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TMI Blog2011 (5) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 1 of 2010, filed by Shri B.S. Yeddyurappa, the Legislature Party Leader of the Bharatiya Janata Party in Karnataka Legislative Assembly, who is also the Chief Minister of the State of Karnataka, on 6th October, 2010, under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, against Shri M.P. Renukacharya and 12 others, claiming that the said Respondents, who were all Members of the Karnataka Legislative Assembly, would have to be disqualified from the membership of the House under the Tenth Schedule of the Constitution of India. In order to understand the circumstances in which the Disqualification Application came to be filed by Shri Yeddyurappa for disqualification of the 13 named persons from the membership of the Karnakata Legislature, it is necessary to briefly set out in sequence the events preceding the said application. 3. On 6th October, 2010, all the above-mentioned 13 members of the Karnataka Legislative Assembly, belonging to the Bharatiya Janata Party, hereinafter referred to as the MLAs , wrote identical letters to the Governor of the State indicating that they had been elected as MLAs on Bharatiya Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of the Members of the House by introducing and getting passed a suitable motion expressing confidence in his Government in the Legislative Assembly on or before 12th October, 2010 by 5 p.m. In his letter he indicated that the Speaker had also been requested accordingly. On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No. 1 of 2010, praying to declare that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution. 5. As will appear from the materials on record, Show-Cause notices were thereafter issued to all the 13 MLAs on 7th October, 2010, informing them of the Disqualification Application filed by Shri Yeddyurappa stating that having been elected to the Assembly as Members of the BJP, they had unilaterally submitted a letter on 6th October, 2010 to the Governor against his Government withdrawing the support given to the Government under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 7 of the aforesaid Rules which laid down a mandatory procedure for dealing with a petition seeking disqualification filed under the Rules. 8. It was pointed out that Rule 7 requires that the Appellants had to be given 7 days' time to reply or such further period as the Speaker may for sufficient cause allow. Under the said Rule the Speaker could only extend the period of 7 days, but could not curtail the time from 7 days to 3 days. It was the categorical case of the Appellants that the minimum notice period of 7 days was a requirement of the basic principles of natural justice in order to enable a MLA to effectively reply to the Show-Cause notice issued to him seeking his disqualification from the Legislative Assembly. It was mentioned in the reply to the Show-Cause notice that issuance of such Show-Cause notice within a truncated period was an abuse and misuse of the Constitutional provisions for the purpose of achieving the unconstitutional object of disqualifying sufficient number of Members of the Assembly from the membership of the House in order to prevent them from participating in the Vote of Trust scheduled to be taken by Shri B.S. Yeddyurappa on the Floor of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts appealed to the Speaker not to become the tool in the hands of a corrupt Chief Minister and not to do anything which could invite strictures from the judiciary. A request was, therefore, made to withdraw the Show-Cause notices and to dismiss the petition dated 6th October, 2010 moved by Shri B.S. Yeddyurappa, in the capacity of the leader of the Legislature Party of the Bharatiya Janata Party and also as the Chief Minister, with mala fide intention and the oblique motive of seeking disqualification of the answering MLAs and preventing them from voting on the confidence motion on 11th October, 2010. 11. The Speaker took up the Disqualification Application No. 1 of 2010 filed by Shri B.S. Yeddyurappa, the Respondent No. 1 herein, along with the replies to the Show-Cause notices issued to the thirteen MLAs, who had submitted individual letters to the Governor indicating their withdrawal of support to the Government led by Shri Yeddyurappa. Except for Shri M.P. Renukacharya and Shri Narasimha Nayak, all the other MLAs were represented by their learned advocates before the Speaker. It was noticed during the hearing that Shri Renukacharya had subsequently filed a petition stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the Tenth Schedule and certain decisions of this Court as to how statutory provisions are to be interpreted in order to avoid mischief and to advance remedy in the light of Heyden's Rule, the Speaker extracted a portion of a passage from Lord Denning's judgment in Seaford Court Estates Ltd. v. Asher, wherein Lord Denning had stated that a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. The Speaker was of the view that in the event of a difference of opinion regarding leadership in a political party, the matter had to be discussed in the platform of the party and not by writing a letter to the Governor withdrawing support to the Government. The Speaker also observed that the Governor never elects the leader of the legislature party. Accordingly, from the conduct of the Appellants in writing to the Governor that they had withdrawn support, joining hands with the leader of another party and issuing statements to the media, it was evident that by their conduct the Appellants had become liable to be disqualified under the Tenth Schedule. In coming to the said conclusion, the Speaker placed reliance on several decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. 