Sri Gopal Krishna Belur vs Sri B S Yeddiyurappa on 18 October, 2010

[Cites 25, Cited by 1]

Karnataka High Court

Sri Gopal Krishna Belur vs Sri B S Yeddiyurappa on 18 October, 2010

Bench: N.Kumar, J.S. Khehar

 

IN THE HIGH COURT OF KARNATAKA, AT BANGALORE

1.

3.



DATED THIS THE 189* OF OCTOBER 2010
PRESENT J T
THE I-ION'BLE MR. J.S. KHEHAR, 

AND

THE HON'BLE MR. .:U's'm:.E  Ktiivtag'  
WRIT PETITION Nos.3266o-Aszézo 015 T2919 sdbmlnsggy

Between :

Sri. Gopala Krishna  
aged about 48,y'ears_ '

. Sri. Anand V. Asﬁotikar, 

agedvabout  years

SIT.  C-'ETa'ndr.aT"i...._ 'ar1§i_11o]i.
aged::_about" 56_Vy€fafS"  V

  S. Bagali,

aged about 58yea*rs '

."'S_ri; Bharama Gouda H. Kage,

aged about'53 years

 - .. Sari. Y. gaﬁipdangi,

 about 42 years

_;  N. Nanjundaswamy,

. aged about 55 years

~ 8.

Sri. M.V.Nagaraj
aged about 49 years

9. Sri. Shivanagouda Naik,

10.

aged about 46 years

Sri. Shanker Linge Gowda,
aged about 65 years
Senior citizen



11. Sri. Bellubbi,
aAged about 63 years.

All are Members of Legislative Assembly,

Residing at Karnataka Legisiative Horne. g 
Vidhana Soudha, Bangaiore _, V  _V Petitioners
(By Shri. P.P. Rao, Senior Counsel aiongpéyrithilgll'   it
Sri. KG. Raghavan, Senior Advocate,an_Ci--... '  é '  
Sri. A.S. Ponnanna and Sri,.Shiyakurnar*N:,, A'dVocafes) ' _ '

And:

1. Sri. 13.s. Yeddiyurappa
Chief Minister, " V, 
Vidhana Soudha, Bangalore

2. The Speakeriilili' _ _  1  
Karnataka Vidharia Sabha" '-- ,0 ' 2

Vidhana Soudha, Bangalore  "  Respondents

A_ '{By'Sril.~K;i.,So1,i Sorabji, Senior Counsel
0 .._along witht'3riu."«--Sa'tyapal Jain 85 Sri. KN. Bhat, Senior
Courisei -and Sriyuths M33. Naragund, Sri. Vivek S.
1 Reddy, Bhupender Yadav, Vikram Phadke, Vinod
V  V ' Kurnar; Pra_sanr1a Kurnar E'>.T., Muralidhara M. and
* LIN. Hegde, Advocates)

lR"».i\/\flr1"t,'Petitions are ﬁled under Articie 226 of the

C',o"ii.stitutio_r1_ of India, praying to issue a writ or order or direction

dec_laring.t1ie, order of disqualiﬁcation dated 10.10.2010 passed by
the Respondent No.2 to be unconstitutional, illegal and violative of

 fundafnental rights of the Petitioners under Articles 14, 16 and 19

ofthe Constitution of India and for being vioiative of Schedule 10

 of the Constitution and Rules made under Karriataka Assembly,
'etc; 

These Petitions having been heard and reserved for orders,

on this day the Chief Justice pronounced the following :

ORDER

Claﬁaiaaﬂ. _5-~gf« La.) 0 R D E R J.S. KHEHAR, C.J.

Through the instant writ petitions, have assailed an order dated 10.10.2010, passe_<;lV:"_i3._v ith:ei..Sple'alE<er':Qf the Karnataka Legislative Asseiiriblyiiwfhierehydth.e~.,petitionersu] have been disqualified Vfrorn Karnataka Legislative on oiiihaving arrived at the conclusion detected from the Bharatiya Janata Par:t3;,...:.o:n were elected to the Karnataka 2008.

"'I?serijs:e issues canvassed at the hands of the for the rival parties (on the basis. vvherjieofi 'they neither assailed or supported the order 1'0.1'l*Qg.20l0;""passed by the Speaker of the Karnataka "i5Ls~sembly), it is essential to delineate material facts leadingv_vtoi_tl1e passing of the impugned order. The relevant ii""~._lv"'factual'vposition is therefore being narrated hereinafter. Interestingly, the process leading to the passing of _,.t--lie impugned order came to be initiated at the hands of the petitioners themselves. The petitioners addressed letters to the Governor of the Sate of Karnataka on 06.10.2010. The text of one of the communications addressed to the Governor is reproduced hereunder :

DateV0iEi.l_0.20l0 His Excellency 0 I' it I was elected aS_an being an MLA of the BJP got ﬂd'isillu.si'or_led"'with functioning of the Govern._men't..-'heca.ded" by.7Shri; BfS; "

Yediyurappa. There have beei1._Wides'pread corruption, nepotism, favourtismabguse "of .po'§veri=.,--..,,misusing of government niachineryuiin the.__'functi1oning of the government headedg_____biy.__Chief lvI.inist_er Shri. B.S. Yedirupaa and ._situationi"..has arisen that the governance of the-. State. ca,nno»t be carried on in accordance with th'e.vp:5ovisionS*o'f the constitution and Shri. YediiyigrapamasaC_h*ief.gM~inj.s'ter has forfeited the confideteice"gGf the peop1e..j--In_tthe interest of the State and tE'1'e""p_eL1p.l--e "of:_K_ar.na.tal<;a I_ hereby express my lack of confid_en:ce;_ in" thetfi't_governr:1ent headed by Shri. B.S. Yediyurappr-e.a_nd_.a--s su'c~h...Iv"hereby withdraw my support to thei"G_overnnt.entVV_headed by Shri. B.S. Yediurappa, Chief Iviinist'eeri, reCiu_est you to intervene and institute tml91m;e;;_<g1_s_t_i_t;1ﬁo'1:W'j;;_Dir'ocess as constitutional head of the State", - V

----- (emphasis is mine) ii'-riteivvoeu'ldi"beLrelevant to mention, that all the petitioners a<i:id_ressed'e~'i._separate individual communications dated '=._o6.1o;~2o':io, wherein the text of each of the aforesaid i"itiicomnf.unications was identical. A perusal of the letters addressed by the petitioners to the Governor of the State of Karnataka on 06.10.2010 reveal, that the petitioners acknowledged therein, that they had been elected to the Karnataka Legislative Assembly on Bharatiya Janata Party tickets. According to the letter, they were disillusioned with the functioning of the Government under the,,lea_idership of Chief Minister Mr. BS. Yecldyurappa. It the Government under the leadership, of the""Ch,i'efi"Minist_er responsible for widespread corr'upt:ioen,' nepotisrri,:"fav'{Iritisrn, "

abuse of power and rnisuiisegof It was, accordingly, asserted, thepvvinterest of the people of the State of petitioners to express their lack of headed by Chief Minister therefore, that the petitions-rs,,ﬂtlriroiiggh addressed to the Goveriilgr iiliarnataka , asserted, that they had withdrawn'-theiriisupportiiito the Government headed by Chief Mgr. BAA.iS;vv-Yeddyurappa. Having withdrawn support, "p,eti.ti'on'ers'*through the aforesaid communications also requestediﬂtlie Governor to intervene and institute a V._const1'tut:ional process, in his capacity as the constitutional iheadfof the State of Karnataka.

4. Based on the 19 letters (including 11 letters received from the Izigtitioners on 06.10.2010] the Governor of the State of Karnataka, addressed a letter on the same day, i.e., on A Qu 6 06.10.2010 itself, to Chief Minister Mr. B.S. Ye-ddyurappa . The aforesaid letter is being extracted hereunder :

" RAJ BHAVAN BANGALORE No. GS i0::L3sE: 2010 ,,i5m,,ogt. 2010 Dear Chief Minister, Letters from 14 BJ.P,..,,M'LAs_--"arid:1:50l"in'd.epent1<?nt,_v MLAs have been submitted to 'me today',.javithdraWing ': their support to the Government. [List_ofMl;As'7.whose 0 letters were submitted is encllosed._UT. This ilnc"lud'e,s '7 Ministers in the Government at the submitting the letter. Considering "th,e'relative. s'treng't,hs of different groups in Karnataka,.---Legislative 'Asvserribly with the withdrawal of 'support members, a reasonable doubt has arisen 'iabo"u_tf=tl1e 's1_.ipport your Government enjoys in the Legislative_Assernbij,f;,v----

lré__.Vie1w of this, "ll req1.1e'et'yo'u to prove that you still conti;nu»e_~..tov- 'co_mina,n'd ,tl'1_e' support of the majority of the Members of the L.elgi'sla&tive Assembly by introducing and ge'ttiinggl"pas'sfed a-.sU_itabi'e"motion expressing confidence in y_o11r"G,overnrn,ei1.t, in. the Legislative Assembly on or b"'e.fore p.m. I have also requested the rel-lon'bl"e Speaker accordingly .

With warm regards, Yours sincerely, Sd / -

(H.R.BHARDWAJ) Governor of Karnataka".

Alperusal of the letter of the Governor of Karnataka reveals, G "that the 11 petitioners herein belonging to the Bharatiya Janata Party, besides some other legislations belong to the ee~4€+_5~v-xiv withdrawal of support to the Government, by 19 members of the Karnataka Legislative Assembly, the Governor came to entertain a doubt, whether Chief Ministeriei.._':iil\/lr. BS. Yeddyurappa still continued to cornmandvthe majority of the members of the Karnaitakawi 'Legiislativeg Assembly. He, accordingly, rec;ues'ted' the? 'Chief iMir1:;¥.ster to "

introduce, and get passed_,"----._a suitabvle expiressing confidence in his Government_,lon_ orunbefore.,lA2,Ali§0.20l0.

5. Based on dated 06.10.2010, addressed by :«,{/Jther members of the Karnataka. Governor of the State of as, .Valso>,r::itheijjcorisequential communication addressed 0 byitili'e_iiGovern.or of Karnataka to the Chief Minister', he'-(__Chief'l\/Iinister Mr. B.S. Yeddyurappa ) filed a under Rule 6 of the Karnataka (Disqualification of Members on Ground of l3'efe=ct.iorii) Rules, 1986 (hereinafter referred to as the ' A ,::Defe_ctio'n Rules ' ), with a prayer, that 13 members of the .0 Karnataka Legislative Assembly, including the ll petitioners, wvvho were elected to the Karnataka Legislative Assembly, on Bharatiya Janata Party tickets, should be disqualified from the membership to the Karnataka Legislative Assembly. A JWWW 9 copy of the aforesaid petition was handed over to us in Court. The same has been taken on record and marked as AnneXure--l. Since reference to the petition filed by Chief Minister Mr. 8.8. Yeddyurappa has been made repeatedly by the learned Counsel for the rival parties, releva,ntl.lte${t.l:thereof, is also being extracted hereunder :

" Subject : DisquaIil'ieatiart_ di'*1tde.rnhersliipl~pi:'_j the conduct of the fello7i_vii'1ig the Legislative A.ssemb1Y* 8 l ' < l. The following have lg_contels-ited the 2008 election as BJP...candVii-dates and have been elected as Member of B J P__Party. 3. . V" ~ 5

2. The BJP Legi..s1ature._ PTar'i;yvhasylllnanimously elected me as theleadejrs ofihegiisliature"Party 85 on the strength of that plosition have folrnied the government 85 carry'1ngg_'«--.o.u"t'3'._adm~i.ni'str'atio11, as Chief Minister of the State». 5 " 3

3. iefrhe folloxving Members of the B J P Legislature {Party on "6/10/2010 have submitted letter to the honorablel"'Go.vernor stating that they have withdrawn _ support to the government headed by me. This matter 0' hasbeerrcommunicated to me by the governor vide his __ .lett"e.r_ d.at"ed 6.10.2010 enclosed under annexure 1 85 V further'; by intimating the honorable Governor that su;ppo'rt has been withdrawn to the Government in the absence of any resolutions of the legislature party 85 any A decision of the party they have clearly violated Schedule ._ "310 of Constitution of India 85 because of this they are "eligible for disqualification of the membership hence hereby humbly pray to disqualify with immediate effect their membership 85 issue suitable orders.

4. I would like to bring to your notice examples under similar circumstances action taken in the Cases of Shri. Avatar Singh Bhadana V/s Khuldep Singh 85 Shri 10 Rajesh Verma V/s. Shri. Mohammed Shahid Akhalak, BS? where in actions have been taken merely on press reports.

5. Due to the Statements made by Respondents before press 823 electronic media 8:. as per the gistiofjthe letter sent by Honorable Governor it proVes§'"the..'_'violation of Schedule 10 of the Constitution. ' l' - " . r

6. In View of that: p_ .y _ «. V A S .

1.Shri. MP. Renukacharua, M:_LA.,~'Hon11al'i Constiigtuency. -'

2. Shri. Gopalakrishna Beluiz, MLA Saigar 'Consti'tue'ncy

3.Shri. Anand Asnoti1«:ier*,.._VMLA'Karvara ccn.s:ir.uencyV *

4.Shri.Ba1achandra Jaral{ih.oli, MI,A'vAi*.=ab'havi Constituency

5. Dr. Bagali Sarvabowma' N, Indi Constituency

6. Shri. Bharamagowd'a }Kag'"e,plv1LA Kagawada Constituency 1 __

7. Shri. Y,"SVampar1"g'iViMLA,;..KGF«Constituency

8.G.N. i'€Iarij.11'ndé§._ swamy; MLAv.K.olegala i Co.ris'ti.tue.n--cy ,1? »

9. Sri, M;,_\zV, Nagara.i;- Mm, Helamangala H C ';'._0.Belubbi_aS3ang.ap.pa Kalapa, MLA, Basavana Bagevadi rCon4sti.tue_r1"cy 11; .vSi}1ipva11aiGoWd--aNayak, MLA Devadurga Con stituency = ; 'E2_.Narasir'rihia Nayak (Raju Gowda), MLA ' C E Vi Surapur-2... stituency _ 13,iH,S«..__Shankaralingegowda, MLA, Chamaraj if '= _ " _C§)"n stitutency M"

if above members have become ineligible to continue as legislations as per Schedule 10 of the Constitution of India ._ Hence I humbly pray to disqualify from membership it with immediate effect the above Members 85 issue Suitable Orders.

A perusal of the petition filed by the Chief Minister reveals, that all the 13 respondents impleaded in the disqualification 7W'":.% ll petition (including the 11 petitioners herein), were liable to be disqualified on the basis of the letters dated 06.10.2010 addressed by them to the Governor of the State Voii..ii{arnataka, as also, on account of the consequen_t1_alVletiteizg_"d_ated 06.10.2010 written by the Governor of 'Karriatalta to him (the Chief Minister). In'-_the"tdiisti1u.alii°ica'tii:O--t1'})_etition 5 reference was also made'ii_'V'to_V.. repioits pressjand electronic media, to show, had violated the provisions contairie«d Schedule of the Constitution of_intdia.:'° it 0 i

6. petition, filed under Rule Speaker of the Karnataka Legislative show cause notices to the petitioners'-one. calling upon them to respond to ,__thftfgétllegatrionslll'eve.l.ed against them, by the Chief Minister of The contents of the aforesaid show cause notice have been extracted in paragraph 2 of the igwrit petition. Accordingly, the contents of the show cause i'<0iio_ti.c'e (as have been extracted in the Writ petition) are being reproduced hereunder :

" Shri. B.S. Yeddiyurapa, the Leader of the Legislative Party of Bhartiya Janata Party and also Chief Minister has submitted a letter on 6.10.2010 under Ruleeé of Karnataka Legislative Party Disqualification Rules 1986 1') and has stated in his petition that you being a Member of Legislative Assembly elected on Bharatiya Janata Party without any resolution or order from the party have submitted a letter to His Excellency Governor on 5.10.2010 withdrawing support to they Goirernment headed by him. This is in violation of para. 2*;-i;;«..,('a; of the 10th Schedule of the Constitution of I_1;idia..'j~--.He.nce, he has submitted a petition to disqualiiyyou 'fro_rni't_he Membership of the Legislature". = V " Therefore, you have beerl given" til_l 5.00 * pm. of 10"' Oct. 2010 to reeplyif yougﬂhiave anything to say on the petition." _ ln this. regard, yo-u_Hare hereby informed to appear in person and.__make your statement either orally or in writingibefore the~Sp_ealvEer. In case, if you fail, it will construedyrthat you have nothing to say and future legal. stepis will 'taken ex parte".

A perusal of theaforesaid ishVow?ieaitiseﬁnotice reveals, that the petitioners. u?e:e5r.a;1ed_:_iipon i:e1i.jfi1e_:1ieir reply by 5.00 p.m on

10. petitioin'e--r.s..vvere also invited to appear in person]/_before so as to make their state1nent(s) either orally or in writiiig. All the petitioners were further that V"i1"'---t.h.e'y failed to respond to the show cause be presumed that they had nothing to say , xix'/heireupoih further steps would be taken ex parte. It is the i'i.,.commorn':.case of the rival parties, that although the Speaker __i.the Karnataka Legislative Assembly had invited the ..__l:Lpetitioners for an oral hearing at 5.00 pm. on 10.10.2010, yet the aforesaid hearing was subsequently preponed to 3.00 pm. on the same day.

"V 1.1

7. All the petitioners ﬂied separate replies to the show cause notices issued to them. The contents of the reply of each of the petitioners was identical Since a detailed reply was filed by the petitioners, it is not expedierit"to_' the same herein for reasons of brevity. Th.e"re.levan.1: 'a_ss.er'ti=:)n's made in the replies filed by the petitioners ll'wo'u:l'dé hcgwever "

emerge by themselves, when d.ifferer1.t issues A rpaivsedfon behalf of the petitioners, are take_nll:'up'Vfor consideration for the disposal of the instantl"'peti.tionVs.:. if V

8. Aaisliilovv" cjaiise-....riotice to the petitioners on llireceived a written response thereof" having also afforded an opportlinity of 'the petitioners at 3.00 p.m. on 10.10.2010,.' Speaker of the Karnataka Legislative passed the impugned order on 10.10.2010 itself. 01;'-X_ Copy"'cif"'_.the.;'irnpugned order has been appended to the writ petition..':as Annexure»H, its English translation was "over to us during the course of hearing, the same is .0 on record and marked as Annexure H/T. By the 0 hilinipugned order dated 10.10.2010, the disqualification petition filed by the Chief Minister Mr. BS. Yeddyurappa against 13 members of the Karnataka Legislative Assembiy j E4 was accepted qua ali the 11 petitioners, the same was however not accepted in respect of 2 legislators against respondent nos. 1 and 12, impleaded in the discpialification petition, i.e., Mr. MP. Renukacharya Nayak. Dissatisfied with the afores'aiij1~_..g"crd--er "dei:ed 10.10.2010 passed by the i*3pe:;rke3rtheVfKai::r1*atal€a 5 Legislative Assembly, alE"ii_th_e vipetitivonerswwwwho -vvere disqualified from the Me__rri:ber'ship." the Karnataka Legislative Assembly, this Court, by filing the present writ' 'petitio'ns;'

9. factual background leading up to their pasisiinggof:.the:Liirr1pugned order dated 10.10.2010, 1 shall noW__\i/enture the submissions advanced by the iearned iCou_nsel for the petitioners, to assail the same. 'i:'f1eV first contention advanced on behaif of the based on Rules 6 and 7 of the Defection Rules. 6 and 7 aforementioned are being extracted if " Vgh'er€-:und'er :

i if " 6. Reference to be by Petitions : (1) No reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of this ruie.

I5 (2) A petition in relation to a member may be made in writing to the Speaker by any other member.

Provided that a petition in relation to the Speaker shall be addressed to the Secretary. ' (3) The secretary shall: .. _,_

(a) as soon as may be a_fter'----th,e 'of a petition under proviso '=to'-suybmrulex "{2} make a report in respect-itthereiofiito the.' House; and

(b) as soon as rnayilbe aiiteifthﬁ has I electedja men'1.be'r in , »p:irs4ua1'1:';e if of " the proviso to_'s!_1bmparagraph (*§)"of paragraph 6 of the Tent}: _Sche'dule place the petition before such naernber.

meniber, the€petitione--i*-shsall satisfy himself that _..tl1iere'I.Va1§e "i'ea,_s'onai:'>1efVgrounds for believing that a ifque_st_ion"hasfarisen to whether such member

-------- has beconie -s_ub_3"e--ct..to disqualification under the _Tif:'ii'1_--1'.l'_1a Schedule._ by E7 (4)g"B_eforewmakingaanypetition in relation to any u-.

(5) Every peiliition, «

- (a)~_shall...-~contain a concise statement of the _ ifrnaterial facts on which the petitioner ...._rel1es; and

(b) shall be accompanied by copies of the V * documentary evidence ,if any on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and address of such persons and the gist of such information as furnished by each such person.

3'' (6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (S of 1908) for the verification of pleadings.

l6 (7) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as in the petition.

