SHRIMANTH BALASAHEB PATIL versus HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS on 13 November 2019

SUPREME COURT REPORTS

[2019] 16 S.C.R.

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SHRIMANTH BALASAHEB PATIL

v.

HON’BLE SPEAKER, KARNATAKALEGISLATIVE ASSEMBLY AND OTHERS

B(Writ Petition (Civil) No. 992 of 2019)

NOVEMBER 13, 2019

[N. V. RAMANA, SANJIV KHANNAAND KRISHNA MURARI, JJ.]

Constitution of India – Tenth Schedule; Arts.190(3)(b),C191(1), 191(2) – Acceptance/rejection of the resignation of themembers of the House by the Speaker – Scope of judicial reviewu/Arts.32 – Writ petitioners were elected as members of the 15thKarnataka Legislative Assembly – Though the BJP was the singlelargest party, but could not form the Government – A coalitionDgovernment of INC and JD(S) was formed – DisqualificationPetition No.1 of 2019 was instituted against the petitioners inW.P.(C) No. 997/19 alleging that their conduct was in violation ofthe whip issued by INC – Said petitioners submitted resignationsto the Speaker – Other petitioners also submitted their resignations– No call taken by the Speaker on the resignations – Most of themEfiled W. P.(C) No. 872/19 wherein Supreme Court inter alia directedthe Speaker to take decision qua the resignations forthwith – Nodecision taken by the Speaker on the resignations – Further,Disqualification Petition Nos.3-5 were filed against 13 petitioners(Three in W.P (C) No. 1005/19 and 10 in W.P (C) Nos. 998/19,F1000/19, 1001/19, 1006/19 & 1007/19) – Disqualification PetitionNos. 7 & 8 of 2019 were also filed – Chief Minister resigned onlosing the trust vote on 23.07.2019 – On 25.07.2019 and28.07.2019, the Speaker passed the five impugned orders in theabove Disqualification Petitions rejecting the resignation of themembers asserting that they were not voluntary or genuine;Gdisqualifying all the Petitioners, the disqualification being till theend of the 15th Legislative Assembly term – Held: Speaker, whileadjudicating a disqualification petition, acts as a quasi-judicialauthority – However, ordinarily, the party challenging thedisqualification is required to first approach the High Court as theH

SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER,KARNATAKA LEGISLATIVE ASSEMBLY

SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER,KARNATAKA LEGISLATIVE ASSEMBLY

same would be appropriate, effective and expeditious – Speaker’sscope of inquiry with respect to acceptance/rejection of aresignation tendered by a member of the legislature is limited toexamine whether such a resignation was tendered voluntarily orgenuinely – Once it is demonstrated that a member is willing toresign out of his free will, the speaker has no option but to acceptthe resignation – In the present case, the Petitioners stated andre-affirmed before the Speaker and this Court, in unequivocalterms, that they voluntarily and genuinely resigned theirmembership of the House – It is constitutionally impermissible forthe Speaker to take into account any extraneous factors whileconsidering the resignation – Satisfaction of the Speaker is subjectto judicial review – Further, in light of the existing Constitutionalmandate, the Speaker is not empowered to disqualify any membertill the end of the term – Also, no substantial question of law existsin the present matter, which needs reference to a larger bench –Petitioners failed to show any illegality in the orders of the Speaker– Orders dated. 25.07.2019 and 28.07.2019 passed by the Speakerin Disqualification Petition Nos. 1, 3-5, 7 & 8 of 2019, are upheldto the extent of the disqualification of the Petitioners therein,however, the part of the orders detailing the duration ofdisqualification, viz., from the date of the respective order till theexpiry of the term of the 15th Legislative Assembly of Karnatakais set aside – Rules of Procedure and Conduct of Business inKarnataka Legislative Assembly – Chapter 22, r.202 (2) –Constitution (Thirty- third Amendment) Act, 1974 – Constitution(Fifty-second Amendment) Act, 1985 – Constitution (Ninety-firstAmendment) Act, 2003 – Arts. 75(1B), 164(1B) and 361B –Karnataka Legislative Assembly (Disqualification of Members onGround of Defection) Rules, 1986 – r.7(3)(b) – Principles ofNatural Justice – Representation of the People Act, 1951 – s.36(2).

Constitution of India – Constitution (Thirty-third Amendment)Act, 1974 – Proviso to Art.190(3)(b) – Respondents contended thatthe acceptance/rejection of resignation is based on the subjectivesatisfaction of the Speaker which is immune from judicial review– Held: Unable to agree with this contention – It is true that 33rdConstitutional Amendment changed the constitutional position byconferring discretion on the Speaker to reject the resignation –However, such discretion is not unqualified, as the resignation can AB

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Aonly be rejected if the Speaker is “satisfied that such resignationis not voluntary or genuine” – Determination of whether theresignations were “voluntary” or “genuine” cannot be based onthe ipse dixit of the Speaker, instead it has to be based on his“satisfaction” – Even though the satisfaction is subjective, it hasto be based on objective material showing that resignation is notBvoluntary or genuine – This satisfaction of the Speaker is subjectto judicial review.

Constitution of India – Art.190(3)(b) – Speaker’s duty under– Scope of – Discussed.

CConstitution of India – Constitution (Ninety-first Amendment)Act, 2003 – Arts. 75(1B), 164(1B) & 361B – VariousDisqualification Petitions were filed against the petitioners whereinthe Speaker passed the impugned orders – However, 15 of the 17Petitioners had tendered their resignation from the House beforethe disqualification petitions were adjudicated – PetitionersDcontended that the Speaker did not have the jurisdiction to dealwith disqualification petitions, as the Petitioners having resignedwere no longer members who could have been disqualified – Held:This issue does not apply to the Pe-titioners in W. P. (C) No. 992/19 and W. P. (C) No. 1003/19 as they did not tender theirEresignation – Further, if it is held that the disqualificationproceedings would become infructuous upon tendering resignation,any member who is on the verge of being disqualified wouldimmediately resign and would escape from the sanctions providedu/Arts. 75(1B), 164(1B) & 361B – Such an interpretation wouldtherefore not only be against the intent behind the introduction ofFthe Tenth Schedule, but also defeat the spirit of the 91stConstitutional Amendment – In addition, the decision of theSpeaker that a member is disqualified, relates back to the date ofthe disqualifying action complained of – Constitution (Fifty-secondAmendment) Act, 1985 – Tenth Schedule.

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Constitution of India – Arts. 102(2), 164(1B), 168, 172,190(3), 191(1), (2), 192, 361(B) – Scheme of the Constitution withrespect to State Legislatures – Discussed.

Constitution of India – Tenth Schedule; Arts.190(3)(b), 191– Scope of the Speaker’s power on disqualification – Discussed.

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SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER,KARNATAKA LEGISLATIVE ASSEMBLY

Constitution of India – Arts.191(1) and (2) – Contrast inphraseology between Arts.191(1) and 191(2) – Held: Exclusion ofthe phrase “for being chosen as” a mem-ber in Art.191(2) suggeststhat the disqualification under the Tenth Schedule is qualita-tivelyand constitutionally different from the other types ofdisqualification that are provided for u/Art. 191(1) – Phrase “forbeing chosen as” has a specific connotation, meaning that aperson cannot become a member of the House, if suffering from adisqualification u/Art.191(1) – At the same time, the absence ofthese words in Art.191(2) suggests that a person who is no longera member due to disqualification under the Tenth Schedule doesnot suffer from the additional infirmity of not being allowed tobecome a member subsequently – Therefore, such a person is notbarred from contesting elections – Representation of the PeopleAct, 1951 – ss.7-11, 36(2) – Constitution (Ninety-first Amendment)Act, 2003 – Arts. 164(1B) & 361B.

Constitution of India – Tenth Schedule – Resignation anddisqualification on account of defection under the said Schedule– Held: Both result in vacancy of the seat held by the member inthe legislature, but further consequences envisaged are different.

Constitution of India – Disqualification under the TenthSchedule – Sanctions under Arts. 75(1B), 164(1B) and 361B –Held: Speaker is not empowered to disqualify any member till theend of the term – However, a member disqualified under the TenthSchedule shall be subjected to sanctions provided u/Arts. 75(1B),164(1B) & 361B which provides for a bar from being appointedas a Minister or from holding any remunerative political post fromthe date of disqualification till the date on which the term of hisoffice would expire or if he is re-elected to the legislature,whichever is earlier.

Constitution of India – Duty of constitutional functionariesto uphold constitutionalism and constitutional morality –Discussed.

Constitution of India – Art.145(3) – Interpretation of – Held:Two important phrases occurring in Art.145(3) are ‘substantialquestion of law’ and ‘interpretation of the Constitution’ – Twoconditions can be culled out before a reference is made: (i) TheCourt is satisfied that the case involves a substantial question of A

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Alaw as to the interpretation of this Constitution; (ii) Thedetermination of which is necessary for the disposal of the case –Any question of law of general importance arising incidentally, orany ancillary question of law having no significance to the finaloutcome, cannot be considered as a substantial question of law –Existence of substantial question of law does not weigh on theBstakes involved in the case, rather, it depends on the impact thequestion of law will have on the final determination.

Words & Phrases – “voluntary” and “genuine” – Ambit of,in context of Art.190(3)(b)– Constitution of India – Art. 190(3)(b)- Explained.CWords & Phrases – ‘disqualification’ – Meaning of –Constitution (Fifty-second Amendment) Act, 1985 – TenthSchedule.

Words & Phrases – “violation of constitutional mandate” –DHeld: Phrase “violation of constitutional mandate” speaks for itselfand does not need much elaboration. A “constitutional mandate”can be understood as what is required under, or by, theConstitution – In the context of the Tenth Schedule, and an orderof disqualification passed by the Speaker thereunder, the“constitutional mandate” is therefore nothing but what isEconstitutionally required of the Speaker – A “violation ofconstitutional mandate” is merely an unconstitutional act of theSpeaker, one that cannot be defended on the touch-stone of theTenth Schedule and the powers or duties of the Speaker thereinand is in contravention or violation of the same – ConstitutionF(Fifty-second Amendment) Act, 1985 – Tenth Schedule.

Disposing of the writ petitions, the Court HELD: 1.1 Writ jurisdiction is one of the valuable rightsprovided under Article 32 of the Constitution, which in itselfforms part of the basic structure of the Constitution. After theGdecision in the Kihoto Hollohan case, the Speaker, whileexercising the power to disqualify, is a Tribunal and the validityof the orders are amenable to judicial review. On a perusal ofthe judgment in the Kihoto Hollohan case, no explicit or implicitbar is found to adjudicate the issue under the writ jurisdictionHof this Court. The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of theConstitution of India and no act of Parliament can abrogate it ortake it away except by way of impermissible erosion offundamental principles of the constitutional scheme are settledpropositions of Indian jurisprudence. In any case, it is noted thatby challenging the order directly under Article 32, thePetitioners have leapfrogged the judicial hierarchy as envisagedunder the Constitution. The manner in which the petitionershave knocked on the doors of this Court is not appreciated.Among other reasons, the present matter was proceeded to beheard due to the peculiar facts presented before the Court,wherein certain interim orders were passed herein by anotherCo-ordinate Bench of Supreme Court in Writ Petition (C) No.872 of 2019 filed by some of the present petitioners. The Courthad heard the matter at some length on 25.09.2019 and26.09.2019, when with the consent of the counsel of all theparties, the matter was fixed for final hearing. Since a substantialamount of time passed in the meanwhile, and to ensure that thesame exercise need not be repeated before the High Court, theCourt is left with no option but to hear these cases on merits.

[Paras 22, 26, 28 and 29] [925-A-B; 926-D-E-H; 927-A-C]

Kihoto Hollohan v. Zachillhu (1992) Supp 2 SCC

651 : [1992] 1 SCR 686 – followed.

Tamil Nadu Pollution Control Board v. SterliteIndustries (I) Ltd. 2019 SCC Online SC 221 – referred to.

1.2 It is true that 33rd Constitutional Amendment changedthe constitutional position by conferring discretion on theSpeaker to reject the resignation. However, such discretion isnot unqualified, as the resignation can only be rejected if theSpeaker is “satisfied that such resignation is not voluntary orgenuine”. Determination of whether the resignations were“voluntary” or “genuine” cannot be based on the ipse dixit ofthe Speaker, instead it has to be based on his “satisfaction”.Even though the satisfaction is subjective, it has to be basedon objective material showing that resignation is not voluntaryor genuine. When a member tenders his resignation in writing,the Speaker must immediately conduct an inquiry to ascertain AB

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Aif the member intends to relinquish his membership. The inquirymust be in accordance with the provisions of the Constitutionand the applicable rules of the House. This satisfaction of theSpeaker is subject to judicial review. The 33rd ConstitutionalAmendment amended Article 190(3)(b) of the Constitution andadded a proviso. Thus, prior to the 33rd ConstitutionalBAmendment, there was no provision in the Article which requiredthe resignation to be accepted by the Speaker to becomeeffective. Originally, the position was that a member of aLegislative Assembly could resign from office by a unilateral act,and the acceptance of resignation was not required. First, as aCstarting principle, it has to be accepted that a member of theLegislature has a right to resign. Nothing in the Constitution,or any statute, prevents him from resigning. A member maychoose to resign for a variety of reasons and his reasons maybe good or bad, but it is his sole prerogative to resign. An elected member cannot be compelled to continue his office ifDhe chooses to resign. The 33rd Constitutional Amendment doesnot change this position. On the contrary, it ensures that hisresignation is on account of his free will. Second, the 33rdConstitutional Amendment requires acceptance of resignationby the Speaker. Thus, merely addressing a resignation letter toEthe Speaker would not lead to the seat automatically fallingvacant. The Speaker has to accept such resignation for the seatto become vacant. However, as discussed above, the Speakerhas limited discretion for rejecting the resignation. If theresignation is voluntary or genuine, the Speaker has to acceptthe resignation and communicate the same. Third, the SpeakerFcan reject the resignation, if the Speaker is satisfied thatresignation was “not voluntary or genuine”. Fourth, although theword “genuine” has not been defined, in this context, it wouldsimply mean that a writing by which a member chooses to resignis by the member himself and is not forged by any third party.GThe word “genuine” only relates to the authenticity of the letterof resignation. [Paras 35, 38-42] [928-D-F; 929-D-H; 930-A-B-F-G]

Union of India v. Gopal Chandra Misra (1978) 2 SCC301 : [1978] 3 SCR 12 ; Moti Ram v. Param DevH(1993) 2 SCC 725 : [1993] 2 SCR 250 – referred to.

1.3 Similarly, the word “voluntary” has not been defined.In this context, it would mean the resignation should not bebased on threat, force or coercion. The Speaker therefore hasa duty to reject the resignation if such resignation is based oncoercion, threat or force. The language of Article 190(3)(b) ofthe Constitution does not permit the Speaker to inquire into themotive of the resignation. When a member is resigning onpolitical pressure, he is still voluntarily doing so. Once themember tenders his resignation it would be “voluntary” and ifthe writing can be attributed to him, it would be “genuine”. Inthis regard, there is no doubt that the Petitioners havecategorically stated and have re-affirmed before the Speaker andthis Court, in unequivocal terms, that they have voluntarily andgenuinely resigned their membership of the House. This Court,in the earlier Writ Petition, being Writ Petition (C) No. 872 of2019, had also directed the Speaker to look into the resignationof the members, but the same was kept pending. The Speakercan reject a resignation only if the inquiry demonstrates that itis not “voluntary” or “genuine”. The inquiry should be limitedto ascertaining if the member intends to relinquish hismembership out of his free will. Once it is demonstrated that amember is willing to resign out of his free will, the Speaker hasno option but to accept the resignation. It is constitutionallyimpermissible for the Speaker to take into account any otherextraneous factors while considering the resignation. Thesatisfaction of the Speaker is subject to judicial review. Theaforesaid observations clarify the scope of the Speaker’s dutyunder Article 190(3)(b) of the Constitution. [Paras 43, 45 and46] [930-G-H; 931-D-F; 932-F-H; 933-A-B]

2. The Tenth Schedule was brought in to cure the evil ofdefection recognising the significant impact it has on the healthof our democracy. The 91st Constitutional Amendment alsostrengthens the aforesaid view that the law needed furtherstrengthening in order to curb the evil of defection. Theaforesaid amendment introduced Articles 75(1B), 164(1B) and361B in the Constitution. These provisions bar any person whois disqualified under the Tenth Schedule from being appointedas a Minister or from holding any remunerative political postfrom the date of disqualification till the date on which the term AB

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Aof his of-fice would expire or if he is re-elected to the legislature,whichever is earlier. The intent of the amendment is crystalclear. The constitutional amendment sought to create addi-tionalconsequences resultant from the determination that a personwas disqualified un-der the Tenth Schedule. If it is held that thedisqualification proceedings would become infructuous uponBtendering resignation, any member who is on the verge of beingdis-qualified would immediately resign and would escape fromthe sanctions provided under Articles 75(1B), 164(1B) and 361B.Such an interpretation would therefore not only be against theintent behind the introduction of the Tenth Schedule, but alsoCdefeat the spirit of the 91st Constitutional Amendment. Inaddition to the above, the decision of the Speaker that a memberis disqualified, relates back to the date of the disqualifying actioncomplained of. The disqualification relates to the date when suchact of defection takes place. The tendering of resignation does

not have a bearing on the jurisdiction of the Speaker in thisDregard. Therefore, the aforesaid principle may be adoptedaccordingly, wherein the taint of disqualification does notvaporise, on resignation, provided the de-fection has happenedprior to the date of resignation. Resignation and disqualificationare distinct mechanisms provided under the law which result inEvacancy. Further, the factum/manner of resignation may be arelevant consideration while deciding the dis-qualificationpetition. The submission of the Petitioners that thedisqualification pro-ceedings cannot be continued if theresignations are tendered is not agreed with. Even if theresignation is tendered, the act resulting in disqualificationFarising prior to the resig-nation does not come to an end. Thepending or impending disqualification action in the present casewould not have been impacted by the submission of theresignation letter, considering the fact that the act ofdisqualification in this case have arisen prior to the membersGresigning from the Assembly. [Paras 50, 51, 54-56] [934-D-H;936-C; 937-A-E-G]