17. The Speaker then took note of the retraction by Shri M.P. Renukacharya and Shri Narasimha Nayak, indicating that they had no intention of withdrawing support to the Government led by Shri Yeddyurappa and that they extended support to the party and the Government and their elected leader. The Speaker also relied on the affidavit filed by Shri K.S. Eswarappa and on considering the same, arrived at the decision that the said two MLAs were not disqualified under the Tenth Schedule of the Constitution. As far as the Appellants are concerned, the Speaker held that in view of the reasons stated and the factual background, he was convinced that they were disqualified from their respective posts of MLAs under paragraph 2(1)(a) of the Tenth Schedule of the Constitution. 18. The Speaker then took up the objection taken on behalf of the Appellants herein that the Show-Cause notice to the Appellants had been issued in violation of the provisions of Rules 6 and 7 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, hereinafter referred to as the Disqualification Rules,1986 , inasmuch as, they were not given seven days' time to reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Speaker to reject the objection of the Appellants on the aforesaid score and relying on the judgments rendered by this Court in Ravi S. Naik's case (supra) and in the case of Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. (2004) 8 SCC 747, the Chief Justice held that it was not possible to accept the contentions of the learned Counsel for the Appellants and rejected the same. 20. On the second contention relating to violation of the rules of natural justice and the proceedings conducted by the Speaker in extreme haste, thereby depriving the Appellants of a reasonable opportunity of defending themselves, the Chief Justice, placing reliance on the decision in Ravi S. Naik's case (supra), negated the submissions made on behalf of the Appellants upon holding that since no prejudice had been caused to the Appellants, it was difficult to accept the contention advanced on their behalf that the entire proceedings of the Speaker deserved to be set aside. 21. Regarding the other objection taken on behalf of the Appellants on the question of reliance having been placed on the affidavit filed by the State President of the Bharatiya Janata Party, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 2(1)(a) of the Tenth Schedule of the Constitution. Observing that in a parliamentary democracy the mandate to rule the State is given not to any individual but to a political party, the learned Judge further observed that the Council of Ministers headed by the Chief Minister can continue in the office as long as they enjoyed the confidence of the majority of the Members of the House. If the House expressed no confidence in the Chief Minister, it was not only the Chief Minister, but his entire Council of Ministers who cease to be in office. Regarding interpretation of the provisions of paragraph 2(1)(a) of the Tenth Schedule of the Constitution, Kumar, J., referred to the decisions rendered by this Court in - (1) Kihoto Hollohan v. Zachillhu and Ors. (1992) Supp. 2 SCC 651; (2) G. Viswanathan v. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras and Anr. (1996) 2 SCC 353; (3) Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. (2004) 8 SCC 747; and (4) Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors. (2007) 4 SCC 270, and held that from the scheme of the Tenth Schedule it was clear that the same applied only to a Member of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... membership of a party, his support was not available for forming an alternative Government by the opposition party. The learned Judge observed that if a Member violates the above conditions, the Parliament has taken care to see by enacting the Tenth Schedule that such Member would be instantly disqualified from being a Member of the House. Once the act of disqualification occurred, the question of condoning such act or taking him back to the party on his tendering an apology or expressing his intention to come back to the party, would not arise. Therefore, if the act falls within the ambit of paragraph 2(1)(a) of the Tenth Schedule, his membership becomes void. However, if such disqualification was incurred under paragraph 2(1)(b), such disqualification did not render his membership void but it was voidable at the option of the political party. 26. The learned Judge went on to further hold that when a Member of a House expressed his no confidence in the leader of a Legislature Party and if he happened to be the Chief Minister who is heading the Council of Ministers and had written to the Governor in that regard, such act by itself would not amount to an act of floor crossing. Simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution. The learned Judge observed further that, in fact, the said provision also provides for such an act being condoned so that by persuasion or by entering into an understanding, their support could still be relied upon by the party to save the Government before voting or in forming a fresh Government after such voting, if in the voting the Government fails. The said dissent amounts to the dissent within the party itself. 