7. Procedure : (1) On receipt of a petition under rule 6, the Speaker shall consider whetheritkie petition complies with the requirements of that_.1%:i..ile';»."_' -1~ (2) If the petition", does.'not--dc_ornplyg requirements of rule 6, the S'peaker.ysha1.i_ dismiss th petition and intimate the p€ttiti:o'n.e'r ac_cordin'gIy., if (3) If the_ ''---,petition .co;r_np.1ies, -*with=.i'the requirements of rule 6,'*«.the Speak_ershal1 cause copies of the petition and '»v._tlie annexures thereto be forwarded: ,_ if if

(a) to°the. 1nem.beir.fin.irelation to whom the petition has be'en'rij1acie; and whiere. inember belongs to any by ' legisiatiire' .pair'ty....and such petition has r1ot..b"ee_n'---m'ade_ by the leader thereof, also _ 'to ,_s"u'ijgh ieadeyr,' _.and_a's_su'Ch.wm'ember 'o-r..l.e<ader shall, within seven days gof thereceipt --of"~such' copies, or within such further 'period asfthe>e.Spe_aker may for sufficient cause aliow, forvviardi 'VhisA'--c_o:r1irients in writing thereon to the Speaker.' iii""(4:.l..A1ter considerin the comments, if an , in _ __ ; g_ Y 1"ela_t1"o_n to the petition, received under sub--rule (3) "wgithii'n,g.ithe period allowed (Whether originaliy or on "eX'tens.ifon under that sub-rule), the Speaker may eithelriiproceed to determine the question or, if he is satisfied, having regard to the nature and 'ciiicurnstances of the case that it is necessary or expedient so to do, refer the petition to the Committee for making a preliminary inquiry and submitting a report to him.

(5) The Speaker shall, as soon as may be after referring a petition to the Committee under sub- rule (4) , intimate the petitioner accordingly and make an announcement with respect to such reference in the House of, if the House is not then in Session, I') E7 cause the information as to the reference to be published in the Bulletin.

(6) Where the Speaker makes reference under sub--rule (4) to the Committee, hevshailproceed to determine the question as soon as after receipt of the report from the Committee;'--« i.~ ('7) The procedure which"slaa:l*l. foplloyi/ed the Speaker for determiniiing'.an.y .;q1_1Ve:«_t_ion--5'an'd t'he'-. procedure which shall be fo:i'lo.wed_by"'the:"Coi;:_mittee * for the purpose of making 'a pr_eliminar"y inqui'1y under sub--rule (4) shall be,_so_V far as may b_e',Vvth€.,same asthe procedure for inqui"Iy""i.and 'd,_etert.nir1vation by the Committee of any que_stion'as tobrevachyiof privilege of the House by.a'~~member,and'-neither" the Speaker nor the Committee shall f-Come' to any finding that a member has become "subjectdisqualification under the 'l'enth__ Sch'ed"ul.e withotL1t«.af"fording a reasonable opportunity' to".suCl1'rnemb--er-to: represent his case and to l*1e_a}_c1_';in" person. v 1.1,---. ails,-._irefere.n:ie is being made, to the submissions' learned Counsel for the petitioners,-_ion strength of Rule 6 of the Defection Rules. ,..,(i) on subi--lru'i'ei{-4) of Rule 6, it is the contention of the ._.learned"Co'Linsel for the petitioners, that it is imperative for a pe'ti,tioner(s)i'..~ijseeking disqualification of a member of the i"=State 'Legislative Assembly, to satisfy himself / themselves that are reasonable grounds to believe that a member of the ...State Legislative Assembly, had rendered himself eligible for V disqualification under the Tenth Schedule of the Constitution of India. It is asserted, that in the absence of the aforesaid maatgev rwggﬂv E8 condition a disqualification petition cannot be entertained. It is asserted that the narration of facts, in the disqualification petition filed by the Chief 1\/finister Mr. 38. Yeddyurappa, having not disclosed any reasonab.le'~_ground for disqualification, the same was liable outset. ..

(ii) Based on sub~«rule (5) of Rule if is the submission of the learned Co"ur__1se.l it'or't_:h'ennpetitioriers, that every disqualification petitioniiishouldi 'not..only contain a concise statement of matertial..fa,cts_, is. also required to be supported by, iIt is submitted, that since .tl'ie~ .factual::,: ~po's,ition "depicted in the disqualification petitiondid noti'contain'ciawconcise statement of material facts, substantiating Van_.yigroi--.1ind of disqualification ( contained in Schedule' of the Constitution of India), and a'diditi_oiialliy",' because no documentary evidence the material facts, was furnished by Chief i"~.,Ministe,ri'1~ Mr. B.S. Yeddyurappa, there was no basis iiqzvhatisoever for passing the impugned order dated 10.10.2010. ___(iii) Based on sub--rule ( 6 ) of Rule 6 of the Defection Rules, it if is the contention of the learned Counsel for the petitioners, that the disqualification petition filed by Chief Minister Mr. V 19 BS. Yeddyurappa, was liable to be verified in the manner laid down by the Code of Civil Procedure, 1908, and since, it had not been so Verified, the disqualification,,,petiti_on was liable to be rejected.

Based on the aforesaid proceduralggdiscrepanciesiiemerging out of Rule 6 of the Defection Rules, it"'is:' thecor1te'riti.oﬁ1,i,of the "

learned Counsel for the pe'ti_tia,ners,'v~thatthe order dated 10.10.2010 passed 'S_peal{er..,oAf the Karnataka Legislative Assembly, sl1'oul_d ._

12. '3rVe'feren:ce~i'"is..~ibeing made to the submissions learned Counsel for the petitionersioingthe«sti<engt17_ of Rule 7 of the Defection Rules.

(i) Baseicigoini Rule 7, it was contended , firsgtlgy,' that if. requirements of Rule--6 of the Defection :iRules complied with, copies of a disqualification annexures appended therewith) can be furn'ish'ed"t.o the member(s) concerning whom the said if CC;gdisqualvification petition has been filed. Since in the present icaseiieven the ingredients of Rule 6 had not been complied hiiixiirith, ( for details please refer to the foregoing paragraph), it was not proper for the Speaker of the Karnataka Legislative 20 Assembly, to furnish copies of the disqualification petition to the petitioners and to seek the petitioners response.

(ii) Based on sub--rule (3) of Rule 7' of the Defectiorililﬁgules , it was contended, secondly, that a minimum have been granted to the petitioners to.fil'e"

the show cause notice issued by 't,he;'Sepeal§e_r"~of' the:"Ka1*n:ata1.<'a "

Legislative Assembly , whcrcais, 3 days time was afforded. to enable them to respond to the _ This action of the Speaker of gllslslembly, according to the learned' clearly violates a mandatory..lcC;ndii:Ei;on the Defection Rules. This violation, learned Counsel for the petitioners, has4;deprived"»the'lpetitioners of an effective opportunity to gidefelnd 'lthems.elves.

collective reading of sub--rules (4) and (7) of Rule 7,.,g"of~.it'he Defection Rules, it is the contention of the ]learned'*'(:3ounsel for the petitioners, that the procedure laid down' for determining an issue of breach of privilege of the "House, by a member had to be followed, and since the said WW procedure had not been followed, the entire action stood vitiated.

Based on the aforesaid procedural discrepancie's,'»emerging out of Rule 7 of the Defection Rules, it is of the learned Counsel for the petitioners, that order dated 10.10.2010 passed by the speeikeif' Legislative Assembly, should bf-' seV'i'3slsiid_e. " it

13. So as to substantiatle"'tlhe--eslubrriilssivonsfinoticed in the foregoing two provisions of the Defection Rules', petitioners placed emphatic jiidgiiijcntsilrendered in Shri. Filipe Nery Mhalu Shet and another, by a Division Bench of the Colu'r't----{Goa Bench), and in Sri. Paul Lyngdoh vs. ofilt/.legh'alaya (W.P (C) No.60 (SH)/2009, decided on a Single Judge of the Gauhati High Court is (Shillong Bench).

ii 14. Ordinarily, it would have been imperative for us to with all the submissions advanced on behalf of the it learned Counsel for the petitioners alleging violations of the provisions of the Defection Rules. 1, however, find no l\.) Ix.) necessity for doing so, after having heard the learned Counsel for the respondents, who invited our attention to the declared position of law ( on the subject under reference),..at_lth,e hands of the Apex Court. I am of the view an exercise in futility to deal with the9submissionsadvailced the learned Counsel for the pe:titic{ncei'sl'0.n'~thellihasiisjof "

Defection Rules.

15. Reliance at the Counsel for the respondents, to repudiate lilsuiblrnissions advanced on behalf of the of the Defection Rules), :thlev_Ji'ludgment rendered in Dr. Mahacv}iaI3--i'i#'%l Singhl vs. Chairman, Bihar Legislative sec 747, wherein it was held £2181./11/.1¢1€i1"llIi"'<., * if C 1,6. Sulb+ru«l'e (1) of Rule 6 says that no reference of any question as to whether a member has become _to disqualification under the Tenth Schedule ,___~s'hal~l..__b'e,"'n1ade except by a petition in relation to such mvernbver made in accordance with the provisions of the 4' sa.id'r"ule and sub-rule (6) of the same rule provides that "e.v_e~ry petition shall be singed by the petitioner and verified in the manner laid down in the Code of Civil _ Procedure for the verification of pleadings. The heading of Rule 7 is "Procedure". Sub--rule (1) of this rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said rule and sub--rule (2) says that if the petition complies with the requirement of Rule 6, the Chairman shall dismiss the petition. These Rules have been framed by the Chairman in exercise of power 5 Cl"

in nature, it would not be possible for me, merely on account of the violation of the procedure envisaged under the aforesaid Rules, to set aside the impugned ord4e..1f¥.1i:1nless the violation of the aforesaid procedure is tilted in prejudice to the petitioners.J""

ir1ferences/ conclusions clearly e'me:fge'iifrom"~the 'pl'e.a&i1iings in "

this case :

{i} Firstly, the factual disqualification petition filed on :,iV:n»0_Vt disputed by the petitioners in to the Show cause notice of the Karnataka Legislative E A

(ii) days time was afforded to the petitioners;-«.,to to the show cause notice dated thep-etitioners filed detailed and exhaustive only with the factual aspect of the matter, but_ also nuances of the law involved in the controversy.

"-.(iii) Tliirdly, it is not the case of the petitioners in the i"'xp'lea:id'ings of the writ petitions, that they have been deprived an opportunity to substantiate any of their pleas { which if they could have raised before the Speaker of the Karnataka Legislative Assembly) on account of paucity of time furnished r t 1- [T_Th'e. - .vfo.llowing :5 28 to them. Or that, they would have been able to controvert a factual aspect of the matter relied upon by the Speaker, had further time been afforded to them. 1 1

(iv) Fourthly, the factual position depicted.i§n.i'thle'---iiirn-pugned order dated 10.10.2010, has not petitioners in the pleadings of the in_,'sta,hti'w_rit well, "

even though the impugned_v:"o_rderi'dated isl:i'the precise order which 'has petitioners though the instant if .

Thus, viewed, are :of prejudice whatsoever was caused of any of the aapectsorf rria3tteI'*:i,deValt'Withl by the learned Counsel for the upon the provisions of the DefectionliiR.,u1es,.: on the two judgments rendered by ..,_'thc-'!S'~up,reme Cou1'--t,----«{i.e., in Dr. Mahachandra Prasad Singh's case'(sup1'a}ga11.d also in Ravi S. Naik's case (supra) and the position expressed therein (which has been 1*-.duly highlighted) it is not possible to accept the contentions l.'ili.§3.'cl_va:1ced on behalf of the learned Counsel for the petitioners, the strength of the Defection Rules. 1, therefore, find no merit in the first contention advanced by the learned Counsel for the petitioners .

:rmg(a~;£:_sm?fv 79

16. The second contention advanced by the learned Counsel for the petitioners was based on the plea of violation of the rules of natural justice. In this behalf, ﬁa-,gseries of submissions were advanced at the Counsel for the petitioners.

{i} Firstly, on the plea advanced' the petitioners under the_'r_u1esiiofifnaturalexivusticeiiiiitnvvas submitted, that the entireli'procedureii disdualification adopted against the V out in extreme haste, only requirements of the rules of effectively affording the petitiori1ersi_iai' to defend themselves. It was pointedoutwptiiiatiigaieriiiihthe show cause notices issued by the_;_Spe.aker "of_rtVhe l'Karnataka Legislative Assembly dated not served on the petitioners. The said i'sh"o.v_v« ciatis-e__ no't'ices were merely pasted at their addresses at Kar'natal<.a""iuegislative House, Vidhana Soudha, Bangalore, the petitioners were out of Bangalore. Despite that, the petitioners had responded to the show cause notices on " 10.2010, even without knowing the full particulars/contents of the show cause notices. It was asserted, that the petitioners were given complete copies of Cl' Gum-

the show cause notices ( as also the enclosures), on the morning of the date of hearing fixed by the Speaker, i.e., on 10.10.2010 . it is further submitted, that on,lyc»-three days time was afforded to the petitioners to even though the petitioners had,,Vsought"'fur_ther even though, a minimum of s;even*day's._ time "1€i'a-.d'<1t_o be "

afforded to the petitioners 'o_f~th.e--viDefect'ion Rules, no further time _tl'1em. It was accordingly with which al the formalities were carriieidliioiiit of appropriate time to in the denial of a ito*=~~ti1e petitioners to defend themse'lyesl_. '0 if if if 0

(ii) Secondly, 'on: advanced by the learned Counsel the.__rules'"of-natural justice, it was the contention of gtheg"learned"£:ounsel for the petitioners, that extensive facts reliediipon by the Speaker in the impugned order dated ii'-.,l0.l0';2v0i~l0, even though no reference was made to the same show cause notice dated 7.10.2010. In this behalf it is __sought to be pointed out, that facts were placed before the 0 Speaker, by the State President of the Bharatiya Janata Party, who had no right to do so. It is also submitted, that an Snmmrzf"

3E affidavit filed by the State President of the Bharatiya Janata Party, on the date of hearing itself {ie, on 10.10.2010) was taken into consideration to adjudicate the It was contended that an effective opportunity to_:mthe.'jpetitioners under the rules of natural justicegyvould.ne'cessarily.e11_visage., adequate advance notice of all relev:a1r1t'c'materials; were "

to be taken into consideration.

details, which were relied Speal(ler'pp»'E4\rhile passing the impugned dated incorporated in the show cause notices it was asserted that the hands of the Speaker of the was liable to be set aside.ll'rSo' contention is concerned, pointed reference lihas" bleen'~,rna_de by the learned Counsel for the

-'V,_pet.'i_tion.ers., invited" our attention, to the following g_io'bservét.t:ion's..::V"recorded in the impugned order dated 10 \,pi'o.201 "Personally I have also observed that the Respondents have been issuing such statements. The Respondents fhave not denied arguments of the Applicant that the if Respondents have negotiated with another party of the State JD (S), its members and leader Sri. H.D. Kurnara Swamy regarding formation of another government and that thereafter they have stated that there is no question of withdrawing the letter of withdrawal. lri support of this, the reports of media are also observed. In the affidavit filed by the State President of Bharatiya .,p-.--_..

9.) to Janata Party, it is stated that the Respondents have gone to Chennai, Goa and other places in group, were seen along with Sri. I-I.D. Kumara Swamy, the State President of JD (S), Karnataka and that.~=t_hey have stated that they would vote against the governpment in the Confidence Vote. In the affidavit liislrriade clear that the Respondents have appeared§i__aloiig.. the leader of JD (S) Sri Jameer Ahmed Khan' and that they have moved from place to place. The'Re_spondents"h.ave not denied the same. In the affidavit.'fifed_by"the1Statel".

President of Bharatiya Jar1ata"'Party», "£t"isi'st'ate1:i: that "

the Respondents have lrvpoliintarilylp given "upkpthe membership of the and Vti1at'therevfo.rei they are disqualified under Schedule 10 Of. -Constitution It is sought to be of theiaforesaid facts were incorporated in c:ausie'1v:in~otice issued by the Speaker of Assembly. For this, reference 'theftidisqualification petition filed by B._'S.iivYeddyurapa ( which has also been eittractedi order) to show, that the case set up against thejipvetitioners, also did not refer to any such therefore sought to be asserted that the been severely prejudiced by the procedure adopted: bylthe Speaker, and as such, the entire action taken K"'ﬂ._:b:,x.e.1;heii"'Speal<:er of the Karnataka Legislative Assembly is

-- to be set aside.

Thirdly, the contention advanced by the learned Counsel for the petitioners, on the plea advanced by him under the rules of natural justice was, that being an adjudication of a U' 34 the testimony of Shri. B.N. Bhalla in whose presence that witness had , on a previous occasion, stated that Shariful Hasan was very friendly with the respondent. Accordingly Shri. B.N. Bhalla had hisgtestimony recorded by a Deputy Superintendent of_Po.lice. This was done at two stages, namely once beforefithe. charges were framed and again after the framing of'Vt'h-e_i'oharges. The respondent's grievance is that Sh_ri.f*B.iNi. 'Bihalla, who had thus become a witness in"the[caSe,v"ought" not to have further continued to act a_szthe p_residi'n'g officer and that his continuing to~,dc;"so' vit.i_ated the---.yt'fi.al and "

his order was a nullity. That. Shri. Bg.l'?l.g'Bhal'l'a"h.adhis own testimony recoriidedz in the case =,_i's--nnoit denied. Indeed the appellant°<State, in i"'o-ppoisition to the respondent's writ appli_cat"ivon;.._fi1ed an._affii:lavit affirmed by Shri. B.N. Z3halla__;i par'agraph 8 of which runs as follows : " - K L "8. Tltiat the deponerityggave. his first statement on 13th October, gl:9«;s," whic'h'*--was recorded by Shri. Mohammad. ~ 7:Sad.i_q,_ it Superintendent of Police before,'thejVcharge'~.and""the second statement on 2591 Oot'obe'13 199338, "'whi.cl'1 iwaisﬁrecorded by another Deputy Superintendent>of*Police after the charge. One Head C'onsta't;le;~,Mohammad Khalil, who was prosecution witness in. the _case',i when cross--examined denied to have"*s.ai'd Vth_at~.,the" appellant and Shariful Hasan were _;io11, friendly V terms. He turned hostile and it became ..'_"'~n;e.ces.sary f'or~~the deponent to depose about certain facts which "had happened in his presence and which belied .thea'testin1_ony of Mohammad Khalil". i' Th_eis:alient facts being thus admitted there can be be no escape from the conclusion that Shri. B.N. Bhala should i:.o_t3~ have presided over the trial any longer. The point in V " issue was whether Shariful Hasan was in friendly frelationship with the respondent. Mohammad Khalil had in his evidence at the trial denied having made any statement to this effect. Shri. B.N. Bhalla gave evidence that Mohammad Khalil had in his presence admitted this friendship of Shariful Hasan with the respondent. Which of the two witnesses, Mohammad Khalil and Shri. B.N. Bhalla, was to be believed was the duty of the person presiding over the trial to determine. Shri. B.N. W T 36 defend themselves, learned Counsel for the respondents placed reliance on the judgment rendered in Ravi S. Naik vs. Union of India, AIR 1994 SC 1558, wherein, onrith_e._Vissue of natural justice, the Courts attention was _the observations extracted hereundejrpg

20. Principles of---, justice:7~..h'ave "

important places in modern'..Administtiati've Law. 'They have been defined to'im"e.an "fair play. in_'act.ion". ('See :

Smt. Maneka Gandhi Union 'of l'n«dia,7_(l978) 2 SCR 621 at p 575: (AIR 1973_'s_ca597 a't~p_6_?f5), Bhagwati, J). As laid down by this .,_Court "they constitute the basic elements of "aAfair':heari.ng,i 'having their roots in the innate senseH_o_f'man for -"fairv[p_1_ay and justice which is n.ot the.:prese:-fye of janyp-arti'ci;.1ar race or country but is shared ifn=coni--mon"by"al men-'w'=' (Union of India v. Tulsi Ram; "1'98vS'=.St1pp._r--(2)"~~SGSRA_131 at p 225): (AIR 1985 SC 1416 ..at'1:..p;g.1456)«, "order of an authority exercising judicial";-or cft;1asi*judiciai'-functions passed in violation of the _prin€;ip_lesj "nat1,1ral justice is procedurally ultra vi~res_and_,' therefoire, 1' suffers from a jurisdictional error.

That the reas-,o.n._why in spite of the finality imparted to the ..decis1"on7--of"the Speakers/Chairman by paragraph _;j 6(1) of the_ Tenth Schedule such a decision is subject to ju-diceial reii\I'i'ew«"on the ground of non--compliance with rules "of natural justice. But while applying the "'i.r§ri.nc.i"y;1res of natural iustice, it must be borne in mind " that'-.'.'_they are not immutable but ﬂexible" and they are not cast in a rigid mould and they cannot be put in a " le'gal'strait»iacket. Whether the requirements of natural justice have been complied with or not has to be it considered in the context of the facts and circumstances of a particular case.

26. it is no doubt true that under Rule 7(3)(b) of the Rules, it has been provided that the member concerned can forward his comments in Writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days ""'°rW".i'"ﬁ"' time for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were Quite detailed. Having regard to the fact that there was no denial bv the appellants of the allegation in paragraph*~.li1._ of the petitions about their having met the if-G190-veriior on December 10, 1990 in the company of.i§l)r.l,'._and Dr. Wilfred D'Souza and other Congr'e.ss~j{i) EVILAS and the only dispute was whetherfrorn' bcon.;1u'c:_or, the appellants an inference couldrb-e -d'r'aj»vn"'tha«t the appellants had voluntarily'*:give'n~'up=.the_ir leadership of "

the MGP, it cannot be said. that theﬁinsuffilcient"time given for submitting 'Lh_e'~..replv"-has resul«te'd-.i.n: denial of adequate opportunity tothe appellants: toﬂcontrovert the allegations contained... _'in the "petitions seeking disqualification' oi"'tl,1,,em.'appg;lml.ar.its--.

