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D. Sudhakar and Others Vs. D.N. Jeevaraju and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos.32674-32678 of 2010 (GM-RES) C/w. Writ Petition Nos.33998-34002 of 2010 (GM-RES)
JudgeJudges: MOHAN SHANTANAGOUDAR, THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER & A.S. BOPANNA
AppellantD. Sudhakar and Others
RespondentD.N. Jeevaraju and Others
Advocates:For the Petitioners : P.P. Rao, Senior Counsel, K.G. Raghavan, Senior Counsel, Sri. Ravivarma Kumar, Senior Counsel for A.P. Ranganatha, Hemanth Raj, Advocates. For the Respondents: R1, R3 and R4, Satyapal Jain, Senior Counsel B.N. Narasimha, Senior Couns
Excerpt:
constitution of india - articles 102(1)(e), 136, 188, 191(1), 191(1)(e), 192, 192(1), 212, 226 and 227, karnataka legislative assembly (disqualification of members on ground of defection) rules 1986 – rules 3, 4, 6(2) and 7(3), civil procedure code - order 19 rule 3, conduct of election rules 1961, constitution (fifty-second amendment) act 1985, representation of people act, u.p (temporary) control of rent and eviction act 1947 - sections 7(2) and 7-a, bombay land revenue code - section 211, conduct of election rules 1961 - rule 66 - non grant of further time for submitting reply is not denial of adequate opportunity to petitioners to controvert allegations contained in disqualification complaints (para -39)(these writ petitions are filed under articles 226 and 227 of the constitution of indian, praying to issue a writ or order or direction declaring the order of disqualification dated 10.10.2010 annexure-h, passed by the respondent no.2 to be unconstitutional, illegal and violative of fundamental rights of the petitioners under articles 14, 16 and 19 of constitution of india and for being violative of schedule 10 of the constitution and rules made by under karnataka assembly, and therefore being null and void, etc.) mohan shantanagoudar, j. the petitioners, who were members of the 13th karnataka legislative assembly, have questioned the order dated 10th october 2010 passed by the speaker of the karnataka legislative assembly, disqualifying them from being the members of the legislative.....
Judgment:

(These writ petitions are filed under Articles 226 and 227 of the Constitution of Indian, praying to issue a writ or order or direction declaring the order of disqualification dated 10.10.2010 Annexure-H, passed by the respondent No.2 to be unconstitutional, illegal and violative of fundamental rights of the petitioners under Articles 14, 16 and 19 of Constitution of India and for being violative of Schedule 10 of the Constitution and Rules made by under Karnataka Assembly, and therefore being null and void, etc.)

Mohan Shantanagoudar, J.

The petitioners, who were Members of the 13th Karnataka Legislative Assembly, have questioned the order dated 10th October 2010 passed by the Speaker of the Karnataka Legislative Assembly, disqualifying them from being the members of the Legislative Assembly on the ground of violation of paragraph-2(2) of the Tenth Schedule of the Constitution of India, by filing these writ petitions. On such disqualification, the respective constituencies represented by the petitioners in the 13th Karnataka Legislative Assembly have fallen vacant. The total strength of the 13th Karnataka Legislative Assembly is 225 seats. The petitioners herein were elected as members of the Assembly otherwise than as candidates set up by any political party (hereinafter called as “independent members”).

2. Petitioner Nos.1 to 5 in W.P.Nos.32674-32678/2010 and W.P.Nos.33998-34002/2010 were elected from Kanakagiri, Hiriyur, Hosadurga, Pavagada and Malavalli Assembly constituencies respectively. After the election, the Bharatiya Janatha Party (hereinafter called ‘BJP’ for short) which was the single largest party, was invited to form the Government. Sri. B.S. Yeddyurappa, who was elected as Leader of BJP Legislative Party was sworn in as the Chief Minister. The petitioners who were elected as independent members declared their support to the BJP Legislature party leader for the formation of Government. They were also inducted into the Council of Ministers by administering the oath of office. They continued to be a part of the ruling dispensation till 6.10.2010, on which day they gave a representation to the Governor of Karnataka informing him that they have withdrawn the support to the Government headed by Sri. B.S. Yeddyurappa on certain grounds. On the same day i.e. 6.10.2010 Sri. D.N. Jeevaraj – Chief Whip, Bharathiya Janatha Party and Sri. C.T. Ravi, Member of the Karnataka Legislative Assembly and General Secretary of BJP, the first and third respondents in W.P.Nos.32674-32678/2010 (hereinafter called as ‘complainants’) filed a petition (hereinafter called as ‘complaint’ for clarity) with the Speaker of the Karnataka Vidhana Sabha requesting him to disqualify the petitioners on the ground of defection, which was numbered as Disqualification Complaint No.2/2010 (hereinafter called as ‘complaint’). The said complaint states that the petitioners herein joined BJP so as to enable the formation of the Government and were sworn in as Ministers. Pursuant to the said complaint seeking for disqualification of the petitioners, the Speaker issued notices to the petitioners on 8.10.2010 calling upon them to show cause before 5 p.m. on 10.10.2010 as to why they should not be disqualified in view of the allegations found in the complaint. The petitioners sent an interim reply to the show cause notice on 9.10.2010 and prayed for seven days time for filing detailed statement of objections. However on 10.10.2010 the Speaker passed the impugned order after hearing the learned advocates representing the petitioners and the complainants. As aforementioned, by the impugned order the petitioners were disqualified on the ground of defection as per paragraph-2(2) of the Tenth Schedule of the Constitution of India.