Rajendra Singh Rana v. Swami Prasad Maurya (2007)4 SCC 270 : [2007] 2 SCR 591 – relied on.3.1 The dictionary meaning of the word ‘disqualification’His ‘to officially stop someone from being in a competition or doing something because they are not suitable, or they havedone something wrong’. However, under the Tenth Schedulethis term occupies a specific meaning wherein, a member isstopped from continuing to be a member of a legislative body, ifhis actions fall in one of the conditions provided under paragraph2. Article 191(1) of the Constitution provides for disqualificationof a person (a) for being chosen as and (b) for being, a memberof the Legislative Assembly or the Legislative Council if hisactions or candidature attract the grounds therein. Fordisqualification such as holding an office of profit, unsoundnessof mind, insolvency, etc., bars a person from continuing as amember as well as from contesting elections. Article 191(2), onthe other hand, bars a person only “for being a member” of theLegislative Assembly or the Legislative Council. Article 192 ofthe Constitution provides that the Governor will be the authorityfor determination of disqualification on the grounds as containedunder Article 191(1) of the Constitution. In contrast, the decisionas to disqualification on the ground as contained in Article 191(2)of the Constitution vests exclusively in the Speaker in terms ofparagraph 6 of the Tenth Schedule. There is no dispute thatprovisions under Tenth Schedule are relatable to disqualificationas provided under Articles 102(2) and 191(2) of the Constitution.The disqualification of a member, apart from the political taint,results in two further restrictions as a means of punitive actionsagainst the members disqualified under the Tenth Schedule.Paragraph 6 of the Tenth Schedule has an important bearing uponextent of the judicial review in case of disqualification.Disqualification is with respect to the status of being a memberof the House and can only be considered by the Speaker if suchquestion, through a petition, is addressed/ referred to theSpeaker. It is apparent from the reading of paragraph 6 of theTenth Schedule that the decision of the Speaker ondisqualification under the Tenth Schedule is final. However, thefinality which is attached to the order of Speaker cannot bemeant to take away the power of this Court to review the same.In the Kihoto Hollohan case this Court recognized the Speaker’srole as a tribunal and allowed judicial review of the orders ofthe same on the grounds provided therein. The Speaker, beinga constitutional functionary, is generally presumed to have AB

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Aadjudicated with highest traditions of constitutionalism. In viewof the same, a limited review was allowed for the courts toadjudicate upon the orders passed by the Speaker under theTenth Schedule. Here, the difference in the meaning of the terms‘final’ and ‘conclusive’ needs to be appreciate, in the contextthat the order of the Speaker is final but not conclusive and theBsame is amenable to judicial review. Principles of natural justicecannot be reduced into a straitjacket formula. The yardstick ofjudging the compliance of natural justice, depends on the factsand circumstances of each case. [Paras 60, 64-66, 68, 69 and 72][938-G-H; 939-A; 940-D-G; 941-F-H; 942-E-H; 943-F]C3.2 Further, the phrase “violation of constitutionalmandate” speaks for itself and does not need much elaboration.A “constitutional mandate” can be understood as what is re-quired under, or by, the Constitution. In the context of the TenthSchedule, and an order of disqualification passed by the SpeakerDthereunder, the “constitutional mandate” is therefore nothingbut what is constitutionally required of the Speaker. A “violationof constitutional mandate” is merely an unconstitutional act ofthe Speaker, one that cannot be defended on the touchstone ofthe Tenth Schedule and the powers or duties of the Speakertherein and is in contravention or violation of the same. On theEpoint of violation of constitutional mandate, although the Courtis of the opinion that there was an error committed by theSpeaker in deciding the disqualification petitions, the same doesnot rise to a level which requires the Court to quash thedisqualification orders in their entirety. The specific error whichFthe Court has identified relates to the period of disqualificationimposed by the Speaker in the impugned orders. However, thiserror is severable, and does not go to the root of thedisqualification, and thus does not require the Court to quashthe disqualification orders in toto. The ground of malafides isavailable to an individual challenging the order of the Speaker,Gthe onus of proof regarding the same is on the one whochallenges the said action and has a very heavy burden to dis-charge. In the present case, although the Petitioners claimedthat the Speaker acted malafide, they have neither made anyspecific allegation, nor can it be said that they have dischargedHthe heavy burden that is required to prove that the ground of

malafide is made out. The Petitioners have contended that theorder of the Speaker is perverse; how-ever, they are not ableto specifically point out any such instance. “Perversity” has beenunderstood by this Court in a catena of judgments as relatingto a situation where the findings assailed before it have beenarrived at on the basis of no evidence, or thor-oughly unreliableevidence, and no reasonable person would act upon it. Theimpugned orders of the Speaker can be sustained from thechallenge made on the ground of perver-sity as the Respondentshave been able to show that there was sufficient material avail-able before the Speaker to pass the impugned orders. Further,on a consideration of the totality of the facts brought on record,it cannot be held that the findings of the Speaker are sounreasonable or unconscionable that no tribunal could havearrived at the same findings. The Petitioners did not evencontrovert the material relied upon by the Speaker. In view ofthe above, the Petitioners failed to show any illegality in theorders of the Speaker. There is no gainsaying that the scope ofjudicial review is limited to only grounds elaborated under theKihoto Hollohan case. In this regard, the Petitioners have notbeen able to establish any illegality in the orders passed by theSpeaker. The Speaker had concluded based on material andevidence that the members have voluntarily given up theirmembership of the party, thereby accruing disqualification interms of the Tenth Schedule, which facts cannot be reviewed andevaluated by this Court in these writ peti-tions. So, the ordersof the Speaker to the extent of disqualification have to beaccepted. The Petitioners have submitted that the Speaker,through the disqualification orders, has prohibited them fromcontesting elections and becoming members of the House forthe remaining duration of the 15th Legislative Assembly ofKarnataka. [Paras 77-84] [945-B-F-H; 946-A-H; 947-E-G]

Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007)3 SCC 184 : [2007] 1 SCR 317 ; E. P. Royappa v. Stateof Tamil Nadu, (1974) 4 SCC 3 : [1974] 2 SCR 348 ;Sub-Committee on Judicial Accountability v. Union ofIndia, (1991) 4 SCC 699 : [1991] 2 SCR 741 –referred to.

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898SUPREME COURT REPORTS

[2019] 16 S.C.R.

AGriffith and Ryle on Parliament Functions, Practiceand Procedure (1989 edn., p.119) – referred to.

4.1 The Tenth Schedule of the Constitution while dealingwith disqualification on account of defection, does not specify theconsequences or period of such disqualification. In fact, theBvacancy which results from the disqualification is provided underArticle 190(3) of the Constitution. Article 191 of the Constitutionprovides for disqualification from the membership of theLegislative Assembly or Legislative Council of a State generally.Article 191(1) of the Constitution is a general provisionproviding for the disqualification from the membership of theCLegislative Assembly or the Legislative Council of a State onthe grounds mentioned therein. Article 191(2) of theConstitution specifically provides that a person disqualifiedunder the Tenth Schedule is disqualified for being a member.Article 191(2) of the Constitution, like the Tenth Schedule, doesDnot provide that the “disqualification” is to operate for aparticular period or duration. Article 191(1) of the Constitutionprovides that a person disqualified under any one of the clausesof Article 191(1) is disqualified both “for being chosen as” and“for being” a member of the house. In contrast, Article 191(2)only uses the phrase “for being a member”, which is the languageEused in paragraph 2 of the Tenth Schedule. The exclusion of thephrase “for being chosen as” a member in Article 191(2) of theConstitution suggests that the disqualification under the TenthSchedule is qualitatively and constitutionally different from theother types of disqualification that are provided for under ArticleF191(1) of the Constitution. The phrase “for being chosen as” hasa specific connotation, meaning that a person cannot become amember of the House, if suffering from a disqualification underArticle 191(1) of the Constitution. At the same time, the absenceof these words in Article 191(2) of the Constitution suggests that a person who is no longer a member due to disqualification underGthe Tenth Schedule of the Constitution does not suffer from theadditional infirmity of not being allowed to become a membersubsequently. Therefore, such a person is not barred fromcontesting elections. This interpretation is further supported bythe language employed in Section 36(2) of the RepresentationHof the People Act, 1951. Articles 164(1B) and 361B of the

Constitution, which were inserted by the 91st ConstitutionalAmendment, also show that disqualification under the TenthSchedule does not bar a person from contesting elections. Boththe above constitutional provisions specifically indicate the outerperiod for which the consequences indicated therein wouldextend, which is, either till the end of the term or till thedisqualified member is elected, whichever is earlier. The factthat the phrase “whichever is earlier” is used in both theseprovisions, indicates that the Constitution contemplates asituation where an election takes place prior to the end of theterm of the House. Further, the term “election” as used in theabove provisions has not been constrained by any other word,which strengthens the view that a member who has beendisqualified under the Tenth Schedule is not barred fromcontesting elections. Parliament by way of an enactment underArticle 191(1)(e) read with Entry 72 of the Union List in theSeventh Schedule can make a law providing for disqualificationsof persons from contesting elections. It is in exercise of thispower that the Parliament enacted The Representation of thePeople Act, 1951. The Preamble to the aforementioned Actmakes it evident that it was enacted for the purpose of“providing qualifications and disqualifications for membership”to the Houses of Legislature. Chapter II of Part II of theRepresentation of the People Act, 1951 provides for thequalification for membership of the State Legislature whileChapter III vide Sections 7 to 11 provides for disqualificationfor membership of the Legislature. These sections not onlyprovide for the event of disqualification, but also provide for thespecific periods for which such disqualification shall operate. Forinstance, under Section 8 of the Representation of the PeopleAct, 1951, different periods of disqualification are provideddepending on the specific offence an individual is convictedunder. However, the provisions do not provide for and deal withdisqualification under the Tenth Schedule. Clearly, Section 36of the Representation of the People Act, 1951 also does notcontemplate such disqualification. Therefore, neither under theConstitution nor under the statutory scheme is it contemplatedthat disqualification under the Tenth Schedule would operate asa bar for contesting re-elections. The language of clauses (1) and AB

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A(2) of Article 191, Articles 164(1B) and 361B are contrary to thecontention of the Respondents. The Speaker does not have anyexplicit power to specify the period of disqualification under theTenth Schedule or bar a member from contesting elections afterdisqualification until the end of the term of the LegislativeAssembly. When the express provisions of the ConstitutionBprovide for a specific eventuality, it is not appropriate to readan “inherent” power to confer additional penal consequences.To do so, and accept the contention of the respondents, wouldbe against the express provisions of the Constitution. ThisCourt has repeatedly held that a person cannot be barred fromCcontesting elections if he is otherwise qualified to contest thesame. Nothing can be added to the grounds of disqualificationbased on convenience, equity, logic or perceived politicalintentions. It is clear that the power to prescribe qualificationsand disqualifications for membership to the State Legislaturemust be specifically provided for under the Constitution or byDthe Parliament by enacting a law. Since neither the Constitutionnor any Act provides for defection to another party as a bar fromcontesting further elections, reading such a bar into the nebulousconcept of the inherent powers of the Speaker is impermissibleand invalid. [Paras 90-98, 100, 101, 103, 106] [949-B-H; 950-EA-G; 951-B-F; 952-A-C; 953-E-H; 954-A-B]

G. Narayanaswami v. G. Pannerselvam, (1972) 3 SCC717 : [1973] 1 SCR 172 – referred to.

4.2 The Speaker, in exercise of his powers under the TenthFSchedule, does not have the power to either indicate the periodfor which a person is disqualified, nor to bar someone fromcontesting elections. The desirability of a particular rule or law,should not in any event be confused with the question ofexistence of the same, and constitutional morality should neverbe replaced by political morality, in deciding what theGConstitution mandates. [refer to Indra Sawhney v. Union of India,1992 Supp (3) SCC 217]. It is, therefore, held that part of theimpugned orders passed by the Speaker which specifies that thedisqualification will last from the date of the order to the expiryof the term of the 15th Legislative Assembly of Karnataka toHbe ultra vires the constitutional mandate, and strike down this SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER,KARNATAKA LEGISLATIVE ASSEMBLY

portion of the disqualification orders. However, this does not goto the root of the order, and as such, does not affect the aspectof legality of the disqualification orders. [Paras 110, 111] [955-F-G; 956-A-B]

Indra Sawhney v. Union of India, (1992) Supp 3 SCC217 : [1992] 2 Suppl. SCR 454 - referred to.

5.1 The two important phrases occurring in Article 145(3)of the Constitution are ‘substantial question of law’ and‘interpretation of the Constitution’. By reading the aforesaidprovision, two conditions can be culled out before a referenceis made: (i) The Court is satisfied that the case involves asubstantial question of law as to the interpretation of thisConstitution; (ii) The determination of which is necessary for thedisposal of the case. It may be stated that the Court is notpersuaded for referring the present case to a larger bench asthe mandate of the aforesaid Article is that this Court needs tobe satisfied as to the existence of a substantial question of lawon the Constitutional interpretation. However, this does notmean that every case of constitutional interpretation should becompulsorily referred to a Constitutional Bench. Question ofconstitutional interpretation would arise only if two or morepossible constructions are sought to be placed on a provision.The ambit of this Court’s jurisdiction under Article 32 of theConstitution is well settled, which does not merit any furtherreference in this regard. The case mostly turns on the fact thatthere is ample evidence to portray that the defection of thesePetitioners had occurred even before they resigned. In theimpugned orders, the Speaker has made out a case that the actsof the Petitioners indicated “voluntary giving up of membership”.Therefore, the question as to the jurisdiction of the Speaker todeal with disqualification after the members have tendered theresignation does not arise, stricto sensu. In view of the aforesaidfactual scenario, there is no requirement to deal with thequestions of law raised by the Respondents. In view of theaforesaid discussion, the Court declines to refer the case to alarger bench considering that there is no substantial questionof constitutional interpretation that arises in this case. [Paras120, 121, 124-126 and 129] [959-B-E; 960-G; 961-B-D-H]

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902SUPREME COURT REPORTS

AAbdul Rahim Ismail C. Rahimtoola v. State of Bombay,AIR 1959 SC 1315 : [1960] SCR 285 ; BhagwanSwarup Lal Bishan Lal v. State of Maharashtra, AIR1965 SC 682 : [1964] SCR 378 ; People’s Union forCivil Liberties (PUCL) v. Union of India, (2003) 4 SCC399 : [2003] 2 SCR 1136 – referred to.

B5.2 W.P. (C) NO. 992 OF 2019

The order of the Speaker does not suffer from perversity.Even the petitioner has not submitted material to controvert thefindings recorded by the Speaker in the impugned order. WithCregard to the assertion that there was violation of principles ofnatural justice would not also stand in view of the fact that theSpeaker has taken a holistic view and gave sound reasons todisqualify the petitioner after providing him sufficient opportunityto defend himself. Alleged violation of principles of natural justicealso do not carry any weight in view of the factual backgroundDof the case read in light of the fact that trust vote had to be votedupon. [Para 134] [963-B-C]

5.3 W. P. (C) NO. 997 OF 2019

The Speaker in the impugned order has taken note of theEsurrounding circumstances, including the conduct of thePetitioners from February 2019 onwards. The Speaker hadsufficient material before him to pass the order of disqualification.There exist no infirmities in the order, which calls for ourindulgence and interference. [Paras 136-138] [963-H; 964-A-E]

5.4 W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007FOF 2019

Facts

The three Petitioners in Writ Petition (C) No. 1005 of 2019were members of the JD(S), against whom a separateDisqualification Petition No. 5 of 2019 was moved. The Speakerpassed a separate impugned order dated 28.07.2019 againstGthese Petitioners. Petitioners in Writ Petition (C) Nos. 998, 1000,1001, 1006 and 1007 of 2019 were all members of the INC,against whom Disqualification Petition Nos. 3 and 4 of 2019 weremoved. A common order dated 28.07.2019, disqualifying the 10Petitioners, was passed by the Speaker. A notice of three daysHwith an opportunity for hearing would have been sufficient in the facts and circumstances of this case, when viewed in light of thedeci-sion in the Ravi S Naik case. In this regard, the attentionof the Court was drawn to the fact that notices were sent to theiremails, and their permanent addresses within their constituency.In view of the unique facts, it cannot be said that an opportunitywas not provided to the Petitioners to appear before the Speaker.It is altogether a different mat-ter that the aforesaid Petitionerswere in Mumbai even though they were aware of the notice, andsome of them did not even bother to be represented before theSpeaker. In this light, it cannot be said that effective opportunitywas not granted to the Petitioners. Consequently, it cannot besaid as well that there has been a violation of principles ofnatural justice as against the aforesaid Petitioners. [Para 139-140-143] [964-F-G; 965-F-H]

Ravi S. Naik v. Union of India, (1994) Supp 2 SCC641 : [1994] 1 SCR 754 - referred to.

5.5 W.P. (C) NO. 1003 OF 2019

No reason and good ground is found to hold that thefindings in the impugned order are perverse and based on noevidence. Rather the stand and plea taken by the Petitioner isdevoid of merit. Similarly, the plea predicated on the violationof principles of natural justice must fail in the light of the abovefacts. The findings on allegations of not granting specific timein all the above cases are based on the unique facts andcircumstances of each case. It should not be understood to meanthat the Speaker could cut short the hearing period. TheSpeaker should give sufficient opportunity to a member beforedeciding a disqualification proceeding and ordinarily follow thetime limit prescribed in the Rules of the Legislature. [Paras 150,151] [967-D-E]

6.1 In light of the discussion above, summary of law as heldherein is as follows: (a) The Speaker, while adjudicating adisqualification petition, acts as a quasi-judicial authority and thevalidity of the orders thus passed can be questioned before thisCourt under Article 32 of the Constitution. However, ordinarily,the party challenging the disqualification is required to firstapproach the High Court as the same would be appropriate,effective and expeditious. (b) The Speaker’s scope of inquiry with A

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Arespect to acceptance or rejection of a resignation tendered bya member of the legislature is limited to examine whether sucha resignation was tendered voluntarily or genuinely. Once it isdemonstrated that a member is willing to resign out of his freewill, the speaker has no option but to accept the resignation. Itis constitutionally impermissible for the Speaker to take intoBaccount any extraneous factors while considering theresignation. The satisfaction of the Speaker is subject to judicialreview. (c) Resignation and disqualification on account ofdefection under the Tenth Schedule, both result in vacancy ofthe seat held by the member in the legislature, but furtherCconsequences envisaged are different. (d) Object and purposeof the Tenth Schedule is to curb the evil of political defectionmotivated by lure of office or rather similar considerations whichendanger the foundation of our democracy. By the 91stConstitutional Amendment, Articles 71 (1B), 164(1B) and 361BDwere enacted to ensure that a member disqualified by theSpeaker on account of defection is not appointed as a Ministeror holds any remunerative political post from the date ofdisqualification or till the date on which his term of office wouldexpire or he/she is re-elected to the legislature, whichever isearlier. (e) Disqualification relates back to the date when the actEof defection takes place. Factum and taint of disqualificationdoes not vaporise by tendering a resignation letter to theSpeaker. A pending or impending disqualification action does notbecome infructuous by submission of the resignation letter, whenact(s) of disqualification have arisen prior to the member’sFresignation letter. (f) In the earlier Constitution Bench judgmentof Kihoto Hollohan, the order of the Speaker under TenthSchedule can be subject to judicial review on four grounds: malafide, perversity, violation of the constitutional mandate and orderpassed in violation of natural justice. (g) Findings on allegationsof not granting specific time in all the above cases are based onGthe unique facts and circumstances of the case. It should not beunderstood to mean that the Speaker could cut short the hearingperiod. The Speaker should give sufficient opportunity to amember before deciding a disqualification proceeding andordinarily follow the time limit prescribed in the Rules of theHLegislature. (h) In light of the existing Constitutional mandate, the Speaker is not empowered to disqualify any member till theend of the term. However, a member disqualified under theTenth Schedule shall be subjected to sanctions provided underArticles 75(1B), 164(1B) and 361B of Constitution, whichprovides for a bar from being appointed as a Minister or fromholding any remunerative political post from the date ofdisqualification till the date on which the term of his office wouldexpire or if he is re-elected to the legislature, whichever isearlier. (i) There is a growing trend of the Speaker acting againstthe constitutional duty of being neutral. Further horse tradingand corrupt practices associated with defection and change ofloyalty for lure of office or wrong reasons have not abated.Thereby the citizens are denied stable governments. In thesecircumstances, there is need to consider strengthening certainaspects, so that such undemocratic practices are discouraged andchecked. (j) The existence of a substantial question of law doesnot weigh on the stakes involved in the case, rather, it dependson the impact the “question of law” will have on the finaldetermination. If the questions having a determining effect onthe final outcome have already been decided by a conclusiveauthority, then such questions cannot be called as “substantialquestions of law”. In any case, no substantial question of lawexists in the present matter, which needs reference to a largerbench. [Para 152] [967-F-H; 968-A-H; 969-A-H]

6.2 The following order is passed: Orders dated25.07.2019 and 28.07.2019 passed by the Speaker inDisqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019, areupheld to the extent of the disqualification of the Petitionerstherein. However, the part of Speaker’s orders detailing theduration of disqualification, viz., from the date of the respectiveorder till the expiry of the term of the 15th Legislative Assemblyof Karnataka, is accordingly set aside. [Paras 153] [970-A-C]

Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC1621 : [1963] SCR 778 ; Naresh Shridhar Mirajkarv. State of Maharashtra AIR 1967 SC 1 : [1966] SCR744 – followed.