28. The grievance that"'~the1_"appellants have been denied the oppo'rtun'i,tv,t'o.'--addupei the evidence is also without: s;t}bS__t_ai3.Cé._ The appellants were the best Dersons_wl*io71'_could rebfU'te:'th_e allegations made in the petitiorgi- jlbinl the=.ii_irn'pugri.ed order the Speaker has rrientioned t"nat"the. appellants were present before him but t.heyg did come forward to give evidence. lVloreover_, lthey'i'coiuld_.have sought permission to cross~ examine Dr. Jhalrni in respect of the statement made by him b"efo1"etl1ei*Sp'eaker that the appellants had given up their membership of their political party and had said so 'openly to hirrrvand to others, in order to refute the CQ1TC.(}T1?ICSS of the said statement. They, however, failed "

In the light of the aforesaid facts and giigcumstances we are unable to hold that the impugned order of disqualification was passed by the Speaker in A' violation of the principles of natural iustice. Since we _,--are of the view that the appellants have failed to make out a case for interference with order dated December 13, 1990 passed by the Speaker disqualifying the appellants, we do not consider it necessary to go into the question about the appellants having disentitled themselves from invoking the jurisdiction of the High Court under Article 226 of the Constitution. The judgment of the High Court dismissing the writ petition 38 of the appellants must be upheld and C.A. No.3309 of 1993 filed by the said appellants must be dismissed. On the issue of haste at the hands of the Speaker, it is the contention of the learned Counsel for the respondents. relying on the decision in Ravi S. Naiks' case (supra) time granted to file a reply to theeaggrietfed 'ngelide, be sufficient, because a cletailed 7.re'plyii"wiasi: tiled "

'within the time allowed, ianid..,_also" becatis_e',"..:t'her'e was no denial of the allegations ,.t-leveled'-»__in the.. disqualification petition. And interfere with the impugned villthe--alleged violation of the rules of 'i ' A _ _ .the" learned Counsel for the respondents, a to the assertions made on behalf'' of the Lipietitioners, on the issue of taking into iiconiiideifiationvfacts beyond those depicted in the show cause iinotice bieiiiidrawn from the judgment rendered by the

--V Suprernie.Court in Jagjit Singh vs. State of Haryana and iigotheprsX2006) 11 sec 1 . In the instant case the Speaker of ' Legislative Assembly had extensively relied upon the facts Miiwithin his personal knowledge . The facts relied upon by the Speaker, had not been put to the petitioners in the show cause notice. They were facts which the petitioners were 7 39 confronted with, only at the time when an opportunity of hearing was granted to them by the Speaker. In so far as the factual aspect in Jagjit Singh's case (supra) is4.coin:ce_rned, it emerges that on 31.12.2003 a complaint wa.s{mfiIedV1'----b_efQ_re_the Speaker under the Tenth Schedule ofthei:C,oi1.sti.tution.of India, seeking the disqualification the..peiiiic;iiei§:::_Jagjii S0 Singh, on account of his the Speaker issued anshow...cau_se«._notice--to petitioner. Since the aforesaid was not served upon the petitioner, 03.04.2004 was issued to him, another notice dated i1p'on';to file his reply on or before 04.06.i2004. "notice dated 04.06.2004 was served onthe"".Vstaf17._l'V'oi the petitioner on 31.05.2004. The filed Vi"an"'interirn reply (as in the instant case) on "sought an extension of time by four weeks to fileqhis. reply (as in the instant case 7 days time was file a reply). On 23.06.2004, a request made by the Vllipe-titioner for an adjournment of the proceedings beyond .,._2S.6.2004 (as in the instant case beyond 10.10.2010) was . The Speaker after hearing the rejected by the Speaker arguments on 23.06.2004 listed the matter for further

-um-.,..,,,, 40 consideration on 24.6.2004. Along with an application dated 23.06.2004, an affidavit of one Ashwani Kumar was filed before the Speaker asserting, that he (Ashwani Kumar) had seen certain news television channels affirrningi'-tl1v.at the petitioner had joined the Indian Natioiiai hon 14.06.2004. The original compact"di'sc_of the{te.l¢¢a.st .%i:1die.n'i English transcript thereof, _ was1__als_o app_en'der:li The petitioner's Counsel alleged, that._the.'.=reciording iniithe compact disc Was not 'Vi"l'hei,liC~ounseii"(representing the petitioners} also J agjit Singhs', thegvpiroiceedings register of the /;'§~«;'*1~'§Ppect of proceedings held on 16.6.2ljAQ41..: V H the Counsel representing the petitioner 4'-.Jagjit]_ was asked to watch the interviews by the'*""n'ews television channels , which were compact disk, as part of additional evidence with dated 23.6.2004 . The said proposal was not Wacceptedt; in the background of the aforesaid factual position, itlie. ll.'p,;X Court in Jagjit Singhs' case (supra) held as under :

" 38. It has to be remembered that the specific averrnent in respect of materials filed had already been made in the complaint dated 15.6.2004. The material filed on 23.6.2004 was supplementarv to further support the allegations in the complaint dated 15.6.2004. The petitioners, despite the grant of ¢m._..........__ 4?.

in addition to the aforesaid, in paragraph 41, the Speaker took into consideration the additional facts personally known to him. Paragraph~4l is being extracted hereundei'»._ii'e._V_ " 41. In the impugned 2 has further noted that while examining __ar;di,considering the aforenoted electronic evidence,'.was=.forti£ied.by the fact that being the Speaker' ofthe Ha:"y'ana Vidhan Sabha, on many occasions well as iidiuri'n;{ the "

sessions of the House, he has. seen wfgnd "heard 'these Members. He found'it_h'at these Mern_ber's--v-as--*seeniand heard in the electronic 'evidence iareigenuinely identified as also their Voices _.which.._ are "earsilyi and clearly i_d_e_r1_tiﬁ'£L The '__Speak.er,_ th-usfheld that in View of the irrefutable and ' ioverwhvelrnringi _ documentary and electronic vevidence; inovi__o?§Vher~, co'jncl--usion was possible other than, that on _l4;;6_.2OQ4V'V these independent Members 'the Haryan.a"7Vi--dhan Sabha joined the '~l_"ias; also referred to the document-ziry levi«denc.e'"regarding CLP meeting held on l,i6;'6i.2_O'04 "th'e_forIni"oft-original sheet of proceedings' 1*iegist_e1'~>C_--'of,_ "CL'Pyt'c__ontaining the signatures of the p"e_titioners.~,"=..Irrreggeect of the signatures also, the Speaker has "noted--. that the signatures of the petitioners on the original, sheet of the CLP proceedings are the tygjisame as their signatures on the vakaltnama filed by 'their ivicounsel'~'as is clear after comparison". (emphasis is mine) il'iw1aying"taizerfinto consideration the totality of the facts and circumstances of the case, the Apex Court held as under:

" 42. It was strenuously contended by learned counsel for the petitioners that the Speaker while passing the impugned orders has relied upon his personal knowledge which is wholly impermissible for a tribunal and contrary to the principles of fair play and violative of principles of natural justice. In support, reliance is placed on Dewan Singh v. Champat Singh (1969) 3 SCC 44'? wherein this Court considered misconduct of the arbitrators who decided the disputes Era?"

referred to them on the basis of their personal knowledge. On consideration of the arbitration agreement, it was held by this Court that it does not empower the arbitrators either specifically or by necessary implication to decide the disputesreferred to them on the basis of their personal knowle'd§{e--..:"»..

43. The principles laid down in.__the*i.abovei,iciase, have no application to the facts of ti'ie"pr_eSei1.t 'case. " 'The. two situations have no similarity; ._ "i'he:'Sp'e'ai<er'haS only noticed that he has had var-ious copportunities"to'see the "

petitioners in the Ass.ernb1y..ar1d those:'shown'»in--..pthe recording are the saIrie_'p.ersons.a We .are._'unable tofind fault with this course adopted by the Speaker. There is also nothing wrong ory...i.llegal--._,in comparing signatures and coming to t.he~..coriclusion.that the same are that of the petitioners. 'These,prroceeidingis before the Speaker are not cornparable._wi_th; t.':'1*eV'aVrbitration proceedings before ar1:.it1*ators. ' ' 'V ' 54-L.'ltﬁndoub-ted_ly;'i 'the_' proceedings before the Speaker'i..w'hich 'i«s"'a_lso"a tribunal albeit of a different nature :'have"f:.;to "b.e"--.conductied in a fair manner and by complying "the. _'-principles of natural justice. H'owe_ver,_ the. principms of naturai justice cannot be placedin a straitjacket. There are flexible rules. Their _applicabilityj_is~-idetermined on the facts of each case. _{ Here, we.__aVare concerned with a case where the ._i':*pg.riiti»oners 'h'ad'idec1ined to avail of the opportunity to , waitchithe recording on the compact disc. They had ".tal:en"'vague pleas in their replies. Even in respect of S" -_.'sign'_atur,es on CLP register their reply was utterly vague. It Vwai's'--_.11iot their case that the said proceedings had been forged. The Speaker, in law, was the only authority to d.e_c'ide whether the petitioners incurred or not , if disqualification under the Tenth Schedule to the _fConstitution in his capacity as Speaker. He had obviously opportunity to see the petitioners and hear them and that is what has been stated by the Speaker in his order. We are of the view that the Speaker has not committed any illegality by stating that he had on various occasions seen and heard these MLAS. it is not a case where the Speaker could transfer the case to some other tribunal. The doctrine of necessity under 45 an effective result, only when facts taken into consideration, to pass the offending order are disputed. In the aforesaid situation, the aggrieved person would beg, in contending , that he had been prevented facts taken into consideration.

19. I have given my thoi'J_gh*;;fu.l:' -:

second contention advanceidby the. learned fgolilnsiel the petitioners, based on the v_iolation_v of .t'ne__rul5es of natural justice.

(1) 011 the under the second contention in reasonable opportunity to the there is no denial that a show cause notice was issued to the petitioners by Speak"er,_l_oflthle': Karnataka Legislative Assembly. The petitioners.élsubmitted identical and detailed written replies took all the legal objections available to them, on There is also no denial of the fact, that even anonpportunity of hearing was afforded to the petitioners at on 10.10.2010. From the submissions made to us, the learned Counsel who represented the rival parties before the Speaker, it emerges that hearing had continued before the Speaker of the Karnataka Legislative Assembly, for 46 several hours. Since the procedure required to be followed under the rules of natural justice was admittedly followed, should the proceedings conducted by the~-.:'S,_peaker, culminating in the passing of the irnpugﬁeldl"i0rd_er'...._Clated 10.10.2010 be set aside '2 1 am ofthe vie_w,"'that,t'l'ie'answer_ltop the aforesaid question has to begin negatiye,ll"be--::a'LI_Se the "

procedure adopted has nobresulted tolthe petitioners. At the cost of it .rr1'ay.._be,.lilstated, that it is not the case of false / wrong fact has been Speaker, without affording to repudiate the that the petitioners did not dispute which they were confronted during the courselof 'l'1ea;_"ing. "~~--'llhat apart, it is not even the case of fl'v.,thei,_:pet_i-tioners even""before us, that the facts relied upon by __the_ in"_the impugned order are false or incorrect. As such, the view, that the petitioners have not been ll"-'««.__c-adversegly affected by the procedure adopted by the Speaker . no prejudice has been caused to the petitioners, I, find if difficult to accept the contention advanced on behalf of the petitioners that the entire proceedings held by the Speaker of the Karnataka Legislative Assembly, deserved to be set aside 47 on account of an alleged hurried determination of the disqualification proceedings The instant conclusion is completely in consonance with the decisions by the Apex Court in Ravi S. Naik's case Mahachazidra Prasad Singh's_cgase extracts from the aforesaid judgmerits,SS'{re'pr'odu:c-edijabove} "

have been duly highlighted'todgepiict relevant to the present controversy. S V

(ii) On the second of" if advanced under the second contention,_ facts in addition to the facts ciauseiinotices, were taken into considve'rati.cu)f.::i:;fgi.'b:3;? pass the impugned order dated three submissions advanced on the plea of Vvi'vo1atior."iifof the rules of natural justice, the "V"a_inst_5cir1t.j-S,co«ntentiorr**'" seems to be the most serious . The the State President of the Bharatiya Janata Party, first cause for agitation. The fact that the V'-».afores"aid affidavit was produced during the course of hearing the Speaker, is the second cause of agitation. The .,v_Consideration of facts recorded in the said affidavit by the Speaker while passing the final order, is the third cause for agitation. It was, therefore, important to peruse the said r ff"%r""

Cl"

affidavit. It was produced for our consideration during the course of hearing. The affidavit of the State President of the Bharatiya Janata Party, along with its annexuresllslitaken on record and marked as Anr1exure--J. In fact its§l_:plerLi$-a_l -rei/.-7-t_:a1s, that the same was only comprisedof "_cL1_ttingl,ls-.Vp The facts narrated in the impugnejdcoirderi lrleyéal, that "

during the course of heai;1;_r'v:1*z.;:;....'_0nlli'1(ll):'.l.Ol2.:Jl"Q;*v-no-heVoflthe petitioners disputed the 'p.osition--:expi3essed in the newspaper reports, Speaker. Even in the present not disputed the facts articles. It is not even the lthatlif they had been afforded more r:inf1é,.\_thei}l shown that the facts recorded in the newspaper artic'ies'~~were not correct. The position in the ~._pre:s'en;..r;;aVse islakir1"to Jagjit Singh's case (supra), wherein application along with an affidavit of one was filed, while the ﬁnal hearing was ﬁxed on The petitioner --Jagjit Singh's , Counsel was u"li.Aconfr'onted with the contents of the application, the compact and other material appended thereto. Similar pleas as have now been raised before us, were also raised before the Supreme Court in Jagjit Singh's case, were not accepted. In Zl'2x%alA$X'm 8 49 the present case also, Chief Minister Mr. 38. Yeddyurappa, in paragraph 5 of the disqualification petition dated 06.10.2010, made a reference to the statements. by the petitioners to the press and the electronic j'i'he.___ac_tual press reports produced by the_Stat.e'"'Prevsident Bharatiya Janata Party, were therefore, rrrereljf ii"th.é?natureL "

of additional facts to supplerjvenpt the depicted ir1._.the disqualification__petition.:utheireasopnss as have been recorded by the Apexiiiiciohurt case , I am of the view, additional facts, to supplement" depicted in the disqua,li'fi'catic-in of the Chief Minister Mr. B.S. accepted as a Valid plea for setting asii'de"the._ irnip*ui'gned order dated 10.10.2010. The wo'i1id***'haVe been acceptable, if the petitioners the veracity of the facts taken into consideratioiifi But that is not so in the present case. We, i'~».therefo,r__e3, find no merit even in the second contention of the u"x.1eVarn--ed Counsel for the petitioners based on the rules of ii .,_n%atural justice.

(iii) On the last, i.e., (third) of the three pleas advanced under the second contention, I am satisfied that the plea raised by 3""2°"'9?"__L"""'ﬁ("

50

the petitioner on the strength of the judgment in Mohammad Nooh's case (supra), is clearly inappiicable to proceedings initiated under the Tenth Sche4dulei"._V_ of the Constitution of India, because as it has Singl1's case (supra), the Speaker is _.'the'~I"Only"v"authority.L competent to decide Whether a le.gisl'ator the "

disqualification envisaged the Constitution of India. The held by the Speaker alone and due.procedure has been followed, basedl'o_n of facts, the order passed by assailed. As such, the only p'eltit:ioneI'-to"lsucceed is, to establish that the factual consideration by the Speaker was incorr"e.ct; Sin_ce~.vthe're is no denial of the correctness of intollcon-siideration by the Speaker ( while passing it is not possible for me, to accept the instarit c_ontlention of the petitioners. " The third contention advanced by the learned

-- C~;fgunsel for the petitioners, was based on paragraph 2(l)(a) of "the Tenth Schedule of the Constitution of India. Paragraph 2(l){a) is being extracted hereunder :

:7"'d"'"'5'Q"f_"""%ﬂ"

"2. Disqualiﬁcation on ground of defection : (1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House »~»

(a) if he has voluntarily gives up iirnieinibership of such Political party; .1 I' -1' "

Since learned Counsel for the,,,,ppetitione'r"s::fdid. n0tx.vi reliance on paragraphs 4 and Siof :Ten_th~ :Sche:d~ul*e.f_of "

Constitution of India, I fiiid:"-no jiustificati.oin.:,_toeiitractiithe same herein. The ;__asserti_0nl'"at'the the learned Counsel for the petitiioriiersi'--rgelyflngisiparagraph 2(1) (a) of the Tenth Schedulel'o.f the India was that the petitioners; up their membership of iPa'rt'- and as such, cannot be deenieidrpto disqualification on account of defection iiicontemplateid~.-'tin paragraph 2(1)(a) in the Tenth of theIC0-nstitution of India. In this behalf, learned Coufiselv._;for'the petitioners, in the first instance, placed relianceV_oni--__t'he letter dated 06.10.2010 addressed by the "-.petitio"neirs to the Governor of the State of Karnataka . it is iiehement contention of the learned Counsel for the petitioners on the basis of the aforesaid letters, that the I petitioners emphasized therein, that they were genuine Well wishers of the Bharatiya Janata Party. Yet having been :r»aei.,;,a. WV ....._-u * _Assei*nb3.y to conclude, reply dated 09.10.2010 filed by the petitioners . 52 elected to the Karnataka Legislative Assembly on tickets of the Bharatiya Janata Party, they were disillusioned with the functioning of the Government headed by the Mr. B.S. Yeddyurappa. According to ,the manner of functioning of theyﬁovernineritjfihad widespread corruption, nepotisrri, favourtisrri; .abus'e..yo'lfvi_power "

and misuse of Government'iniachinie'ry:._ Itv§ias§._;the.refore,'that the petitioners opposed by Chief Minister Mr. B.S. Submitted, that the petitioners iiidiissatisfaction with the functioning"of'>_thiei~ nor expressed any "'as--s'ociation with the Bharatiya was submitted, that it was unjustified"for*th:e'v._ of the Karnataka State Legislative on the basis of the letter dated g_i0t3iT_1'0,20:_l0.4"t'{addressed by the petitioners to the Governor of the,__iState.--of:_ féarnataka), that the petitioners had defected iiwfrom th,e_iBharatiya Janata Party, or had voluntarily given up pi"itihveiriinembership of the said party. Learned Counsel for the petitioners also invited this Court's attention to the detailed Reading extensively therefrom, it was pointed out , that the petitioners <5" ' pwﬁliu 53 repeatedly asserted therein, that they had neither voluntarily given up their membership of the Bharatiya Janata Party, nor had joined hands with any othe:*..po1iticai party, so as to attract their disqualification"«'un'deJ.:.V:Tenth Schedule of the Constitution of India.

that the petitioners had not supporteidiv or,'stakediitheirgeciaiin J to form Government, other .:iThe petitioners also asserted in their withdrawal of support from the B.S. Yeddyurappa, should be construed' act of a true supporter/:_xt?o.r}f:<iri;:pf Party. Through their ilearned Counsel, the petitioners wantedﬁtoi' reputation of the Bharatiya Janata which'h'ad7put up the petitioners as candidates ..,_for..':geie<§tion to 'tithe--««Karnataka Legislative Assembly. It was .t:o"--be asserted, that the petitioners had nowhere ta ,pttieit_i,1iettei¥ dated 06.10.2010) stated, that they were not '<._intereste&:1 to continue as members of the Karnataka 'i"_Legi's'}ative Assembly as members of the Bharatiya Janata it was siibrnitted, that the image of the Bharatiya Janata Party, could be salvaged only by getting rid of the Chief Minister Mr. BS. Yeddyurappa. The petitioners

-ma-a-u...

_i 'b_e"carried on in accordance Constitution 54 asserted that they would continue to support the Bharatiya Janata Party and would continue to be a part of the Bharatiya Janata Party, or any other G0vernrn4e,niti:4:if'0rmed by the BJP , headed by any other leader Minister Mr. BS. Yeddyurappa). V ﬁts such,"'itii'_s,asserte:d,"t.hat the insinuation leveled against the have "

defected from the Bharatiya_'"tlanata truthful, and was a mere device to disqualify_, the ipetitpioniers from their membership of the Kariiatalia Assembly.