3. In the meanwhile i.e., on 9.10.2010 five voters, one each from five aforementioned assembly constituencies also filed complaints before the Speaker of the Karnataka Vidhana Sabha praying for disqualification of the petitioners on the ground of defection. Those complaints were numbered as Disqualification Complaint Nos.3 to 7/2010 (hereinafter called as ‘complainants/voters). Those five complaints filed by the voters and the complaints filed by the complainants were clubbed, heard the decided by a common order on 10.10.2010 as aforementioned.

4. Writ Petition Nos.32674-78/2010 are filed questioning the order passed by the Speaker of Karnataka Vidhana Sabha in Disqualification Complaint No.2/2010, whereas W.P.Nos.33998-34002/2010 are filed questioning the order passed in Disqualification Complainant Nos.3 to 7/2010. Since both sets of writ petitions arise out of the common order and as the facts are common in both the sets of writ petitions, they are clubbed, heard and decided together.

CONTENTIONS ON BEHALF OF THE RIVAL PARTIES :

5. It is argued by Sri. P.P. Rao, learned Senior Counsel appearing on behalf of the petitioners that the impugned order is illegal and arbitrary, inasmuch as, the same is passed ignoring the provisions of the Constitution of India and the Laws ; that the action of the Speaker disqualifying the petitioners is an example of blatant disregard to the rule of law and the constitutional set up; that the principles of natural justice are violated; that the provisions of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (hereinafter referred as ‘Disqualification Rules’, for short) are ignored with utter contempt; that the petitioners have neither joined BJP expressly or impliedly; that the behaviour and conduct of the petitioners clearly reveal that they remained independent and have not joined any political party, much less, BJP; that in order to ensure that the petitioners are prevented from voting in the Vidhana Sabha on the Confidence Motion which was scheduled on 11.10.2010 moved by the Chief Minister, the impugned order came to be passed hurriedly in total disregard to the rule of law on the previous day; that notices of hearing were not at all served on the petitioners, but were pasted on the doors of the rooms allotted to the petitioners in the Legislators’ Home; however as an abundant caution, the interim reply was submitted by the petitioners on 9.10.2010 seeking seven days’ time for filing detailed statement of objections; only two days’ time is given to reply, that too, without serving the copy of the petitions with Annexures; consequently, the petitioners could not file their detailed reply to substantiate their case before the Speaker; and in view of the above, the whole proceedings are vitiated.