Jagjit Singh v. State of Haryana (2006) 11 SCC 1 ;D. Sanjeevayya v. Election Tribunal, Andhra Pradesh A

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AAIR 1967 SC 1211 : [1967] SCR 489 ; N.S. Vardachariv. G. Vasantha Pai, (1972) 2 SCC 594 : [1973] 1 SCR886 – relied on.

U.P. State Spinning Co. Ltd. v. R.S. Pandey (2005) 8SCC 264 : [2005] 3 Suppl. SCR 603 ; State of UttarBPradesh v. Mohammad Nooh AIR 1958 SC 86 : [1958]SCR 595 ;Harbanslal Sahnia v. Indian OilCorporation Ltd. (2003) 2 SCC 107 ; Maneka Gandhiv. Union of India (1978) 1 SCC 248 : [1978] 2 SCR621 ; Delhi Transport Corporation v. D.T.C. MazdoorCongress (1991) Supp 1 SCC 600 : [1990] 1 Suppl.CSCR 142 ; State (NCT of Delhi) v. Union of India(2018) 8 SCC 501 : [2018] 7 SCR 1 ; R.S. Dass v.Union of India, (1986) Supp SCC 617 : [1987] SCR527 ; Balachandra L. Jarkhiholi v. B. S. Yeddyurappa,(2011) 7 SCC 1 : [2011] 10 SCR 877 ; Mayawati v.Markandeya Chand, (1998) 7 SCC 517 : [1998] 2DSuppl. SCR 204 ; Public Interest Foundation v. Unionof India (2019) 3 SCC 224 : [2018] 10 SCR 14 –referred to.

Case Law Reference

SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER,KARNATAKA LEGISLATIVE ASSEMBLY

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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.992 of 2019.

[Under Article 32 of The Constitution of India]

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Writ Petition (C) Nos. 997, 1000, 998, 1005, 1003, 1001, 1007,1006 of 2019.

Mukul Rohatgi, V. Giri, K.V. Vishwanathan, Gangadhar R.Gurumath, C.A. Sundaram, Sajan Poovayya, Rakesh Dwivedi, KapilSibal, Dr. Rajeev Dhavan, Devadutt Kamat, K. Shashikiran Shetty, Sr.Advs., Shubhranshu Padhi, Kush Chaturvedi, Sandeep Patil, Ms. PrernaPriyadarshini, Apoorv Singhal, Ms. Priyashree Sharma PH, AshishYadav, Rakshit Jain, Ms. S. Shankar, Ms. Palak Mahajan, Ms. DikshaRai, T. V. Ratnam, Devraje Gowda G., Vikram Hegde, Ms. RohiniMusa, Zaffar Inayat, Abhishek Gupta, Shantanu Lakhotia, Kashi V.,Pratibhanu Kharolla, Ms. Raksha Agarwal, Ms. Hima Lawrence,Mishra Saurabh, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms.Ayiala Imti, Prateek Kumar, Eklavya Dwivedi, Sunil Fernandes, NizamPasha, Javedur Rehman, Ms. Priyansha Indra Sharma, Ashwin G. Raj,Ms. Siddhi Padia, Mahesh Thakur, Ms. Sheffali Chaudhary, Mrs.Vipasha Singh, Vybhav Ramesh, Advs. for the appearing parties.

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AJUDGMENT

Table of Contents

IntroductionAContentionsBBIssuesCMaintainability of Writ PetitionDRejection of ResignationsEDisqualification Proceedings After ResignationFCValidity of Disqualification orderGPower of the Speaker to direct disqualificationtill the expiry of the termHReference to Constitution BenchIDIndividual CasesJConclusionsK

N. V. RAMANA, J.

A. INTRODUCTIONE

1. Reflecting on Indian parliamentary democracy, the words ofAndré Béteille, Professor Emeritus of Sociology, need to be observed:

“In a parliamentary democracy, the obligations ofconstitutional morality are expected to be equally binding onFthe government and the opposition. In India, the samepolitical party treats these obligations very differently whenit is in office, and when it is out of it. This has contributedgreatly to the popular perception of our political system asbeing amoral…”[1]

Although the framers of the Constitution entrusted ‘we theGpeople’ with the responsibility to uphold the constitutional values havingattained freedom, the question which begs herein to be answered is towhat extent we have discharged our duty and sustained our democraticand constitutional obligations.

1 André Béteille, ‘Constitutional Morality’, Economic and Political Weekly, VolumeH43 (40)(4th October 2008).

2. In this context, the questions arising in this batch of WritPetitions concern the importance of party politics in a democracy andthe requirement to have stability within the government to facilitate goodgovernance, as mandated under the Constitution. We need to keep inmind that the separating line between dissent and defection requires tobe made apparent, so that democratic values are upheld in balance withother constitutional considerations. In an endeavor to maintain suchbalance, the role of the Speaker is critical in maintaining the balancebetween democratic values and constitutional considerations. In thisregard, this Court’s role is only to ascertain whether the Speaker, as aneutral member, upheld the tradition of his office to uphold theConstitution.

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3. These Writ Petitions are filed against five different orderspassed by the Speaker of the Karnataka Legislative Assembly: twoorders dated 25.07.2019 in Disqualification Petition No. 01 of 2019 andDisqualification Petition No. 07 of 2019 respectively; two orders dated28.07.2019 in Disqualification Petition No. 05 of 2019 andDisqualification Petition No. 08 of 2019 respectively; and a commonorder dated 28.07.2019 in Disqualification Petition Nos. 3 and 4 of 2019.

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4. Brief facts which are necessary for the disposal of the presentpetitions are that the results of the 15[th] Karnataka Legislative Assemblywere declared on 15.05.2018. The contesting political parties securedthe following seats:

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6. Though the BJP was the single largest party, its attempt toform the Government was not successful. A coalition government ofINC and JD(S) was formed under the leadership of Mr. Kumaraswamy(one of the Respondents herein). This Government had a short life ofabout 14 months. The events leading up to the resignation of the ChiefFMinister, on losing the trust vote on 23.07.2019, after several days delay,form the backdrop to the case of the present Petitioners.

7. On 11.02.2019 Disqualification Petition No. 1 of 2019 wasinstituted against Ramesh L. Jarkhiholi, Mahesh Iranagaud Kumathalli,Umesh G. Jadhav and B. Nagendra. The main allegations against theGaforesaid persons were that they did not participate in the meetings ofthe party and the proceedings of the Assembly session held from06.02.2019 onwards, and the conduct of all the aforesaid members’ wasin violation of the whip issued by the INC in this regard. Thereafter,Petitioners in Writ Petition (C) No. 997 of 2019, Ramesh L. Jarkhiholiand Mahesh Iranagaud Kumathalli, are said to have submitted theirHresignations to the Speaker on 06.07.2019.

8. Other Petitioners, including, Dr. K. Sudhakar, Pratap GoudaPatil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekar, B.A.Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C.Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baigsubmitted their resignations from the membership of the House between01.07.2019 to 11.07.2019.

9. However, the Speaker did not take any call on the resignationof the above persons. Aggrieved by the fact that their resignations werenot accepted, and with the impending trust vote being inevitable, mostof the above persons approached this Court by way of a Writ Petition,being Writ Petition (C) No. 872 of 2019. This Court, on 11.07.2019, inthe aforesaid Writ Petition directed the Speaker to take a decision quathe resignations forthwith, and further directed the same to be laid beforethis Court. The relevant extract of the said order is as under:- “....Having regard to the facts of the case, we permit thepetitioners, ten in number, to appear before the Hon’ble Speakerof the Karnataka Legislative Assembly at 6.00 p.m. today. Werequest the Hon’ble Speaker to grant an audience to the tenpetitioners at the said time. The petitioners, if they so wish andare so inclined, shall intimate the Hon’ble Speaker of theAssembly their decision to resign, in which event, the Hon’bleSpeaker shall take a decision forthwith and, in any case, in thecourse of the remaining part of the day. Such decision of theHon’ble Speaker as may be taken in terms of the present order,be laid before the Court tomorrow (12.07.2019)...”

10. Meanwhile, on 11.07.2019, members of the INC withdrewtheir disqualification complaint against B. Nagendra in DisqualificationPetition No.1 of 2019. The Speaker, it appears, did not take any decisionon the resignation in spite of the order of this Court. Simultaneously, awhip was issued by the INC and the JD(S) on 12.07.2019 calling upontheir members to attend proceedings, and cautioning the members ofdisqualification if they failed to attend the same. Further, DisqualificationPetition Nos. 3, 4 and 5 were filed against Dr. K. Sudhakar, PratapGouda Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekhar,B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C.Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baigbetween 10.07.2019 to 12.07.2019.

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11. Subsequently, when the aforesaid Writ Petition came up forhearing on 12.07.2019, this Court passed the order as under:

“Having regard to the weighty issues that have arisen and theincomplete state of facts, as indicated above, we are of the viewthat the matter should be considered by the Court further on 16thJuly, 2019.

In the meantime, the status quo as on today, with regardto the ten petitioners, be maintained, namely, that neitherthe issue of resignation nor the issue of disqualification willbe decided by the Hon’ble Speaker.

This order has been passed by this Court only to enable the Courtto decide the larger constitutional questions arising as indicatedabove.”

12. Further, this Court on 17.07.2019, passed the following order:

“The issue arising in the case is whether resignations submittedby Members of the Legislative Assembly at a point of time earlierthan petitions for their disqualification under the Tenth Scheduleof the Constitution should have priority in the decision makingprocess or whether both sets of proceedings should be taken upsimultaneously or the disqualification proceedings should haveprecedence over the request(s) for resignation.

Arguments have been advanced by the learned counsels for theparties on the touchstone of Articles 164, 190, 191, 212 and 361Band the Tenth Schedule of the Constitution. We have consideredthe same. Constitutional principles should not receive anexhaustive enumeration by the Court unless such an exercise isinevitable and unavoidable to resolve the issues that may havearisen in any judicial proceeding.

In the present case, having regard to the stage at which theabove issues are poised in the light of the facts and circumstancessurrounding the same, we are of the view that the aforesaidquestions should receive an answer only at a later stage of theproceedings. The imperative necessity, at this stage, is tomaintain the constitutional balance and the conflicting andcompeting rights that have been canvassed before us. Suchan interim exercise has become prudent in view of certain

time frame exercise(s) that is in the offing in theKarnataka Legislative Assembly, particularly, the no trustmotion against the present Government, which we are toldis due for being taken up on 18th July, 2019. In thesecircumstances, the competing claims have to be balancedby an appropriate interim order, which according to us,should be to permit the Hon’ble Speaker of the House todecide on the request for resignations by the 15 Membersof the House within such time frame as the Hon’bleSpeaker may consider appropriate.We also take the viewthat in the present case the discretion of the Hon’ble Speakerwhile deciding the above issue should not be fettered byany direction or observation of this Court and the Hon’bleSpeaker should be left free to decide the issue inaccordance with Article 190 read with Rule 202 of theRules of Procedure and Conduct of Business in KarnatakaLegislative Assembly framed in exercise of the powersunder Article 208 of the Constitution.

The order of the Hon’ble Speaker on the resignation issue, asand when passed, be placed before the Court.

We also make it clear that until further orders the 15 Membersof the Assembly, ought not to be compelled to participate in theproceedings of the ongoing session of the House and an optionshould be given to them that they can take part in the saidproceedings or to opt to remain out of the same. We orderaccordingly.”

13. Disqualification Petition No. 7 of 2019 was filed against R.Shankar on 16.07.2019 and Disqualification Petition No. 8 of 2019 wasfiled against Shrimanth Balasaheb Patel on 20.07.2019. The Speakerthereupon issued emergent notices between 18.07.2019 to 20.07.2019to all the Petitioners regarding the pending disqualification petitions toappear before him on the date of hearing fixed for 23.07.2019 and24.07.2019. The notices did not refer to the resignation letters whichhad been submitted by 15 Petitioners, who are parties to the Writ Petition(C) No. 872 of 2019 filed before this Court. The Petitioners have allegedthat the period given in the aforesaid notices was too short and in factsome of them had not even received notices within time to respond.

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A14. While the aforesaid disqualification petitions/resignation letterswere pending, the INC on 20.07.2019 had again issued a whip requiringtheir members of the Legislative Assembly to attend the proceedingsof the House on 22.07.2019.

15. The trust vote was finally taken up for consideration onB23.07.2019. The 17 Petitioners did not attend the House. As a result,the INC and JD(S) coalition Government, under the leadership of Mr.Kumaraswamy was in a minority, resulting in the resignation of Mr.Kumaraswamy as Chief Minister.

16. Further, as detailed above, on 25.07.2019 and 28.07.2019, theCSpeaker passed the five impugned orders in Disqualification PetitionNos. 1, 3, 4, 5, 7 and 8 of 2019. In these orders, the Speaker:

a. Rejected the resignation of the members asserting thatthey were not voluntary or genuine

b. Disqualified all the Petitioners, and D

c. Disqualified the Petitioners till the end of the 15[th]Legislative Assembly term

17. Aggrieved, by the aforesaid disqualifications, all the Petitionersherein have approached this Court under Article 32 of the Constitution.

EB. CONTENTIONS

LEARNED SENIOR COUNSEL MR. MUKULROHATGI ON BEHALF OF PETITIONERS IN W.P. (C)NOS. 997, 998, 1006 AND 1007 OF 2019

Learned Senior Counsel Mr. Mukul Rohatgi, argued thatFthe members of the house have an indefeasible right toresign but the speaker went beyond his constitutionallymandated duty and gave an opinion on the motive ofthe members and wrongfully rejected the resignationstendered by them. On the contrary, the speaker has toGaccept the resignation once it has been tendered in thecorrect format.

Explaining the connection between resignation anddisqualification under the Tenth Schedule of theConstitution, Mr. Rohatgi stressed that once resignationHwas validly tendered, there was no question of the

Speaker exercising his jurisdiction to disqualify amember. Disqualification under the Tenth Schedule wasonly with respect to a person who was a member, andnot otherwise.

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The learned Senior Counsel challenging the legality ofthe disqualification order submitted that the same canBbe interfered with, if the Court finds that the order isperverse, results from non-application of mind, or is inviolation of principles of natural justice. It was contendedthat in the present case, all three of the above infirmitiesare made out in the disqualification order of the Speaker.

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The Speaker, in issuing “emergent” notice returnable in3-4 days is in contravention of the requirement for 7days’ notice under the Karnataka Legislative Assembly(Disqualification of Members on Ground of Defection)Rules, 1986. This makes the order of the Speaker badDfor non-compliance of the principles of natural justice,particularly when the Petitioners had only sought timeof 4 weeks to produce documents.

Lastly, learned Senior Counsel vehemently submittedthat even if disqualification is held to be valid in law,the same cannot take away the right of the Petitionersto contest in the upcoming elections, as there exists nobar on the right to contest elections under TenthSchedule of the Constitution.

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LEARNED SENIOR COUNSEL CA SUNDARAM ONBEHALF OF PETITIONER IN W.P. (C) NO. 1000 OF2019

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The learned Senior Counsel submitted that theresignation tendered in the present case was resignationfrom the House and not from the party.

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If resignation is tendered under Article 190, theSpeaker’s role is limited to the extent of determiningvoluntariness and genuineness of the same. The inquiryof the Speaker as to the “voluntariness” is limited in itsscope to the question of whether the member wascoerced to resign or not. The enquiry as toH

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“genuineness” only related to whether the resignationletter was forged, or not actually made by the member.Additionally, when a member hands over the letter ofresignation to the Speaker personally and informs theSpeaker that the same is voluntary and genuine, thenthe Speaker has to accept the resignation immediately.

The learned Senior Counsel also submitted that themotive behind the resignation is immaterial, as theproviso to Article 190(3) of the Constitution restricts thescope of inquiry by the Speaker only to voluntarinessand genuineness.

LEARNED SENIOR COUNSELV. GIRI ON BEHALF OFPETITIONER IN W.P.(C) NO. 1003 OF 2019

The learned Senior Counsel distinguished the case ofthe Petitioner on the basis that he had never tenderedhis resignation. In spite of that, a separate disqualificationorder was passed against him.

In the present case, the Petitioner belonged to KPJP.Although the party had decided to merge with the INCand had intimated the Speaker about the same, therewas no formal order of merger. When the whip wasissued by the INC, the Petitioner herein requested theSpeaker to provide him with a separate seat with theopposition members. But the Speaker refused the same,recognizing the Petitioner to be affiliated with the INC.

The learned Senior Counsel for the Petitioner broughtto the notice of the Court the letter of intimation issuedby the Executive Committee of his party directing himto stay on the side of the opposition. Therefore, withoutany formal order of merger, the Petitioner was not boundby the whip issued by the INC.

LEARNED SENIOR COUNSELV. GIRI ON BEHALF OFPETITIONER IN W.P. (C) NO. 992 OF 2019

The case of the Petitioner can be distinguished factuallyfrom the case of most of the other Petitioners as he hadnot tendered his resignation. When the whip was issued, A

due to prevailing medical conditions, the Petitioner hadto urgently travel to Mumbai, pursuant to which he failedto participate in the proceedings of the House.