21. Whi]e--ire_futing thiiridjvcgontention advanced by the learned Co11,.n:1?%..Cii1;\'_f0rd"ti1.e"p,etit'i'o'neirsf, the first and the foremost subrniissioniiiiatvgthehands _ of the learned Counsel for the respondents iwa,s,'ffhat*~ letter dated 06.10.2010 addressed by petitio.ne'rsi' itself" clearly demonstrates the intention of iii"thg»-, :b.gf'i'tioi11ers. this behalf, learned Counsel for the iiriespoindentsfinvited our attention to the following expressed inte«ntio__n' eerttained in the letter dated 06.10.2010 ; " . . . a J'sit,u'atio»n has arisen that the governance of the State cannot " Yet, again, our "attention was invited to the last sentence recorded in the aforesaid letter dated 06.10.2010 : " I request you to intervene and institute the constitutional process as constitutional ""'a"'*'""_7'.""'a""

55

head of the State". it is the submission of the learned Counsel for the respondents, that what was sought to be suggested Was, the adherence to the procedure-klenvisaged under Article 356 of the Constitution of India§:_:yVher*einaeiiactly the same language (which has been used'by::the'=petitioners)-.,L has been used. Article 356 (1)l"~_of "

extracted hereunder :

" 356. Provisio_r{s.__ 'in case._ of failure of constitutional ' ma_chine_ry" 5.31. States :

(1) If the President, :on"~-re'ceip-t of report from the Governor_:of._ a §State~lorl'otherwise, is satisfied that a situation has a:-ism" in"which----~the government of the State "'c'annotlr be: -..car_rie'd*g_on ' in accordance with the Drovis.,ions--* of l1'hi_s'i'~CQ.nstitu_,tion, the President may by C' (a) assfu.me_to.. himself all or any of the functions of C the 'Gove'1=nrnent of the State and al or any of 'they piowe.-rs Vested in or exercisable by the "'G_oyern'e3r or any body or authority in the State other----than the Legislature of the State;

S. :.4('bl}_'(leclare that the powers of the Legislature of the =;"State shall be exercisable by or under the ' authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:

Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any prov_is-ion" of this Constitution relating to High ~ It was the contention of the learned iiilfle respondents, that the provisi:onisi"'of of Constitution of India, are only inaroikeid, of failure of the constitutionialﬁ."machinﬁy .iSl;tate,ll the proclamation of Preside'nt's_"ruile declared. This is a situation when the brought down, to install the contention of the learned that the tenor of the letter by the petitioners, was to bring the of Bharatiya Janata Party, in the State=--of Kiarna'tai<a,l* It was also contended, that the theilmletter dated 6.10.2010 was merely a "oarno,uﬂa'ge. .il.i'~"£'--he factual intent thereof was clear, and was rightly ass-e<ssed by the Governor, when on receipt of the letter ._i:da,t.ed 10.2010 (from the petitioners), he addressed a letter- id.iat'e'd 06.10.2010 to the Chief Minister Mr. B.S. Yeddyurappa "requiring him to prove his majority on the floor of the Legislative Assembly on or before 12.10.2010 (by 5.00 p.:m.). By withdrawing support, according to learned Counsel, the 57 petitioners in conjunction with other independent members of the Karnataka State Legislative Assembly, had ventured to bring down the Bharatiya Janata Party led (}.ovverin.rnent in Karnataka and not only the Chief State of Karnataka. It is, therefore, submitted, t_-hat"*:tl'iel"Sp'eaker"h'adp correctly arrived at the conclusion;ithatythel petitioners "

their acts of omission and __c'o1fr1mis'sion _mus't__"b=e.. deemed to have voluntarily given upl;"the'i.rA mle'rnb_ersil'1ip with the Bharatiya Janata Partyw * ll

22. In ord.er the action of the petitioners' 'to "e_stabli'sh the plea of defection, under.» iiii 2«{'l').(a)l io'f~~--tVhe Tenth Schedule of the Constitution'o:f Counsei for the respondents placed reliance judgment rendered in Rajendra Singh Svsrarni"}"rasad Maura, [2007] 4 SCC 270. In the "the factual matrix which resulted in the of the petitioners, was that 8 MLAs of the BSP V'-».legislatu_re party followed by another 5 members of the BSP addressed identical letters dated 27.8.2003 to the i ..V_Glovernor. The aforesaid letters reads as under:

" We under mentioned MLAS whose signatures are marked below humbly request you that Shri. Mulyam Singh Yadav Ji be invited to form the Government 58 because the public of Uttar Pradesh neither wants election nor wants President Rule.

The plea raised in their defence, by the petitioners in Rajendra Singh Ranas' case (supra) was, that split in the original political party, and as "theﬂsletter addressed by the petitioners, whoiiiivereg of to the Governor on 27.08.2003 idi_d7not constitutezigiidefectionA contemplated in the Tenth Cioinﬁstitutioin of India. The question tliatcarriei toijbe"0'a,djudicateid by the Apex Court was, 13 MLAs in giving letters to »(.egf1_-g:iic'tieydimabove), requesting the ilcaderiof the other side to form the Governineinit, to Voluntarily giving up of the membe'r.ship:o_f Athie'~.-party on whose ticket they had got ..v_eleté:ted he Ape'x=-Court answered the aforesaid question as under, it . V __ . ''':-__48. The act of giving a letter requesting the Governor to call upon the leader of the other side to . f'o.r_m a Government , itself would amount to an act of " voluntarily giving up the membership of the party on ﬂvvhose 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 Samjwadi Party. In Ravi Naik , 1994 (2) SCC 641 this Court observed: (SCC p.649, para 11) Cl"o\ea»1A/it~£:5/V\'~'3/?"

" 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 gives up his membership of the political party toy-"which he belongs".

49. Clearly, from the conductfolf Governor accompanied by the General'-.Sevcg1*eta2*37_--r)f the Samaiwadi Party, the party _ in _--o";:5positionv" and 2' submission letters requesting the Governor to "invite th___§ leader of that opposition partLfto~i'orin a _Q§'_'gEi"--n.nient as "

against the advise of_.t_he Chief Minister' belonging to their original party ' t.o'...dissolve . the '=a'sse.rr1blv an irresistible inference arises' that the"-1'3 members have clearly given up their..---mevmlbership'of the BSP. No further evidenceor. _e_r_1fc;ujIy_ui_s,rieeded to find that their action comes within'para:'» f:(1l'ia}A.of the Tenth Schedule. Then the only quye_s'tiong_is; w'heth.er.--'they had shown 'at least prir1:.a'fa_cie;_'that"a sapljfhad "occurred in the original political; parity on "arid they had separated from ;it alorig'l1withgat"~~least",_24}_ others, so as to make up one--tl1i.rd._o'§ the 'le.gi:é.ia.ture party . _ 52'.'-"A.s_ "vJe"have indicated, nothing is produced to shovvthat th'e«rei'vvasga_.split in the original political party on 2.6.8.20'O3""a's_b'el.atedly put forward or put forward at _a later-.point'gofit_im~e'. But, still, the plea was of a split on g,._§g26.8.200'3.y On the materials, the only possible the circumstances of the case, is that it has not.be--en proved, even prima facie, by the MLAS sought to"----be"disqualified that there was any split in the original pQli~tical party on 26.8. 2003 as claimed by them. The T " necessary consequence would be that the 24 members, _ fwho later joined the 13, could not also establish a split in the original political party as having taken place on 26.8.2003. in fact even a split involving 37 MLAS on 26.8.2003 is not established. That was also the inference rightly drawn by the learned Chief Justice in the judgment appealed against.

61 Congress in 1998. The petitioner, despite being a member of the Bihar Legislative Council, also contested the fourteenth Lok Sabha election in 2004, as an independent. member of the Bihar Legislative Council filed a petition"

before the Chairman of the Legislative that the petitioner who was a menfi'ber"«of 'the. Congressi.'l~?arty,ii'v<, having contested the Lok Sabhahe__le'ction as an rindiependeriti candidate had become disqua.l.iified for'-~beir1g_= of' the Legislative Council. The petiitiionergvv-as issuediia show cause notice dated 4 i he submitted his explanatior1"'oif,i«... order dated 26.6.2004, the ChairmanVgfpirhieliiiﬂegislativeit C'o"L1n;cil arrived at the conclusion, that the election to the Bihar LegislativeC.ounci'l_ as-_iia'~.--ciandidate of the Congress Party, and "i"«--._the-r_eafte.i", his x"a'ct~i--o'n in contesting the election to the L013: Sabha as an independent candidate, arnoiuntedi his having voluntarily given up his membership the lrielian National Congress Party, and therefore, he was giilddisqiualified from being a member of the Bihar Legislative __Council under paragraph 2(l)(a) of the Tenth Schedule of the it Constitution of India. The Supreme Court while examining 62 the controversy in Dr. Mahachandra. Prasad Singhs' case (supra) ruled as under :

" No new point has been urged by-._S«hi*"i_. P.S. Mishra in the present case. It is adxni;ttedv'.i1j§i)_.ai=aS 4 and 6 of the writ petition that the petitioner=.had"' been elected as member of the Le,qislative..C,oi1ncil:"in the vea:

1998 as a candidate of Indian..National'Cg_n;Qress"i'.Perty' and that he ﬁled his nominationj'.papers-_fo~r'-contestingart j the parliamentanr election; held in" May' .2004 a A candidate of Sarnaiwadi. _PartV'.._ This factu.aI position was not disputed by the petitioner in 'the.:re.piie's"given' by him to the ChairInari»._lof_ the-- House. In such circumstances, there cannot evenlthe siightest doubt that the petitioner has " '«vo..luntarilV given LID his membership of Indian.. Natioriai». Congress Partv. No exception can, therefore, be *i:akeni_to' the decision taken by the of the House ".~2:.hat the petitioner has incurred dislqualification fonbeing a member of the House' iinder[_Para.graph_ 2.f1}(a) of the Tenth Schedule and Article 193(2) the Cojnstitution and the seat held b "had *fa}.le'n Vacant' "H ; " a lE._hav.el the rival submissions, on the third conte_ntion"aadvancedi behalf of the petitioners. In my consirdvered llxrielw, a debate on the ﬂoor of the house is for enacting legislation. And in a debate on the floor of the house,v._al1 elected members will have a right to express their t' Views, as also to cast their vote, as per their individual ﬁhought and wisdom, as long as a party whip has not been issued. If a party whip has been issued, all the members of the legislature in question, elected on the ticket of such party, (which has issued the whip) , will have to vote as per """a°'~4*fWé""

the mandate of the party . Any breach of a party whip will result in earning a disqualiﬁcation under paragra_p_lQ(l)(b) of the Tenth Schedule of the Constitution of Indiaj."'--iiParagraph 2((l)b) aforesaid is being extracted hereunderii " 2(l)(b) if he votes or abstains House contrary to any direction ijssuecl.'by*tii.e politicaiyp ] party to which he belongs oirpbiy. any person .of.jauthority authorized by it in this behalf,' without,vobta;ining,"in either case, the prior pe_rmission.__of --s_u"ch"~political party, person or authority andiisuch Votingor abstention has not been condoned by""suc"h "political"pa1'ty, person or authority Within "iifte--en,-days»,,,from the date of such voting or abstention; ' V , " -.

Explanation : Fo,1f..the--.pu.rpiose"ofthis" sub-paragraph:

(a) an elected meiriber oi"~a_--.._l~--lou:se shall be deemed to belong to _the' political pai'ty','"il" any, by which he was set as"a__ canjpdidatefovr election as such member;

(b) a noininaterl iériembeiidof a House shall, """ --.(i)7;, \i9f¢:l*1ei*e.,he is 'a"'member of any political party ' ...oi1, the-.,.date of his nomination as such . V ~:iiem1;ei+,f be deemed to belong to such ._ . "i.pcLlitical,,Vparty;

i"'«§.ii)" , in any~~--'other case, be deemed to belong to ._ the political party of which he becomes, or, H asthe case may be, first becomes, a member ._ before the expiry of six months from the date on Which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188 .

i' --_'i"h_e_,iissue in the present case, is not in respect of the manner it which the petitioners voted during the course of a debate. The issue is also not, that of violating the partys direction to vote in a particular fashion. The issue here is, whether the petitioners, can be stated to have broken from the party, on <'~ae?~€»_,W 64 whose ticket they were elected, and as such, can be deemed to have given up their allegiance to the said partyitilri other words, whether their actions can lead to 'that they have voluntarily given upm their_'tneriibelr'sh'ip "

political party to which they are afﬁliated l

24. When a voter votes_,_&ii,tring.'the cou-rsei..:of'a11° election, he does not cast his vote:,.for""vthe.._Gove1erz.ir1e:'it which will eventually be formed?" " ﬁe'. of the candidates contesting candidate belonging to a 'cast keeping in mind the candidate, as also, the ideologz of the pvoiiticall «has sponsored him. It is the collective iu"I1f_1Ta11Ciate". of'. all the constituencies, which will de'tei*rriisne"l~.,the constitution of the Government in the c-o.nlcerned"legislative body. It would therefore, not be correct to »..gssuine',,j'..--that there can be a duality in the obligations of the elected member, wherein, one of his obligations require iW,him,5 to act in one manner, and the other, to act in a M V. diagonally opposite fashion.

25. After the addition of the Tenth Schedule to the Constitution of India, the sincerity of a member who is W"

lithe contrary, would expose him to the 65 elected on a party ticket has to be such, that his actions can never be construed as leading to the conclusion,,tha't._Vhe has voluntarily given up the membership of the on whose ticket he was elected. If a candida'te' to "free, from any such obligations, the any --

independent. After the the the Constitution of India, Vathiie voting for a candidate sponsored-....35y_ is conscious of the obligations and candidate, to the political th.__usf; duaiity, whether it is the mind, the mind of the candidate elected (on ' political sponsorship) . If this is not so, 'there linolldlifference between, being elected as an.«ii1dependent.,l:vlVand being elected on a party ticket. If the » strength.pof:i'th_e conscience of a candidate is such, that he H to support the political party on whose ticket he 4lwasv.elected. He must resign, and forego the membership ofthe legislature, which he had procured on the basis of his 'sponsorship by the political party in question. Any action to disqualiﬁcation contemplated under the Tenth Schedule of the Constitution of India.

26. Likewise the leader of the party which forms the Government , is elected on the basis of the collective wisdom of the political party in question. For a such leadership, the rightful forum can only be party. It is not open to a candidateilelected ticket, to seek a change in the leadership Sefo_vernrnerit~,Viieither from the electorate or from toithe collective wisdom of. 'the pp vvhi"Q'h.5h9d required him (the leader) to Such an act, in a given situatiori,'«el.ycould_ the concerned individual, voljuntarily":.abandoned his membership, of present controversy, this is the precise for consideration.

haveinoidoubt whatsoever in my mind, that the letter ff:)§..10.201O addressed by the petitioners to the Governor the State of Karnataka, was by itself sufficient to conclude, that the petitioners had suffered the disdiiaiiﬁcation envisaged under paragraph 2(1)(a) of the id .,_..'i'enth Schedule of the Constitution of India. It is surprising, that out of the letters addressed by 19 legislators (including the 11 petitioners) there were no less than 7 Ministers in the cabinet of Chief Minister Mr. BS. Yeddyurappa . If the WWW 67 petitioners were dissatisﬁed with the m.anner of functioning of the Government headed by Mr. B.S. Yeddyurappa, which according to them, had led to widespread"ecoirriipgtion, nepotism, favoritism, abuse of power, °a.nd:jfmisus.e_ of Government machinery, they otthghtito. have ._1_"ieSig,Ii'ed iifrorn their Ministerial berths, before reco,u".;'spe' to action. it was their Ministierial pohsition',fwhiehiiiassociaited them with the Chiefi:lVlinis:tier,iVi 'of the aliegations leveled by them. not done by the petitioners, of continued to be Ministers Governor, and submitted the ieitteite' him . The 11 petitioners hereinibelong 'the-..:i.B«haratiya Janata Party. All the peti:tion'ers, alo"n.gwit&h some other legislators belonging to the » i';31iaratiyaJ:a1n.ata Party, besides 5 independent members of H Legislative Assembly, had coliectiveiy infoi1*rn.ied ii tithe Governor of the State of Karnataka through it individnal written communications dated 06.10.2010, that they were withdrawing their support to the Government, "headed by Chief Minister Mr. 13.3. Yeddyurappa Interestingly, in their letters the petitioners informed the Governor, that a situation had arisen that the governance of °*r""'4""5'n' I7 68 the State could not be carried out in accordance with the Constitution of India. Both the aforesaid factua1,.pas;pects are of signiﬁcance. Legislators elected on those elected as independent candidates," areftreated as "two; separate entities under paragraph 2:1'o£ :thie,'_Ii'enthhScshettiyule of. ~ the Constitution of India.V':gTh.e objelct of meeting the Governor not belong to the Bharatiya Janvataii i.e., they collectively desired to bring Janata Party led Government ilegﬂilslative Assembly. By assertving, the State cannot be carried out provisions of the Constitution of India, thec1lgetivtio'ners_ "ha.dlexpressly conveyed to the Governor of .t«l:i:el State 'iiarnatoaka, that the Bharatiya Janata Party led ~ Governnieﬂfin the Karnataka Legislative Assembly was not to the manner contemplated under the Constitution of lndia, and as such, deserved to be changed. it 'l'he_ clear objective in the instant assertion again Was, that theﬂpetitioners did not desire the Bharatiya Janata Party led it Government to continue in the Karnataka Legislative Assembly. The manner in which the Governor of the State of Karnataka reacted to the petitioners letters, demonstrates 6') that the Governor also understood the said letters as per the conclusions recorded hereinabove, by requiring the Chief Minister to prove his strength on the floor of the house. The non--denial of the factual assertions recordedglgglt.__in the impugned order, through the pleadings in psitition, also discloses the hollowness of "the pe'titioriers"'-cor1te_ntion':_g The decision of the petitioners not to..suppiortifhe:"B'hai'aitya~. * Janata Party led Governrr.-'ent_V in the Kaiédatakaml.egisla.ti've Assembly, as long as it was (.3.hiel_fll\/linister Mr. B.S. Yeddyurappa was une.o,uiVo_ca.l' ivandvvivoluntary. The written assertions made by ,the'~--petitior_iers; leave no room for any doubt, t1_"1é3..tVr'll}71E':~. _, lpet'iti:o'ne1's~l would oppose the Bharatiya Janata l3arty led as long as it was led by Chief Minister Mr.l"Bl.:S.Yeddyurapa, even on the floor of the .A Karnatalca.ill;-.e_gis1ative Assembly. In order words, the H petitiolrielrjs-__ were determined to remove the leader of the Government who had been elected on the collective wisdom of the-ogparty which had sponsored them. Thus viewed, the uwisdom of the petitioners was sought to be asserted, over and it wabove the collective wisdom of the political party, which had brought them into the legislature itself. And as such, were even willing to bring down the Government led by their own WW W 70 political party itself, even though all the petitioners had been elected to the Karnataka Legislative Assembly on its tickets. This anti--party action of the petitioners, in my fully demonstrates that the petitioners had up their membership to Bharatiya Janata Party,:~._pg V '

28. Reference also dsserveisili to the observations of the Apex Court! Ki}-mfoVﬁolloliianivs. Zachillhu (1992) Supp (2) : M " But a political-'p'arty fuI1C,tioris., on the strength of the shared,~vbel.iefs. Its own "political stability and social utility» dep5en:;ls~ on suclfi shared beliefs and concerted action ofits Memblfers'in,--fu'rtherance of those commonly held p'rinc'i1ples. 'freedom of its Members to vote as they "'plevase7f, 'independently of the political party's declared" 'p:o.liCiesi'.,_will' not only embarrass its public image ._ijp_opul'ari'I:y but also undermine public coniidencel' inKit"wZ_;iich, in the ultimate analysis, is its source iofsustenance -- nay, indeed, its very survival. lntra--party 'debates are of course a different thing. But ' a.''spu'b.lic image of disparate stands by Members of the political party is not looked upon, in political i't,1fadi'LionV,_i.~as a desirable state of things. Griffith and Ryleffo1"1; Parliament Functions, Practice and Procedure (l,.9~8_9j'..-end., p. 1 19) say :

" Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide Variety of matters on which those Members have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more qa.aaw%~ 5wvZ((\ 71 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 wise snacks of conspiracy".

The sentiment referred to in the judgment extracted'~».above, above equally applies to actions outside This clearly emerges from the factsaoféall by the learned Counsel represe«nti}ig'* if Rajendra Singh Ranas' (stiprals "':..Ma.héchandra Prasad Singhs' case (.supra},,.andv-Jétgjit iSi'ngh',sicase (supra). The act of withdrawal Government headed by keeping in mind the Court referred to above, in my view, full'y,ju.s,tifies.ili iicyonclusion recorded by the Speaker of the«.§i{ar'natal{a" Legislative Assembly, that the petitioners had ~ inc1,1Vrred.ythie'disqualification contemplated under paragraph 0" 2(l'1'}(a}i'oril.t'1te'A'i*éttth Schedule of the Constitution of India. last i.e., the fourth contention advanced by the if V. iiiearnedi Counsel for the petitioners was, that the entire action initiated by the respondents to disqualify the petitioners wsmacked of mala ﬁdes, and therefore, the impugned order dated 10.10.2010 deserved to be set aside. In this behalf it is the contention of the learned Counsel for the petitioners that 72 the Chief Minister Mr. BS. Yeddyurapa and the Speaker of the Karnataka Legislative Assembly were hand in glove with one another to manipulate the disqualiﬁcation of the petitioners, so as to continue in their respective positions of authority. in so far as the plea of mala ﬁdes the same is sought to be asserted on behalf of petitioners? on the basis of the averments madeiiinllpaqragraplhv .Q:f"lthe'1wri.t petitions, which is being extracted'hereundeliﬁi " C' " 6. That tlh'is:"lis a cieargtast; of abuse of constitutit>gnial power7 c':onfe'1're__c_ifl on the Speaker by Para_graphi'i1fE_j__of Schedule 10, going out of the way to save his 'own"--chaieifjviand,__l~the Chair of the Chief Minister Qlxwhich 'i*;,_depe'11d's." «Agsiich, the Show Cause Notice {under'~r3e_ply7f_is _e'x...gparte not only unconstitutional and illegal .but:"-..moti'vat'e.d' 'and mala tide and devoid of jurisdictionl.' ..

in the grourids....'raised": in the writ petitions, the Court's ' poinltediattentioniwas invited to paragraph 19K, in so far as jrriala tides is concerned, which is also being extracted hereunder:

" 19K Because the alleged petition made by Shri. B.S. Yeddyurapa is clearly mala tide and has been made with an oblique motive knowingly in violation of Rule 6(4) of Disqualiﬁcation Rules, 1986, which require him to satisfy himself that there are reasonable grounds for believing that a question has arisen as to Whether such member has become subject to disqualiﬁcation under the Tenth Schedule. No reasonable person would in the facts of this case could come to the conclusion that the petitioner has incurred any disqualiﬁcation on the ground of defection ever prima facie defection means 73 leaving the party and joining another. Petitioners did not leave the B.J.P. at all It is on the aforesaid basis, that the learned Coun"se_l'~ifor the petitioners has pressed the plea of mania ﬁdes; 4' i"

30. I have examined theplea. of;'rriaiai'_ﬁde's,'_'rais,ed' _ the hands of the learned Counsel the "

considered View the allegati.'l)_i_i's..,'Of iinuthe pleadings of the writ petition,s..ia,re_vague.iaridlgbereft of speciﬁc details, and as such, 'to accept the same. Moreover, respondentiil the Speaker of the Karnataka. whom the plea of mala who was the author of the impugned has not been impleaded as party respoVndent._b3rVi'11arne . In the absence thereof, it is i apparent that thewpetitioners have not invited the Speaker of State Legislative Assembly in is personal capacity, respond to the allegations contained in the writ petitiomi. As such, it is not possible for me to accept the plea ll --..of».1nala ﬁdes raised at the hands of the learned Counsel for .,,..the petitioners to annul the entire action of disqualiﬁcation, which eventually culminated in the passing of the impugned order dated 10.10.2010. Accordingly, I find no merit even in 74 the last contention advanced by the learned Counsel for the petitioners.