27. The learned Judge observed that the two grounds set out in paragraph 2 of the Tenth Schedule to the Constitution are mutually exclusive and operate in two different fields. While paragraph 2(1)(a) deals with the Member who voluntarily walks out of the party, paragraph 2(1)(b) deals with the Member who remains in the party but acts in a manner which is contrary to the directions of the party. The learned Judge, however, went on to observe that if a Member voluntarily gives up his membership from the party, then paragraph 2(1)(b) is no longer attracted. In either event, it is the political party which is aggrieved by such conduct. However, it was left to the party to condone the conduct contemplated in paragraph 2(1)(b), but such conduct would have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since his tenure as Speaker is dependent on the will of the majority of the House. While holding that right to dissent is the essence of democracy, for the success of democracy and democratic institutions honest dissent is to be respected by persons in authority. On the basis of his aforesaid conclusions, the learned Judge held that the order of the Speaker impugned in the writ petition was in violation of the constitutional mandate and also suffered from perversity and could not, therefore, be sustained. The impugned order of the Speaker was, therefore, set aside by the learned Judge. 31. On account of such difference of opinion between the Chief Justice and his companion Judge, the matter was referred to a third Judge to consider the following issue: Whether the impugned order dated 10.10.2010 passed by the Speaker of the Karnataka State Legislative Assembly is in consonance with the provisions of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. 32. On the basis of the said reference, the matter was referred to the Hon'ble Mr. Justice V.G. Sabhahit, who by his judgment and order dated 29th October, 2010, concurred with the decision rendered by the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, liable to be rejected on such ground also. Instead of rejecting the application or even returning the same for proper verification, the Speaker chose to ignore the shortcomings and issued Show-Cause notices to the Appellants in undue haste with the oblique motive of disqualifying them from the membership of the House prior to the Trust Vote to be taken on 11th October, 2010. Applications sans annexures were not even served on the Appellants, but merely pasted on the doors of the official residence of the Appellants which were locked since the Assembly was not in session. Mr. Nariman submitted that the Appellants were granted time till 5.00 p.m. on 10th October, 2010, to respond to the Show-Cause notices although Rule 7(3) provided for seven days' time or more to respond to such an application. Instead, in complete violation of the said Rules, the Appellants were given only three days' time to respond to the Show-Cause notices and even more serious objection was taken by Mr. Nariman that it was in the Show-Cause notices that for the first time, it was stated that the actions of the Appellants were in violation of paragraph 2(1)(a) of the Tenth Schedule of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led against Shri M.P. Renukacharya and Shri Narasimha Nayak made it obvious that such steps were taken by the Speaker to save the membership of the said two MLAs to enable them to participate in the Trust Vote. It was also submitted that to make matters worse, the Speaker took personal notice about the statements allegedly made by the Appellants to the effect that they wanted to topple the BJP Government and to form a new Government with the others. It was submitted that while performing an adjudicatory function under the Tenth Schedule, while holding a highly dignified office, all personal knowledge which the Speaker may have acquired, should not have been taken into consideration in taking a decision in the matter. In this regard, Mr. Nariman referred to the decision of this Court in S. Partap Singh v. State of Punjab (1964) 4 SCR 733, wherein it was held that if while exercising a power, an authority takes into account a factor which it was not entitled to, the exercise of the power would be bad. However, where the purpose sought to be achieved are mixed, some relevant and some not germane to the purpose, the difficulty is resolved by finding the dominant purpose which impelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to the decision of this Court in Kihoto Hollohan's case (supra) and urged that the order of disqualification passed against the Appellants for merely expressing their disagreement with the manner of functioning of the Respondent No. 1 as Chief Minister, had not only impinged upon the Appellants' right of free speech, as guaranteed under Article 19(1)(a) of the Constitution, but from a bare reading of the letter dated 6th October, 2010, written by the Appellants to the Governor, it could not be held that the same indicated their intention to voluntarily give up the membership of the BJP. Mr. Nariman submitted that the impugned orders and the order of the Speaker dated 10th October, 2010, were unsustainable since they had been engineered to prevent the Appellants from participating in the Vote of Confidence fixed on 11th October, 2010. 