6. Sri. P.P. Rao, elaborating the aforementioned pointed submitted that:

In Complaint No.2/2010 filed by Mr. D.N. Jeevaraj and C.T. Ravi (complainants), there is no reference at all to the whip said to have been issued to the petitioners, but in Complaint Nos.3/2010 to 7/2010 filed by the voters, at the end of paragraph-3 there is an averment that the petitioners have received whips directing them regularly to vote in favour of the party and there are documents to show the same; however, no document has been annexed to the said petitions. In the impugned order, the Speaker relied on copies of the whips produced at the hearing, without furnishing copies to the petitioners and affording opportunity to respond to the same. The Speaker also failed to notice the material fact that in the Complaint No.2/2010 filed by Sri. D.N. Jeevaraj, the Chief Whip of BJP, though himself is the complainant, did not rely on the said whips at all. The whips relied on were not issued to the petitioners describing them as Member of BJP, but as Ministers in the BJP led Government. The whip dated 28.7.2009 was issued to a Member of the Assembly of the ruling party, whereas the whip dated 23.12.2009 was addressed to the petitioners as Ministers and not as members of the BJP Legislature Party. Having extended support to the BJP Government and accepted Ministership, they were bound to vote for the Government whenever the occasion arose. In this background, the whips sent to the petitioners herein, who were independent MLAs. And Ministers, can only be considered as intimation of the fact of issuance of whip to the party members and a request to other supporting independent MLAs. To vote in the Assembly on the date mentioned therein. The sending of copies of whips to independent Ministers was the unilateral act of the Chief Whip. Mere receipt of the Whips cannot be regarded as voluntary conduct on the part of the independent members of joining the BJP. Moreover, if the whips were addressed to the petitioners considering them as Members of the BJP, it was equally incumbent upon the Chief Whip to have mandatorily provided information of their joining the BJP to the Speaker under Rule 3 of the Disqualification Rules, which he did not. This shows, the Chief Whip at the time of issuing the said whips himself never considered the petitioners to be Members of the BJP. In any event, the whips so issued do not show that the petitioners had joined the BJP after Shri B.S. Yeddyurappa became Chief Minister and before they became Ministers on 30.5.2008 which is the case pleaded in the complaints before the Speaker. Sri. D.N. Jeevaraj having not even mentioned in his Complaint No.2/2010 about the whips, cannot rely on them in his statement of objections to the writ petitions. The voters only mentioned about the whips in their Complaint Nos.3/2010 to 6/2010, but did not annex the copies of the whips.

The Speaker also relied on the proceedings of the BJP Legislature Party meetings held on different dates, but did not deliberately advert to the crucial fact that in all the said proceedings, the petitioners and one other independent MLA were shown as a separate group and in most of the proceedings, they were shown under the heading, ‘Independent Co-Members’. The proceedings of the BJP Legislature Party meetings, far from substantiating the plea in the Complaints seeking for disqualification that the petitioners had joined the BJP after the formation of BJP Government and before becoming Ministers in the same Government on 30.5.2008, would demolish the case of the complainants, inasmuch as the proceedings clearly show that the petitioners were admittedly “Independent co-members” and were a separate group, shown as such after the names of 110 BJP members and one nominated member. The voters have no locus standi to file the Complaints for disqualification in terms of Rule 6(2) of the Disqualification Rules. Only a Member of the Assembly can file such complaints against any other member. The right to complain about defection by a Member of the Assembly on any ground is not a common law right but a statutory right governed by statutory provisions.

The conduct which amounted to joining a political party or voluntarily giving up membership of the parent party in the cases relied on by the Speaker is based on admitted/undisputed facts.

When mala fides have been alleged against the Speaker in the interim reply dated 9.10.2010 filed by the petitioners, which are reiterated in the writ petition, the Speaker ought to have filed a reply thereto.

Neither the Speaker nor the Chief Minister has denied the allegations made by the petitioners in their letter dated 6.10.2010 to the Governor and in their interim reply dated 9.10.2010 submitted to the Speaker. Therefore, adverse inference has necessarily to be drawn against them.

Disqualification Rules are to be treated as part of the Tenth Schedule for purposes of construction and obligations. When power is conferred and procedure is prescribed, the power must be exercised in accordance with the procedure. The Disqualification Rules like any statutory Rules or Administrative Instructions lay down norms and any deviation therefrom violates Articles-14. Disqualification Rules are mandatory, as without them the Tenth Schedule cannot be given effect at all.

In any event, assuming without admitting that the Rules are directory, they require substantial compliance. If there are two conflicting decisions of the Supreme Court, High Court is bound to follow the larger Bench decision. Reliance on new materials produced during the hearing without giving opportunity to the petitioners to deal with them violates Rule 7(3) of the Disqualification Rules and the law declared. The impugned order of disqualification involved civil consequences to the petitioners and it could not have been made without observing the principles of natural justice.

Refusal/failure to consider relevant and authentic materials available with the Speaker under Rules 3 and 4 of the Disqualification Rules and taking into consideration wholly irrelevant material which is subsequent to the date of alleged defection vitiates the impugned order of the Speaker. Impugned order of the Speaker must be judged by reasons mentioned therein and cannot be supplemented by fresh reasons in the form of affidavit or otherwise.

That, every independent MLA is like a political party consisting of a single member. Independents joining the Ministry headed by the single largest party in the Legislature, is nothing but extending support from outside the party. Such act does not incur disqualification as it does not amount to joining the BJP. It is a coalition of BJP and independent Members.