31. Since I have found no merit in 3 four contentions advanced by the learned Co:unjse"1i' the petitioners, I am of the view, thatithe' order -:ofidii'sq1,iaiific'ation dated 10.10.2010, passed T. againvsothe Speaker of the Karnataka I,esi:sl»ative from no inﬁrmity. Besides b'e.i_ng the order of disqualiﬁcation of the Karnataka Legislative Asseinbly 2:10e;£10';2:0"IO,._i$§ifully justified in terms of the provisions:'§,icorﬁainedin the Tenth Schedule of the Constitution reasons, see paragraphs 23 to 28 above).

The petitions are, accordingly, hereby Chief Justice Ru/~ 75 Per N.Kumar J.,

33. I have gone through the judgment prepared~._by the Hon'ble Chief Justice, wherein His Lordship facts of the case, referred to the mate_rialv~..idocurnents_itaridg recorded His Lordship's conclus=ions--on all the'cosnte.2;1tions=_ .- which arise for considerationin these 'Writ pCil',fU.A(').I"1S:. on third contention, regarding "~~z'.nter;51 le__tation.: tt§.:vlb'e"' placed on Paragraph 2(1)(a) of the Tenth Sched--ule, 1. harn in agreement with the reasoning dealing the rest' o.t"the«.contentions. My views on the said third conter1.ti.Qh..a1've_lat:s u'm1e1~1;'g PARLlAl\/lE.N'l1'ARxY 34.3%. V Parliamentary Democracy, the mandate to » the«.gState__ is given to a political party, and not to any members who are elected from a political party to the House form Legislature Party of that party. It is 'the Legislature Party which elects its leader. He becomes the 'leader of the Legislature Party. He also is amenable to party L/r 76 discipline. He will be one of the leaders of that p.olitie.a1..party and not the sole leader of that political is elected as a leader of the Legislature unanimous choice or a person who has Therefore, to become a leader'ofthel:Legisl.atu'rle not need the support of is how Democracy works ._it is the leader who enjoys the majority the majority in the Legislature4_I3i_;r:V11<-ltfv,':fr',;;rE/{i1§:,,is /Lb: fgmi the Government. Such a Governor as Chief Minister.

On the the Governor appoints the other lA\l/Ii,r_ii'sters;V._.fl'lA':~.l.iA'eill/iiriisters hold office during the pleasure of the Governor; "Thel"Co'uncil of Ministers headed by the Chief «ll/linist'ei' can continue in the office as long as they enjoy the confidence majority of the Members of the House. if the House expiﬁesses no confidence in the Chief Minister, it is not only Chief Minister, but his entire Council of Ministers who 'C.¢ai§es to be in office. 11/ 77

35. r111 the fourth General Election in the CouI1.try, i.e.. for nearly two decades after inciependence. underlying this Parliamentary Demo.cr_acy 'Was 'sltrictlyv"adhered to by the elected members of all the p'_oli.tica1.part'ies".VProbaibly, the new generation of peopi'e"w_ho enteredgthiei loo-li.tical who had not made any to? the freedom struggle got elected legillslatirte"bodies. Lure of office and the privileges money, became the sole . changing their allegiance another and their frequent crossing .it_saspects. This evil of political defections'became:-l:e'aVmatter. of national concern. To combat this evil, élwhich undermines the Very foundation of the lD'gg~y{ioeracy..lin theﬂuclountry and the principle which sustain it, 1967, the Parliament by an unanimous regolutienvlijappointed a high level committee consisting of grepresentations of political parties and constitution experts to 'consider this problem. The said committee known as the '(X 78 'Committee on Defections' in its report dated .7*-hﬂdegnuary, 1969, inter alia observed: --

"Following the Fourth ..General"Eie.stion;'» the short period between February 1968, the Indianv4'political "

characterised by ins tanees. of party allegiance by legisil'ators_» in several States. Compared to 'ro_ughly'_:l5:4:A2l" in the' entire period between and General Election,_at__leastVV4§38:V:defeoﬁons~ oeourred in these 12 :.1nde'pe'ndents, 157 out of various parties in '1"hdt'the'"lure of office played a of legislators to defect that out of 21 O defecting V. _V legislatorsfof States of Bihar, Haryana, Prddesh, Punjab, Rajasthdn, Uttar and West Bengal, 116 were included in ' of Ministers which they helped to bring i_nto:'i.v_b}eing by defections. The other disturbing z features of this phenomenon were : multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature '//l 79 or explanations by individual defeeiolr_'s,l"'-- A indifference on the part of defectors _ proprieties. constituency preferenceM__»o:r.._ 3 T opinion: and the belief helv:i""by« the mixer -.?indi. expressed in the press that ix] were behind some of these defeclilons T 3

36. However, it tooklVif1'1oreoVVthah'~tii\ro': deeades before Tenth Schedule. "anti §1a§v'T.V_b.eea.me a reality.

37. The word 'def-e'Cti.on'7'i;3 not~.cleﬁ11ed under the Tenth Schedule. Bigtggthe ofjVdlS_qi;eiliiTie'ation are specified in Paragraph' 2 '.lf'1'e:Te1rith: Schedule. co:{\tS'1*1TU'I'1o1x1Ai; PROVISION .w'l?aragraph 2 of the Tenth Schedule reads as A under.:.§ bl

32. Disqualiﬁcation on around of H defeetion.

(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any &/ 80 political party shall be disqualiﬁed for being member of the House-

[aJ if he has voluntarily giue~s.:_ '4 membership of such political or 'A -- "

{b} if he votes'or_ abstainSfron':' such House contrar§j's<ito*»any cii'irecﬁtin by the politicalzpariy-to he belongsvvor by any person or" by it in this behalf, withotlﬂobttaining, case, the 'pervgmiss-ioni party, person or :s--=z,Lch" voting or abstention has not been by such political party, _person...o'r=.authozfitg within 15 days from the date 'uoti:=ig.~*or abstention.

t.'.>§planaiior:,¥' the purpose of this sub» elected member of a House shall be _ 'pleeirred to belong to the political party, if it by which he was set up as a candidate for election as such member;

(b) a nominated member of a House shall;

L/ 81 {i} where he is a member of any party on the date of his non1ina§tio'n--«'.fa;.~:::

such member, be deemed to__ybelorig."~to such political party:' A (it) in any other case, deemeditoy to the politic.al"~.t_party "he":

becomes, or, bedifirst becorrixél_S§'~.a the exbiiy of six §he_.y:ciC!Al_3.t?.v'biJ'fl which he 'takes hisﬂsebat with the of 99'or, as the case (2}_Anxel.ectedmember.of a House who has been elected 'as;~such:b»th;erwtse than as a candidate

-up it political party shall be h it disqua_lified_for being a member of the House if b hejoins any political party after such election.

riohﬁnated member of a House shall be v_ ' disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements kg (4) {1} 82 of article 99 or, as the case may be,

188. l ' Notwithstanding anythingﬁm contai--r'ied.: iiini AV foregoing provisions of ' person who, on commencement' ._of. A.fli§\\/,., V' constitution (Fiftyésecond 1985, is a n1err1beri'l'*o:f a Hous_el"'{whether elected or it where he rnenibe'r'~Qf political party inLrn_ediateig 3: before A°sach._commencement, fgr purposes of sub-

paragraph. {Vi}-A of paragraph, to have 1nb'een_ a member of such House = as _a set up by such political A. In 'an"y""other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of subparagraph (2) of this paragraph or, as the case may be, deemed to be a nominated member of the House for it/..

83 the purposes of subparagraph {3} paragraph.

INTERPRETATION B1/APEX COURT

39. In interpreting Parag1'.a}:»h._2& the Constitution Bench of the :'i\pé§stl'(;i0ui"t_v"'iri'y of "

KIHOTO HOLLOHAN vs 'AND reported in 1992 supp (2) sec 651 hasAyheicivas".under5 "IO. Paragraph "'2.'t1y}. '4a:'iMember of the House belonging,...to,._aV. politica'l"'par'=ty-- 'by which he was set' at car:didate"a't uthef election. Under would incur hvoluntarily gives up his mernbership political party. Under clause . -- ., {5} he would incurzlthe disqualiﬁcation if he votes or gabsvtalns ¥fro'm"voting in the House contrary to "any ~ issued by the political party to which he by any person or authority authorised by ivtfin this behalf without obtaining, in either case, ~ 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 fjteen days from the date of such t/ 84 voting or abstention. This subvpara would also apply to a nominated Member who is a Member a political party on the date of his nOH1lll§Zll_l;0IV"VlV'CIu:3*;. such Member or who joins a political party l ' six months of his taking oath, 1 1. Paragraph 2(2) deals wlitliv a Meriiberéu has been elected otherwise than a set VA up by any political iuould.V-iincur the disqualification yyhe joins political' after such election. A of a House would incur his disgualifictitionvvuritieri'sub-para {3} if he _fQ'il'li"4~:(Ill'iy the expiry of sbc thedate ofwhicgh he takes his seat.

3 and 4 of the Tenth Schedule,' howeueifexclude the applicability of the h it provisionsgjfor disqualification under Paragraph 2 in l of "split" in the original political party or it i. the original political party with another political party.

13. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets V. 85 up candidates at the election on the basis of such programme. A person who gets elected as candidate set up by a political party is so elected on the basis of the programme of that3V_:poiitiC<1l:' party. The provisions of Paragraph 2[;I_)(a)--.pro.ceed it on the premise that political. 'p'rop'rietu..gand demand that if such a Dersonﬁififier tithe"

changes his affiliation -and leaves the' ' ;;oVlitic_al V party which had set as a candid-ate7.atVVihe election, then he:~'shouldl'a'ive_:'iipgyhis rrierniaership of the leqislature got -the electorate.

The sarriel_yardsAiick:'_is person who is elected" Iri_deperident"candidate and wishes the election.

(Underlining by me) 1'-4.""Paragraph 2(1)(b) deals with a slightly _di'[ferent situation i.e., a variant where dissent it ' v.:becorries'_idefection. U a Member while remaining a of the political party which had set him up H as candidate at the election. votes or iabstains from voting contrary to "any direction" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf V. 86 he incurs the dzlsqualgfication. In other wordstyitp deals with a Member who expresses from the stand of the political party * belongs by voting or abstaining from_--ootirtg. :if'a::th.e House contrary to the dtrjecttori' p_ poiitical party.

40. In the case of HON'BLE SPEAKER T.N. Leoismrnre gassajannr reported in [1996] 2 sec 353, eXp'1aining-'tile jsccp¢'r.of'§at;ig9raph 2[1)(a] held that even if a "thjroxivnl oat orlleiipelled from the party, for the ol;;ti1'1e schediile he will not cease to be a member that had set him up as a candidate"for-the-__electio.ri. He will continue to belong to that political party eVer1___i.fvhe is treated as 'unattached'. The act of ' t:Voli1nt.aﬁ]y«p'iw'ing up the membership of the political party may "be"Veithei'.V.V'peXpress or implied. When a person who has been or expelled from the party which set him up as a it Aicanndidate and got elected, joins another [new] party, it will Atgcertainly amount to his voluntarily giving up the membership l«/ 87 of the political party which had set him up as a candidate for election as such member. 3 it t it it

41. The Apex Court in theliicasieloi Dc.' I-A . J PRASAD SINGH Vs. " BIHAR COUNCIL AND omezas (2004; s'g_'sc:e_747"has held as under,---

" 7. Paragfaph'* i it A. ertth Schedule lays down the» cori'ting¢hcies'v. vunder which a niembe-rélofﬁ-hthe to any political party' being a member of areenumerated in sub-paras :"{1A)," (2) deals with a situation where' the House elected as in independent candidate joins any political party V iafterzsuch election and sub-para {3} deals with a g *vsituavtijon._where a nominated member of the House political party after the expiry of six from the date on which he takes a seat.

" _Sub~para {1} deals with a situation where a niernber of a House belonging to any political party voluntarily gives up his membership of such political party. It also deals with a situation where 11/ 88 he votes or abstains from voting in the contrary to any direction issued by 1' party to which he belongs, without obtiairiing-rpnor it permission of such politicalparty and bv_oti'ng< or abstention has not bezel political party ivithinﬁfteen hdays frornh' _"sa_i{:l it voting or abstention. ThescrutinyVOf_the-provisions of sub--para (2) :i')zOUld'..S:f;LObl:}' that a of a House belonging . ,an_y ' party becomes disqualified for House if he does sorne:y1'--pos_itii2_e be either volu-.itarlly:giving«juph 'rriernbership of the political party'V.ito'--iv_hich voting or abstention frorn [voting to any direction issued by the political party. he belongs and in the case of indepeVndent'_ior nominated member, on his ' "joining _political party. On the plain language of ;p_;;ra{JTC1ph'2';""the disqualyﬁcation comes into force it " _ 'vorbecornes effective on the happening of the event. A 4 is in the nature of an exception to paragraph 2 and provides for certain contingencies " Vvtvihen the rule of disqualification will not apply in J'/.

the case ofmerger of parties. "

42. 89 The Constitution Bench of the Apex Couitin the case of RAJENDRA SINGH RANA AND OTH.§3.i{$ 'A PRASAD MAURYA AND OTHERS..:e,ported"'in--iigoovtgg) 270, the Supreme Court has held {as " 33. It may _that""co__lleetiu-e is not intended to be saﬂedllssg the enac.t_rnentV}of sub~ article {2} of Articles of Tenth Schedule. But at the f'itisV__clear that the object is as assumed menacing the very basis of derrL.ocro.c;}.' 'Fhereft;re'.*-a.--pii:fposive interpretation of paras 3 and 4 of the Tenth for. One thing is clear that defection ground for disqualifying a member ' frfom the He incurs that disqualification if he iJoluntd'riiyV given up his membership of his political party, meaning that party on whose got elected himself to the House. In the deﬁance of a whip, the party concerned is ~~ gigaen an option either of condoning the defiance or seeking disqualification of the member concerned. But the decision to condone must be taken within 15 days of the defiance of the whip. This aspect is also 1/ 90 relied on for the contention that relevant poinl'--«_Cf ._p to determine the question is when the§'_:'"Spe_'ctker'f--, _ actually takes a decision on the for disquali icatlon."

SCHEME OF ENTH SCHEDULE

43. From the scheme of the"T_elr'1th Schedule itl';isu'clear it applies only to a Member of l£li».'$'flO11S6l.'! 2 He masrzibe a person elected from the ticl§'e~tc_ offsnalnyulpolitical or as an Independent. All Members of are not Members of the House or' Legislat-u;re"<Pa1't'yV, __Hfowever, every Member of a Legislature' Ra1ty;*Me.mb.er of House, also, need not be a Member' of' the But, a member of a political party --vwhouuis.Vheie'cted as a Member of the House would aut'omat'ica1ly_ become Member of the Legislature Party in the V"n~P:aragraph 2 deals with disqualification of such Me.mbe_r~s~ the House. Paragraph 2(1) deals with disqualification of a Member of a House who belongs to a political party. Paragraph 2(2) deals with disqualification of a Member of a House elected as an Independent. in case of a l/ 91 Member of a House elected as an Independent the question of his voluntarily giving up his a political party would not arise. _S.imilarl37;"ixrheri.h'e Vdoesnloté belong to any political party, :'thei;'_"ques'tion orb"

abstaining from voting in such"'House'contrarjf!to§.the"directions issued by the political These two instances apply onlyv€oxl:a_ANi_en%i:bef~--pf.Aé1.ﬁouse who is also a Member of a political:,party: of a Member of a House elected disqualification only p:o1'itic'a1llparty after such 'election. Thereﬂfvoreg. person gets elected as an Independent candidaflcl,'dtheldldmandate of the Voters is that he shall remain V-ash an independent throughout his tenure in the .Ho'L1se".7 Under no circumstances he can join any political f_ In the case of a Member of a House belonging to a politicallparty, the disqualiﬁcation occurs when he voluntarily V' igixl/'e.s up the membership of the political party. It is because l/ 92 the mandate of the people is that he shall continue the member of that political party which set him up for the election. If he Wants to git/e...1i1_p his of_the_ House, he has to resign from the inenibe1*ship 'ofitkie as well as the membership of ti*ile"';Qolitical contest for election m the vacancy becauselioil resignation and then only he is at i'ihertyl«l_to::_ha\}e.lanl'independent course of his choice. ifhe dogs. from the political party, in want to give up his membershipoi then he is bound by the the House. at the time of voting,Al'if the to which he belongs issues a direction, islpofiullarly known as a "whip", he has to cast his" 'vote accordance with the said whip. He has no lHe:.:~has to attend the House, cast the vote in aCcordvaiice'j'.rWl7ith the whip, if he abstains from Voting or Votes Acontraryl' to the whip, then he incurs disqualification under paragraph 2{b} of the Tenth Schedule. If he abstains or casts _ contrary to the whip. it is open to the political party to condone l/ 93 the same. But, if they are not prepared to condone the said act, it is open to the political party to initiate proceerlings for his disqualification.

45. Therefore, it is clear under Para.graph_:"2['1}.{§) Member of a House belonging to a' 'p'olitica;l 'L_:yfv»*fh,icl%t-.'hej< was set up as a candidate aththic-._f electiofl * disqualification, if he volunta1jj:,I'y,_hgive.s up rherr1be'rship"of such political party. That is,-if ia-rr1e..rnber if afteimthe election, changes his affiliation political party which had set him up .ca;ndi'cl,ateH_ at the election. If a member has no inteni:ion.,_to leavethe party which had set him up as a candidate at the 'election', and he has no intention of changing . ., tlié' affilia,ti"on_, he to continue in the party, and ﬁght for A Vaxsause "Wf1iC:h_i:S dear to his heart, it does not constitute giving 1ip..,_hisv_me_rri.bership of the party. In his perception the conduct of the leader of the Legislature Party of the party, is contrary to therpolicy of the party, on the basis of Which, his electors V reposed confidence in the party and voted him, and his right to 94 express dissent cannot be construed as an act ofidefection. Such an expression of dissent in public, outiside forums, if it embarrasses the party. and _Gove'r*n_n1ent,'.it .,.m"ay_ attract disciplinary action by the 'i1ntay:be'sus.pé7nded or expelled from the party. 'would to leaving the party voluntarily l--'ii_SmIn(3:If3I1berShip. If he expresses his intention support given to the Government of the party:'_i'n the Governor of the State, a also do not bring down the The said dissent also do not biecorneil vvhen the expression of such intention__is either actually voting or abstains from agoxtingx the floor'; of the House, the Government of the l " paity if1ayV't'fall. it meet such a contingency clause (l]{b] of enacted. That is where dissent becomes de--§ectio~11._t'iila member while remaining 'a member of the Apoliticali party which had set him up as a candidate at the election, votes or abstains form voting contrary to 'any Wilirection' issued by the political party to which he belongs t/ 95 incurs disqualification, under para 2(1){b) of-«j"th'e«_f"Tenth Schedule.