Although these facts were intimated to the Speaker withsupporting medical records, the Speaker passed theorder of disqualification in haste without giving due noticeBto the Petitioner. The learned Senior Counsel submittedthat such an ex parte order of disqualification, withoutconsidering relevant material on record and placingreliance upon extraneous circumstances, is untenable.

LEARNED SENIOR COUNSELA.K GANGULY ON

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BEHALF OF PETITIONERS IN W.P.(C) NO. 1005 OF2019

This Court, vide its order dated 17.07.2019 in WritPetition (C) No. 872 of 2019, granted liberty to thePetitioners herein to either participate or opt out of theDproceedings of the ongoing session of the House. Butthe aforesaid order was ignored by the political partyof the Petitioners herein by issuing the whip, and by theSpeaker in relying upon the same to disqualify thePetitioners.

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The learned Senior Counsel also submitted that thesanctity of the Petitioners’ resignation should beprotected. The order of disqualification rendered by theSpeaker is mala fide and is not supported by any cogentreasons.

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Learned Senior Counsel K.V. Vishwanathan on behalf ofPetitioners in W.P. (C) No. 997 of 2019

The learned senior counsel submitted that on 11.02.2019,a disqualification petition was filed against 4 MLAsincluding Dr. Umesh Yadav and the Petitioners herein.Subsequently, during the pendency of the saiddisqualification petition, Dr. Umesh Yadav submitted hisresignation which was accepted by the Speaker.However, the Speaker, acting in a mala fide manner,kept the resignation letter submitted by the Petitionersherein pending until the disqualification petition wasdecided.

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918SUPREME COURT REPORTS

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Despite the orders of this Court directing the Speakerto decide the resignation, the Speaker kept the matterpending till the decision on the disqualification petition.The learned Senior Counsel further contended that theSpeaker wrongly took into consideration actionspursuant to the orders of this Court dated 17.07.2019,wherein the Petitioners were granted the liberty not toparticipate in the ongoing proceedings of the house.

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LEARNED SENIOR COUNSEL SAJAN POOVAYYA ONBEHALF OF PETITIONER IN W.P. (C) NO. 1001 OF2019

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The Petitioner was a member of the INC who hadresigned on 01.07.2019 in protest against certain landdealing in his Constituency. However, he was put in thesame group as the other disqualified Petitioners by theSpeaker. The learned Senior Counsel contends thatomnibus statements and allegations have been renderedin the disqualification order and the same was passedwithout taking into consideration the documentssubmitted by the Petitioner herein.

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The learned Senior Counsel reiterated the earliercontention that the actions of the Petitioner stoodprotected by virtue of the interim order dated 17.07.2019passed by a Co-ordinate Bench of this Court in WritPetition (C) No. 872 of 2019.

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LEARNED SOLICITOR GENERALTUSHAR MEHTAFON BEHALF OF THE SPEAKER:

The learned Solicitor General submitted that membersof the House have the right to resign.

The learned Solicitor General submitted that this was afit case for the matter to be remanded to the Speakerfor fresh hearing.

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LEARNED SENIOR COUNSEL KAPIL SIBAL ONBEHALF OF RESPONDENT NOS. 2 AND 3 IN W.P. (C)NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007OF 2019

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The learned Senior Counsel firstly stated that theimpugned orders of disqualification can only bechallenged under Article 226 and not under Article 32of the Constitution, as these are matters involving merelystatutory rights. There is no alleged violation offundamental rights which mandates the invocation ofjurisdiction under Article 32 of the Constitution. Further,the Speaker is a quasi-judicial authority, the remedyagainst whose order lies only under Article 226 of theConstitution.

The learned Senior Counsel emphasized upon theconduct of the Petitioners to prove that their resignationswere motivated. The counsel urged this Court to take anote of the conduct of the members both prior andsubsequent to the act of resignation to comprehend themotive behind such resignation. He stated that motivehas to be decided to determine the “genuineness” and“voluntariness” of the resignation, as it is the motivewhich acts as an umbilical cord between the issues ofgenuineness and voluntariness. In light of the same,learned Senior Counsel pointed out that the Petitioners,after tendering their resignation, never went to theSpeaker; rather they approached the Governor and theSupreme Court. It ought to be noted that the letters ofresignation were tendered collectively.

The power vested in the Speaker is a judicial exerciseof power. The Court’s discretion in this arena is quitelimited. Moreover, the Speaker, being the master of theHouse, can impose any restriction pursuant to the actof disqualification. It ought to be noted that the acts ofdisqualification took place within the House andtherefore it is well within the inherent powers of theSpeaker to impose any sanction consequent to the actof defection. Without such power of sanction, theposition of the Speaker is equivalent to that of a toothlesstiger.

Additionally, it was submitted that although thePetitioners have repeatedly contended that the rules of A

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natural justice have been violated, it ought to be notedthat rules of natural justice cannot be put in a straitjacket.Although, these principles are immutable, yet they areflexible, and are not confined to technical limits. ThePetitioners herein have to show some real injury or patentperversity in the order of the Speaker.

Moreover, when the whip was issued with respect to amotion of confidence, the members are duty bound toaccept the same. The Petitioners, by violating the whip,have voluntarily given up membership of the party. Evenassuming that the liberty granted by this Court in theearlier writ proceedings was correct, with respect tonon-compulsion of the members for attending theAssembly, there was legal necessity to attend theAssembly at such a determinative point. The learnedSenior Counsel made a distinction between ordinarywhips and those which are more essential, which werenecessary for the survival of the Government- such asthose pertaining to a trust vote, a no-confidence motion,or even a whip relating to the budget. He submitted thatsuch a whip must be followed per se, and that a membercould not refuse to appear/vote with respect to thesame.

The learned Senior Counsel proceeded to distinguishbetween consequences of resignation with that ofdisqualification. He stated that sole purpose of the TenthSchedule is to check bulk defections. In light of thesame, the Petitioners cannot be allowed to contest theby-elections, as allowing them to contest dilutes theeffect of disqualification. There is a clear bar foracceptance of the nomination of disqualified candidatesunder Section 36 of The Representation of the PeopleAct, 1951. Therefore, the disqualified members shouldnot be allowed to contest fresh elections.

The learned Senior Counsel also contended that theSpeaker has the power to disqualify under the TenthSchedule, which also includes the power of the Speakerto command that the member disqualified would not be

eligible to stand for re-election, on the seat falling vacant,till the end of the term of the House.

However, since the matter involves important questionsin relation to the power of the Speaker to decide theparallel proceedings of resignation and disqualification,the power of the Speaker to conduct inquiry as to the“voluntariness” and “genuineness”, the interpretation ofthe terms “voluntary” and “genuine”, the relevantmaterial to be considered during an inquiry under Article190(3) of the Constitution, the relevant period of inquiry,etc., the same is required to be considered by aConstitution Bench.

LEARNED SENIOR COUNSEL DR. RAJEEV DHAVANON BEHALF OF RESPONDENT NO. 2 IN W.P (C) NO.1005 OF 2019

The learned Senior Counsel defended the order ofdisqualification by stating that the Speaker exerciseswide range of power while acting in an adjudicatorycapacity and the same should not be reduced to amechanical exercise. Therefore, while deciding theissues regarding “genuineness” and “voluntariness”behind the act of resignation, the Speaker can look tothe series of events leading to the resignation so as todecide the motive. Pursuant to the above submission,the counsel stated that taking into totality of facts intoconsideration there exist no ground to claim that the orderof the Speaker suffers from perversity or that the samewas passed mala fide.

The learned Senior Counsel also submitted that thereexists no indefeasible right of resignation as thesePetitioners are acting in their constitutional capacity asmembers of the Legislative Assembly. Moreover, theresignations rendered in the present case cannot bequalified as resignation simpliciter, rather they indicateresignation for the cause of defection and in such asituation, the Speaker could not have turned a blind eyeto the activities of the Petitioners.

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SUPREME COURT REPORTS

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LEARNED SENIOR COUNSEL DEVADUTT KAMATON BEHALF OF RESPONDENT NOS. 2 AND 3 IN W.P.(C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007OF 2019

The learned Senior Counsel reiterated the viewsexpressed above by the other learned Senior Counseland defended the orders of the Speaker stating that hehad duly complied with the orders of this Court bydeciding the resignations submitted by the Petitionersunder Article 190 of the Constitution. The learned SeniorCounsel submitted that the orders dated 11.07.2019 and17.07.2019 passed by a Co-ordinate Bench of this Courtin Writ Petition (C) No.872 of 2019 only requested theSpeaker to take a decision on the resignations as perhis discretion and within such time frame as he mayconsider appropriate. Acceptance or rejection of theresignations is dependent on the condition that the sameare voluntary and genuine.

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Further, the disqualification orders passed by the Speakerwere based on a totality of circumstances prevailing inwhich the conduct of the Petitioners was questionable.The absence of the Petitioners from the proceedings ofthe House, when the trust motion of their Governmentwas being discussed, clearly shows their intention to actagainst the party interest. The disqualification orderswere based on cumulative facts including the absenceof the Petitioners despite repeated notices to remainpresent, and their actions and conduct in colluding withthe BJP to engineer the fall of the coalition government.

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LEARNED SENIOR COUNSEL K. SHASHIKIRANSHETTY ON BEHALF OF RESPONDENT NOS. 2 ANDG3 IN W.P. (C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006AND 1007 OF 2019

Learned senior advocate supported the argumentsadvanced by the learned senior advocate, Mr. KapilSibal, and stated that the disqualification order could notbe reviewed by this Court.

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Further, the Tenth Schedule is clear on the aspect ofmerger, wherein he pointed out that there is no need tocommunicate the factum of merger to R. Shankar[Petitioner in Writ Petition (C) No. 1003 of 2019].

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LEARNED SENIOR COUNSEL RAKESH DWIVEDI ONBEHALF OF ELECTION COMMISSION OF INDIA

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The learned Senior Counsel submitted that it has beena matter of consistent practice that members disqualifiedunder the Tenth Schedule can participate in the nextelections. Any bar for a particular period is notanticipated by law with respect to disqualification underthe Tenth Schedule.

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He further stated that the power of the Speaker is onlylimited to the adjudication of the disqualification petition.Any consequential action which flows from suchdisqualification is beyond his jurisdiction. The SpeakerDcannot, at will, provide any particular term ofdisqualification. Disqualification, and the consequencesthereof, being punitive, have to be sanctioned by law.

When a member gets disqualified under the TenthSchedule, a consequential vacancy arises thereby.However, it is impermissible for the Speaker to decideas to who can contest for the said vacancy.

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C. ISSUES

18. In view of the arguments contended, following questions arisefor our consideration herein:

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1. Whether the Writ Petition challenging the order of theSpeaker under Article 32 is maintainable?

2. Whether the order of the Speaker rejecting theresignation and disqualifying the Petitioners is inaccordance with the Constitution?

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3. Even if the Speaker’s order of disqualification is valid,does the Speaker have the power to disqualify themembers for the rest of the term?

4. Whether the issues raised require a reference to thelarger Bench?

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AD. MAINTAINABILITY OF THE WRIT PETITION

19. At the outset, it must be noted that learned Senior Counsel,Mr. Kapil Sibal has contended that this Court does not have thejurisdiction under Article 32 of the Constitution of India to deal withthis matter. Further, learned Senior Counsel, Dr. Rajeev Dhavan, hasBsupported the aforesaid argument by stating that no fundamental rightis violated, more so when the members of Parliament or LegislativeAssembly cannot invoke the ‘right to freedom of trade and profession’under Article 19 (1)(g) of the Constitution of India.

20. The contours of this Court’s writ jurisdiction has been longCestablished in several decisions of this Court. Where the law providesfor a hierarchy of appeals, the parties must exhaust the availableremedies before resorting to writ jurisdiction of this Court [See U.P.State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264]. At thesame time, this Court in a catena of decisions has held that this doctrineDis not a rule of law, but essentially a rule of policy, convenience anddiscretion and thus not a compulsion and where there is failure ofprinciples of natural justice or where the orders or proceedings arewholly without jurisdiction warrants, this Court may exercise its writjurisdiction even if the parties had other adequate legal remedies. [Stateof Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86; HarbanslalESahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107]

21. The learned senior counsel on behalf of the Respondents havechallenged the jurisdiction of this Court under Article 32 of theConstitution by placing reliance on the Kihoto Hollohan v. Zachillhu,F1992 Supp (2) SCC 651, wherein this Court, while dealing with thescope of judicial review stated as under:

“109. In the light of the decisions referred to above and thenature of function that is exercised by the Speaker/Chairmanunder Paragraph 6, the scope of judicial review underArticles 136, and 226 and 227 of the Constitution inrespect of an order passed by the Speaker/Chairman underParagraph 6 would be confined to jurisdictional errors only viz.,infirmities based on violation of constitutional mandate, mala fides,non-compliance with rules of natural justice and perversity.”

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22. We may note that writ jurisdiction is one of the valuable rightsprovided under Article 32 of the Constitution, which in itself forms partof the basic structure of the Constitution. After the decision in theKihoto Hollohan case (supra), the Speaker, while exercising the powerto disqualify, is a Tribunal and the validity of the orders are amenableto judicial review. On a perusal of the judgment in the Kihoto Hollohancase (supra), we do not find any explicit or implicit bar to adjudicatethe issue under the writ jurisdiction of this Court.

23. The Petitioners are alleging violation of principles of naturaljustice and their right to a fair hearing. Principles of natural justice andright to fair hearing can be traceable to right to equality and rule oflaw enshrined under Article 14 of the Constitution, read with otherfundamental rights [refer to Maneka Gandhi v. Union of India,(1978)1 SCC 248].

24. A seven Judge Bench of this Court in the case of UjjamBai v. State of Uttar Pradesh, AIR 1962 SC 1621, held that writjurisdiction under Article 32 of the Constitution is available whenprinciples of natural justice are violated. This view was affirmed by anine Judge Bench of this Court in the case of Naresh ShridharMirajkar v. State of Maharashtra, AIR 1967 SC 1, in the followingterms:

“54. The scope of the jurisdiction of this Court in dealing withwrit petitions under Article 32 was examined by a Special Benchof this Court in Ujjam Bai v. State of Uttar Pradesh [(1963) 1SCR 778]. This decision would show that it was common groundbefore the court that in three classes of cases a question of theenforcement of the fundamental rights may arise; and if it doesarise, an application under Article 32 will lie. These cases are:(1) where action is taken under a statute which is ultra vires theConstitution; (2) where the statute is intra vires but the actiontaken is without jurisdiction; and (3) where the action takenis procedurally ultra vires as where a quasi-judicialauthority under an obligation to act judicially passes anorder in violation of the principles of natural justice.”

25. In the context of disqualification orders, this Court hasexercised its writ jurisdiction under Article 32. A three Judge Bench of A

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Athis Court in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, hasexplicitly held that a challenge to an order of disqualification under theTenth Schedule is available under the writ jurisdiction of this Court. ThisCourt held as under:

“11. The Speaker, while exercising power to disqualify Members,Bacts as a Tribunaland though validity of the orders thuspassed can be questioned in the writ jurisdiction of thisCourtor High Courts, the scope of judicial review is limited aslaid down by the Constitution Bench in KihotoHollohan v. Zachillhu [1992 Supp (2) SCC 651]. The orders canbe challenged on the ground of ultra vires or mala fides or havingCbeen made in colourable exercise of power based on extraneousand irrelevant considerations. The order would be a nullity if rulesof natural justice are violated.”

D26. Reliance can be placed on the constitutional provisions anddebates thereupon which show that this Court can inquire into thelegitimacy of the exercise of the power. Dr. B.R. Ambedkar hasdescribed Article 32 as the very soul of the Constitution - very heartof it - most important Article. Moreover, the jurisdiction conferred onthis Court by Article 32 is an important and integral part of the basicEstructure of the Constitution of India and no act of Parliament canabrogate it or take it away except by way of impermissible erosion offundamental principles of the constitutional scheme are settledpropositions of Indian jurisprudence.

27. This Court, as the highest Constitutional Court, has to, andFhas always, functioned in accordance with the applicable judiciallydetermined parameters while performing its constitutional duty tojudicially review the acts of constitutional functionaries. It has examinedquestions of both fact and law, so long as it has been vested with thepower to do so. The scrupulous discharge of duties by all guardians ofGthe Constitution include the duty not to transgress the limitations of theirown constitutionally circumscribed powers by trespassing into what isproperly the domain of other constitutional organs.

28. In any case, we note that by challenging the order directlyunder Article 32, the Petitioners have leapfrogged the judicial hierarchyHas envisaged under the Constitution [refer to Tamil Nadu Pollution

Control Board v. Sterlite Industries (I) Ltd., 2019 SCC Online SC221].

29. We do not appreciate the manner in which the petitionershave knocked on the doors of this Court. Among other reasons, weproceeded to hear the present matter due to the peculiar facts presentedbefore us, wherein certain interim orders were passed herein by anotherCo-ordinate Bench of this Court in Writ Petition (C) No. 872 of 2019filed by some of the present petitioners. We had heard the matter atsome length on 25.09.2019 and 26.09.2019, when with the consent ofthe counsel of all the parties, the matter was fixed for final hearing.Since a substantial amount of time has passed in the meanwhile, andto ensure that the same exercise need not be repeated before the HighCourt, we are left with no option but to hear these cases on merits.

30. Despite the fact that this Court has sufficient jurisdiction todeal with disqualification cases under the writ jurisdiction, a partychallenging a disqualification order is required to first approach the HighCourt as it would be appropriate, effective and expeditious remedy todeal with such issues. This Court would have the benefit of a consideredjudicial verdict from the High Court. If the parties are still aggrieved,then they may approach this Court.

31. Having ascertained that this Court has the jurisdiction to dealwith the subject matter of the present petitions, the question concerningthe extent of judicial review can be taken up later, when we analyzeand discuss the aspects concerning the validity of the orders passedby the Speaker, disqualifying the Petitioners and rejecting theirresignations.

E. REJECTION OF RESIGNATIONS

32. In the present case, 15 of the 17 Petitioners had tenderedtheir resignation from the House before the disqualification petitionswere adjudicated. The Speaker vide orders dated 28.07.2019 inDisqualification Petition Nos. 3 and 4 of 2019 and DisqualificationPetition No. 5 of 2019, and order dated 25.07.2019 in DisqualificationPetition No. 1 of 2019, rejected the resignation of the Petitioners therein,holding that they were not voluntary and genuine.

33. Mr. Kapil Sibal, learned Senior Counsel, has contended thatrejection of the resignation by the Speaker was appropriate as the samewas given only to frustrate the object of disqualification. He has A

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Asubmitted that the consideration before the Court is limited consideringthe fact that the bonafides and motive of the Petitioners to resign wasappropriately dealt under Article 190(3)(b) of the Constitution. On theother hand, the Petitioners have strenuously contended that the inquiryrequired under Article 190(3)(b) of the Constitution is limited to“voluntariness” and “genuineness”, and not the motive or the reasonBfor resignation.