39. Mr. P.P. Rao, learned Senior Advocate, who appeared for the Appellants in the Civil Appeals arising out of Special Leave Petition (Civil) Nos. 33533-33565 of 2010, submitted that in order to attract the disqualification clause under paragraph 2(1)(a) of the Tenth Schedule, Shri Yeddyurappa had first to establish that the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the object of paragraph 2(1)(a) was not to curb internal democracy or the right to dissent, since dissent is the very essence of democracy, but neither the Chief Justice nor V.G. Sabhahit, J. even adverted to such basic principle of Parliamentary democracy and erred in equating withdrawal of support to the Government led by Shri B.S. Yeddyurappa with withdrawing support to the BJP Government. According to Mr. Rao, the Appellants were only doing their duty as conscious citizens to expose the corruption and nepotism in the Government led by Shri B.S. Yeddyurappa. Mr. Rao referred to and relied upon the decisions of this Court in (1) State of M.P. v. Ram Singh (2000) 5 SCC 88 and (2) B.R. Kapur v. State of T.N. (2001) 7 SCC 231, wherein, such sentiments had also been expressed. Mr. Rao contended that it is a well-settled principle of law that when a power is conferred by the Statute and the procedure for executing such power is prescribed, the power has to be exercised according to the procedure prescribed or not at all. In this regard, Mr. Rao referred to the celebrated decision of the Privy Council in Nazir Ahmad v. King Emperor 63 Indian Appeals 372 and State of U.P. v. Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 14 of the Constitution itself, as was held in Union of India v. Tulsiram Patel (1985) 3 SCC 398. Mr. Rao submitted that this was a clear case of abuse of constitutional powers conferred on the Speaker by paragraph 6 of the Tenth Schedule, with the sole motive of saving his own Chair and the Chair of the Chief Minister. The Show-Cause notice was not only unconstitutional and illegal, but motivated and mala fide and devoid of jurisdiction. 44. Referring to the judgment of the Chief Justice, which was in variance with the decision of N. Kumar, J., Mr. Rao urged that the Chief Justice had only noted and considered ground K to the Writ Petition, without considering grounds C, D, F, H and I, which dealt with the very maintainability of the Disqualification application on account of improper verification. Mr. Rao submitted that indecent haste with which the Disqualification Application was processed was clearly in violation of the mandate of Rule 7 of the 1986 Rules, which provided for at least 7 days' time to reply to a Show-Cause notice issued under Rule 6. 45. Mr. Rao also submitted that despite pointed references made to the corruption and nepotism in the Government led by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising powers under paragraph 6(1) of the Tenth Schedule. Mr. Rao pointed out that paragraph 100 of the decision in Kihoto Hollohan's case (supra) declares the Speaker or the Chairman acting under paragraph 6 of the Tenth Schedule to be a Tribunal. Mr. Rao submitted that the view taken in Ravi S. Naik's case (supra) that the Disqualification Rules being procedural in nature, any violation of the same would amount to irregularity in procedure which was immune from judicial scrutiny in view of Rule 6(2) of the 1986 Rules, was an inaccurate statement of law in view of the decision of the Constitution Bench in Kihoto Hollohan's case (supra). Mr. Rao also pointed out that the decision in Ravi S. Naik's case (supra) had been considered by a Bench of 3 Judges of this Court in Mayawati v. Markandeya Chand (1998) 7 SCC 517, wherein K.T. Thomas J. had observed that the decision in Kihoto Hollohan's case had not been considered in Ravi S. Naik's case in its proper perspective. M. Srinivasan, J. did not agree with the views expressed by K.T. Thomas, J. and quoted approvingly from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) of the Tenth schedule; and (vi) Whether the Speaker's inference from the conduct of the MLA's in the present case that they have given up the membership of the political party to which they belong, can be said to be 'perverse'? 50. It was submitted that the scope of judicial review of the order of the Speaker of the Legislative Assembly was extremely limited in view of the finality attached to the Speaker's order under paragraph 6(1) of the Tenth Schedule. Mr. Sorabjee submitted that in Kihoto Hollohan's case this Court had held that the immunity granted under sub-paragraph (2) of paragraph 6 was in respect of the procedural aspect of the disqualification proceedings, but that the decision itself was not totally immune from judicial scrutiny. However, having regard to the finality attached to the decision of the Speaker, as indicated in subparagraph (1), judicial review of the said order would be confined to infirmities based on (a) violation of constitutional mandate; (b) mala fides; (c) non-compliance with the rules of natural justice; and (d) perversity. Mr. Sorabjee submitted that the Speaker's order impugned in these proceedings did not suffer fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll period of 7 days was not required to be given by the Speaker for showing cause by the Member concerned. Mr. Sorabjee submitted that since the period of 7 days was the maximum period prescribed, it did not circumscribe the Speaker's authority to require such response