The impugned order is vitiated by mala fide action of the Chief Minister, Speaker and the complainants. The facts clearly show that the concerted effort made by the Chief Minister, Speaker and the complainants to get the petitioners disqualified, is a blatant abuse of the power conferred by the provisions of the Tenth Schedule in order to prevent them from participating in the Trust Vote held on 11.10.2010 and voting against the Motion of Confidence. All of them are guilty of male fides. No other hypothesis can explain filing of such frivolous petitions by the Chief Whip, Secretary of the party and the five voters, who were used as tools to implement the design stated above, alleging that the petitioners had incurred the disqualification before 30.5.2008 i.e. before they became Ministers. The above order of disqualification is liable to be quashed being male fide and fraud on power. The Respondent Nos.3, 5 and 7 did not file statement of objections to W.P.Nos.33998-34002/2010. On the contrary, they have on oath disowned the complaints seeking disqualification and exposed the fraud played on them by the concerned respondents. The evidence on record does not at all support the basic plea that the petitioners had joined the BJP and thereafter joined the ministry. The only irresistible inference that can be drawn is that the entire proceedings for disqualification were pre-planned and stage managed knowing fully well that the alleged ground of disqualification was non-existent, wholly imaginary, frivolous, vexatious, undemocratic and malicious. The Speaker’s order is liable to be quashed with strictures in the most stringent terms possible and the writ petitions be allowed with punitive costs so that such anti-people and anti-democratic actions are not repeated in the State of Karnataka in the future. He relied upon certain judgments which would be adverted to depending on their relevance during the curse of this judgment.

Finally, it was argued that in the event of the order of disqualification being set aside, as a consequence thereof, all consequential actions and orders may be declared void and quashed.

7. Sri. K.G. Raghavan, learned Senior Counsel appearing on behalf of the petitioners reiterating the contentions urged by Sri. P.P. Rao submits that the Assembly was constituted on 28th May 2008 and the Ministry was formed on 30th May 2008; that according to the complainants, the petitioners herein have joined BJP in between 28th May and 30th May of 2008 i.e., prior to the date on which they were sworn in as Ministers; that the date of joining the party is fixed date and subsequent events cannot be taken into consideration; and that the petitioners have not joined BJP at any point of time, inasmuch as, the alleged act of joining the party cannot be a floating event so as to have happened on several days; since the independently elected members are disqualified, the five constituencies have remained without any representative in the Assembly. He further submits that the appreciation of evidence in such matters should not be limited to the preponderance of probabilities. He has pressed into service certain observations made by the Supreme Court in the decisions which will be adverted to at a later stage.

8. Sri. Satyapal Jain, learned Senior Advocate appearing on behalf of the complainants, both of whom are BJP MLAs, submits that the matters needs to be considered keeping in mind the object with which Tenth Schedule was inserted by Fifty-Second Amendment to the Constitution of India. He submits that the “joining” of a political party is different from “becoming” the member of the political party; that the wordings used in sub-para (1) of Para-2 of Tenth Schedule of the Constitution of India are “belonging to a political party” or “becoming a member of the political party” and whereas, in sub-para (2) of Para-2 of Tenth Schedule of the Constitution of India, the wordings used are “joining the political party”; that having regard to the intention with which Tenth Schedule is inserted, the word “joining the political party” should be construed liberally than the word “becoming or belonging to a political party”; that under Article 191(1) of the Constitution of India, an elected member of a legislative assembly or council shall be disqualified under five contingencies; however, a member of the legislative assembly or council shall be disqualified under Article 191(1) of the Constitution if her is so disqualified under Tenth Schedule of the Constitution; and that Article 192 of the Constitution clarified that the Governor of the State has jurisdiction to disqualify the member of the Legislature of the State in case if such member falls within one of the five categories mentioned in Article 191(1) of the Constitution of India; but, while taking a decision under Article 192 of the Constitution, the Governor cannot act independently, inasmuch as, he has to get the opinion of the Election Commission and only after getting such opinion, the Governor shall act according to such opinion, i.e., the Governor is bound by the decision of the Election Commission in the matter of disqualifying the member of the house of the Legislature of State while acting under Article 191(1) of the Constitution of India. But such restriction is not imposed by the Constitution on the Speaker of the House while taking decision under Para-6 of the Tenth Schedule of the Constitution. This clearly means that the Constitution makers had complete faith on the Speaker in the matter of passing the order of disqualification.