34. The first question we need to consider concerns the scopeof judicial review with respect to acceptance/rejection of the resignationby the Speaker. The Respondents have contended on this count thatthe Court cannot go into this aspect as the acceptance/rejection ofCresignation is based on the subjective satisfaction of the Speaker, whichis immune from judicial review.

35. We are unable to agree with this contention. It is true that33[rd] Constitutional Amendment changed the constitutional position byDconferring discretion on the Speaker to reject the resignation. However,such discretion is not unqualified, as the resignation can only be rejectedif the Speaker is “satisfied that such resignation is not voluntary orgenuine”. Determination of whether the resignations were “voluntary”or “genuine” cannot be based on the ipse dixit of the Speaker, insteadit has to be based on his “satisfaction”. Even though the satisfaction isEsubjective, it has to be based on objective material showing thatresignation is not voluntary or genuine. When a member tenders hisresignation in writing, the Speaker must immediately conduct an inquiryto ascertain if the member intends to relinquish his membership. Theinquiry must be in accordance with the provisions of the ConstitutionFand the applicable rules of the House. This satisfaction of the Speakeris subject to judicial review.

36. The next logical question which arises for considerationconcerns the ambit of the terms “voluntary” and “genuine” in Article190(3)(b) of the Constitution. Prior to the 33[rd] ConstitutionalGAmendment, Article 190(3)(b) read as follows:

“(3) If a member of a House of the Legislature of a State—

(a) …..

(b) resigns his seat by writing under his hand addressed tothe Speaker or the Chairman, as the case may be.”

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37. The 33[rd] Constitutional Amendment amended Article190(3)(b) of the Constitution and added a proviso. The revised clausereads as follows:

“(3) If a member of a House of the Legislature of a State—

(a) …..

(b) resigns his seat by writing under his hand addressed tothe Speaker or the Chairman, as the case may be, andhis resignation is accepted by the Speaker or theChairman, as the case may be, his seat shall thereuponbecome vacant:

Provided that in the case of any resignation referred to in subclause (b), if from information received or otherwise and aftermaking such inquiry as he thinks fit, the Speaker or theChairman, as the case may be, is satisfied that such resignationis not voluntary or genuine, he shall not accept such resignation.”

38. Thus, prior to the 33[rd] Constitutional Amendment, there wasno provision in the Article which required the resignation to be acceptedby the Speaker to become effective. Originally, the position was that amember of a Legislative Assembly could resign from office by aunilateral act, and the acceptance of resignation was not required. [referto Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301; MotiRam v. Param Dev, (1993) 2 SCC 725]

39. First, as a starting principle, it has to be accepted that amember of the Legislature has a right to resign. Nothing in theConstitution, or any statute, prevents him from resigning. A membermay choose to resign for a variety of reasons and his reasons may begood or bad, but it is his sole prerogative to resign. An elected membercannot be compelled to continue his office if he chooses to resign. The33[rd] Constitutional Amendment does not change this position. On thecontrary, it ensures that his resignation is on account of his free will.

40. Second, the 33[rd] Constitutional Amendment requiresacceptance of resignation by the Speaker. Thus, merely addressing aresignation letter to the Speaker would not lead to the seat automaticallyfalling vacant. The Speaker has to accept such resignation for the seatto become vacant. However, as discussed above, the Speaker haslimited discretion for rejecting the resignation. If the resignation is A

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Avoluntary or genuine, the Speaker has to accept the resignation andcommunicate the same.

41. Third, the Speaker can reject the resignation, if the Speakeris satisfied that resignation was “not voluntary or genuine”. Herein, ourattention is drawn to the Chapter 22, Rule 202 (2) of the Rules ofBProcedure and Conduct of Business in Karnataka Legislative Assembly,which is extracted as under:

“(2) If a member hands over the letter of resignation to theSpeaker personally and informs him that the resignation isvoluntary and genuine and the Speaker has no information orCknowledge to the contrary, and if he is satisfied, the Speaker mayaccept resignation immediately.”

The rule states that the Speaker has to take a call on theDresignation letter addressed to him immediately, having been satisfiedof the voluntariness and genuineness. Reading the rule in consonancewith Article 190(3)(b) of the Constitution and its proviso, it is clear thatthe Speaker’s satisfaction should be based on the information receivedand after making such inquiry as he thinks fit. The aforesaid aspectsdo not require roving inquiry and with the experience of a Speaker, whoEis the head of the House, he is expected to conduct such inquiry as isnecessary and pass an order. If a member appears before him and givesa letter in writing, an inquiry may be a limited inquiry. But if he receivesinformation that a member tendered his resignation under coercion, hemay choose to commence a formal inquiry to ascertain if the resignationFwas voluntary and genuine.

42. Fourth, although the word “genuine” has not been defined,in this context, it would simply mean that a writing by which a memberchooses to resign is by the member himself and is not forged by anythird party. The word “genuine” only relates to the authenticity of theGletter of resignation.

43. Similarly, the word “voluntary” has not been defined. In thiscontext, it would mean the resignation should not be based on threat,force or coercion. This is evident from the Statement of Objects andReasons of the 33[rd] Constitutional Amendment which is extractedHbelow:

1. Articles 101 (3) (b), and 190 (3) (b) of the Constitution permita member of either House of Parliament or a member of a Houseof the Legislature of a State to resign his seat by writing underhis hand addressed to the Speaker or the Chairman, as the casemay be. In the recent past, there have been instanceswhere coercive measures have been resorted to forcompelling members of’ a Legislative Assembly to resigntheir membership, if this is not checked, it might becomedifficult for Legislatures to function in accordance with theprovisions of the Constitution.It is therefore, proposed toamend the above two articles to impose a requirement as toacceptance of the resignation by the Speaker or the Chairmanand to provide that the resignation shall not be accepted by theSpeaker or the Chairman if he is satisfied after making suchinquiry as he thinks fit that the resignation is not voluntary orgenuine.

The Speaker therefore has a duty to reject the resignation if suchresignation is based on coercion, threat or force.

44. Learned Senior Counsel, Mr. Kapil Sibal, has contended thata Speaker, as a part of his inquiry, can also go into the motive of themember and reject his resignation if it was done under political pressure.We are unable to accept this contention. The language of Article190(3)(b) of the Constitution does not permit the Speaker to inquire intothe motive of the resignation. When a member is resigning on politicalpressure, he is still voluntarily doing so. Once the member tenders hisresignation it would be “voluntary” and if the writing can be attributedto him, it would be “genuine”. Our view is also supported by thedebates on the 33[rd] Constitutional Amendment. It may be necessary toquote the debate dated 03.05.1974 on the 33[rd] ConstitutionalAmendment, which is extracted below:

H.R. Gokhale: I do not want to reply elaborately to all the pointsbecause I know I will have to deal with these points when theBill comes up for consideration. In a way, I am thankful to theHon. Members. They have given me notice of what they aregoing to say. I will deal with some points raised. Sir, the ideathat the Bill prevents any member from resigning is absolutelywrong. On the contrary, the basis on which the Bill proceeds is,

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Athe right of resignation is protected and the idea of acceptanceof a resignation is also subject to a proviso that the acceptanceis in the normal course and the resignation can take place onlyin the event of a conclusion being reached that either it is notgenuine or it is not voluntary. Therefore, to proceed on the basisthat the right of a Member to resign is taken away, is entirelyBwrong. This can be seen if the bill is properly studied. The otherthing they said was, in the name of democracy, how do youprevent people from resigning. Nobody is prevented fromresigning. On the contrary, the basic idea is, the ordinary rightof a person to say ‘I do not want to continue to be a Member ofCthe House’ is maintained. But, is it a democratic way, whena Member does not want to resign, people pressurise himto resign- not political pressure but by threats of violence-as had occurred in the recent past. The person has nooption but to resign. The Speaker has no option but toaccept the resignation in the present set-up. This is a matterDwhich was true in Gujarat. It may be true elsewhere. It was truein Gujarat. It had happened. A large number of people, about 200-300 people, went and indulged in acts of violence, held out threatsand under duress, signatures were obtained. In some cases,Members were carried physically from their constituencies to theESpeaker for giving resignations.

In this regard, there is no doubt that the Petitioners havecategorically stated and have re-affirmed before the Speaker and thisCourt, in unequivocal terms, that they have voluntarily and genuinelyFresigned their membership of the House. This Court, in the earlier WritPetition, being Writ Petition (C) No. 872 of 2019, had also directed theSpeaker to look into the resignation of the members, but the same waskept pending.

45. In view of our above discussion we hold that the SpeakerGcan reject a resignation only if the inquiry demonstrates that it is not“voluntary” or “genuine”. The inquiry should be limited to ascertainingif the member intends to relinquish his membership out of his free will.Once it is demonstrated that a member is willing to resign out of hisfree will, the Speaker has no option but to accept the resignation. It isHconstitutionally impermissible for the Speaker to take into account any

other extraneous factors while considering the resignation. Thesatisfaction of the Speaker is subject to judicial review.

46. We are of the opinion that the aforesaid observations clarifythe scope of the Speaker’s duty under Article 190(3)(b) of theConstitution, and answer the contention raised by the learned seniorcounsel regarding the same. However, since we are deciding thequestion of disqualification, it might not be necessary to make anyobservations on the merits of the petitioners’ plea regarding the non-acceptance of their resignation letters, in view of our subsequent findingson disqualification.

F. DISQUALIFICATION PROCEEDINGS AFTERRESIGNATION

47. It was also contended by the Petitioners that the Speakerdid not have the jurisdiction to deal with disqualification petitions, asthe Petitioners having resigned were no longer members who could havebeen disqualified. This issue does not apply to the Petitioners in WritPetition (C) No. 992 of 2019 and Writ Petition (C) No. 1003 of 2019as they did not tender their resignation.

48. Before we proceed to record our reasons, it is pertinent toreflect upon the statement of objects and reasons to the Constitution(Fifty-second Amendment) Act, 1985 which states that the issue ofdefection has preoccupied the national conscience from the 1960s. Theimportance of the same stems from the fact that it has the potential tocause extensive damage to the democracy. In this regard, havingexperienced earlier Governments falling due to such practice, thelegislature introduced the bill inserting the Tenth Schedule fordiscouraging such practice.

“The evil of political defections has been a matter ofnational concern. If it is not combated, it is likely toundermine the very foundations of our democracy and theprinciples which sustain it. With this object, an assurance wasgiven in the Address by the President to Parliament that thegovernment intended to introduce in the current session ofParliament an anti-defection Bill. This Bill is meant for outlawingdefection and fulfilling the above assurance.”

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“9. This brings to the fore the object underlying the provisions inthe Tenth Schedule. The object is to curb the evil of politicaldefections motivated by lure of office or other similarconsiderations which endanger the foundations of ourdemocracy. The remedy proposed is to disqualify theMember of either House of Parliament or of the StateLegislature who is found to have defected from continuingas a Member of the House. The grounds of disqualificationare specified in Paragraph 2 of the Tenth Schedule.”

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50. Therefore, it can be clearly concluded that the Tenth Schedulewas brought in to cure the evil of defection recognising the significantimpact it has on the health of our democracy. The 91[st] ConstitutionalAmendment also strengthens the aforesaid view that the law neededEfurther strengthening in order to curb the evil of defection. The aforesaidamendment introduced Articles 75(1B), 164(1B) and 361B in theConstitution. These provisions bar any person who is disqualified underthe Tenth Schedule from being appointed as a Minister or from holdingany remunerative political post from the date of disqualification till thedate on which the term of his office would expire or if he is re-electedFto the legislature, whichever is earlier.

51. The intent of the amendment is crystal clear. The constitutionalamendment sought to create additional consequences resultant from thedetermination that a person was disqualified under the Tenth Schedule.If we hold that the disqualification proceedings would becomeGinfructuous upon tendering resignation, any member who is on the vergeof being disqualified would immediately resign and would escape fromthe sanctions provided under Articles 75(1B), 164(1B) and 361B. Suchan interpretation would therefore not only be against the intent behindthe introduction of the Tenth Schedule, but also defeat the spirit of theH91[st] Constitutional Amendment.

52. A five Judge Bench of this Court, in the case of DelhiTransport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1)SCC 600 ruled that an inhibition under the Constitution must beinterpreted so as to give a wider interpretation to cure the existing evils.The relevant extract has been provided below:

118. Legislation, both statutory and constitutional, isenacted, it is true, from experience of evils. But its generallanguage should not, therefore, necessarily be confined tothe form that that evil had taken. Time works changes,brings into existence new conditions and purposes and newawareness of limitations. Therefore, a principle to be validmust be capable of wider application than the mischiefwhich gave it birth. This is particularly true of the constitutionalconstructions. Constitutions are not ephemeral enactmentsdesigned to meet passing occasions. These are, to use the wordsof Chief Justice Marshall, “designed to approach immortality asnearly as human institutions can approach it ….”. In theapplication of a constitutional limitation or inhibition, ourinterpretation cannot be only of ‘what has been’ but of ‘whatmay be’. See the observations of this Court in SunilBatra v. Delhi Administration [(1978) 4 SCC 494: 1979 SCC(Cri) 155].

53. In the case of State (NCT of Delhi) v. Union of India,(2018) 8 SCC 501, a five Judge Bench of this Court articulated theprinciples of constitutional interpretation, stating that Courts are obligatedto take an interpretation which glorifies the democratic sprit of theConstitution:

284.1. While interpreting the provisions of the Constitution, thesafe and most sound approach for the constitutional courts toadopt is to read the words of the Constitution in the light ofthe spirit of the Constitution so that the quintessentialdemocratic nature of our Constitution and the paradigm ofrepresentative participation by way of citizenry engagementare not annihilated. The courts must adopt such aninterpretation which glorifies the democratic spirit of theConstitution.

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284.5. The Constitution being the supreme instrument envisagesthe concept of constitutional governance which has, as its twinlimbs, the principles of fiduciary nature of public power and thesystem of checks and balances. Constitutional governance,in turn, gives birth to the requisite constitutional trustwhich must be exhibited by all constitutional functionarieswhile performing their official duties.

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54. In addition to the above, the decision of the Speaker that amember is disqualified, relates back to the date of the disqualifying actionCcomplained of. The power of the Speaker to decide upon adisqualification petition was dealt by a Constitution Bench of this Courtin Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC270. This Court, reading the provisions of paragraphs 2 and 6 of theTenth Schedule, has clearly held that the Speaker has to decide thequestion of disqualification with reference to the date it was incurred.DThe Court held that:

“34. As we see it, the act of disqualification occurs on a membervoluntarily giving up his membership of a political party or at thepoint of defiance of the whip issued to him. Therefore, the actthat constitutes disqualification in terms of para 2 of the TenthESchedule is the act of giving up or defiance of the whip. Thefact that a decision in that regard may be taken in the caseof voluntary giving up, by the Speaker at a subsequentpoint of time cannot and does not postpone the incurringof disqualification by the act of the legislator. Similarly, thefact that the party could condone the defiance of a whip withinF15 days or that the Speaker takes the decision only thereafter inthose cases, cannot also pitch the time of disqualification asanything other than the point at which the whip is defied.Therefore in the background of the object sought to be achievedby the Fifty-second Amendment of the Constitution and on a trueunderstanding of para 2 of the Tenth Schedule, with referenceGto the other paragraphs of the Tenth Schedule, the position thatemerges is that the Speaker has to decide the questionof disqualification with reference to the date on which themember voluntarily gives up his membership or defies thewhip. It is really a decision ex post facto...”

55. As such, there is no doubt that the disqualification relates tothe date when such act of defection takes place. The tendering ofresignation does not have a bearing on the jurisdiction of the Speakerin this regard. At this point we may allude to the case of D.Sanjeevayya v. Election Tribunal, Andhra Pradesh, AIR 1967 SC1211, wherein this Court has held that:

“5.It is, therefore, not permissible, in the present case, to interpretSection 150 of the Act in isolation without reference to Part IIIof the Act which prescribes the machinery for calling in questionthe election of a returned candidate. When an election petitionhas been referred to a Tribunal by the Election Commission andthe former is seized of the matter, the petition has to be disposedof according to law. The Tribunal has to adjudge at the conclusionof the proceeding whether the returned candidate has or has notcommitted any corrupt practice at the election and secondly, ithas to decide whether the second respondent should or shouldnot be declared to have been duly elected. A returned candidatecannot get rid of an election petition filed against him by resigninghis seat in the Legislature, whatever the reason for his resignationmay be…”

Therefore, the aforesaid principle may be adopted accordingly,wherein the taint of disqualification does not vaporise, on resignation,provided the defection has happened prior to the date of resignation.

56. In light of the above, resignation and disqualification aredistinct mechanisms provided under the law which result in vacancy.Further, the factum/manner of resignation may be a relevantconsideration while deciding the disqualification petition. We do not agreewith the submission of the Petitioners that the disqualificationproceedings cannot be continued if the resignations are tendered. Evenif the resignation is tendered, the act resulting in disqualification arisingprior to the resignation does not come to an end. The pending orimpending disqualification action in the present case would not havebeen impacted by the submission of the resignation letter, consideringthe fact that the act of disqualification in this case have arisen prior tothe members resigning from the Assembly.

G. VALIDITY OF DISQUALIFICATION ORDER

57. The Petitioners have challenged the orders passed by theSpeaker disqualifying them. The Speaker has, after a detailed analysis, A

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Acategorically concluded that the present Petitioners have voluntarilygiven up membership of the party, through their undisputed conduct.

58. To examine the above contention, we need to refer to thescheme of Tenth Schedule and other provisions of the Constitution.There is no dispute that in India, since the framing of the Constitution,Bthere was a constant demand for formulating a law on defection. Itmay be noted that India was one of the first countries to legislate onan Anti-Defection Law. Following the example of India, many othercountries including Israel, Canada etc. have followed suit.

59. Relevant provisions of Paragraph 2 of the Tenth ScheduleCprovide that:

“2. Disqualification on ground of defection.—

(1) Subject to the provisions of paragraphs 4 and 5, a memberof a House belonging to any political party shall be disqualifiedfor being a member of the House—

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(a) if he has voluntarily given up his membership of suchpolitical party; or (b) if he votes or abstains from voting in such Housecontrary to any direction issued by the political party towhich he belongs or by any person or authorityEauthorised by it in this behalf, without obtaining, in eithercase, the prior permission of such political party, personor authority and such voting or abstention has not beencondoned by such political party, person or authoritywithin fifteen days from the date of such voting orFabstention.”

That the Speaker can disqualify a member belonging to anypolitical party if he has voluntarily given up his membership of suchpolitical party or if he votes against the wishes of his party. It is in thisregard that an appropriate meaning needs to be given to the termGdisqualification.

60. The dictionary meaning of the word ‘disqualification’ is ‘toofficially stop someone from being in a competition or doing somethingbecause they are not suitable, or they have done something wrong’.However, under the Tenth Schedule this term occupies a specificHmeaning wherein, a member is stopped from continuing to be a member

of a legislative body, if his actions fall in one of the conditions providedunder paragraph 2.

