable. The Tribunal can draw an inference from the conduct of a member, of course, depending upon the facts of the case and totality of the circumstances.
26. ................................. Under these circumstances, mere denial of opportunity to cross-examine or adduce evidence may not automatically lead to violation of principles of natural justice. The principles of natural justice cannot be placed in such a rigid mould. The court, on facts of a case despite denial of opportunity to lead evidence, may come to the conclusion that reasonable opportunity has been afforded to the person aggrieved. The principles of natural justice are flexible and have to be examined in each case.
29. It is also essential to bear in mind the objects for enacting the defection law also, namely, to curb the menace of defection. Despite defection a member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities. The substance and spirit of law is the guiding factor to decide whether an elected independent member has joined or not a political party after his election.-53-
46. In view of the aforesaid statements and absence of any explanation, let alone reasonable explanation, except only vague and general pleas and denials by the petitioners in their stand before the Speaker, they cannot be heard to say that they have been deprived of reasonable opportunity or there is violation of rules of natural justice.
48. Relying upon the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. [(1960) 1 SCR 773], it was sought to be contended on behalf of the petitioners that the admissions allegedly made before the media could be explained and shown as erroneous and not binding on them and, therefore, opportunity ought to have been granted to them to prove so and the failure to grant opportunity vitiates the impugned orders. The petitioners had failed to plead how the admissions/statements made by them were erroneous. Had they done so, then the question of its proof would have arisen. Instead of so doing, the petitioners only took shelter under the general vague denial pleading that they wish to adduce evidence. It is also to be remembered as observed by the Supreme Court in the aforesaid case, that admission is the best evidence that can be relied upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. The petitioners have failed to satisfy the latter part."
[Emphasis supplied]
73. Hon'ble Supreme Court in Dr. Mahachandra Prasad Singh's (supra) observed as under:
"16. ........................ whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. ....................." [Emphasis supplied]
74. The principles of natural justice cannot be put in a strait jacket. There is no hard and fast rule for the same. H.W.R. Wade on 'Administrative Law' opines the same. There are exceptions to audi alteram partem rule of natural justice. One accusation against the Speaker is that he passed the impugned -54- order, in 'undue haste' meeting the deadline of vote of confidence in the Legislative Assembly of Uttarakhand. There is a saying that 'Justice delayed is justice denied'. At the same time, there is another saying that 'Justice hurried is justice buried'. A judicial or quasi-judicial authority is required to keep a balance between the two. So far the cross-examination of some persons is concerned, it appears that the application for the same was filed to delay the proceedings. No useful purpose would have been served by summoning and cross-examining them, except, of course, that the petitioners would have bought some time. In a number of cases, Hon'ble Supreme Court desired the Speakers to decide such petitions in time. If the Speaker, in the instant case, wanted to decide the petition at an early date, the Court hardly finds fault with him. In judicial review, this Court is not sitting as 'a court of appeal'. Of course, element of 'perversity' can always be looked into. Learned senior counsels for the petitioners made a reference of Kulwant Kaur vs. Gurdial Singh Mann, (2001) 4 SCC 262 to bring home the point. The proceedings of such petitions appear to be summary in nature, though, no doubt, the principles of natural justice have to be adhered to. Adequate opportunity of hearing must be given. What is 'sufficient opportunity of hearing', is again dependent upon the facts of each case. Such proceedings cannot be equated with the proceedings under Order 21 C.P.C., which is a complete Code in itself, besides Section 47 C.P.C., so far as execution of a decree is concerned. Most of the time, a judgment debtor moves an application for impeding the process of execution of decree. Stumbling blocks are already there. In a petition of this nature, a quasi-judicial authority, like the Speaker, should make an endeavour to decide the petition at an early date, although not in 'undue haste'. This Court does not find, from the documents on record, that the Speaker passed the impugned order in 'undue haste'. Any judicial or quasi-judicial authority will be criticized in -55- any way, if he decides the lis before him early or if he sits over the matter for long. Striking a balance between the two is a golden rule.
75. Joint memorandum submitted to the Governor is a document of the petitioners themselves. The petitioners alongwith various members of Opposition Party submitted it jointly, under their signatures, to the Governor. It is an admitted fact that the said document was not given to them in time, but was given to them subsequent thereto, but since it was their own document, therefore, no prejudice appears to have been caused to the petitioners, by not supplying the same to them in time.
76. Decisions may be multiplied to show that a great hardship was caused to the petitioners, by not giving 'sufficient opportunity of hearing'. Decisions may also be multiplied to show that 'sufficient opportunity' does not mean the opportunity to the extent the petitioners desired. A judicial or quasi-judicial authority can never be a silent spectator, nor should it be, for, the Hon'ble Supreme Court has, in catenae of decisions, held that the job of judicial or quasi-judicial authority is not that of an umpire. He has to regulate and control the proceedings. A Judge prescribes the direction and destination to justice. Fair proceedings are such proceedings which are fair to both sides. The scale is not required to be tilted in one's favour. The Speaker might have been elected on the ticket of a party, but when he is performing the job of a Speaker, he has to be unbiased and non- partisan, leaving aside his party affiliations. A Speaker includes pro-tem Speaker and the likes. It is apparent on the basis of documents on record, in the instant case, that the opportunity to the liking of the petitioners was not granted by the Speaker, but that opportunity cannot be termed as 'insufficient opportunity'.
-56-77. The Court does not feel it necessary to expand this judgment any further, by consuming a few more pages, by endlessly recording the rival submissions and then, accepting one submission and rejecting another. A litigant is simply interested in knowing the fate of his case, with precise reasons, at an earliest possible.
78. The inference is that the principles of natural justice have not been violated by the Speaker, while adjudicating the petitions of the writ petitioners.
79. No interference is, therefore, called for in the impugned order.
80. Both the writ petitions, therefore, fail and are dismissed.
81. Before parting with, this Court is unable to resist the temptation of passing some observations, keeping in view the future contingencies. To err is human. Nobody is infallible. Cold calculations are normally avoided in intangibles. Life, like law, is never static. Both are dynamic concepts. 'It is a matter of survival for the petitioners', as has been observed by Hon'ble Supreme Court in oft quoted Yeddyurappa's case (supra) and, therefore, petitioners deserve yet another opportunity, in case it is available to them in law. This Court is fully conscious of its limitations while passing the following direction in the interest of justice:
"At no point of time, this judgment shall come in the way of Speaker-party respondent no.1 to review his own order, in accordance with law, if the petitioners are so advised to move for the same, on any of the grounds available to them in law."-57-
82. Let copies of this judgment be supplied to learned counsel for the parties immediately, on payment of usual charges.
(U. C. Dhyani, J.) Dated 09th May, 2016 Rawat