9. The Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 are framed pursuant to Para-8 of the Tenth Schedule of the Constitution. Since the said rules deal with procedure, the Courts may not be justified in inquiring into the alleged violation of the procedure by the Speaker while exercising jurisdiction under Articles 226 and 227 of the Constitution, inasmuch as, the proceedings leading to the impugned order relating to disqualification are deemed to be the proceedings in the Legislature of the State in view of para 6(2) of Tenth Schedule. In other words, Sri. Satyapal Jain, submits that the Courts will not interfere with the Speaker’s order even if it is passed in contravention of the procedure. According to him, though sub-rule (3) of Rule 7 of the Disqualification Rules states that the member against whom the disqualification complaint is filed shall within seven days of receipt of such copies of the disqualification complaint, forward his opinion thereon to the Speaker, the same should not be construed as that the Speaker has to wait mandatorily for seven days. The word “within seven days” means “up to seven days”. Under the given circumstances, for the reasons to be recorded, seven days time also can be extended. However, it is not mandatory on the part of the Speaker to wait for seven days. He may even grant lesser period to the member to offer his comments; the question to be considered is as to whether a member is afforded with a reasonable opportunity of being heard or not and as to whether he was given opportunity to offer his comments or not. In the matter on hand, the petitioners have voluntarily offered their comments on 9.10.2010 in detail covering all the averments made in the complaints seeking disqualification and reference is also made to the Annexures. They were also given opportunity of oral hearing, inasmuch as, the advocates for the petitioners argued at length before the Speaker on 10.10.2010. Since the petitioners themselves through their advocate have voluntarily appeared before the Speaker on 9th October 2010 and have furnished their detailed comments, it cannot be said that they have not been given reasonable opportunity of being heard.

He further submits that seven factors are against the petitioners viz.,

(a) The act of becoming Ministers in the BJP Government,

(b) Receiving whips from the Chief Whip of BJP Legislature Party,

(c) Attending BJP functions,

(d) Attending BJP Legislature party meetings,

(e) Submitting the memorandum along with disqualified 11 BJP MLAs to the Governor, against the Chief Minister,

(f) Filing of Writ Petition Nos.32674-78/2010 which contain almost the similar averments as found in the memorandum of writ petitions filed by 11 disqualified BJP MLAs.

(g) In the comments offered by the petitioners before the Speaker, they have stated that “they have left the Government in the interest of BJP.”

It is further contended, the very fact that the petitioners had offered their comments in detail on 9.10.2010, that too adverting to all the documents produced by the complainants, itself goes to show that the petitioners were served with all the documents apart from the copy of the complaint seeking disqualification. Since the petitioners were not to be found either at Bangalore or in their respective native places on 8th and 9th of October 2010, the show cause notices along with disqualification complaints and the documents were pasted on the doors of their respective rooms in the Legislators’ Home, which amounts to sufficient service. The petitioners admit that the notices were pasted at the rooms of their respective doors at the Legislators’ Home. They do not dispute that they have attended the Legislature party meetings and have received the whips and have also attended the BJP meetings. It is not the case of the petitioners that they wanted to produce any additional material before the Speaker. The same proves that the petitioners did not have anything more to say in the matter before the Speaker. On the other hand, the Speaker has exercised his jurisdiction in accordance with law and well established procedure; hence there is no violation of rules of natural justice and that the action of the Speaker is in consonance with the intention with which Tenth Schedule of the Constitution is inserted.

He further submitted that, an application to disqualify a member of Legislative Assembly or Council is maintainable even if such application is filed by any citizen, inasmuch as, such a person need not to be a member of the Legislative Assembly or Council as the case may be.

Sub-rule (2) of Rule 6 of Disqualification Rules are to be treated as directory in nature having regard to the intent of Tenth Schedule of the Constitution. Moreover, Disqualification Rules merely prescribe the procedure that is to be followed by the Speaker. Since the contents of the documents produced by the contesting respondents are not denied either before the Speaker or before this Court, but are admitted by the petitioners herein and are sought to be explained only, it is clear that the petitioners have not retained their identity as independent members of the Legislative Assembly. If really the petitioners were not belonging to BJP, they could not and should not have attended the meetings of BJP as well as its Legislature Party meeting, inasmuch as, the definition of ‘Legislature Party’ as contained in Paragraph-1 of Tenth Schedule of the Constitution clearly reveals that the Legislature Party in relation to a member of a House belonging to any particular party in accordance with the provisions of paragraph-2 or paragraph-4, means the group consisting of all the members of that House for the time being, belonging to that political party.