to the Show-Cause notice within a lesser period and, in any event, the said issue was a non-starter since the Rules had been held by this Court to be directory and not mandatory. In any event, in Ravi S. Naik's case (supra), it had been observed that while applying the principles of natural justice, it had to be kept in mind that they were not cast in a rigid mould nor can they be put in a legal strait jacket. Mr. Sorabjee submitted that the same view had been reiterated in Jagjit Singh's case (supra) and the contention that the Speaker ought not to have relied upon his personal knowledge was specifically rejected in the said case. 54. Mr. Sorabjee urged that this Court in Kihoto Hollohan's case (supra) had drawn a distinction between the procedure followed by the Speaker and the decision rendered by him and had held that the procedure followed would be immune from judicial review, being administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disqualification had already occurred when the concerned Member had presented his letter to the Governor and as a result since the Vote of Confidence was fixed for the next day, the Speaker had no option but to decide the question of disqualification before the Vote of Confidence was taken. Mr. Sorabjee submitted that even N. Kumar, J. while dissenting from the order of the Chief Justice, concurred with him on the issue regarding absence of mala fides on the part of the Speaker. 57. Mr. Sorabjee urged that although various charges had been made against the Appellants, they had neither denied the same before the Speaker nor in the Writ Petition nor in the proceedings before the High Court, which gave rise to a presumption that there was a ring of truth in such allegations. Mr. Sorabjee urged that the case of the Appellants that they had not been provided a proper opportunity of dealing with and replying to the Show-Cause notices, was completely incorrect, since they had sent detailed replies to the Speaker in response to the Show-Cause notices. 58. Mr. Sorabjee submitted that after detailed replies had been filed by the Appellants, a full-fledged hearing had been given to them and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing support to the Chief Minister alone. It is the entire Council of Ministers that is collectively responsible to the House. In other words, a Vote of Confidence is expressed in the entire Council of Ministers and not in the Chief Minister alone. According to Mr. Sorabjee, the arguments advanced on behalf of the Appellants, that expression of honest political dissent must not be seen as defection, had been rejected in Kihoto Hollohan's case (supra) where this Hon'ble Court observed that a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independent of the political party's declared policies, would not only embarrass its public image and popularity but also undermine public confidence in it. Mr. Sorabjee submitted that it necessarily follows that as long as a Member professes to belong to a political party, he must abide by and be bound by the decision of the majority within the party. He is free to express dissent within the party platform, but d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se two views are possible since the majority decision was that the view of the Speaker could not be regarded as perverse, the Appeals were liable to be dismissed. 64. In addition to the submissions made by Mr. Sorabjee, which he adopted, Shri Satyapal Jain, appearing for Shri Yeddyurappa in the several Civil Appeals, submitted that two other issues were also required to be taken into consideration, namely, (1) whether the Appellants had been prejudiced by the action of the Speaker; and (2) whether the action of withdrawing support from the Chief Minister amounted to voluntarily giving up the membership of the Bharatiya Janata Party which disqualified them under paragraph 2(i)(a) of the Tenth Schedule. 65. Mr. Jain submitted that the crucial facts had not been denied by the Appellants and hence it could not be said that any prejudice had been caused to them. Mr. Jain submitted that it was for the Appellants to deny the allegations made regarding their moving in a group from Karnataka to Goa and to other places where they had issued press releases stating that they were together and had withdrawn support to the Government. Mr. Jain also submitted that the Appellants had not denied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case reveal that the Appellants along with Shri M.P. Renukacharya and Shri Narasimha Nayak, wrote identical letters to the Governor on 6th October, 2010, indicating that as MLAs of the Bharatiya Janata Party they had become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa. According to them, there was widespread corruption, nepotism, favoritism, abuse of power and misuse of Government machinery in the functioning of the Government headed by Chief Minister, Shri Yeddyurappa, and that a situation had arisen when the governance of the State could not be carried on in accordance with the provisions of the Constitution (Emphasis added). Accordingly, they were withdrawing their support from the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and to institute the constitutional process as the constitutional head of the State (Emphasis added). 