46. The language empioyed" in ilfa) 2(1)(b) is significant. The Anti1'Defection1Vffawtv l Schedule was enacted to» p:;reyentA'l'ﬂoor__cros:sing; 'thereby destabilizing the Govemmentpewhichlispﬂ 'eie.Ct.efi for a term. If a member of the up his membership, the object was_toV__pretze"n"t -- support to the opposition by his vote or if he resigns from support is not available for forming' altet4Iiatitfe"«--.:¢}oi}emment by the opposite party. Thetefore that is'p"reci'seIy the menace which was sought to be . prexrerited enacting the Tenth Schedule. Therefore the Parliament care to see, once such an act happens, he fo1*feits_.~tb.ei'..ri:ght to be a member of the house and therefore instantig he is disqualiﬁed of being a member of the House. the act of disqualification occurs, the question of H "cl-ondonirig such act or taking him back to the party or on his L/ 96 tendering the apology or expressing his intention back to the party would not arise. Such a discretior)_A*'i;s to .a political party. Therefore. if the ..El,Ci_'s fallsHundicrhparagralphu 2(1){a), his membership becomes xi/oid;'_" iI€~foWeVer,:linlthie,ca.se of "

disqualification being incuri'eCl~~.}1ndei*. itis not Void. It is Voidable at thes_o_pitio_n~..of the party. The political party has to condone such act, i.e., the actof Votingeoir in the House contrary t0_an3'I Such party Within 15 days Only in the event of the politielal such disqualification, the disqualiﬁcation Therefore the intention is Veryclear. Remaining in the party, if a member of the House . " eyrpresses this no confidence in the leader of a Legislature Party land ififotes against him in a confidence motion to be taken on ﬂoor the House, the disqualiﬁcation is not automatic. ASuchz ailidisqualification can be condoned by a political party. It.._ui1derlines the basic premise of democracy, that right to vﬂilissent is to be accommodated even in respect of Tenth 97 Schedule which is brought with the avowed object of preventing defection and crossing the ﬂoor. Therefore expressingwant of confidence in the leader of the political party iforfned the Government cannot be equated to such a"

voluntarily the membership of political-i' a7,__ C conduct is outside the scope of paragraph 2(l.]:(_a]."

falls within the scope of paragrap:lh.2(l][b}--.._V V. V

47. When a Membery_..ofA*a "House " 'expresses his no confidence in the lead'e:i*C'gol"'--hiVs' }Lae'gislatur_e Party and if he happens to. VChief:l\2Iinist(:r who is heading the Council of Ministersl the. writing that act by itself would not jresult theact offloor crossing. Similarly, if the Governor after. taltinVg~.gnote ofwthe said expression of no confidence is Chief Minister has lost majority in the House, he'--...may.~cal]f.= upon the Chief Minister to prove his majority on the ﬂoor' of the House. If the Chief Minister on such request 1'a.i1s:5to establish majority support on the floor of the House, his __}'3Iinist1'y would fall. The said act of fall of Ministry or his M//., 98 resignation would not constitute defection under Tenth Schedule. By that act the political party which had the Government do not lose its right to form a After the fall of the Government, _it....is_not'as"

either can recommend for the Presici:'ent"s "ru1'e_i1nder--.AArtl'.i,ic1e it 356 of the Constitution lltzpori V l§ead.er oil opposition to form an he could embark upon those ~.V;L'Sfv,VA'¢>j{cepted to explore the possibility of fomtatiozj~--oil._an He can call upon support of the members open to the political party Whose Govenarrienthasvtallezli floor of the House, again to stake a c1:a'im_betore_the Governor either with the same leader by " pVro'duc'i'ng lVi1e_cessarv'levidence showing the majority support of the House or put forth its claim to form a Gov_er:o_n1ent'hy electing another leader of the party. Therefore, the stal:-ility of the Government of the political party is not disturbed. Vlfhat is disturbed by such an act is the ppfiovemment of the political party with a particular leader ll/ 99 against whom the members of the House of the saii1e.j'po'litical party has no confidence. But, all this would the Member of the political party to_..wh_ich the" VMinister_ belongs, voluntarily vacating the fnenibership 'of:"th:atl'lipciliticai 2 party. In order to meet a situatiorll'itheﬁ:Collstitutioiti provides for issue of direction niﬁembers. By issuing such a directioii.:/whip, have expressed their no Confidence inxthe leader. directed to vote in his favour ithge floor of the House.

cannot neither abstain from to such direction. If he does so, he incur:-is Paragraph 2[1)(b} of the Tenth Schedule. iI1'-.f§1VVC"L','1 the said provision also provides for such an condonedmso that by persuasion or by entering into ;?;u.1;3¥ still their support could be cobbled up by pa_rty_:a',nd, either save the Government before Voting or form avvfresh Government after such voting, if in the voting the G~ov_ernment fails. The said dissent is a dissent within the 100

48. Therefore, these two grounds WhiCl1;----ard paragraph 2 of the Tenth Schedul_e..are mu'tua1ly'_':pei=ficlu'sivc,_ tilt' operates in two different ﬁelds. Paragraph )'(al' a Member who voluntarily walIts"opt ofthfe party.' 2(1)--[bj deals with a person who remains"-in the party and acts contrary to the directions of the ' if u

49. When once 1r1leinfbe'r.Vyolun.ta1-ily gives up his membershipofigthhe gipartyf theTr'1'~:."'p.a_1_:agraph 2(1)(b) is not attracted, condition<rprec_r:dent for application of the said provision is,thatffrneniberffagainst whom any direction issued mustbe a 1neJnbe'r ofa political party, by which he was set up .as"a clakrididdate for election as such member. In order to avoid under paragraph 2(l)(b] a member may ch---<.)_os¢.~to up his membership of such political party. In order toimeet such a situation, paragraph 2(1}(a) is enacted. In 'either event, it is the political party which is aggrieved by such ___conduct. However, it is open to the party to condone the Vet 101 conduct contemplated under paragraph 2[1)[b). ltjisfpurely a discretion left to them. However, such be condoned within 15 days from the ,__d4ate;'.of" 'forty abstention. It only shows an opportun_'ity'3islgiven to aQ'li'polfit.ica1 ' party to respect honest disscn_t",--~,re-thinlt, .Stepsb and take corrective methods, if its___Trie.rn'bVers do agree with the official line of the party:~...f:l"t _is~a by the members of the party who are in minority. not to curb internal democracy',4_s'tif1e:dissent§ confirm to the true democratic dption available to a member of a the party and fighting against what 3 pursued by persons in power contrary to the programmes and policies of the political party. axfight the Government headed by a leader still commands majority in the House, the party the Government with another leader. To give Asuchffanlopportunity, the Parliament has advisediy provided for condoning such an act, within 15 days from such voting and ___abstention, in true spirit of democracy, respecting the wisdom V 102 of the elected representative. The intention is not the dissenting members to the corner and make themg l'des--pe71'ater. which ultimately lead to ﬂoor cro_ss.ingr ands' The underlying premise is that:":.disfSerit the of democracy. The same concerngis not-

voluntarily leaves the party. not provide for condoning such a Parliamentary democracy, the right Loyalty to the party is the shared beliefs. To vote againsta" could be condoned. But to join other support to the other party, or trying form' with the support of the other part:y'vsmac}ts'-.of 'conspiracy. Therefore, such an act cannot be if " colndoned and therefore once a member voluntarily gives up his achieve the aforesaid object, then the dfisqualification incurred by him cannot be condoned. Tenth nSchedu_1fe is introduced into the Constitution to combat this conduct of legislators changing their allegiance from one party another and their frequent crossing of the ﬂoor in all its L/ 103 aspects. It should be an unprincipied defection. *-office and money should be the consideration for such .

50. The Apex Court while upholding. .co'n:s:ti.tutio'11.al Validity of the Tenth Schedule, 'a;ook_note'.tyo't interests of constitutionally , stated l V 'ptinciples 1 atilernpteid harmonizing them, in the the constitution of which parliamentary demociacy isja .ir1--..the case' of KIHOTO HOLLO1'-IAN vs zAcHnr.t_.Ha reported in 1992 sup? (2) sec" eatitas finami V. in: the petitions are, indeed, fagreachingla.nd:_of__no"small importance ~»~ invoking V. the ilsenseiof re_lei}'ance of constitutionally stated p_rinciples"to.u,nfan1iliar settings'. On the one hand _ the real and imminent threat to the very democracy posed by certain levels of behaviour conspicuous by their utter H total disregard of well recognised political proprieiies and morality. These trends tend to degrade the tone of political life and, in their wider »/ 104 propensities, are dangerous to and underrnin-:3' very survival of the cherished val_a:es"l -1- democracy. There is the legislative de.terniination_ through experimental constitutional' ﬁtof?

combat thatevil. .

34. On the other hand,_there are._ in all"-political'; it and economic expennierltations, effects and fall out whiichwrnighty' ayffeciqncﬂiiihurt even honest Vdis'senlter.§~ "and.:'~iconscientious olzyectors. These are minus of all In these areas' disti_nCtion.__«-- ijbetween what is iconstitiiiianaliyp perfniss.ib.ie and what is outside it is gray line' and it is the Court-.'sl duty~__to'ide~n~tify, "darken and deepen" the de.marcdtin_g line of constitutionality -- a task in iEL§hichl~some element of Judges' own perceptions of it _ iéonshiutional ideals inevitably participate. single litmus test of constitutionality. Anysuggested sure decisive test, might after all :f!1_.r:nish a "transitory delusion of certitude" where the "complexities of the strands in the web of Aconsiituiionaiity which the Judge must alone N/.

105 disentangle" do not lend themselves to easy sure fommlations one way or the other. It is that it becomes dﬂcult to refute the :n»§ﬁita.&:'zel. -3' legislative element in all consV_titatiofn'al_ adjudications.

51. The parliament wasialso conscious-Zof problem which they have to enjCo}1nt_erl:_ they were anxious to prevent the very fabric of Indian Democv1acy:y1'pos:ed l§__eliaviou.r by their utter and total disi'e§ard . off'--recognized proprieties and moralities-.,' to stiﬂe the honest dissenters and consciousv obje'cfAo1'Sll:;After all this Tenth Schedule is the legis§lativ.e detenriination through experimental constitutional combat that evil. Therefore, they have adopted mi'd§ile"'ip'a.th.~l.::'Vbebate, discussion and persuasion are the means v--..land"'l essence of the democratic process. During the deb'ates"t.he Members put forward different points of view. The l Vfriemloers belonging to the same political party may also have, 106 and may give expression to, differences of opinion o_n..a"--.rn'atter. Not unoften the views expressed by the Members have resulted in substantial modification? _' withdrawal, of the proposals under':.consideratto'1i';i"V 2 expression of different pointsfV_of.yiew,f'thus, and healthy purpose s in ffarliamentary democracy. At tirnesvsuxchan of views during the debate in the House may..:l:ead-- abstinence from voting in ion': party lines. When clause (b) péiragraph 2 of the Tenth Schedule gives effect to the party is the norrn, being basedon and to vote against a party is disloyalty and imposes a disqualification on a member who Votes or"ab's~tain from voting contrary to any directions issued the Constitution, however, recognizes two exception.-={¢ne when the Member obtains from the political party with prior permission to Vote or abstain from voting and ,,,."_the ether when the Member has voted without obtaining such permission but his action has been condoned by the political k/N 107 party. This provision itself accommodates the possibi'iity~lythat there may be occasions when a Member may_.A'ifoteAAlorhfabgstain from Voting contrary to the direction. of thehe _ belongs. This, in itself again, may;"prois}_ide understanding and construction of ﬁth.e_ direction' in clause (13); of i)..'--= really all directions or whips V ivlplarltyycntail the statutory consequences or» whether»:.havii1g the extraordinary nature and the very serious conseque_nce.sV the extreme penalty of expresgsioii "should be given a meaning confiningyits iyoper_atio'1:l contexts indicated by the objects and purposes of the Tenth Schedule.

In thisv--regard it is necessary to notice the inter- 'relationship'-.Tbetween the constituency and its elected representatifiei' lt is the avowed endeavour of the latter to fulfil the expectations of his voters. Occasionally, this might conﬂict political obligations to the political party sponsoring 108 him which expects and exacts in its own way loyalty _'it_.p."'.V'AI'his duality of capacity and functions may pose cerftain his functioning as a member of the..»HQuse_;' Hisfunction as "a_ Member could be broadly classified two a 2 voter at a general election cross the candidate he is most often.co'nscious1y:Lperforining two functions. He is seekingtifltoy '42i--vi'}3.§'rticular person to the House. Secondlyi seething' jyju} power as the Government of the same party as that for a representative and for a .jV'i«,V1tIh§;.iy.,,,9l:..camiidate is elected as a Member of the noﬁs_¢', he two aspirations of a voter. Therefore, he must listen" to their grievances and often seek to " those in authority to provide remedies. He must have political leanings of his constituents for he rep.resents_!those who voted against him or who did not vote at all, as niuch as those who voted for him. It is because, after u"f.hth.e elections he will be the representative of the Constituency __Cf0nsisting of voters irrespective of their party affiliation. So far 109 as his own personal views on freedom of con«s"cien_ce_ are concerned, there may be exceptional occasionsypl elected representative finds himself co1'npell_edl 'to:c:onsid_er more _ closely how he should act. He may fe'_ei~thatthel'policyr.of_his party whether it is in officei~'Qf..,,,i,,r1 oppolsit.iori."particular matter is not one of which he___uapproves.l occasions, he may support disapproval. But occasionally the.vstrength--vofjhis be such that he is obliged to _ by speaking or by abstaining with the other side.

Thirdly, after obtaining majority in the House and4'formingA:'the:_lG«overr1ment. the leaders who are vested tliegpovverptorunlvthe Government, may forget the electoral " party's programs and policies and act contrary to the money and advantages attached to the office they hoi*d_._2'they may try to stifle the honest dissent and conscious objectors, who are concerned about the party. as ihev.--'are conscious that they have to again go to the voters after to term of the House Seeking votes. In such circumstances. if V. 110 Within the Legislature Party of the party, they are'<t1:"nabl_e to dislodge the leader who is well entrenched in continuing in office by manipulatiQns,_and_~vvho=has°beeomeua 1 despot, if they attempt to dislodge;":him"fromlirhis it run counter to the object of people give mandate to the party l"not=.to the party. Therefore, a person party ticket should be loyal to the party to and policies of that par1:y._ isyrionyms with loyalty to the leader hf the party, in the interest of theipartyl the policies and programs of the party.,_on_ the party has been given the mandate to llfornlrthe 'Government, if the leader of the party is Econtrary mandate, they should have a right to disllogdg.ef..sueVh.leader of the party and elect another leader. I)li'slodgviI1gVl'a leader of the party and seeking for a new leader of the is not what is sought to be prevented by the Tenth S3c_hedule. It does not amount to defection, ﬂoor crossing or .V ___eonspiracy. Recognising this important aspect of k/, Ill Parliamentary Democracy, that "dissent is the of Democracy" which is inherent in such,"7Parli'atrientary Democracy, law recognizes that,collective"disseritdnoes '' disqualification under parag1'apl:i it recognizes a split or mergerlaiiid defection as is clear from of Schedule, where not only the of of which those members belong: is the Government formed by it of office, they are permitted otitheir own, in coalition with the oplposite of £:{_ouse.

53' ,There'§o'1'e,'l'-to'---"constitute a defection a Member should Volt3;nbtarily'V._giy'ebl his membership of the party from is elected». -------- Further, it must be with an intention to ' joinanother.political party or form a new party with the lure of drriée' or It is that act which is sought to be forbidden by elnacltingéparagraph 2{1)(a}. What is sought to be prevented it » 'ancpunprincipled defection which is a political and social evil. M/..

112 The anti defection law seeks to recognise the practicaI"'--ne~ed to place the proprieties of political and personaiconéduct awkward erosion and grotesque rnani,festations"hfave"been-_the_ bane of the times. However, if the actioi" a'di'1\/Iember ::ids---tvvithin it the parameters of the Coijdstitution'v- and_ to achieved is legitirxiatei the 'axdopteda that end are appropriate, it is constitiitioii_aI.1;' petitioning to the Governor a Constitutionalihfunctionarv his intention to withdraxvhis 'iv\:/li'nister of the day who is heading in pursuance of his mission the Government Cannot be construed as It is done within the framework of the Constit.uti'on. disimilarly, if a Member who is aiso a Mern.her:* oufgthe éovemment brings to the notice of the "thVe.V:'Government of the day headed by the Chief Ministe_r~ jsvvdhich he is a part. is unable to carry on the Goverrirnent of the State in accordance with the provisions of "7_¢1a.¢ fconstitution. it does not amount to his requesting the Governor to dissolve the House and impose Presidents rule. ll/..

1'13 Dissolution of the House and imposition of the Pres_'i*de_'nt's_ rule can happen oniy if the President of India on reeeipt from the Governor or otherwise,...i.s,__ satisiietifthat has' situation has arisen. When it is bro1;igh't to'.th"e_"noti.eey tifthe 2 Governor, that the Chief 1'JV[.1'_V'1"ii\ysVte1-itAheadingi"

Ministers of the day. do not 'theV.(_;uonfideneeA the majority of the Members of is east on the Governor to take vprorilpie/st:epVs-- the Chief Minister the House. If he his majority again it is not an unveonstiitii'i:i'onai< . _

54. ' _ 'I'heVAi;eXe»C_oi.iri.__in the ease of S.R.BOMMAI AND OTHERSVVV--vshh UNio1N*.o'F.:_'iNDm AND OTHERS [AIR 1994 so Iﬁilsjihasp conside_red what the Governor is expected to do ' when --vthe:'siip_port of the Ministry is withdrawn by some 'ie'.gis1ators.Ipj--: it heid that, the proper course to be adopted by theéiiioyernor for testing the strength of the Ministry is holding 2 the._test on the floor of the House. That alone is the V. 1E4 constitutionaiiy ordained forum for seeking o_peiniy"--VV'and objectively the claims and counter--c1aims in . assessment of the strength of the_;i\/iinistrytiis 'or private opinion of any individua1,:":.be1'_he';the._Governo'r..or./_the President. It is capable of demtoristrated:!an§l«..asCertair;ed publicly in the House: Private_:aissessment isivanjjanathema to the democratic princip1.e,'_apartj' open to serious objections of personal:.ruai.a:=pfides'.__p ';I?iiep:':t;§,onstitution does not create an party forming the ministry__jshoi;'idV majority in the Legislature. Minority _*-jinknown. What is necessary is that, enjoy the Confidence of the House. Whether: 'Council of Ministers have lost the " efjthe House is not a matter to be determined by the I that matter anywhere else except the ﬂoor of I~Iojuse,n"AIhe House is the piace where the democracy is in Aactionfi It is not for the Governor to determine the said i' question on his own or on his own verification. This is not a it , _ inatter within his subjective satisfaction. It is an objective fact h/ 115 capable of being established on the ﬂoor of .«tl:e"j'«..I?i'ouse. Exceptional and rare situations may arise where~.beAcau:'se all pervading atmosphere of violen_<_>e.. ._Or other-:..extr"aordin_ary_ reasons, it may not be possible. for"~the'".m'embe1si'----.go'i?_the Assembly to express their optllion freelyj. should be left free to deal to his best judgment keeping in the conventions of the Parliamentary The Governor should be be the sole Judge on tgﬁonditions are conducive to resortxto _'*avhen some legislators withdrew support' Chief Minister in the absence of any excepti.nanal"and. rate situation, the Governor is under a obligation to ask the Chief Minister to face the I asseniblytgvvanidprove his majority within the shortest possible time. .farlas possible, the verdict has to majority support Agclairnzedfby the Chief Minister and his Council of Ministers sh.o:uld be left to the legislator and, therefore, if the Governor if .. ___asks the Chief Minister to demonstrate his majority on the b/, 116 House on a representation being made by th€»j"tle_'gi_slators Withdrawing their support and expressing";~their--.v:'p:'iack-Tof confidence in the Chief Minister a,n.d.__the _--;\}linist_ryV"l1eaded_p bye' them, neither those legislators r1or:'thef_C£o*§rer"nor*committedgany illegality and the conduct'lV__o'f._ such» ljlegislatoﬁg...,,;;arinot construed as an act of C1E3f'€(3fE_'iwOyIV:'1»v:l..11';¢_'.»ZlE31" _proyisions of the Tenth Schedule of is a constitutional remedy and forV.purst:iI1=g...:a a person cannot be u$'chedule. That is not the object

55. _ it towwhen a member of a house belonging can be said to have given up his meznbershiup A such political party has been considered by the l " Cotlrt ..i1i the vfollowing decisions:-

'In.,.?Dr. MAHACHANDRA PRASAD S1'NGH's case, the petitioner was elected as a member of the Bihar Legislative Council :from Tirhut Graduate Constituency as a candidate of Val ll?

Indian National Congress. He contested from Parliamentary Constituency as an independent"candlidateif contesting the Parliamentary election as laritelfinldeptendent. '' candidate, he voluntarily gave Congress Party. Therefore itwas held1thatl'lhleA¥lf1ad..incurred disqualification within the meaniVng_of_y_paragrap_h H2i§[1][a} of the Tenth Schedule. Therefore ais; of a member of a political party who contesting the Parliamentarylivelection. candidate. Therefore, he ceases la political party which had set him up in .the-"ele_c;tio1*1.._to-...tl;.e [Graduates Constituency of the Bihar Legifsiiatiye. The intention was clear. He volujntarily agave' membership of the political party and lasgindepelndent. Even in the absence of any formal letter, it amounts to voluntary giving up his membersh of the political party to which he belongs.

in G. VISWNATHAN's case the appellants were __rfiembers of the Tamil Nadu Legislative Assembly elected in the x/,, 118 General Elections held in 1991 by All India Munnetra Khazhagarn (for short them up as its candidates. Bothof them;li3}er'e:'.expe].led ironic' AIADMK party on 08.01.1994 activities.

Thereafter, they joined "l_a1--1_othelr'v- tiiewjgl Marumalarchi Dravida (for short, MDMK). They were members of the Assembly by theiﬂpﬁalﬁ'/f1',v:..lIlhe}"el'Qrel..ilVlrllélblcontended that as they were they did not incur disqualifica'tioi~.;l Illa) of the Tenth Schedule.

Repellir1g__ the Apex Court held that if a personAbelonginglltolpal party that had set him up as a candidate, lgetslelectled . to the House and thereafter joins fpollitical for whatever reasons, either because of I -from the party or otherwise, he voluntarily gives his' mvelmlbership of the political party and incurs the disqualiﬁcation. Therefore, when he joined another political its presumed that he has given up the membership of the Val 119 original political party even if he is expelled by such --a_"*pd1itica1 party.

57. in RAVI s NAIK :'tIivio1v~_ 'AND OTHERS [AIR 1994 so 15'$§§;;...1§avi'i~Iaii;.ciiciiviigt-iispviite a~.a he has given up his pf piblitical party but he claimed that the said party. It is in that contextrasgh th¢.iﬁigh'&C0urt_ ddiidvprietddhaccept the case of Split» it had incurred i.e., voluntarily giving up Q'f«v.VtI*1.e__or:igina1 party. Vvhen the Supreme Court heldthat by Ravi Naik is proved from the material on recprd, then paragraph 2[1)(a] is not attracted by " v:irtt1.e p:ti1'2itgrap]f1.'?i.