In the instant case, the Government in Karnataka is that of BJP and not coalition Government where different political parties would join together and form the Government, but would have the legislature party of their own political party. But in so far as independents are concerned, that situation would not arise and the moment they support a Government formed by a political party by joining the Ministry, they loose their independent character and become members of the political party, since what is contemplated under paragraph 2(2) is the conduct of joining. As held by the Supreme Court, the formalities of filling up applications, paying the membership fee etc., are not necessary since such act of joining is to be gathered from the conduct. Joining the ministry and thereafter participating in the legislature party meetings and also the public meetings with BJP leaders is enough to infer that they have joined BJP. Attending the Legislature Party meeting has not been denied. If it was outside support, they should neither join the ministry nor attend the Legislature Party meetings. If such a view about joining is not taken, it would defeat the very object of paragraph 2(2) in Tenth Schedule and as such to achieve the object, the conduct of joining should be given the widest connotation. Therefore, while considering such conduct, the Speaker is entitled to look into all materials including his personal knowledge, as he is the best person to know the conduct of all the members of the house with whom he would have interaction on regular basis. To dispel the inference of their conduct from the materials on record, the petitioners have not produced any contrary material either before the speaker or before this Court nor did they utilize the opportunity granted to them by the Speaker to appear before him. Hence, all acts from the point of joining the ministry to the date of the order by the Speaker can be considered cumulatively. The proceedings being not adversarial in nature, the Speaker need not limit himself to what has been stated in the complaint before him, but should draw inference from the materials available as also personal knowledge. Once it is brought to the notice of the Speaker, the complainant looses the right even to withdraw the complaint and the Speaker will have to take it to its logical conclusion and during such consideration, the date of incurring the disqualification can even be a different one from that which was projected in the petition.

Irrespective of all other technicalities, the important criteria is as to whether they have retained the independent character. In that regard, the entire conduct can be taken into consideration. If that has been done by the Speaker, it will not call for interference. Only if the inference drawn by Speaker is so perverse, that no reasonable person would arrive at such conclusion, it can be interfered and not otherwise. The Speaker has recorded finding by taking law, facts and conduct into consideration. Such finding by a Constitutional Authority should not be interfered lightly. Even if the procedure followed by the Speaker is not appropriate, the Speaker is required to decide expeditiously to achieve the object of Tenth Schedule. When the Speaker has considered all aspects, even if this Court has a different view, the same should not be substituted but the matter at the most can only be remanded to the Speaker.

10. Sri B.N. Narasimha, learned Senior Advocate appearing for the respondents contended that while deciding the matter relating to disqualification, the importance of freedom of speech of an individual member vis--vis the stability of the Government would have to be considered. Among them, the latter becomes important in view of the object with which the Tenth Schedule is inserted. The court must defer to the Constitution and examine as to whether the action is within the Tenth Schedule. The rules should be interpreted to achieve the object of the Constitution since the Rules are only directory and are subservient. In the case of defection, the evil is so great that the action by the Speaker should be immediate. Placing reliance on the decision of the Hon’ble Supreme Court, it was contended that the principles of natural justice should be interpreted in such a manner so that it should enable the Speaker to discharge his function keeping in view the scenario in question. Hence, Tenth Schedule cannot be examined in a technical manner, but it should sub-serve the purpose for which it is enacted. Reference was made to De Smith’s Judicial Review and Wade’s Administrative Law to contend that urgency depends on situation. By referring to an analogous provision in Article 192(1) of the Constitution enabling any person to complain to the Governor to the consideration of that aspect by the Hon’ble Supreme Court, he contended that even a voter can complain to the Speaker.

11. Sri A.G. Holla, learned Senior Advocate, appearing for the Respondent No.6 in W.P.Nos. 33998-34002/2010 i.e., one of the voters who complained against one of the petitioners, contended that the voter has locus standi to make complaint to the speaker. The Constitution by Tenth Schedule has given such right and the same cannot be whittled down by a Rule framed by the speaker. In this regard, decisions of the Hon’ble Supreme Court are relied on to contend that since the interest of the constituency is involved, the voter is an interested person. Decisions are also relied on to contend that if Rules are framed and if any particular Rule takes away the right available under the Constitution itself, such Rule is repugnant as the vested right cannot be taken away. The voter Sri Krishna Naika made the complaint against Sri Venkataramanappa and verified the contents. Show cause notice was issued by the Speaker and by consent of all the parties, all the matters were taken together, since the issues involved were same. The learned Senior Advocate also pointed out that said Sri Venkataramanappa had attended the BJP Legislature Party meeting and had signed the register. Even if he is shown as co-member, the same means that they are of the same status. The Speaker after providing opportunity has passed the order, which is as per law.