71. The Speaker took the view that the said letter and the conduct of the Appellants in moving from Karnataka to Goa and other places and issuing statements both to the print and electronic media regarding withdrawal of support to the BJP Government led by Shri Yeddyurappa and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said replies they had categorically indicated that nowhere in the letter of 6th October, 2010, had they indicated that they would not continue as Members of the Legislature Party of the BJP. On the other hand, they had reiterated that they would continue to support the BJP and any Government formed by the BJP headed by any leader, other than Shri B.S. Yeddyurappa, as Chief Minister of the State. They also reiterated that they would continue to support any Government headed by a clean and efficient person who could provide good governance to the people of Karnataka according to the Constitution of India and that it was only to save the party and Government and to ensure that the State was rid of a corrupt Chief Minister, that the letter had been submitted to the Governor on 6th October, 2010. 75. At this point let us consider the contents of the letter dated 6th October, 2010, written by the Appellants to the Governor, which has been reproduced hereinbefore. The letter clearly indicates that the author thereof who had been elected as a MLA on a Bharatiya Janata Party ticket, having become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawal of support to the Government led by Shri Yeddyurappa and the formation of a new Government, the Appellants had voluntarily given up their membership of the B.J.P. and were contemplating the formation of a Government excluding the Bharatiya Janata Party. The Speaker has proceeded on the basis that the allegations must be deemed to have been proved, even in the absence of any corroborative evidence, simply because the same had not been denied by the Appellants. The Speaker apparently did not take into consideration the rule of evidence that a person making an allegation has to prove the same with supporting evidence and the mere fact that the allegation was not denied, did not amount to the same having been proved on account of the silence of the person against whom such allegations are made. Except for the affidavit filed by Shri K.S. Eswarappa, State President of the B.J.P., and the statements of two of the thirteen MLAs, who had been joined in the Disqualification Application, there is nothing on record in support of the allegations which had been made therein. Significantly, the said affidavits had not been served on the Appellants. Since Shri K.S. Eswarappa was not a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ober, 2010, since the Vote of Confidence on the Floor of the House was slated for 12th October, 2010. The element of hot haste is also evident in the action of the Speaker in this regard as well. 78. In arriving at the conclusion that by such short notice, no prejudice has been caused to the Appellants, since they had filed their detailed replies to the Show-Cause notices, the Speaker had relied on the two decisions of this Court, referred to hereinbefore in Dr. Mahachandra Prasad Singh's case and Ravi S. Naik's case, wherein it had been held that the 1986 Rules were directory and not mandatory in nature, and, as a result, the order dated 10th October, 2010, could not be set aside only on the ground of departure there from. Even if less than seven days' time is given to reply to the Show-Cause notice, the legislator must not be prejudiced or precluded from giving an effective reply to such notice. 79. One of the questions which was raised and answered in Dr. Mahachandra Prasad Singh's case was the nature and effect of non-compliance with the provisions of Rules 6 and 7 of the Disqualification Rules, 1994. It was held therein by a Bench of Three Judges of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. At the relevant time, the Congress (I) initially formed the Government with the support of one independent member. Subsequently, seven members of the Congress (I) left the party and formed the Goan People's Party and formed a coalition government with the Maharashtrawadi Gomantak Party under the banner of Progressive Democratic Front (PDF). The said government was also short-lived and ultimately President's Rule was imposed in the State and the Legislative Assembly was suspended on 14th December, 1990. Prior to proclamation of President's Rule, Shri Ramakant Khalap, who was the leader of the Progressive Democratic Front, staked his claim to form a Government, but no further action was taken on such claim since the Assembly was suspended on 14th December, 1990. However, Shri Ramakant Khalap filed a petition before the Speaker under Article 191(2) read with paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution for disqualification of two Members, who had joined the Congress Democratic Front in spite of being Members of the Maharashtrawadi Gomantak Party. By his order dated 13th December, 1990, the Speaker disqualified the said two Members from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a person may voluntarily give up his/her membership of a political party, even though he/she had not tendered his/her resignation from the membership of that party. However, the Division Bench of the High Court approved the said proposition in the facts and circumstances of that case, where, after the Government was initially formed, there was an exodus from the principal party resulting in the formation of a new party which stood protected under paragraph 4 of the Tenth Schedule to the