61. In order to analyze the case at hand, we need to briefly referto and understand the scheme of the Constitution with respect to StateLegislatures. Article 168 of the Constitution provides that for every Statethere shall be a Governor and two Houses of Legislature namelyLegislative Council and Legislative Assembly or where only one suchLegislative House is there, then a Legislative Assembly. Under Article172 of the Constitution every Legislative Assembly unless soonerdissolved shall continue for five years from the date appointed for itsfirst meeting. In order to secure the membership of the State Legislature,such members must comply and conform to three distinct qualificationsenlisted under Article 173.

62. Article 190(3) of the Constitution provides that the seatbelonging to a member of the Legislative Assembly becomes vacant ifsuch a member becomes subject to any disqualification as mentionedin clause (1) or (2) of Article 191 of the Constitution, or he resigns hisseat by writing under his hand addressed to the Speaker, and hisresignation is accepted by the Speaker in terms of the proviso to Article190(3) of the Constitution.

63. Article 191 provides for disqualification of a membershipwhich may be reduced as under:

“191. Disqualifications for membership.—

(1) A person shall be disqualified for being chosen as, and forbeing, a member of the Legislative Assembly or LegislativeCouncil of a State—

(a) if he holds any office of profit under the Governmentof India or the Government of any State specified in theFirst Schedule, other than an office declared by theLegislature of the State by law not to disqualify itsholder; (b) if he is of unsound mind and stands so declared by acompetent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquiredthe citizenship of a foreign State, or is under any A

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acknowledgment of allegiance or adherence to a foreignState; (e) if he is so disqualified by or under any law made byParliament.

Explanation.—For the purposes of this clause, a person shallnot be deemed to hold an office of profit under the Governmentof India or the Government of any State specified in the FirstSchedule by reason only that he is a Minister either for the Unionor for such State.

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(2) A person shall be disqualified for being a member of theCLegislative Assembly or Legislative Council of a State if he isso disqualified under the Tenth Schedule.”

64. It is interesting to note that Article 191(1) of the Constitutionprovides for disqualification of a person (a) for being chosen as and(b) for being, a member of the Legislative Assembly or the LegislativeDCouncil if his actions or candidature attract the grounds therein. Wecan therefore easily infer from the usage of language under Article191(1) that for disqualification such as holding an office of profit,unsoundness of mind, insolvency, etc., bars a person from continuingas a member as well as from contesting elections. Article 191(2), onEthe other hand, bars a person only “for being a member” of theLegislative Assembly or the Legislative Council. This difference inphraseology would be explained later when we consider the part of theorder of the Speaker which disqualified the present Petitioners for therest of the legislative term.

F65. Article 192 of the Constitution provides that the Governorwill be the authority for determination of disqualification on the groundsas contained under Article 191(1) of the Constitution. In contrast, thedecision as to disqualification on the ground as contained in Article 191(2)of the Constitution vests exclusively in the Speaker in terms ofparagraph 6 of the Tenth Schedule. There is no dispute that provisionsGunder Tenth Schedule are relatable to disqualification as provided underArticles 102(2) and 191(2) of the Constitution.

66. At this point we need to observe Article 164 (1B) and 361Bof the Constitution. Article 164(1B) of the Constitution reads as under:

H“164. Other provisions as to Members

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(1B). A member of the Legislative Assembly of a State or eitherHouse of the Legislature of a State having Legislative Councilbelonging to any political party who is disqualified for being amember of that House under paragraph 2 of the Tenth Scheduleshall also be disqualified to be appointed as a Minister underclause (1) for duration of the period commencing from the dateof his disqualification till the date on which the term of hisoffice as such member would expire or where he contestsany election to the Legislative Assembly of a State oreither House of the Legislature of a State havingLegislative Council, as the case may be, before the expiryof such period, till the date on which he is declared”elected, whichever is earlier.

Article 361B of the Constitution reads as under:

“361B. Disqualification for appointment on remunerativepolitical post.-

A member of a house belonging to any political party who isdisqualified for being a member of the House under paragraph2 of the Tenth Schedule shall also be disqualified to hold anyremunerative political post for duration of the periodcommencing from the date of his disqualification till thedate on which the term of his office as such member wouldexpire or till the date on which he contests an election toa House and is declared elected, whichever is earlier.”

From a perusal of the above provisions, it is clear that thedisqualification of a member, apart from the political taint, results in twofurther restrictions as a means of punitive actions against the membersdisqualified under the Tenth Schedule.

67. Having understood the meaning and ambit of disqualification,we now need to concern ourselves with the extent of judicial reviewof the order of the Speaker passed under the Tenth Schedule.

68. Paragraph 6 of the Tenth Schedule has an important bearingupon extent of the judicial review in case of disqualification, and thesame is reproduced as under:

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A“6. Decision on questions as to disqualification on groundof defection.—

(1) If any question arises as to whether a member of a Househas become subject to disqualification under this Schedule, thequestion shall be referred for the decision of the Chairman or,Bas the case may be, the Speaker of such House and his decisionshall be final:

Provided that where the question which has arisen is as towhether the Chairman or the Speaker of a House has becomesubject to such disqualification, the question shall be referred forCthe decision of such member of the House as the House mayelect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph inrelation to any question as to disqualification of a member of aHouse under this Schedule shall be deemed to be proceedingsDin Parliament within the meaning of Article 122 or, as the casemay be, proceedings in the Legislature of a State within themeaning of Article 212.”

Disqualification is with respect to the status of being a memberEof the House and can only be considered by the Speaker if suchquestion, through a petition, is addressed/ referred to the Speaker. It isapparent from the reading of paragraph 6 of the Tenth Schedule thatthe decision of the Speaker on disqualification under the Tenth Scheduleis final.

F69. However, the finality which is attached to the order ofSpeaker cannot be meant to take away the power of this Court toreview the same. In the Kihoto Hollohan case (supra) this Courtrecognized the Speaker’s role as a tribunal and allowed judicial reviewof the orders of the same on the grounds provided therein. The Speaker,being a constitutional functionary, is generally presumed to haveGadjudicated with highest traditions of constitutionalism. In view of thesame, a limited review was allowed for the courts to adjudicate uponthe orders passed by the Speaker under the Tenth Schedule. Here, weneed to appreciate the difference in the meaning of the terms ‘final’and ‘conclusive’, in the context that the order of the Speaker is finalHbut not conclusive and the same is amenable to judicial review.

70. Now we come to the principles that have been evolved byCourts in deciding a challenge to the order passed by Speaker in exerciseof his powers under the Tenth Schedule of the Constitution. In theKihoto Hollohan case (supra) this Court, while upholding theconstitutionality of the Tenth Schedule of the Constitution, held that thefinality clause under paragraph 6(2) of the Tenth Schedule limits thescope of judicial review available to an aggrieved person to certainlimited grounds. This Court, in this context, held that:

“109. In the light of the decisions referred to above and thenature of function that is exercised by the Speaker/Chairmanunder Paragraph 6, the scope of judicial review under Articles136, and 226 and 227 of the Constitution in respect of an orderpassed by the Speaker/Chairman under Paragraph 6 would beconfined to jurisdictional errors only viz., infirmities based-on violation of constitutional mandate, mala fides, non”compliance with rules of natural justice and perversity.

71. The Petitioners contend that the principles of natural justicewere breached when the Speaker provided for a three-days’ notice, inderogation of Rule 7(3)(b) of the Karnataka Legislative Assembly(Disqualification of Members on Ground of Defection) Rules, 1986,wherein a seven-day period is prescribed. On the contrary, theRespondents have emphatically stressed on the fact that there wasadequate opportunity given to the disqualified members to make out theircase before the Speaker.

72. Principles of natural justice cannot be reduced into astraitjacket formula. The yardstick of judging the compliance of naturaljustice, depends on the facts and circumstances of each case. In thecase of R.S. Dass v. Union of India, (1986) Supp SCC 617, this Courtmade following observations:

“25. It is well established that rules of natural justice are notrigid rules, they are flexible and their application depends uponthe setting and the background of statutory provision, nature ofthe right which may be affected and the consequences whichmay entail, its application depends upon the facts andcircumstances of each case....”

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A73. This Court in the case of Kihoto Hollohan case (supra) heldthat the Speaker decides the question as to the disqualification in anadjudicatory disposition. This view received further elaboration by thiscourt in the case of Ravi S. Naik v. Union of India, 1994 Supp (2)SCC 641 at page 653:

B“20...An order of an authority exercising judicial or quasi-judicial functions passed in violation of the principles ofnatural justice is procedurally ultra vires and, therefore,suffers from a jurisdictional error. That is the reason why inspite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decisionCis subject to judicial review on the ground of non-compliance withrules of natural justice. But while applying the principles ofnatural justice, it must be borne in mind that “they are notimmutable but flexible” and they are not cast in a rigidmould and they cannot be put in a legal straitjacket.DWhether the requirements of natural justice have beencomplied with or not has to be considered in the contextof the facts and circumstances of a particular case.”

74. At this point, the Petitioners have placed reliance on the caseEof Balachandra L. Jarkhiholi v. B. S. Yeddyurappa, (2011) 7 SCC1 and argued that in that case, this Court had struck down thedisqualification order solely on the basis of the fact that only three days’notice was given to the members. However, it is relevant to point outhere, that in the Ravi S. Naik case (supra), a disqualification orderFwherein the Speaker had granted two days’ notice to the members wasupheld. The question, therefore, is not the number of days that weregiven by the Speaker for answering the show-cause notice, rather tosee whether an effective opportunity of hearing was provided. Thisbrings us back to the point already reiterated that the principle of naturaljustice is not a straitjacket formula.G

75. In this context, this aspect needs to be adjudicated in theindividual facts and circumstances having regard to the fact as towhether the members received notice of hearing, the reason for theirabsence and their representation before the Speaker. Therefore, wewill deal with the individual cases later, having regard to the law laidHdown. [Refer to Chapter J]

76. The second contention raised by some of the Petitioners isthat the order of the Speaker was passed in violation of the constitutionalmandate. We are of the considered view that such contention cannotbe sustained.

77. The phrase “violation of constitutional mandate” speaks foritself and does not need much elaboration. A “constitutional mandate”can be understood as what is required under, or by, the Constitution.For instance, in the Raja Ram Pal v. Hon’ble Speaker, Lok Sabha,(2007) 3 SCC 184, the phrase “constitutional mandate” is used in thissense:

“360...On a plain reading, Article 122(1) prohibits “the validityof any proceedings in Parliament” from being “called in question”in a court merely on the ground of “irregularity of procedure”.In other words, the procedural irregularities cannot be used bythe court to undo or vitiate what happens within the four wallsof the legislature. But then, ‘procedural irregularity’ stands instark contrast to ‘substantive illegality’ which cannot be foundincluded in the former. We are of the considered view that thisspecific provision with regard to check on the role of the judicialorgan vis-à-vis proceedings in Parliament uses language whichis neither vague nor ambiguous and, therefore, must be treatedas the constitutional mandate on the subject, renderingunnecessary search for an answer elsewhere or invocation ofprinciples of harmonious construction.”

In the context of the Tenth Schedule, and an order ofdisqualification passed by the Speaker thereunder, the “constitutionalmandate” is therefore nothing but what is constitutionally required ofthe Speaker. A “violation of constitutional mandate” is merely anunconstitutional act of the Speaker, one that cannot be defended on thetouchstone of the Tenth Schedule and the powers or duties of theSpeaker therein and is in contravention or violation of the same.

78. On the point of violation of constitutional mandate, althoughwe are of the opinion that there was an error committed by the Speakerin deciding the disqualification petitions, the same does not rise to a levelwhich requires us to quash the disqualification orders in their entirety.The specific error which we have identified relates to the period of A

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Adisqualification imposed by the Speaker in the impugned orders.However, this error is severable, and does not go to the root of thedisqualification, and thus does not require us to quash the disqualificationorders in toto. Our findings on this issue highlighted above are dealtwith in separate section of this judgment, for the sake of clarity.

B79. The third contention of the Petitioners is that the orders ofthe Speaker were passed with malafides, and therefore, the same needsto be quashed. While there is no gainsaying that the ground of malafidesis available to an individual challenging the order of the Speaker, theonus of proof regarding the same is on the one who challenges the saidaction and has a very heavy burden to discharge. [See E. P. RoyappaCv. State of Tamil Nadu, (1974) 4 SCC 3; Raja Ram Pal case (supra);Sub-Committee on Judicial Accountability v. Union of India, (1991)4 SCC 699]. In the present case, although the Petitioners claimed thatthe Speaker acted malafide, they have neither made any specificallegation, nor can it be said that they have discharged the heavy burdenDthat is required to prove that the ground of malafide is made out.

80. The Petitioners have contended that the order of the Speakeris perverse; however, they are not able to specifically point out any suchinstance. “Perversity” has been understood by this Court in a catenaof judgments as relating to a situation where the findings assailed beforeit have been arrived at on the basis of no evidence, or thoroughlyEunreliable evidence, and no reasonable person would act upon it.

81. Although, the learned Senior Counsel Dr. Rajeev Dhavancontended that the “some material” test needs to be applied to determineperversity. However, we are not expressing any opinion on this issueas in the earlier case of Mayawati v. Markandeya Chand, (1998) 7FSCC 517, a three-Judge Bench of this Court expressed different viewson the same. In our opinion, the impugned orders of the Speaker canbe sustained from the challenge made on the ground of perversity asthe Respondents have been able to show that there was sufficientmaterial available before the Speaker to pass the impugned orders.GFurther, on a consideration of the totality of the facts brought on recordbefore us, it cannot be held that the findings of the Speaker are sounreasonable or unconscionable that no tribunal could have arrived atthe same findings. Additionally, it may be noticed that the counsel forthe Petitioners did not even controvert before us, the material reliedupon by the Speaker. In view of the above, the Petitioners failed toHshow any illegality in the orders of the Speaker.

82. Before we conclude we need to refer to Griffith and Ryleon Parliament Functions, Practice and Procedure (1989 edn., p. 119)say:

“Loyalty to party is the norm, being based on sharedbeliefs. A divided party is looked on with suspicion by theelectorate. It is natural for Members to accept the opinionof their Leaders and Spokesmen on the wide variety ofmatters on which those Members have no specialistknowledge. Generally Members will accept majority decisionsin the party even when they disagree. It is understandabletherefore that a Member who rejects the party whip even on asingle occasion will attract attention and more criticism thansympathy. To abstain from voting when required by partyto vote is to suggest a degree of unreliability. To voteagainst party is disloyalty. To join with others in abstentionor voting with the other side of conspiracy.”

83. There is no gainsaying that the scope of judicial review islimited to only grounds elaborated under the Kihoto Hollohan case(supra). In this regard, the Petitioners have not been able to establishany illegality in the orders passed by the Speaker. The Speaker, in ourview, had concluded based on material and evidence that the membershave voluntarily given up their membership of the party, therebyaccruing disqualification in terms of the Tenth Schedule, which factscannot be reviewed and evaluated by this Court in these writ petitions.So, we have to accept the orders of the Speaker to the extent ofdisqualification.

H. POWER OF THE SPEAKER TO DIRECTDISQUALIFICATION TILLTHE EXPIRY OFTHETERM

84. The Petitioners have submitted that the Speaker, through thedisqualification orders, has prohibited them from contesting elections andbecoming members of the House for the remaining duration of the 15[th]Legislative Assembly of Karnataka.

85. The impugned disqualification orders not only disqualify thePetitioners, but also indicated the time period for which they would bedisqualified, viz., from the date of the order till the expiry of the termof the 15[th] Legislative Assembly of Karnataka.

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A86. Learned counsel for the Petitioners have specificallychallenged this finding by asserting that the Speaker did not have thejurisdiction. They contended that the Speaker’s orders have the effectof disqualifying them from contesting elections and “being chosen” asmembers. Learned Senior Counsel asserted that the ConstitutionalBprovisions, particularly Articles 361B and 164(1B) of the Constitution,clarify that the disqualification of a member under the Tenth Scheduledoes not bar him from contesting elections, and on a member being re-elected the bar under the two Articles comes to an end.

87. Learned Senior Counsel, Mr. Kapil Sibal, defended the ordersCof the Speaker barring the disqualified members till the end of the termof the Legislative Assembly. He contended that the Speaker was withinhis jurisdiction, as the master of the House, to punish the members forhaving indulged in anti-party activities. While the learned Senior Counselwas unable to point to any specific provision in the Constitution allowingthe same, he submitted that the Speaker has the inherent power toDmaintain the integrity and decorum of the House. The learned SeniorCounsel gave the example of the power of the Speaker to take actionagainst a member who commits a crime in the well of the House, despitethe absence of any specific provision allowing him to do the same. Thelearned Senior Counsel lastly submitted that unless the Speaker hadEsuch a power, the anti-defection law would be a toothless law and thatconstitutional morality requires such interpretation.

88. Mr. Rakesh Dwivedi, learned Senior Counsel appearing forthe Election Commission of India submitted that as a matter of practice,the Election Commission has always allowed a person disqualified underFthe Tenth Schedule to participate in the next election. The learned SeniorCounsel substantiated his position by indicating from the provisions ofthe Tenth Schedule of the Constitution that the Speaker has only beengiven a limited jurisdiction therein, that is, to decide on the question ofdisqualification. The consequences of the same, however, are separatelyprovided for under the Constitution, and the Speaker does not have theGpower to decide the same. The learned Senior Counsel also took usthrough the phrasing of Article 191 of the Constitution, which providesfor disqualification, and Section 36 of the Representation of the PeopleAct, 1951 to indicate that disqualification under the Tenth Schedule isnot included in the Representation of the People Act, 1951 as a groundHfor rejecting the nomination of a candidate. Finally, the learned Senior Counsel submitted that barring someone from contesting elections is avery serious penal power which cannot be resorted to by the Speakerin absence of an express and specific provision of law.

89. The crucial question which arises is whether the power ofthe Speaker extends to specifically disqualifying the members till theend of the term?

90. The Tenth Schedule of the Constitution while dealing withdisqualification on account of defection, does not specify theconsequences or period of such disqualification. In fact, the vacancywhich results from the disqualification is provided under Article 190(3)of the Constitution. The scope of the Speaker’s powers ondisqualification requires us to examine the other provisions of theConstitution and relevant statutory provisions.

91. Article 191 of the Constitution provides for disqualificationfrom the membership of the Legislative Assembly or Legislative Councilof a State generally. Article 191(1) of the Constitution is a generalprovision providing for the disqualification from the membership of theLegislative Assembly or the Legislative Council of a State on thegrounds mentioned therein. Article 191(2) of the Constitutionspecifically provides that a person disqualified under the Tenth Scheduleis disqualified for being a member. It is relevant to note that Article191(2) of the Constitution, like the Tenth Schedule, does not providethat the “disqualification” is to operate for a particular period or duration.