12. Sri S. Vijayashankar, learned senior Advocate appearing for the Speaker clarified at the outset that though the Speaker has been impleaded as the Tribunal and also in his personal capacity, the affidavit filed is to controvert the allegations of mala fide made against him personally. In so far as the order passed in the capacity as a tribunal, thee is no need for him to justify the same since it is for the parties concerned to do the same. It is contended that the allegation of mala fide has been denied. Even if it is not denied, it is for the Court to consider the same on its own by examining as to whether the allegation of mala fides has been established. The verifying affidavit of one of the petitioners filed on behalf of all the petitioners is vague and does not indicate as to which of the statements have been made on personal knowledge and which of it is based on information. The source of information is also not disclosed. In that regard, reference is made to Order 19 Rule 3 CPC and the Writ Proceedings Rules to contend regarding the requisite nature of the affidavit. It is contended that when allegations are made against Constitutional Authority, the same should be made with responsibility. The fact that they did not raise lack of confidence before the Speaker if they had knowledge of his bias, would show that it is only an afterthought after participating in the proceedings without demur. The retraction made before this Court by three voters by filing affidavits in these petitions, shows that it is only a last ditch attempt of the loosing litigants. The Speaker has denied the allegations and even if not denied, no adverse inference can be drawn. In any event, the scope of proceedings before the Speaker is only to consider the comments and provides no right for hearing. The decision of the Supreme Court is relied on to contend regarding the limited power of judicial review.

13. Sri Naganand, learned senior Advocate appearing on behalf of the respondents No.3, 5 and 7 i.e., the voters who were the three complainants seeking disqualification before the Speaker in Complaint Nos.3 to 7/2010 contended that the affidavit of respondent No.7 is not controverted by the Speaker. It is alleged in the affidavit with regard to the sequence resulting in the filing of the complaint and that the speaker himself had arranged for drafting the same. The said respondents had no such intention of filing the complaint. The copy of the order sheet is referred to contend that notice was directed to the complainants as well, but, no such notice was issued. If such notice was served, such complainant would have appeared and would have informed the speaker that they did not wish to prosecute the complaint. The copy of the complaint itself is referred to contend that the nature of details mentioned therein would establish that it was prepared in Speaker’s Office as otherwise a voter from a remote area would not be aware of the details contained therein. The contents are similar in all complaints and the printouts are similar to one another and as such it would not be difficult to infer. As soon as the said respondents received the notices from this Court, they have appeared and made their stand clear and therefore, it is not an afterthought. To verify all these aspects, the records of the proceedings before the Speaker is very much necessary and if the same is not produced, it should shock the conscience of this Court, so as to call for interference.

14. Sri. P.P. Rao, learned Senior Advocate, in reply to the contentions raised on behalf of the respondents, reiterated the contentions relating to violation of principles of natural justice. It was contended that the respondents sought to rely on the materials which were not before the Speaker and on all these aspect only the records of the proceedings before the Speaker will disclose the true state of affairs and as such the records should be summoned and perused. Though the petitioners filed a reply, the same was only interim reply and as such time should have been granted. But, the Speaker was in a hurry and denied opportunity only with a view that the vote of confidence should be manipulated by creating artificial majority. Rules 3 and 4 of Rules 1986 were not followed by incorporating the names in the Register maintained by the Speaker, which, if perused by the Speaker from his own records, would have conclusively established the question in dispute.

15. Sri Ravivarma Kumar, learned Senior Advocate continuing on behalf of the petitioners submitted that the contention of the complainants that the petitioners have incurred disqualification by joining the Ministry, cannot be accepted. It is his contention that even though the petitioners were sworn in as Ministers on 30.05.2008, they had not taken oath in terms of Article 188 of the Constitution and as such they could not have incurred disqualification on that day as claimed. The concept of coalition Government has to be kept in view as otherwise it would have far reaching consequences. Tenth Schedule does not refer to joining the Government. On the other hand, Article 164 (1B) provides regarding joining the Ministry, which does not prohibit the independents. Paragraph 2(2) of Tenth Schedule only prohibits joining a political party and there is no disqualification, if one attends a legislature party meeting. With reference to the proceedings sheet maintained by the Speaker, it was contended that the reference therein is only with regard to complaint by the MLA’s and not to the complaint by the voters. In that complaint by the voters, the petitioners herein have not been served. The letter of support given by the petitioners and the letter forwarding the same to the Governor states that they are independents. The leader of the legislature party himself has considered them to be independents and the Minister who were independents have not been assigned ‘District incharge’ as a matter of policy. The statements of the Chief Minister to that effect in the newspaper were referred. The conduct of certain other MLA’s of other parties who had joined the BJP and thereafter got re-elected was pointed out to contend that the same procedure was not followed in the case of petitioners as they remained independent throughout. Even according to the respondents, the cause of action was the date of joining the ministry and 2 years have elapsed since then. Though no limitation is prescribed, the power can be exercised only within a reasonable period. The statements of Chief Minister, which had appeared in newspapers relating to the independent status of the petitioners were all materials to be produced before the Speaker, if sufficient opportunity was available and as such there is prejudice. One of the petitioners Sri Shivaraj Thangadagi had in fact been expelled from the BJP for contesting as rebel; therefore, he could not have joined the party without the same being revoked. Though representation was made to the Speaker for opportunity and the reply filed was without prejudice the Speaker has proceeded further in the matter. Hence, the order is perverse and is liable to be set aside.