V --the Case Of RAJEIVDRA SINGH RANA AND 'OTHERS«*.V-V'ij*Vé1;vV'SWAMI PRASAD MAURYA AND OTHERS repp:jte'd,V 2007 (4) SCC 270. 13 members belonging to 2 AABahiAjah Samaj Party after their leader recommended for the i/ 120 dissolution of the Assembly, the leader of the Samajwadi Party staked his claim before the Governor for the Government. 13 members of the Bahujan Saniaj 'the Governor and requested him to "invite "ieadVer.'_fofVi',the; Samajwadi Party to form the Govezrrimlentx. it was held that the act of "reqoestirig:..thoG;overnor to call upon the leader of form the Government itself wonId..Vam.o':tr1t,Vto" voluntarily giving up the membershipoij the said members had got :''meeting the Governor accomoanied Secretary of the Samajwadi Party, the opvdiﬁosiétiond :_4sti'bi1iission of letters, requesting the Governor to'Vir1vite"'the' leader of that opposition party to form . the Government aswagainst the advise of the Chief Minister original party to dissolve the assembly and irreésistibleinference arises that the 13 members have clearly given "1ip_A'3their membership of the BSP. No further evidence or is needed to ﬁnd that that their action comes Within Ejara 2(1J{a] of the Tenth Schedule. Therefore 13 members V 121 stands disqualified with effect from 27.08.2003':'=.ifi'he--_veI'y giving of a letter to the Governor requesting'.him:fto'p:"call------.th.e leader of the opposition party to f_o.rrn__a G--oVerni_i_;ent theme' itself would amount to their v7?volu'I1tarily_l membership of their originalparty theiibvimeaningiof hp-aria 2 of the Tenth Schedule.

59. In Court was dealing belonging to a political Dal of Iriaryana and Repubglicangl _'l;ll'hey were the lone Member represent:inglthe.ipaifﬁrl Assembly. Both of them decided to cast a split..,by 'passing an unanimous resolution and form a ' ' , new{political'part3flW*l'he question was whether the said split is ' wiiettier the rigorous of paragraph 2{l){a) is not att.racte.d~ them. As in those cases, those two Members leaxdngthe political party is not in dispute, if the stipulation pl_eat.1ed by them was to be valid it would not amount to defection because of paragraph 3. Therefore, the said l/ 122 judgment rendered in that context is of no assista11.c"e.Vin,'this case. Similarly, four independents were accuseizl the Indian National Congress to enable them' Government. That is a case which lunlder" l and, therefore, it also has nc'ap-plication'. .

60. Therefore; decisions it is clear that an act of eXpressing--"one of the leader of the political party do not amount to his membership of the political ,eXpressing no confidence in the Governmerit with a particular leader as the Chief ..3\/iinisterlApwotildralso not amount to a voluntary act of . .. tip the merriloership of the political party. Deserting the the Government, is not synonyms with deserting tillelparty. If a Minister resigns from the ministry it does not' amount to defection. What constitutes defection is l"'li_AAd.epse':'ting the party. Parliament in its wisdom, has consciously tised the word "Political Party" in paragraph 2, after clearly kl/.

123 defining the meaning of "Political Party". There is n.o"ah'2.biguity. Therefore, there is no scope for interpretation " iv.-*o1*d "Political Party" used in the paragrapl'1g.__ _ _ 1

61. In order to attract _Adisq"ualii'i'catiQﬂ__p "u_nder'~__ paragraph 2[1){a), a member of liouse lo.e1otr1ging'*:.tovvlaI1y political party has to Voluntai*ilTy'»givev. up: of such political party 0:1' joinvanother political party. It should be .'/,>.:'V.v"l".vl.'.i_€I'€? should be an intention to severe"_'his political party which set hiarn up 1as._--.a_ghhcVandidat'e for election as such member. He shouldtlose his such political party. The giving up ofthe the political party may happen in t it severalvraysp. It ﬁééa' not be in writing. It may be oral. Even it circumstances, the intention could be gathered.':tr3ut it should be unequivocal and Voluntary. One such inode well understood is by way of tendering a resignation letter. But, that is not the only mode recognised. If a member of his own volition joins another political party. he must be L/ 124 taken to have acquired the membership of another"'~po1itical party by abandoning the political party to which Yet another instance is when heniforms a1.'h'ewf'po'1'i's¢a1 party' and claims to be a leader or meinberjoi" he abandons the original polit§'cal.._pparty-.._ Beinglvla.p:.pn3embervof:

House belonging to a political election as an independent or as political party, he ceases to be a m_ember...of:.the party. He joins hands '_of.vthe and extends his support Government under his leadership: amounts to his voluntarily giving hup 'inemb_ers1r1ip' original political party. These instances are.,only"illustrative and not exhaustive. In order to l attract-."i'thel' disfiuallification under this provision, a member of 'the the election changes his affiliation and leaves the_lpoIitica:1;.-- party which had set him up as a candidate at the electi"onf- then it amounts to giving up his membership of the iegislature. The said giving up of membership should be V. established by positive, reliable and unequivocal evidence. The u/ 125 question of fact that a Member has voluntarily the membership of his original political party purpose though not formal so to incur"*d'1:sciiialifica.tioi14 provided in paragraph 2(1}{a} {is {toil 'de'terlrriit:1ge"cl.i_: on appreciation of the material 'record; 2 V _ ..

62. Dissent is not 'V'aclefection';.__ "=Tenth Schedule recognizes dissent but 'prohi.b'its"defect-ion. Both" these words have definite connotation lciwf Tljepilvdiisitinction between what is constitutiojriallyvfpermissih.le lwhatllisioutside it, is marked by aj VA3iiVn<:..f"=._Tl7er_e is no single litmus test of constitutionality._lV distiiictions of law «--» even constitutional lawﬁware, thelultiinatell analysis, "matter of degree". it is only when V'(ii.ssent becomes defection the Tenth Schedule is ".wt1at point of time the dissent becomes defection is»..44a1so.~provided in the Tenth Schedule. Vlfhen dividing line between' dissent and defection is very narrow and thin, and fgnth Schedule provides for such variant, keeping in mind the V "object with which the Tenth Schedule is enacted and other lL/ 126 constitutional rights, it is pre--erninently an area Judges should defer to legislative perception, and give"literalfprriepaniiig to the words used in the Tentht.Schedule;""veithoUt'_'.placing_ liberal interpretation of those prolviisionsf It._is'~ to ble:"boi'n_e in." mind the serious consequences.' of The Member of the House for being a Member of the House r-eznainingpeﬂod. 'It is penal in nature. It It is also to be noticed that of is to curb the evil of political of office or other similar the foundation of our democracy'. Afterthpeifilentli"Schedule, the defector cannot hold any 'office the contrary he loses his membership of the . i " "'fl'i;eoobject'iiifith which the Tenth Schedule is enacted is "'l;heVrefore, the Tenth Scheduie should not be allowed be» to suppress honest dissent, and any Ainteripretation the Courts place on this provision, should not 3 A ' 'aidrsuch mischief.

I27

63. Therefore, either expressing want of coiﬁiderice in the Chief Minister, or withdrawing their earlier given to him or demandingichange ;of_ legislature party or threatening to itotejaagainfst on:'the't1floor if of the House or complai1j.ingV.. to Wttiatff Government of the State accordance with the provisions of the Governor asking the Chief Minister to the floor of the House, do act and the person who called a detector. These actions do of defection nor on that account" can be disqualiﬁed under para;gra.ph the Schedule. These acts are strictly witliinifthevl'zfour corners of the Constitution, and cannot cansftitutef. " vfdisiqualiﬂcation under Paragraph 2 of the Tenth L// 128 ON FACTS

64. In the instant case, the petitioriers disqualified by the impugned order. by 'ail. members of the Bhartiya Janata;"I'a1fty;~'lwho members of the LegisiativeV__v2~'isseniblyV: of elections held in 2000. gtyhem is, they gave a letter to the Governogr informing him that a situation has a1'isen:that. of the State cannot be carried" provisions of the Constitutiongganliig as Chief Minister has forfeited people. In the interest of the State aridélthel :_4ot€':gg"Kamataka, they expressed lack of confidence "t'l'1e Government headed by Sri. B.S. . Therefore they withdrew support to the 'headed by Sri. B.S. Yeddyurappa. The Governor aeting on letter, on the same day addressed a letter to the AC)hief"i\/itnister, calling upon him to prove his majority on the ﬂoorifof the House by 5 PM. on 12.10.2010. It is thereafter Sri.

0. H Yeddyurappa filed a petition under Rule 6 as set out above L/.

129 setting out the facts. His grievance was the supporftéwas given to him earlier to form the withdrawn by these petitioners in the of the Legislature Party and any Therefore, they have clear1yl_'\'r";olate2d*. of Constitution of India. _a:re¢?eligible for disqualification of referred to few decisions of the Courtsviyherel been taken on members. contended that due to statements before the Press and Elect1~._:f3fnicV 'a;ys'ber.t11efV'gist of the letter sent by the I-fon'ble'G_overr1or_.,f the violation of Tenth Schedule of the Constitution; * 1 " fflieieefore it is clear from the petition that the Chief Minister not sure which provision of the Tenth Schedule is attracted' to the facts of the case. He left it to the decision of Vﬂithe :?;Speaker. When the Speaker sent notice to these petitioners, according to him, the aforesaid conduct amounts to h/ 130 violation of paragraph 2(I)(a) of the Tenth the Constitution. in View of the specific provision nientioufedt .th.e show cause notice, the petitioners .1.2.nders_too'd" ~tI"_1at'"th'e.ir u.;;ase_ falls under paragraph 2(1)(a} of raising several contentions,"a1'ce.ting"'the groLi:hci.:.1,q..tpafagraph 2(1)(a), they categorically statec_i_?i11:their staterlriventvbf objections in paragraphs 8 and uI'i_de:r: it "I have not at ail.sapi';ortedt.p staked claim to form' Gaviémrfientp political party. There ,i:i the show cause conduct does not 'mpg .and does not attract the X of the Constitution of Inciiawwhictt to 'defection' which means it ﬂoor cmssing': or 'cial badal', i.e.. change of _____ . Iviytvttletter submitted to H.E. Governor of of withdrawing the support from the " Govemnient headed by Shri B.S. Yedctiyarappa as it Chief Minister of the State is an act of an honest A' worker of the BJP Party and a member of the We 131 Legislative Assembly to salvage the image and reputation of the BJP which set me up candidate for election for which I am Nowhere in the letter I have stated that I l"

to continue as member of the of the BJP or the BJP as such: In"fact._n1y letter. aimed at cleansing the imbageiyolfl the party.' getting rid of Shri B;'s.4.yeddigufappacVjéi::.gChiq* Minister of the State been a corrupt despot Vi:'1.._biola:i'iori'A the Consti'tution of India and contrary the people of the State, if _.alloived. 'to he will corrwletelyg._des troy ;i'hé c'r'edib'ilVity_,bf the BJP not Kaifnaltaka but in the entire nation.' of support is from the present..Counci'l»t. of Ministers headed by Shri ~ --B_.S.Y4edd'iyurap1l:>a as Chief Minister of the State. I continue tohsupport BJP and will continue to be p_vart'Qf"'the BJP or any government formed by BJP isv"headed by any leader other than Shri B;S.:Yeddiyurappa as Chief Minister of the State. ~ such, my act, by no stretch of imagination can be taken to be covered by the provisions contained in Schedule X to the Constitution of India which apply only to a conduct called defection which in 132 common parlance means 'crossing the floor' or badal', i.e., change of party. I rr1ake§V_:li.t've_'ry._ :_. clear and my letter addressed to H .E. Karnataka, which Shri B.S. §?éiiiy1ir§lppCi:Chief Minister of the State, has :"rnaileA~'the'..b'asris 7 seeking my disqualification, nowhere st»a'tes; am leaving the party; onrih.e contrary letter only withdraws' xj®iij?P9rt ﬁfr"om...~'E the Government bAy'l._.gSh.;fgvvB;'SgvYeddiyurappa as Chief Minister of clear and reiterate I aitn soldier of the " -..cori'tiniieV_ support any goverrlfrient and efficient people of Karnataka of India and provide goodgovernance people of Karnataka there v -is no ch-3aArth"of such leaders in BJP. It is only to 3_lapeVvi.the partyand the Government and to ensure that people of Karnataka get rid of a corrupt Chief Minister of the State namely Shri B.S. Yeddiyiirappa that I have siirbmitted the letter to H.E. Governor of n Karnatalca". V 133 Therefore the question for consideration before the:.f'SpeVak;er was whether their tendering a letter to stating that a situation has arisen; that the 'C'av*éi§aar:¢_eiVotthe_ State cannot be carried on in accof'dar.=,'_ce~ 'vviththe 'provisioii.s of 6 the Constitution and Sri. B;Sl_f'Yeddvu-rappaAC:11.1eVfMinis'teig has forfeited the confidence and peiicpression of lack of confidence in by Sri. BS.

Yecldurappa and~.their:,a=ct:.of fthleir support to the Government Yedidyurappa constitutes these their membership of the Bharathiya _

66. 6 ._ In fact,"a«in'vthepetition filed, there is no plea that these petitioners Vhavesvo-'.t1ntarily given up the membership of "J&17}.-E{"I'Z8. Party. In fact, Rule 6 (5) of the 'Karnatal{a;'Legislative Assembly {Disqualification of Members on Groiindfijofjiijefection} Rules 1986, clearly provides that every petition: shall contain a concise statement of the material facts oniwhiclh the petitioner relies and it shall be accompanied by )t/ 134 the copies of the documentary evidence if any, the petitioner relies. If the petition does not cﬂrhply.'i:'iarilth._._"the requirement of Rule 6, the Speaker shall lthe"petitionl'~ and intimate the petitioner accordingly as c'onterriplatc.d 'UvI_l'(IlE31'."' Rule 7(2). When the petition diclanot petitioners have voluntarily the rnernbership of the Bharatiya Janata 'the could have been entertained by the Sp<3«';1A.1..<.€Vil"_.'«.y or the other material the" not the case of the applicant hajvveioined any other political party'riot_h_'isllllcase that they have accepted any leaAcie_r"of suc_h party as their leader nor is it his case thlatV.,loy'esuch joining hands with any other political pparts; abr "leader Voflllsuch other political party, they are an alternate Government. There is no plea of ~ﬂoor_ic~ro's.sing. Therefore, it is clear that in the absence of materiapltfacts constituting a case of defection under paragraph x"l'_AA2V{_1]_(:a) of the Tenth Schedule, the Speaker ought not to have K L' entertained the petition at all.

135

67. When the petitioners understood the averrnents in the complaint or the application as a for disqualification on the ground stipulated in of the Tenth Schedule, they have Hmfigled t1"1eir--iﬁstaterneritll "of objections in respect of the said groun_d. it :As'=set.lo'ut'a}3ove:1,i_Athe petitioners have asserted instlieir statement no where in the letter given to they have stated that they do as rneinbers of the Legislative Partyof as such. They continue and will continue to be _Aoi"jthe.__ Janata Party or any Government forInedAlbyl'Bha1<;'1ltiyAg1tlanata Party which is headed by any leader other than Yeddyurappa as the Chief Minister i'3htate;~__ In théllléaid letter no where they have stated that the party. They have made it clear that they are.4__disciplir1*ed soldiers of the Bharatiya Janata Party and will continaie' to support any Government headed by clean, efﬁcient person who can govern the people of Karnataka according to H the Constitution of india and provide good governance to the h/ 136 people of Karnataka. There is no dearth for suci1"Vliea.ders in Bharatiya Janata Party. It is only to save th_e_tl1e Government and to ensure that the people get rid of a thoroughly corrupt Chief Min'iste:f"o.fV th€_VStc%it3,llV7i'_1aV€ submitted the letter to the Governor: have.:.assper.teddth.ait they have not at all supportec_:l,l:V'j-o:iI1eg:l or."sta_l;.e claim to form Government with any votfier Apolitica1"'

68. The said assertion'VclisC1osejV~t.1jiat it is purely an internal fight§~iri'«th'e party The dissent within the party the open. It is not a case of unprincipledp and 'political defection. Expression of no confidence "ifI'1~-,vt'h€"1CE1fC§CrT of the Legislature Party outside the f " I-louse}-lwould not down the Government. it is only when is given effect to inside the House at the tiroiye of it will lead to serious consequences. Therefore, the "Parliament advisedly incorporated clause [1}(b} of Paréigraph 2 of Tenth Schedule, to meet such a contingency. Expression of no confidence would not constitute M/is 137 disqualification under clause [1)[a) of paragraph as it exclusively deals with an altogether different ,l_ls.it»u.at1on. Expression of no confidence in the leader of ..the"'£eg1sla_ture Party would not constitute an act of a giving up membership of po1itical:=.partyelA.fi~ 2[1)(a) is not attracted to the 'fa_cts of this case} in the entire order of the there to these assertions nor as he for accepting their stand, when it is not by filing any reply.

69. S' 4" _The=._act'ofl"disqualification complained of is to be anterior to.' the"date of the petition complaining of such ., Adls'qluaIification. only it can be said that a cause of action " afpproach the Speaker to seek disqualification. Therefor~e_,nj'n order to succeed in such a claim, the person who AA is approaching the Speaker has to justify that as on the date 'her.-presented the petition before the Speaker, this act of ___3:1isqualification had occurred. It is in this contest it is useful ,1/it 138 to refer the judgment of the Constitution Bench of Court in the case of RAJENDRA SINGH RANA' Vs. SWAMI PRASAD MAURYA AND .o:r:1:E12s"re';§§é;;<tt§d steed? _ (4) SCC 270.

34. As we see it.

occurs on a member voiuratatiiy up vfihis membership of a political. the point of defiance of the whip :'.ssuedu'to herefore, the act that terms of para of giving up or dejiianee that a decision in taken case of voluntarily gioingg up, at a subsequent point of time"-cgannot"and'does;not postpone the incurring of is 'disquaiificatiobn bg the act of the legislator. thefui;-ti that the party could condone the defiant:e"vof a whip within 15 days or that the the decision only thereafter in those A it cannot also pitch the time of dvistguaiification as anything other than the point at it which the whip is defied. Therefore in the background of the object sought to be achieved by the Fiﬂysecond Amendment of the Constitution k/ 139 and on a true understanding of para 2 Tenth Schedule, with reference to the paragraphs of the Tenth Schedule, be that emerges is that the Speaker' has question of disqualification with;'referencel~ to date on which the voluntarily gives up in membership or defies thehvhip. "It Va decision ex post facto. ;'l'he,.fact--»..that'in-terms of para 6 a decision the to be taken by the Speaker or lead to a conclusion':th'c_1t the to determined only wiitlhféreference the Citefof thendecision of the Spealcerf-. of that nature would lveaue"ti1e» indeterminate point of of the decisiorvmarking authority. would defeat the very object is 'ofhhenaetingthe law. Such an interpretation should a1.2oided"to""the extent possible. We are, the'r€j'79,re», of the view that the contention that {sic a decision of the Speaker that the disqualification is incurred, cannot be accepted. his would mean that what the learned Chief " * Justice has called the snowballing effect, will also have to be ignored and the question will have to be decided with reference to the date on which the L//..

0 0e;i'io.L2'0}.0.A..

140 membership of the legislature party is alleges/i"'vti have been voluntarily given up. "

70. Therefore the snow biillingipeifeet after'tiielualleged disqualiﬁcation will have tovphe igrio~red»-- and have to be decided with refereriee to the the membership of the have been voluntarily given up, i.e.,$ 10.2010. Except relying on by.the~.petitioners to the Hon'b1e Governor, placed before the Speaker in suipportx C'Q.,'1V'>1'Vt€':1'lf..1'..O_El that these petitioners have Voluntafilyélgiven.ﬁpl'the._:pri1embership of the House. All the material that-.i_sV "p'rod'ueed are for the period subsequent to ' =._I'n the impugned order in coming to the conclusion H p'etiti:ohers have by their conduct Voluntarily given up thei1*.1I'1en.1"oership of the party, the Speaker has taken into 141 consideration the following facts as is clear from his observations in the impugned order:~ _ A' 'The applicant has stated that after subihitttng -1- the said letter to the Governor the have gone from Karnatakajto' -Goa places and have declared thaf'A:they' are ' group and that there are .togethe_r"and have withdrawn their support. to the go.m§;_h}§1,¢Vﬁt_' ' The applicant has . produced. " press re'lea5.*es.VlLnd the statements 'rhedta and the same is not dIL9putedV_fl)y_Vtl Perso_nailgV _aIs_c: observed that the pondents ' 'hee-n..*'issuing such statements. The ureslpondents._v not dented arguments of appitcant that the respondents have withmanother party of the State JD{S}, and leader Sri H1). Kumara Swamy lh V_V}'v'orn1atton of another Government and that thereafter they have stated that there is no au.estton of withdrawing the letter of withdrawal. A support of this, the reports of media are also Hiobserued. In the a_}j'idavit filed by the State V 142 President of Bharatiya Janata Party, it is stateda that the respondents have gone to Chennai, and other places in group, were seen alo_ng"'with,_:_':

Sri H.D. Kumara Swamy, the State Pres'i=derit_i'Qf JD(S), Karnataka and that they ~have'_:stateid. '4that.l[B they would vote against the-._ Goverhment~ 74' confidence vote. In the affidavit it is made. Clear? 3 that the respondents have"'*appeared the leader of JD{S} Sri 'Khan,.'§and that they have fro:i_n'to__ place. The respondents In the affidavit by b lS_ft«ateV f Bharatiya Jana__.t" it i;3._y_.'state_ci ljihai. the respondents uputhe membership of the party a.'1oZ'.the.refore they are disqualified under the Constitution.

in this situation}. it is noticed from the statement two respondents that the other it decided to support the government thatviniay be formed by Sri H.D.Kumara Swamy were the leader of JD{S) and they have acted against the Government and the party from which E they are elected. This further buttresses that the respondents left the party by conduct. In view of 143 all the reasons and faetual background, convinced that the respondents 2 to 11 and r.- disqualified from their respective pos_tspl_"of. under para 2(a) of Tenth""'Sch.edi_;le frtheﬂl Constitution and therefore 76 ' is in the cyj'"Lr'rnative." V' l l V V

72. In View of the aforielsaid jiirlgmazfitfrthe Speaker ought not to have lovnjked i1'_itoH_ti"iat tVm'ateria1.HlT'hVat could not have been made the basis disqualification.