92. The contrast in phraseology between Article 191(1) and Article191(2) of the Constitution is crucial for deciding the present controversy.Article 191(1) of the Constitution provides that a person disqualifiedunder any one of the clauses of Article 191(1) is disqualified both “forbeing chosen as” and “for being” a member of the house. In contrast,Article 191(2) only uses the phrase “for being a member”, which isthe language used in paragraph 2 of the Tenth Schedule. The exclusionof the phrase “for being chosen as” a member in Article 191(2) ofthe Constitution suggests that the disqualification under the TenthSchedule is qualitatively and constitutionally different from the othertypes of disqualification that are provided for under Article 191(1) ofthe Constitution. The phrase “for being chosen as” has a specificconnotation, meaning that a person cannot become a member of theHouse, if suffering from a disqualification under Article 191(1) of theConstitution. At the same time, the absence of these words in Article A

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A191(2) of the Constitution suggests that a person who is no longer amember due to disqualification under the Tenth Schedule of theConstitution does not suffer from the additional infirmity of not beingallowed to become a member subsequently. Therefore, such a personis not barred from contesting elections.

B93. This interpretation is further supported by the languageemployed in Section 36(2) of the Representation of the People Act,1951, which provides for when a returning officer may reject thenomination of a candidate. Section 36(2)(a), of the Representation ofthe People Act, 1951 states that the nomination may be rejected if acandidate is disqualified “for being chosen” to fill the seat under ArticleC191 of the Constitution, echoing the language employed in Article 191(1),and not Article 191(2) of the Constitution.

94. Apart from the above, Articles 164(1B) and 361B of theConstitution, which were inserted by the 91[st] Constitutional Amendment,also show that disqualification under the Tenth Schedule does not barDa person from contesting elections. Both the above constitutionalprovisions specifically indicate the outer period for which theconsequences indicated therein would extend, which is, either till theend of the term or till the disqualified member is elected, whichever isearlier. The fact that the phrase “whichever is earlier” is used in bothEthese provisions, indicates that the Constitution contemplates a situationwhere an election takes place prior to the end of the term of the House.Further, the term “election” as used in the above provisions has notbeen constrained by any other word, which strengthens the view thata member who has been disqualified under the Tenth Schedule is notbarred from contesting elections.F

95. Parliament by way of an enactment under Article 191(1)(e)read with Entry 72 of the Union List in the Seventh Schedule can makea law providing for disqualifications of persons from contesting elections.It is in exercise of this power that the Parliament enacted TheRepresentation of the People Act, 1951. The Preamble to theGaforementioned Act makes it evident that it was enacted for the purposeof “providing qualifications and disqualifications for membership” to theHouses of Legislature.

“An Act to provide for the conduct of elections to the Housesof Parliament and to the House or Houses of the Legislature ofHeach State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and otheroffences at or in connection with such elections and the decisionof doubts and disputes arising out of or in connection with suchelections.”

96. Chapter II of Part II of the Representation of the PeopleAct, 1951 provides for the qualification for membership of the StateLegislature while Chapter III vide Sections 7 to 11 provides fordisqualification for membership of the Legislature. These sections notonly provide for the event of disqualification, but also provide for thespecific periods for which such disqualification shall operate. Forinstance, under Section 8 of the Representation of the People Act, 1951,different periods of disqualification are provided depending on thespecific offence an individual is convicted under.

97. However, the provisions do not provide for and deal withdisqualification under the Tenth Schedule. Clearly, Section 36 of theRepresentation of the People Act, 1951 also does not contemplate suchdisqualification. Therefore, neither under the Constitution nor under thestatutory scheme is it contemplated that disqualification under the TenthSchedule would operate as a bar for contesting re-elections. Thelanguage of clauses (1) and (2) of Article 191, Articles 164(1B) and361B are contrary to the contention of the Respondents.

98. Given this position, we conclude that the Speaker does nothave any explicit power to specify the period of disqualification underthe Tenth Schedule or bar a member from contesting elections afterdisqualification until the end of the term of the Legislative Assembly.

99. It is necessary for us to look at the submission of the learnedSenior Counsel, Mr. Kapil Sibal, that the Speaker can still be said tohave inherent powers which allows him to pass restrictions like the oneimpugned herein. On this point, the counsel for the Petitioners arguedthat such a broad inherent power does not exist with the Speaker. Hecontended that even for granting leave of absence, the Speaker isrequired to present the same before the Legislative Assembly, whichneeds to accept the leave application before leave of absence is actuallygranted.

100. We are unable to agree with the contention of the learnedSenior Counsel, Mr. Kapil Sibal, that the power of the Speaker to bar A

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Aa disqualified member from contesting re-election is inherent to his roleand is required to be read into the Constitution to prevent the Speakerfrom becoming toothless. When the express provisions of theConstitution provide for a specific eventuality, it is not appropriate toread an “inherent” power to confer additional penal consequences. Todo so, and accept the contention of the respondents, would be againstBthe express provisions of the Constitution.

101. This Court has repeatedly held that a person cannot bebarred from contesting elections if he is otherwise qualified to contestthe same. This legal position is vividly illustrated by the ConstitutionBench ruling in G. Narayanaswami v. G. Pannerselvam, (1972) 3CSCC 717. In dealing with the question as to whether a non-graduatewas qualified to be a candidate for the graduate constituency for theLegislative Council, when such a requirement was not prescribed eitherby the Constitution or the Parliament, this Court reversed the judgmentof the Madras High Court which required the candidate to be a graduate.DThis Court held that when the law does not require such a qualification,it cannot be imposed by the Courts, and observed that:

“20. We think that the language as well as the legislative historyof Articles 171 and 173 of the Constitution and Section 6 of theRepresentation of People Act, 1951, enable us to presume aEdeliberate omission of the qualification that the representative ofthe graduates should also be a graduate. In our opinion, noabsurdity results if we presume such an intention. We cannot inferas the learned Judge of the Madras High Court had done, fromthe mere fact of such an omission and opinions about a supposedscheme of “functional representation” underlying Article 171 ofFour Constitution, that the omission was either unintentional or thatit led to absurd results. We think that, by adding a conditionto be necessary or implied qualifications of a-representative of the graduates which the Constitutionmakers, or, in any event the Parliament, could have easilyGimposed, the learned Judge had really invaded thelegislative sphere. The defect, if any, in the law could beremoved only by law made by Parliament.

102. Similarly in the case of N.S. Vardachari v. G. VasanthaHPai, (1972) 2 SCC 594, a three-judge bench of this Court reiterated

SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER,KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]

the above position, and held that once a candidate possesses thequalifications and is not subject to any of the disqualifications specifiedin the law, he is qualified to be a candidate and any other considerationbecomes irrelevant. The Court held that:

“18. The Representation of the People Act, 1950 prescribesqualifications for being enrolled as an elector. Sections 8 to 10-A of the Act set out the grounds which disqualify a person frombeing a candidate. If a person possesses all the qualificationsprescribed in the Constitution as well as in the Act and has notincurred any of the disqualifications mentioned therein then heis qualified to be a candidate. It may look anomalous that a non-graduate should be a candidate in a Graduates’ constituency. But if a candidate possesses the qualifications prescribed andhas not incurred any of the disqualifications mentioned inthe Constitution or in the Act other consideration becomesirrelevant. That is the ratio of the decision of this Courtin Narayanaswamy case.”

103. It is clear that nothing can be added to the grounds ofdisqualification based on convenience, equity, logic or perceived politicalintentions.

104. It is the contention of the Respondents that the Court shouldconsider desirability of having a stricter model of disqualification whereina person who has jumped the party lines should not be encouraged andshould be punished with severe penal consequences for attempting todo so. Further, learned Senior Counsel, Mr. Kapil Sibal, has termed theactions of the Petitioners as a constitutional sin.

105. We do not subscribe to such an extreme stand taken by thelearned Senior Counsel, considering the fact that such extreme standcould have a chilling effect on legitimate dissent. In any case, such achange in the policy cannot be looked into by this Court, as the samesquarely falls within the legislative forte. Any attempt to interfere isbetter termed as reconstruction, which falls beyond the scope of legalinterpretation by the Courts. [refer to G. Narayanaswami case(supra)]

106. It is clear that the power to prescribe qualifications anddisqualifications for membership to the State Legislature must be A

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Aspecifically provided for under the Constitution or by the Parliamentby enacting a law. Since neither the Constitution nor any Act providesfor defection to another party as a bar from contesting further elections,reading such a bar into the nebulous concept of the inherent powers ofthe Speaker is impermissible and invalid. Without commenting onwhether the Speaker has inherent powers or not, a Constitution BenchBof this Court in the Raja Ram Pal case (supra), while holding thatcertain unwritten powers inure with the Parliament under Article 105(3)of the Constitution, went on to observe even in case of expulsion, theexpelled candidate is not barred from contesting re-election.

107. Viewed from a different angle, although the ConstitutionCmay not say everything, this Court is mandated to expound the unsaid.However, such elaboration cannot be done in derogation of separationof powers and in a drastic or radical fashion. In this context, BenjaminConstant, a prominent Swiss-French political writer, wrote in 1814 that:

“Constitutions are seldom made by the will of men. Time makesDthem. They are introduced gradually and in an almostimperceptible way. Yet there are circumstances in which itis indispensable to make a constitution. But then do onlywhat is indispensable. Leave room for time andexperience, so that these two reforming powers may directEyour already constituted powers in the improvement of what isdone and the completion of what is still to be done.”

108. The contention of the Respondents that the politicalexigencies required such measures to be taken needs to be rejected.FThe Constitutional silences cannot be used to introduce changes of suchnature.

109. In Kihoto Hollohan (supra), this Court observed:

48. The learned author, referring to cases in which an electedMember is seriously unrepresentative of the general constituencyGopinion, or whose personal behaviour falls below standardsacceptable to his constituents commends that what is needed issome additional device to ensure that a Member pays heed toconstituents’ views. Brazier speaks of the efficacy of the devicewhere the constituency can recall its representative. Brazier says:H[Ibid. at 52, 53]

“What sort of conduct might attract the operation of the recallpower? First, a Member might have misused his Membershipof the House, for example to further his personal financialinterests in a manner offensive to his constituents. They mightconsider that the action taken against him by the House (or,indeed, lack of action) was inadequate …. Thirdly, the use ofa recall power might be particularly apt when a Memberchanged his party but declined to resign his seat and fightan immediate by-election. It is not unreasonable to expect aMember who crosses the floor of the House, or who joins anew party, to resubmit himself quickly to the electors whohad returned him in different colours. Of course, in all thosethree areas of controversial conduct the ordinary process ofreselection might well result in the Member being dropped as hisparty’s candidate (and obviously would definitely have that resultin the third case). But that could only occur when the time forreselection came; and in any event the constituency would stillhave the Member representing them until the next general election.A cleaner and more timely parting of the ways would bepreferable. Sometimes a suspended sentence does not meet thecase.”

49. Indeed, in a sense an anti-defection law is a statutoryvariant of its moral principle and justification underlyingthe power of recall. What might justify a provision for recallwould justify a provision for disqualification for defection.Unprincipled defection is a political and social evil...

110. From the above, it is clear that the Speaker, in exercise ofhis powers under the Tenth Schedule, does not have the power to eitherindicate the period for which a person is disqualified, nor to bar someonefrom contesting elections. We must be careful to remember that thedesirability of a particular rule or law, should not in any event beconfused with the question of existence of the same, and constitutionalmorality should never be replaced by political morality, in deciding whatthe Constitution mandates. [refer to Indra Sawhney v. Union of India,1992 Supp (3) SCC 217]

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A111. We, therefore, hold that part of the impugned orders passedby the Speaker which specifies that the disqualification will last fromthe date of the order to the expiry of the term of the 15[th] LegislativeAssembly of Karnataka to be ultra vires the constitutional mandate,and strike down this portion of the disqualification orders. However,this does not go to the root of the order, and as such, does not affectBthe aspect of legality of the disqualification orders.

112. Before parting, having ascertained the ambit of theSpeaker’s power, the only regret this bench has, is with respect to theconduct and the manner in which all the constitutional functionaries haveCacted in the current scenario. Being a constitutional functionary, theConstitution requires them and their actions to uphold constitutionalismand constitutional morality. In this regard, a functionary is expected tonot be vacillated by the prevailing political morality and pressures. Inorder to uphold the Constitution, we need to have men and women whowill make a good Constitution such as ours, better. In this regard, Dr.DAmbedkar on 25.11.1949 stated that:

… ‘As much defence as could be offered to the Constitutionhas been offered by my friends Sir Alladi Krishnaswami Ayyarand Mr T.T. Krishnamachari. I shall not therefore enter into themerits of the Constitution. Because I feel, however good aConstitution may be, it is sure to turn out bad becausethose who are called to work it, happen to be a bad lot.However bad a Constitution may be, it may turn out to begood if those who are called to work it, happen to be agood lot.The working of a Constitution does not depend whollyupon the nature of the Constitution. The Constitution can provideonly the organs of State such as the Legislature, the Executiveand the Judiciary. The factors on which the working of thoseorgans of the State depend are the people and the politicalparties they will set up as their instruments to carry outtheir wishes and their politics.Who can say how the peopleof India and their parties will behave? Will they upholdconstitutional methods of achieving their purposes or will theyprefer revolutionary methods of achieving them? If they adoptthe revolutionary methods, however good the Constitution maybe, it requires no prophet to say that it will fail. It is, therefore,futile to pass any judgment upon the Constitution without E

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reference to the part which the people and their parties are likelyto play.’

(emphasis supplied)

113. Dr. Rajendra Prasad reiterated the same on 26.11.1949, inthe following words:

… ‘Whatever the Constitution may or may not provide, thewelfare of the country will depend upon the way in whichthe country is administered. That will depend upon the menwho administer it.It is a trite saying that a country can haveonly the Government it deserves. Our Constitution has provisionsin it which appear to some to be objectionable from one point oranother. We must admit that the defects are inherent in thesituation in the country and the people at large. If the peoplewho are elected are capable and men of character andintegrity, they would be able to make the best even of adefective Constitution. If they are lacking in these, theConstitution cannot help the country.After all, a Constitutionlike a machine is a lifeless thing. It acquires life because of themen who control it and operate it, and India needs today nothingmore than a set of honest men who will have the interest of thecountry before them.’

114. In view of the same, we can only point out that merely takingthe oath to protect and uphold the Constitution may not be sufficient,rather imbibing the Constitutional values in everyday functioning isrequired and expected by the glorious document that is our Constitution.Having come to conclusion that the Speaker has no power under theConstitution to disqualify the members till the end of the term, we areconstrained to make certain observations.

115. In the end we need to note that the Speaker, being a neutralperson, is expected to act independently while conducting theproceedings of the house or adjudication of any petitions. Theconstitutional responsibility endowed upon him has to be scrupulouslyfollowed. His political affiliations cannot come in the way of adjudication.If Speaker is not able to disassociate from his political party and behavescontrary to the spirit of the neutrality and independence, such persondoes not deserve to be reposed with public trust and confidence.

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A116. In any case, there is a growing trend of Speakers actingagainst the constitutional duty of being neutral. Additionally, politicalparties are indulging in horse trading and corrupt practices, due to whichthe citizens are denied of stable governments. In these circumstances,the Parliament is required to re-consider strengthening certain aspectsof the Tenth Schedule, so that such undemocratic practices areBdiscouraged.

I. REFERENCE TO CONSTITUTION BENCH

Issues

117. Mr. Kapil Sibal, learned Senior Counsel, has contended thatthe matters herein involve substantial questions of law, which require aCreference to a larger bench. To support his argument, he has referredto Article 145 (3) of the Constitution to state that this Court is mandatedunder law to refer the matters to a larger bench since a substantialquestion of law concerning the interpretation of the Constitution hasarisen in the instant case.

D118. At this juncture, it may be beneficial to quote Article 145(3)of the Constitution:

“145. Rules of Court, etc.-

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(3) The minimum number of Judges who are to sit for the purposeof deciding any case involving a substantial question of law asto the interpretation of this Constitution or for the purpose ofhearing any reference under Article 143 shall be five:

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Provided that, where the Court hearing an appeal under any ofthe provisions of this Chapter other than Article 132 consists ofFless than five Judges and in the course of the hearing of theappeal the Court is satisfied that the appeal involves a substantialquestion of law as to the interpretation of this Constitution thedetermination of which is necessary for the disposal of the appeal,such Court shall refer the question for opinion to a CourtGconstituted as required by this clause for the purpose of decidingany case involving such a question and shall on receipt of theopinion dispose of the appeal in conformity with such opinion.”

119. There is no doubt that the requirements under Article 145(3)of the Constitution have never been dealt with extensively and, moreHoften than not, have received mere lip service, wherein this Court has

found existence of case laws which have already dealt with theproposition involved, and have rejected such references. Normatively,this trend requires consideration in appropriate cases, to ensure thatunmeritorious references do not unnecessarily consume precious judicialtime in the Supreme Court.

120. In any case, we feel that there is a requirement to providea preliminary analysis with respect to the interpretation of this provision.In this context, we need to keep in mind two important phrasesoccurring in Article 145(3) of the Constitution, which are, ‘substantialquestion of law’ and ‘interpretation of the Constitution’. By reading theaforesaid provision, two conditions can be culled out before a referenceis made:

i. The Court is satisfied that the case involves a substantialquestion of law as to the interpretation of thisConstitution;

ii. The determination of which is necessary for the disposalof the case.

121. We may state that we are not persuaded for referring thepresent case to a larger bench as the mandate of the aforesaid Articleis that this Court needs to be satisfied as to the existence of a substantialquestion of law on the Constitutional interpretation. However, this doesnot mean that every case of constitutional interpretation should becompulsorily referred to a Constitutional Bench.

122. Any question of law of general importance arisingincidentally, or any ancillary question of law having no significance tothe final outcome, cannot be considered as a substantial question oflaw. The existence of substantial question of law does not weigh onthe stakes involved in the case, rather, it depends on the impact thequestion of law will have on the final determination. If the questionshaving a determining effect on the final outcome have already beendecided by a conclusive authority, then such questions cannot be calledas “substantial questions of law”. In any case, no substantial questionof law exists in the present matter, which needs reference to a largerbench. The cardinal need is to achieve a judicial balance between thecrucial obligation to render justice and the compelling necessity ofavoiding prolongation of any lis.

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A123. Similar questions for reference to a larger bench had arisenin the case of Abdul Rahim Ismail C. Rahimtoola v. State ofBombay, AIR 1959 SC 1315, wherein this Court rejected the referenceas the questions sought to be referred were already settled by an earlierfive judge bench. Likewise, this Court in the case of Bhagwan SwarupLal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, held thatBa substantial question of interpretation of a provision of the Constitutioncannot arise when the law on the subject has been finally andeffectively decided by this Court. The same is provided hereunder:

“11... Learned counsel suggests that the question raised involvesthe interpretation of a provision of the Constitution and thereforeCthe appeal of this accused will have to be referred to a Benchconsisting of not less than 5 Judges. Under Article 145(3) of theConstitution only a case involving a substantial question of lawas to the interpretation of the Constitution shall be heard by abench comprising not less than 5 Judges. This Court held in StateDof Jammu and Kashmir v. Thakur Ganga Singh, AIR 1960 SC356 that a substantial question of interpretation of aprovision of the Constitution cannot arise when the law onthe subject has been finally and effectively decided by thisCourt…..As the question raised has already been decided bythis Court, what remains is only the application of the principleElaid down to the facts of the present case. We cannot, therefore,hold that the question raised involves a substantial question oflaw as to the interpretation of the Constitution within the meaningArticle 145(3) of the Constitution.”