Constitution. Of course, it will also have to be noted that Shri Bandekar and Shri Chopdekar had not only accompanied Dr. Barbosa to the Governor and had informed the Governor that it did not support the Maharashtrawadi Gomantak Party any further, but they had also made it known to the public that they had voluntarily resigned from the membership of the said party. It is in these facts that a presumption was drawn from the conduct of the Members that they had voluntarily resigned from the membership of the Maharashtrawadi Gomantak Party. In the said case also, after Show-Cause notices were issued, both persons filed their replies stating that they had not given up the membership of the Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any, to the said application. Even if as held by this Court in Mahachandra Prasad Singh's case (supra), Rules 6 and 7 of the Disqualification Rules are taken as directory and not mandatory, the Appellants were still required to be given a proper opportunity of meeting the allegations mentioned in the Show-Cause notices. The fact that the Appellants had not been served with notices directly, but that the same were pasted on the outer doors of their quarters in the MLA complex and that too without copies of the various documents relied upon by Shri Yeddyurappa, giving them three days' time to reply to the said notices justifies the Appellants' contention that they had not been given sufficient time to give an effective reply to the Show-Cause notices. Furthermore, the Appellants were not served with copies of the affidavit filed by Shri K.S. Eswarappa, although, the Speaker relied heavily on the contents thereof in arriving at the conclusion that the Appellants stood disqualified under paragraph 2(1)(a) of the Tenth Schedule to the Constitution. 85. Likewise, the Appellants were also not supplied with the copies of the affidavits filed by Shri M.P. Renukacharya and Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... membership of the Bharatiya Janata Party by their acts and conduct which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, where under they stood disqualified. The Vote of Confidence took place on 11th October, 2010, in which the disqualified members could not participate and, in their absence Shri B.S. Yeddyurappa was able to prove his majority in the House. 87. Unless it was to ensure that the Trust Vote did not go against the Chief Minister, there was no conceivable reason for the Speaker to have taken up the Disqualification Application in such a great hurry. Although, in Mahachandra Prasad Singh's case (supra) and in Ravi S. Naik's case (supra), this Court had held that the Disqualification Rules were only directory and not mandatory and that violation thereof amounted to only procedural irregularities and not violation of a constitutional mandate, it was also observed in Ravi S. Naik's case (supra) that such an irregularity should not be such so as to prejudice any authority who is affected aversely by such breach. In the instant case, it was a matter of survival as far as the Appellants were concerned. In such circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de against the Appellants by Shri Yeddyurappa, were also made against Shri M.P. Renukacharya and Shri Narasimha Nayak, their retraction was accepted by the Speaker, despite the view expressed by him that upon submitting the letter withdrawing support to the BJP Government led by Shri Yeddyurappa, all the MLAs stood immediately disqualified under paragraph 2(1)(a) of the Tenth Schedule to the Constitution, and they were, accordingly, permitted to participate in the Confidence Vote for reasons which are not required to be spelt out. 90. On the question of justice ability of the Speaker's order on account of the expression of finality in paragraph 6 of the Tenth Schedule to the Constitution, it has now been well-settled that such finality did not include the powers of the superior Courts under Articles 32, 226 and 136 of the Constitution to judicially review the order of the Speaker. Under paragraph 2(1)(a) of the Tenth Schedule, the Speaker functions in a quasi-judicial capacity, which makes an order passed by him in such capacity, subject to judicial review. The scope of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, therefore, enables the Speaker in a quasi-judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative Assembly of a State, shall not be disqualified under the Schedule if he by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election, and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party. The object behind the said paragraph is to ensure that the Speaker, while holding office, acts absolutely impartially, without any leaning towards any party, including the party from which he was elected to the House. 94. The Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010, disqualifying the Appellants from the membership of the House under paragraph 2(1)(a) of the Tenth Schedule to the Constitution is set aside along with the majority judgment delivered in Writ Petition (Civil) No. 32660-32670 of 2010, and the portions of the judgment delivered by Justice N. Kumar concurring with the views expressed by the Hon'ble Chief Justice, upholding the decision of the Speaker on the Disqualification Application No. 1 of 2010 filed by Shri B.S. Yeddyurappa. Consequently, the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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