Therefore it is'a3_case::_of iinlptign.ed:lforder being based on subseqiieirtj;'T;everit.;-- "s1libseqiient"l to the alleged act of disqualificationllaridl to the date of filing of the petition beforevthe-__Sp.ea1«:er. If that material is ignored, there is no" material on Are-c0rd.vto substantiate the plea. Therefore, it i.s ' the factors which are taken note of by the 2 which they beiong is based on evidence which ought not to L/ 'Speaker to the conclusion that the petitioners have vohlintarilirllgiven up their membership of the political party to 144 have been taken note of by the Speaker as held :"the"-Apex Court in the aforesaid judgment.

73. Even otherwise, a careful reading,.o:f.Vth«e:: aforesaic1f'--._ material do not disciose the said 'a,s':'set. 'c.:.1v:.e'i'b;,;.5;he'~--. Speaker. The said facts are,>not proved. the petitioners. The Speaker hVas_xI1o_t takenp_VV'ir1to fcpnfsideratiofn the specific stand ofjpthe statement of objections. In the reference to the same, thus there;.i_s'tota_1 lack of 'appiicatgion of mind in so far as the defence t'he_petitiofners are concerned. 7-41». It is'«not>f'd.ispt1t.ed by either of the parties the course ofp«roc1eedings_sbefbre the Speaker. On 6.10.2010 the gave"Vav--...3.etter to the Governor withdrawing their ' s1ippo1~.t.V"1Qn:'th_e same day, the Governor addressed a letter to the"Chiet".Minister calling upon him to prove his majority on the 011001-.._0f4the House on or before 5 PM on 12.10.2010. The 2 » Chief Minister expressed his desire to have the test on the ﬂoor 1/ 145 on 11.10.2010. After that i.s conceded, instead ..of..gathering support of the petitioners by persuasion, disciissiorﬁ redress their grievances, which a_re...the d_em'dcratic"Vpath---We11_ recognized in such a situation bvj/,ga a democratic process, he chos'e_t'h.e path». oi' andto stifle the voi.ce of dissent. getting them disqualified from thevrneinbersligiph House. He had the option of getti.ngvav Ly note in his favour on the floor of igthégoiiisﬁtutionaily recognized mode. avdiipetition under Rule 6 of the Ruiesiiheforeidth.ve.$ipeai:er"1.ifo'r.disdua1ification of the petitioners. Notice 'was petitioners ﬁxing their date for appearancedwongg at 5 PM. On 10.10.2010 the said to 3 PM. Petitioners filed their interim time, time was refused. Arguments were was submitted that it was concluded around 7 '1'h_ed:'impugned order is passed on the same day i..e., Within fivejdgddiiours from the conclusion of the hearing. It appears that ___the said order was pubiished at 5 AM on 11.10.2010. The V 146 house had been convened at 10 AM on 11.10.2010j'to:.jCo'nsider the motion of Confidence. The impugned order 20 pages. It is typed both in Kannada... and EngIi's:hj;_. it Vrefergjitosé the following judgments of the ~t;3oi"1rt:" :"(1) IMMUNITY COMPANY LIMIT;ép--..ys OF' [MR vh1s--5V:5 sC 661]: (2) NEPC MICON vs MAGMA LEASING (CRIMINAL) 524];

(3) RAVI s NAIK..vs UNION 1994 so 1558];

(4)    [2007 AIR sew
158}. It:  of Lord Denning. L J.
quoted    Casewof INTERNATIONAL ORE AND

FERTILI.2:ERs Us ESI CORPORATION. From a p€FlI1Sa1_Of "order. it is difficuit to believe that the . ._ -lrgrjpiigiied order wéiswtirepared Within 5 hours of the Conclusion ' ofhethe sIrg1i1n.eni.s.

.75.'"' that as it may, the underlining premise in deciaring an act as defection as forbidden is that lure of office A ortinoney. In the instant Case 19 persons, i.e, 11 petitioners L'/I 147 and 5 independents gave representation to the Governor withdrawing the support. Of them 7 were memvberseof the Cabinet of Sri. B.S. Yeddyurappa. The representation and withdrawal of the suppsr.t:"~f carried through, they would havelost:theiru'Mihi'ster'sl1ip;.,p.Four"----_ amongst 11 petitioners in this4__caseV"are" the they had taken that extreme step would~have: them their Ministerial berth in 'irtypbe saidhthat, lure of office or money is such withdrawal of support. Secionfdley, wh-,en€ptl'iey"'haVv'e' nointention of joining the opposite vtheiigueystion of anybody luring them with office or money aiso 'dofno'i; "In fact, that was the position prior to the Tentfh Schedule. «After the enactment of Tenth Schedule to 'the *.Coristitutioii,m'the question of any person who is elected 'tonal' joining another party would not arise. If he joins suchhpjafparty. then he incurs disqualification and looses the membership of the House and such a person cannot b_ect;'me the Minister in the Ministry to be formed by the M/.

148 opposite party. Therefore the said act of withdrawing the support cannot be construed as an act of defection.

76. Further, in the statement of ﬁled they have clearly set out themreas«o¢n's for.:s'1ichvVei»:trei'ne VS action on their part. The [Vreasoéri constitutional functionary like Karnai«a ka, who a former Supreme CO1.1f.t. .Judg€; ahis'~re'signation on 2nd July 2010 in disgust._dis--satisfaction on account of not gqvéinmenii not assisting the Lokayiikta _iﬁSvS'.preifent'ing'-_co.r1ﬁuption in the State but was shielding .t_he_corr_iip:tA'acn'd--._iXfa's promoting corruption. It is only on p;e'r--s1iasion».,Qf the top Tleaders of the party at the Centre, he Shwitfidrexisi hiaresignation. The said act shocked the conscious V'o.fi.the entire State who felt a sense of outrage. It brc--:,;ght.~ to the BJP which had come to power on Pf0mi5€...5f providing clean aammisu-auoni 15/ 149

77. Secondly, a series of land de--notificatio'n.t in f* and around Karnataka have surfaced involving' Yeddyurappa and his family memb_ers_whic--hl have and shamed the image of BJP whiciiiiadlliimadie ii"lém;feme1y""

difficult for them to face thepveople ljapléir reports and articles based evidence were published in tbe"--.pL'intl--l_ electronic media showcausing the :11}, Government how fraudulently acted illegally and defied all governance to bestow benefits on awn for consideration which are nothing' nature. Newspaper and media reports were alsoenclosed to substantiate the said contention. it is lintitliesecircumstances when after the expiry of the period have to face the public again. they have to an--s__wer.~ public about their conduct being part of the Mpinistrvi' headed by Sri. B.S. Yedclyurappa or having extended support in the formation of the Government, it is in that it V' context as promised in their manifesto to give a clean, corrupt LR/it

1. 50 free administration in the State, they have failed in"ith_"eir'*effort to dislodge the Chief Minister in the party resorted to this constitutiona1_;..n1ode. circumstances, can it be said that_by;'su{:h the support they have under paragraph 2(1){a] as held Speahei the Tenth Schedule gives in1rnui*iity Is it the object of enacting Tenth ASchedu1e?:._is 'of abuse of Tenth Schedule'? to stiﬂe the voice and fight yet another social evil democracy in the country?

These are the arose for consideration before the 58peAaketr.V.i\hIor1e these things were adverted to in the

- igrnpiigned order Speaker. There is no appiication of of these material facts which constitutes the deft;-_nce.o~f tthetpetitioners. His approach is one sided. The Chief Minister gave the complaint against 13 rnembers. It is stated in the impugned order that Sri 151 M.P.Renukacharya and Sri Narasimha Nayak stat.ed...they are aware that a ietter dated 6.10.2010 signatures is submitted to the Governor. Ii'{oyire'vei», 'theyVstat'ed.. that they do not have the intenti.o1:11'_'of given by them to the Government. T'heyd:haVe°in the Government headed by Vap:pi'i.c_ant..h Whentthey were in Chennai and Goa, respofndentsvdyhaye taken a decision that they wou.Ed.Vsupport'*any that may be formed as per the of JD(S) stating that ."%'*"'~..'_.()Vr.1t' and bring down the Goverinment.A' the same. Later they have come out of Athep"same...daAn.Ad ha statement and expressed their supportcp to the _G0'\1rerriment and prayed for withdrawal of any " propesield action against them. Accepting the said contention of the Speaker held they are not disqualified in the.__Tent~h Schedule of the Constitution. His reasoning reads as under 1:. "

"All the respondents have stated before the Governor that they would withdraw the support, but V, 152 in later days the 181 I'eSpOT'ld€nf'--'_W":_' M.P.Renukacharya and the 121" respon~d.ent'wVV_' Narasimha Nayak (Raju Gowdaj have _not:'_'done.:'ariyi it act with an intention to withdrato the'-..'suppotr.i. the contrary, they have stated th'at~such. a 7]' given due to pressure» _frontW.others expressed their support"«:t'o» the "the Government and have declaredhwwthat theyv-wotild be faithful to the _'Fhe Aihconfirnled by the President of the in his letter. in"iiie'a.u in my opinion, they are" '..'in:.'v_i'"enth Schedule of the Constttittiiorgiyy ~ they have appeared aridhreiterated their support tq:j'._th"e: Therefore, I am of the vieu} thatvthey are not disqualified. "

79. , E'ron1V.vthe"- aforesaid facts it is clear those two ' V"=_pei'sons"=.a1'so haxremhsigned the representation given to the if the said representation according to the Spe4aker.eori~stitute an act of a Member voluntarily giving up the membersihip of a political party and the case falls under h/o 153 Paragraph 2[i)(a) the disqualification is automatic. Membership becomes void. The question of those' ':'1nl6VH.]vlC)E3I'S retracing their steps and reaffirming the confidence' 'L?_.h'ief Minister and the Party President confirming v'th'eblsame subsequent date is of no consequence... 3 Asis. clear iifrorrythe scheme of paragraph 2. there -is noscopegforhicondvonirigll an act as in the case of arising under paragraph 2(1)[b) of tl1't3_.ﬁl'€'I1l:_l[1. 'Therefore, it shows the same yardstick is not l l

80. _AA'lvl'..sta_tuto1*3r"power or a constitutional power whether" be or quasijudicial, although conferred in.' wide terms has certain implied limitations. The °=person3<o'n whom power is conferred must exercise it in good of the object of the statute; he must not proceed ,upoiI.ia misconstruction of the statute; he should take Hinto account the matter relevant for the exercise of power; he ,,/.4'jHmust'A.'not be inﬂuenced by irrelevant matters and he must not act perversely. A statutory authority cannot travel beyond ll'/ 154 the power conferred and any action Without power has no legat Validity which is ab initio Void.

POSITION OF THE SPEAKER

81. it is now well settled by the judgment of the Apex Court in Speaker while exercising powers functions under the Tenth Schedule act'as:.a'Tribur1al rights and obligations under andftheir decisions in that capacity are ameiriablped Having regard to the co_nsti1;1_1tion_ai'«,:int_end1nent and the status of the repository power, no quia timet actions are permissibleidd 'office of the Speaker is held in the highest respeCt'"dand~esteemﬂin Parliamentary traditions. The evolution of-the of Parliamentary democracy has as its pivot institution of the Speaker. The Speaker hoids a high. and ceremonial office. All questions of the Wei} being ofthe House are matters of Speaker's concern. The Speaker is ___s§aid to be the Very embodiment of propriety and impartiatity. Li//t 155 He performs wide ranging functions including the of important functions of a judigéal character. is elected Speaker, he is expected __to.. be a:3i)a2e~--iIi'p;alét;}e:;_,t,V politics. In other words, he belo-.ngs'_"' orb"

belongs to none. He the llscales' irrespective of party or person,:t'i1(:3__l'1gl»1 expects that he will do absolute justic'eﬂi'n_Aall 1§r1alttere;'A:l'because, as a human being he has .'.hiS shortcomings.

However, intentionally do no injusticeHol1~..ySyi:¢l§,i;7_: 'person is naturally held in respect represents the House. He representslltheldignity House, the freedom of the House and; because Vtheillouse represents the nation, in a particular Slpeakerlblecomes the symbol of the nation's freedom V".a~.yi'.'l.~'11erefore, it is right that that should be an ho-noured_vi'position, a free position and should be occupied Apalwaysyby men of outstanding ability and impartiality. Within ithtejlylyvalls of the House his authority is supreme. This authority _ based on the Speaker's absolute and unvarying impartiality- LL/it 156 the main feature of his office, the law of its life. obligation of impartiality appears in the constitutionalprovision' ordains that the Speaker is entitle_d....t.o_ vote .only:'_inllt'hexcaselof' equality of votes. Moreover, his is secured by the fact that 'reinainsv. above of party or political career, efieciihell may also resign from the party to is inappropriate to express distrust. in Speaker, merely because or even found, to have keeping with the great traditionsl _' lH'l"he robes of the Speaker do changelandyp inside. The Speaker holds a pivotal position in 'thel'scheme of Parliamentary democracy and are" guardians of theurights and privileges of the House. They and do take far--reaching decisions in the fun,_ctioni~n_gj'..oAf Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such C0I_1siitutiona1 functionaries should not be considered K exceptionable.

157'

82. These are the observations taken note .«of§ approved and made by the Hon'ble Supreme Court in which was presided over by Justice...l\/i_._l4\I.Vehl{ata'chalial1, then Was, in negativing the argument power of resolving such disputes 'dirt V:F;1.e_ does answer the test of an C quality of adjudicatory of the Speaker is not free from the tugsandipullsjfoflpoliticallpolarizations, he cannot be imPa1"13i?1.~ will not be free from llHowever, just one decade thereaiteri. 'recommendations made by the National Commissiolntol of the Constitution of which, Honfblepp Chief _ Justice, "CM N Venkatachalaiah was the A~recomvmlended that the power to decide on the lltoﬁdisqualification on grounds of defection should Vest inv_.theSAfEAlection Commission instead of the Speaker of the Housevconcerned. What a disillusionment in short span of 10 Similar is to the effect the views of number of other as H experts, committees, commissioner that, the power of 158 disqualification as a result of defection need to bejeirercised in accordance with the opinion of the Election in the case of decision on question... as toHldisqualificationulof Members provided for in Articles and thelb "

Constitution. Taking note'i?_f""the Apex Court in Jagjit $ingh's_ca'se__i1e_pld to vest such power in the Spealee-r. or any other institution is not for us for Parliament to decide. that Parliament, if deemedppw it, bestow its wise consiiglxeratlioxrpivj'.;tQ__ '«a'i'or_esaidV111VieWs expressed also having regarddto the last number of years and thereafter take' "such recourse as it may deem necessary under the what a steep fall in the standards within 1 a..ishort4s.panTof.va decade.

A f_" ipslpeaker which is contained in paragraphs 180, 181 and 182. 1/

83.' . f__1f is in this background it is necessary to notice the minority View in Kihoto Hollohanfs case about the role of the 159 "I80. The Speakers ojfice is high and has considerable aura with thefattributett M of impartiality. This aura o_f..ih.e ojfice"'wo;s» greater when the Constitution wasba-ndit .A the framers of the Constitutiong did notgjcfhoose ' vest the authority of Vadiudicaii.ng__ to disqualification of M€W11;)H€':'vl?S_'tO.__vth€'..SpéClk€'l;§ and provision was in lA92 for decision of by the President/'Governor--Vinitaccordance the opinion of thefileciion V'T'he"'reaSOn is n01'£fCU"

to seek, 5:' _ Speaker being an authority within the House a.*id_this:Aienure being dependent on the wiiibof the therein, likelihood of suspicion of . bias could not be ruled out. The question as to . dﬁqualificaiion of a Member has adjudicatory . disposition and, therefore, requires the decision to b be in consonance with the scheme for adjudication of disputes. Rule of law has in it "fi_rinly entrenched, natural justice, of which, rule _ H against bias is a necessary concomitant: and basic postulates of rule against bias are: nemo judex in V. 160 causa sua M 'A Judge is disqualified determining any case in which he may be;'_:"o'r :. fairly be suspected to be, biased'; of A' fundamental importance thatmjustice xnot; only be done, but should :jy"nia:{;,a§si1fg undoubtedly be seen to be dones"

be the underlying principieadopted jirarners of the Constitution in no--t'designatingﬁ the Speaker as the authority"--.txo _de_cic?ie1uei'ection._disputes and questions as to disqiualiﬁ_ccitio--n-.ofb~:'me--%'nbers under Articles. opting for an outside House. The franiers'::Q,§the'Constitution in this manner kept chthem V7'§oj' Sp.ealcer away from this "controzhersyif 'Fhere " is nothing unusual in this mind that the final authority ' "for renzouai 'of Judge of the Supreme Court and Highyy Couft'"'"is outside the judiciary in the under Article 124(4). On the same « authority to decide the question of disgiialificaaon of a Member of Legislature is * outside the House as envisaged by Articles 103 and 192.

161

182. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of dispute with no provision for any appeal or against the Speaker's decision to any ~ outside authority. This departure l Schedule is a reverse trendrand' violates.:al'basic'h feature of the constttttttotii«.Vsi§tcell the cannot be treated as ad authoritylcontetnpis::itedy,yfc3§f being entrusted with 'lthelgbasic postulates of the:"(;enstttiittott,: notwithstanding the great dignity attaching ..,office with the attribute Qyfinqoartialityf'. _ V' 'l 'TI""ne viej-W e3§J'ressed by"'tl"te" minority judgment became PROPH.ET'IC.' '

84. ' 4' "is the essence of democracy. For success of "democracy and democratic institutions honest ' V. disser1t7--."i=s toybe respected by persons in authority. Power and be abused to muzzle such dissent. If it is unconstitutional. If the internal democracy in a political party done the end of democracy. It would be 162 is stiﬂed, then, the persons who acquire pow_Ver--.__"thiio'ugh democratic process would become despots. Tliée intentiffm of enacting Tenth Schedule in the Constitution'togcreateci such a situation. "Then the C0urt:s':.are'_"called'upon iliiiterpret l the organic Constitution ulro'1-'1<ji1ig_ political institutions created therein, the the past is helpful in understandinlgltheph principle behind such legislation,V.while:.inter_pretinggthe the Courts have to keep in. 'future. Certainly they have total:§e.. constitutional provisions has worked in undesired results emanating from such Aproyisionsll to place such reasonable interj'pre_tatiolni-.which yvould be in the interest of democracy, " rule of E"lawl"as_ well aslthe constitutional principles enshrined in the Seen from that angle, this abuse of the Tenth Schedule' the persons in power to stifle the honest dissent cannot...be countenanced. These petitioners knowingly or l.l'l.Ayun._kftio\Aringly have touched the right chord and they could be Whistle blowers in the present context, in ﬁght against 163 unethical, unprincipled behaviour of po1iticie,--n"s--l power. _

85. The Apex Court in the casegof, PRACTITIONERS ASSOCLATIONC 2010(5) Kar.L.J. 249 dealing accugsedlinllall Contempt of Courts Act, bnngiiaghlllto light rxnalfunctioninglof institutions establishe§..,.for thelllcasles involving revenue of the State as whistle--blowers and found no 'reasonizto silence "su_'ch___pferson by invoking the provisions 'Con_temp't_of__Courts Act. In that context, it was held that if article, editorial, etc., contains something lwhgigchll appears to be contemptuous and the Court ormthe High Court is called upon to initiate tinder the Act and Articles 129 and 215 of the Co~nstitu'tion,Al the truth should ordinarily be allowed as a Adefenlcefunless the Court finds that it is only a camouﬂage to escape the consequences of deliberate or maiicious attempt to .i pvscandalise the Court or is an interference with the k// 164 administration of justice. It was further held that the petitioner has not even suggested that mentioned in the editorial is incorrector has presented a distorted version the warrant for discarding whatever he has written is the sole object of writing the the concerned authorities to co,ri*e'ctiye/rernedialvameasures. It will be opposite to of the phenomenon of whistle--blower;,,::v. a person who raises a concern occtirring in an organisation or body ofdpeople.l person would be from that same organisation. revealed misconduct may be classified in many ways;~,_for example, a violation of law, rule, regulation 1 thereat to public interest, such as fraud, health/safetyl[violations and corruption. Whistle--blowers may make" their allegations internally or externally. Most whistle-

" 'towers are internal whistle-blower, who report misconduct on fellow employee or superior within their company. A person M/t 165 like the respondent can appropriately be described as a whistle--b1ower for the system who has tried to high-li'gh_t the malfunctioning of an important institution "for dealing with cases involving revenue of no reason to silence such person by-..ini=i'ol«:ing.'Article or'--. 215 of the Constitution or the provisions of t1'1e'l:A;'.ti_ . ll

86. Seen in qtljat three among 11 petitioners before us were itl;el--V--'Cabinet. They are insiders. their .::mSrt's*V Aitoehifighit against corruption, nepotism 'c.\_/»ils__, in the party forum did not yield results,' they have the Governor withdrawing their support to th-ea Goirernment, expressing no confidence in their ., h:£)'~,1'§ heading the Government. From what they have 'Vs«t'ated-linglitheletter, they want to ﬁght against the social evil and want clean administration. Can their voice be stifled by AA pressing into operation the provisions contained in the Tenth if --..gV'Sch'edule of the Constitution, which was enacted to curb the L'//. ..

Unlock Advanced Research with PRISMAI

Karnataka High Court