FThis Court sitting in a three Judge Bench in People’s Union forCivil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399, hasreiterated the above principle.

124. In light of the above pronouncements, we observe thatGquestion of constitutional interpretation would arise only if two or morepossible constructions are sought to be placed on a provision. In spiteof the assertive arguments made by the learned Senior Counsel, Mr.Kapil Sibal, we are guided by the decisions rendered by twoConstitutional Bench decisions of this Court in the Kihoto Hollohancase (supra) and Rajendra Singh Rana case (supra). These decisionsHform the authoritative framework for understanding the Tenth Schedule

and have been followed in a number of subsequent judgments and donot require reconsideration.

125. At the cost of repetition, we may note that the ambit of thisCourt’s jurisdiction under Article 32 of the Constitution is well settled,which does not merit any further reference in this regard. TheRespondents have contended that the disqualification issue cannot bedealt under the writ jurisdiction, however, we have already pointed outthat there is no bar for this Court to deal with the same as portrayedby various precedents cited above.

126. The case mostly turns on the fact that there is ampleevidence to portray that the defection of these Petitioners had occurredeven before they resigned. In the impugned orders, the Speaker hasmade out a case that the acts of the Petitioners indicated “voluntarygiving up of membership”. Therefore, the question as to thejurisdiction of the Speaker to deal with disqualification after themembers have tendered the resignation does not arise, stricto sensu.In view of the aforesaid factual scenario, there is no requirement todeal with the questions of law raised by the Respondents.

127. Further, the power of the Speaker to disqualify has beeninterpreted in a number of cases, and the present case does not requireany broad-based reference which would only prolong the inevitable.Such casual and cavalier references should not be undertaken by thisCourt in view of conditions prescribed under Article 145(3) of theConstitution, which mandates a responsibility upon this Court not toindulge in excessive academic endeavors and preserve precious judicialtime, and effectively dispense justice in a timely fashion.

128. The last aspect, which relates to the power of the Speakerto disqualify the members till the end of the term, has already beendealt with extensively. At the cost of repetition, we may only point outthat the Respondents’ contention that a bar exists on the members tillthe end of the term, falls within the domain of the legislature. Therefore,we do not see any merit in referring the aforesaid case to a largerbench. [Refer to Public Interest Foundation v. Union of India,(2019) 3 SCC 224]

129. In view of the aforesaid discussion, we decline to refer thecase to a larger bench considering that there is no substantial questionof constitutional interpretation that arises in this case.

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AJ. INDIVIDUAL CASES

W.P. (C) NO. 992 OF 2019

130. The Petitioner (Shrimanth Balasaheb Patil) accepts that hewas elected on the ticket of INC and claims that he proceeded toChennai for personal reasons without abstaining from his presence inBthe ongoing Assembly Session. Admittedly, the Petitioner had abstainedfrom attending the proceedings in the Assembly on 18.07.2019 and19.07.2019. Pursuant to the same, the disqualification petition was filedagainst him on 20.07.2019 and he was further directed to appear forhearing on 24.07.2019. Subsequently, the Petitioner had written a letterCdated 23.07.2019 addressing the Speaker and seeking four weeks’ timeto file appropriate reply to the contents of the petition. Nevertheless,the Hon’ble Speaker proceeded and passed the disqualification orderon 28.07.2019 which has been impugned in the instant petition.

131. It ought to be noted that the impugned order passed by theDHon’ble Speaker, refers to the communication/letters addressed by thepetitioner of having gone to Chennai, but due to discomfort and healthreasons had contacted his doctor friend and accordingly proceeded toMumbai where he was admitted. It also records that the petitioner hadattended the Assembly sessions on 12.07.2019 and 15.07.2019 butthereafter had abstained from attending the session on 22.07.2019 forEwhich whip had been issued on 20.07.2019. It was also admitted thatno formal leave was granted to the Petitioner. The Speaker had earlierrejected the leave of absence tendered by the Petitioner as thedocuments issued by the private hospital did not inspire confidence.Pertinently, the petitioner’s letter dated 19.07.2019 written to theFSpeaker was not countersigned by any doctors of the Hospital.

132. It is further recorded that the petitioner had not attendedthe Assembly sessions on 18.07.2019, 19.07.2019, 22.07.2019 and23.07.2019. So, the petitioner was aware that the motion seeking thevote of confidence was on the floor of the Karnataka LegislativeGAssembly. The petitioner accepts that he had sent letter dated23.07.2019, which refers to the disqualification petition. The petitionerherein was clearly aware of the disqualification proceedings.

133. The objections filed to the writ petition also refer to the factthat the INC, to test the loyalty of its Members, in view of the pendingHtrust vote, had categorically informed the party members not to absent

themselves from the proceedings of the Assembly, failing which actionunder the Tenth Schedule would be taken.

134. We do not think that the order of the Speaker suffers fromperversity. Even the petitioner has not submitted material to controvertthe findings recorded by the Speaker in the impugned order. With regardto the assertion that there was violation of principles of natural justicewould not also stand in view of the fact that the Speaker has taken aholistic view and gave sound reasons to disqualify the petitioner afterproviding him sufficient opportunity to defend himself. Alleged violationof principles of natural justice also do not carry any weight in view ofthe factual background of the case read in light of the fact that trustvote had to be voted upon.

W. P. (C) NO. 997 OF 2019

135. The Petitioners were elected to the 15[th] KarnatakaLegislative Assembly on the INC ticket. On 19.01.2019, show-causenotices were issued to the Petitioners by INC for having failed to attendthe party meeting on 18.01.2019, to which explanation was submittedby the Petitioners claiming that due to personal exigencies and medicalreasons they could not attend the meeting. However, the Petitionersagain failed to attend the meeting held on 08.02.2019. The Petitionersalso did not attend the Budget session. On 08.02.2019, the PetitionerNo.1 (Ramesh Jarkhiholi) sought leave of absence in a letter addressedto the Speaker, due to his daughter’s wedding fixed for 24.02.2019.Similarly, the Petitioner No. 2 (Mahesh Kumathalli) had also addresseda letter seeking leave of absence due to ill-health. disqualification petitionwas filed against the two Petitioners on 11.02.2019 on the ground thatthe Petitioners had voluntarily given up membership of the political party,i.e. INC and incurred disqualification under paragraph 2(1)(a) of theTenth Schedule. Thereupon, notices were issued to the Petitioners on14.02.2019, who duly filed their response disputing the contents of thedisqualification petition on 20.02.2019. While the disqualification petitionwas pending, the two Petitioners submitted their resignation to theSpeaker along with ten other MLAs belonging to INC/JD(S) on06.07.2019. The Petitioners were thereupon given notice to appearbefore the Speaker on 11.07.2019 in connection with the disqualificationpetition.

136. The Speaker in the impugned order has taken note of thesurrounding circumstances, including the conduct of the Petitioners from A

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AFebruary 2019 onwards. It ought to be noted that sufficient opportunityof hearing was accorded to the Petitioners herein who had also filedtheir responses. It ought to be noted that, vide notice dated 16.01.2019,a meeting of the INC legislative party was called for 18.01.2019. Thenotice stated that the members must compulsorily attend the meetingotherwise action would be taken against them under the Tenth Schedule.BThe Petitioners did not attend the party meeting on 18.01.2019.Admittedly, the Petitioners also refrained from attending the subsequentgeneral body meeting dated 06.02.2019 as well as Assembly Sessionsfrom 06.02.2019. The resignations were submitted by the Petitionersnearly four months after the Disqualification Petition had already beenCfiled.

137. One of the contentions raised by the Petitioners is predicatedon the order of the Speaker in the case of Dr. Umesh Yadav who wasalso named and served with the disqualification petition filed on11.02.2019. Dr. Umesh Yadav had tendered his resignation onD04.03.2019, which was accepted by the Speaker on 01.04.2019.Therefore, the Petitioners claim parity and equal treatment. Thecontention deserves to be rejected as the Speaker has given detailedreasons to why he was not bound by the case of Dr. Umesh Yadav’sresignation.

E138. As observed earlier, the Speaker had sufficient materialbefore him to pass the order of disqualification. There exist no infirmitiesin the order, which calls for our indulgence and interference.

W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007 OF2019

F139. The three Petitioners in Writ Petition (C) No. 1005 of 2019were members of the JD(S), against whom a separate DisqualificationPetition No. 5 of 2019 was moved. The Speaker passed a separateimpugned order dated 28.07.2019 against these Petitioners.

140. Petitioners in Writ Petition (C) Nos. 998, 1000, 1001, 1006Gand 1007 of 2019 were all members of the INC, against whomDisqualification Petition Nos. 3 and 4 of 2019 were moved. A commonorder dated 28.07.2019, disqualifying the 10 Petitioners, was passed bythe Speaker.

141. Both the above orders are being dealt with together as thereHare certain commonalities in the facts and circumstances which need

to be noted and highlighted, which led to the decision of the Speaker.Between 01.07.2019 and 11.07.2019, the Petitioners resigned from theirposts as members of the Legislative Assembly. However, the Speakerdid not adjudicate upon their resignation. Aggrieved by the fact that theSpeaker was not taking a decision, ten Petitioners approached this Courtin WP (C) No. 872 of 2019, wherein this Court on 11.07.2019, passedan order directing the Speaker to take the decision forthwith. TheSpeaker, on the other hand, did not take the decision. The other fivePetitioners impleaded themselves in the pending Writ Petition (C) No.872 of 2019 and again, on 17.07.2019, this Court granted protection tothe Petitioners with respect to being compelled to participate in theproceedings of the House. As the Speaker, did not conduct the floortest, R. Shankar [Petitioner in Writ Petition (C) No. 1003 of 2019]approached this Court in Writ Petition (C) No. 929 of 2019, whereinthis Court passed following order on 23.07.2019:

“It has been stated that the Speaker expects and is optimisticthat the Trust Vote would be taken up by the House in the Courseof the day, perhaps later in the evening. We, therefore, adjournthe matter till tomorrow.

142. In this regard, it was imperative for the Speaker to passorders in view of the urgency indicated by this Court. In these factsand circumstances, the reasonable opportunity of hearing needs to beassessed.

143. A notice of three days with an opportunity for hearing wouldhave been sufficient in the facts and circumstances of this case, whenviewed in light of the decision in the Ravi S Naik case (supra). Inthis regard, our attention was drawn to the fact that notices were sentto their emails, and their permanent addresses within their constituency.In view of the unique facts, it cannot be said that an opportunity wasnot provided to the Petitioners to appear before the Speaker.

144. It is altogether a different matter that the aforesaidPetitioners were in Mumbai even though they were aware of the notice,and some of them did not even bother to be represented before theSpeaker. In this light, we cannot say that effective opportunity was notgranted to the Petitioners. Consequently, it cannot be said as well thatthere has been a violation of principles of natural justice as against theaforesaid Petitioners.

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AW.P. (C) NO. 1003 OF 2019

145. The Petitioner (R. Shankar) claims that he is the sole electedmember of the House belonging to KPJP. As per the Petitioner, KPJPhad not merged with INC and consequently whip issued by the INCon 11.07.2019 was not binding on the Petitioner. As a result, theBPetitioner had not incurred any disqualification under the Tenth Scheduleof the Constitution.

146. The Petitioner, however, accepts that he had addressed aletter dated 14.06.2019 to the Speaker that he was the only legislatorelected under the KPJP ticket and he had agreed to merge his partyCwith the INC. The Petitioner had relied upon paragraph 4(2) of theTenth Schedule stating that since he is the sole elected member of hisparty there is a deemed merger under the Tenth Schedule.

147. The Petitioner, however, claims that the said letter dated14.06.2019 was not accepted by the Speaker and, therefore, would beDinconsequential. He relied upon the letter dated 17.06.2019 written bythe Speaker requiring him to file on record resolution of merger passedby KPJP, and to furnish documents as per legal requirements. It wasfurther stated that is stated that no such document was filed.

148. The impugned order passed by the Speaker, on the otherEhand, refers to the letter of the Speaker dated 25.06.2019 stating thatin terms of paragraph 4(2) of the Tenth Schedule, if two thirds of themembers of the party decides to merge with another party, that decisionwould not attract provisions of the Tenth Schedule. As the Petitionerhad represented that he was the lone elected member of the KPJP andhad decided to merge with INC, appropriate steps had been initiated.FIn this background, with effect from 25.06.2019, the Petitioner wouldbe considered as a member of the INC legislative party. The Petitionerhas disputed this letter and has stated that this letter was not addressedto him but was addressed to the Leader of the Congress LegislatureParty and the President of the Karnataka Pradesh Congress Party. TheGletter dated 25.06.2019 is available on the file of the Speaker.

149. The contention of the Petitioner may have carried weightin other circumstances, but we find that it is an accepted and admittedposition that the Petitioner, after giving letter dated 14.06.2019, had evenbecome a Minister in the Government then in power. Pertinently, theHPetitioner does not deny the letter dated 14.06.2019 and the fact that

he had become a Minister. The impugned order passed by the Speakerfurther records that on 25.06.2019 a direction had been issued by theSpeaker to the Secretary, Karnataka Legislative Assembly, to treat thePetitioner as a member of the INC and allot him a seat in theforthcoming session. Further, on 08.07.2019, the Petitioner had addresseda letter to the then Chief Minister tendering his resignation from theCouncil of Ministers of which he was a part, with a request that hisresignation be accepted. This resignation was also personally given tothe Governor. On 12.07.2019, the Petitioner had addressed a letter tothe Speaker about withdrawing support to the Government and hadrequested that he be allotted a seat on the floor in the opposite benches.These aspects have been highlighted in the impugned order, which showthat the contention of the Petitioner that the Speaker did not apply hismind on the aspect of merger, is wrong and incorrect.

150. We do not find any reason and good ground to hold thatthe findings in the impugned order are perverse and based on noevidence. Rather the stand and plea taken by the Petitioner is devoidof merit. Similarly, the plea predicated on the violation of principles ofnatural justice must fail in the light of the above facts.

151. Our findings on allegations of not granting specific time inall the above cases are based on the unique facts and circumstancesof each case. It should not be understood to mean that the Speakercould cut short the hearing period. The Speaker should give sufficientopportunity to a member before deciding a disqualification proceedingand ordinarily follow the time limit prescribed in the Rules of theLegislature.

K. CONCLUSION

152. In light of the discussion above, summary of law as heldherein is as follows:

a. The Speaker, while adjudicating a disqualification petition,acts as a quasi-judicial authority and the validity of theorders thus passed can be questioned before this Courtunder Article 32 of the Constitution. However, ordinarily,the party challenging the disqualification is required tofirst approach the High Court as the same would beappropriate, effective and expeditious.

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b. The Speaker’s scope of inquiry with respect toacceptance or rejection of a resignation tendered by amember of the legislature is limited to examine whethersuch a resignation was tendered voluntarily or genuinely.Once it is demonstrated that a member is willing toresign out of his free will, the speaker has no option butto accept the resignation. It is constitutionallyimpermissible for the Speaker to take into account anyextraneous factors while considering the resignation. Thesatisfaction of the Speaker is subject to judicial review.

c. Resignation and disqualification on account of defectionunder the Tenth Schedule, both result in vacancy of theseat held by the member in the legislature, but furtherconsequences envisaged are different.

d. Object and purpose of the Tenth Schedule is to curb theevil of political defection motivated by lure of office orrather similar considerations which endanger thefoundation of our democracy. By the 91[st] ConstitutionalAmendment, Articles 71 (1B), 164(1B) and 361B wereenacted to ensure that a member disqualified by theSpeaker on account of defection is not appointed as aMinister or holds any remunerative political post fromthe date of disqualification or till the date on which histerm of office would expire or he/she is re-elected tothe legislature, whichever is earlier.

e. Disqualification relates back to the date when the actof defection takes place. Factum and taint ofdisqualification does not vaporise by tendering aresignation letter to the Speaker. A pending or impendingdisqualification action does not become infructuous bysubmission of the resignation letter, when act(s) ofdisqualification have arisen prior to the member’sresignation letter.

f. In the earlier Constitution Bench judgment of KihotoHollohan (supra), the order of the Speaker under TenthSchedule can be subject to judicial review on fourgrounds: mala fide, perversity, violation of the

constitutional mandate and order passed in violation ofnatural justice.

g. Our findings on allegations of not granting specific timein all the above cases are based on the unique facts andcircumstances of the case. It should not be understoodto mean that the Speaker could cut short the hearingperiod. The Speaker should give sufficient opportunityto a member before deciding a disqualificationproceeding and ordinarily follow the time limit prescribedin the Rules of the Legislature.

h. In light of the existing Constitutional mandate, theSpeaker is not empowered to disqualify any member tillthe end of the term. However, a member disqualifiedunder the Tenth Schedule shall be subjected to sanctionsprovided under Articles 75(1B), 164(1B) and 361B ofConstitution, which provides for a bar from beingappointed as a Minister or from holding any remunerativepolitical post from the date of disqualification till the dateon which the term of his office would expire or if he isre-elected to the legislature, whichever is earlier.

i. There is a growing trend of the Speaker acting againstthe constitutional duty of being neutral. Further horsetrading and corrupt practices associated with defectionand change of loyalty for lure of office or wrong reasonshave not abated. Thereby the citizens are denied stablegovernments. In these circumstances, there is need toconsider strengthening certain aspects, so that suchundemocratic practices are discouraged and checked.

j. The existence of a substantial question of law does notweigh on the stakes involved in the case, rather, itdepends on the impact the “question of law” will haveon the final determination. If the questions having adetermining effect on the final outcome have alreadybeen decided by a conclusive authority, then suchquestions cannot be called as “substantial questions oflaw”. In any case, no substantial question of law existsin the present matter, which needs reference to a largerbench.

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A153. In view of the discussion above, we pass the followingorder:

1. Orders dated 25.07.2019 and 28.07.2019 passed by theSpeaker in Disqualification Petition Nos. 1, 3, 4, 5, 7 and8 of 2019, are upheld to the extent of the disqualificationBof the Petitioners therein.

2. However, the part of Speaker’s orders detailing theduration of disqualification, viz., from the date of therespective order till the expiry of the term of the 15[th]Legislative Assembly of Karnataka, is accordingly setCaside.

154. The Writ Petitions are disposed of in the afore-stated terms.All pending applications are also accordingly disposed of.

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Divya Pandey

Writ Petitions disposed of.

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