16. Sri M.B. Nargund, learned counsel appearing for the complainants in his reply contended that there is no scope to distinguish the decisions of the Hon’ble Supreme Court which have been relied by the contesting respondents. The Rules, procedure and the nature of proceedings before the Speaker have all been considered in the cited decisions and the same remain applicable even at this stage. In answer to the contention that once would become a member only on taking oath, it is pointed out that one becomes a member on the certificate of election being issued as provided under the Conduct of Election Rules 1961. It is pointed out that delay cannot be pleaded in proceedings under Tenth Schedule as the dispute is not between the persons having conflicting rights. The statements attributed to the Chief Minister as appearing in the newspaper about the independent status of the petitioners, cannot be relied on since the Chief Minister was not the complainant before the Speaker, nor was he originally a party to these proceedings. The petitioners cannot make out any grievance with regard to non-service of notice since the counsel who represented them has made an endorsement in the order sheet of the proceedings acknowledging receipt of notice, petition and documents. The learned counsel therefore reiterated that the Speaker after following the procedure and on affording opportunity has arrived at his conclusion, which does not call for interference.

QUESTIONS FOR CONSIDERATION:

17. In the above backdrop, we are of the opinion that the following questions arise for consideration in these writ petitions:-

i) Whether the complaints filed by five voters in respect of five constituencies seeking disqualification of the five petitioners are maintainable or not?

ii) Whether the impugned order passed by the Speaker suffers from the vice of non-compliance with Rules of natural justice?

iii) Whether the impugned order is in violation of constitutional mandate or mala fide or is it perverse?

ANALYSIS OF THE OBJECTS, PURPOSE AND SCOPE OF TENTH SCHEDULE:

18. Having heard the learned Advocates and before proceeding further, it is relevant to note that the Apex Court in the case of Kihoto Hollohon vs. Zachilhu, (AIR 1993 SC 412) while considering the question of validity of Fifty-Second Amendment to the Constitution which brought the Tenth Schedule of the Constitution into force, and the question of power of judicial review has ruled that the scope of judicial review under Articles 136 and 227 of the Constitution of India, in respect of an order passed by the Speaker/Chairman of the House under paragraph-6 would be confined to jurisdictional errors only, viz., (a) infirmities based on violation of constitutional mandate (b) mala fides (c) non-compliance with Rules of natural justice and (d) perversity.

It is also held in the said judgment that the power to resolve such dispute vested in the Speaker/Chairman, is a judicial power and the Speaker/Chairman acts as a Tribunal while deciding the matter. In the very judgment it is expressed that the Speaker/Chairman holds pivotal position in the scheme of parliamentary democracy and is a guardian of the rights and privileges of the House. He is expected to and do take far reaching decisions in the functioning of parliamentary democracy.

19. Since the entire scheme of Tenth Schedule would be relevant to consider the above questions, it would be beneficial to look reasons and objects with which Tenth Schedule is inserted in the Constitution by Fifty-Second Amendment. It seems, failure of the political parties in the 1967-elections to secure absolute majority to enable any of them to form the Government at the Centre as well as in the States gave rise to wide-spread political defections by elected M.P.s. and M.L.As. Absence of a strong law on registration of political parties further accentuated the problem. Reportedly, some M.L.As. with the sole motive for monetary gain, lure of office and for grabbing power, changed parties three or four times in a day. The evil of political defections became a matter of national concern.

20. Hence, on 8.12.1967, the Lok Sabha unanimously adopted the following resolution:-

“a high-level Committee consisting of representatives of political parties and Constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspect and make recommendations in this regard.”

Accordingly, a Committee known as the Committee on Defections was set up to study the problems of political defections and suggest remedial measures. The Committee in its report dated 7th January, 1969 observed:-

“Following the Fourth General Elections, in the short period between March, 1967 and February, 1968, the Indian political scene was characterized by numerous instances of change of party allegiance by legislators of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the first and the Fourth General Elections, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected, joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the Council of Minister which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature on the part of defectors to political parties, constituency preference or public opinion, and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections.”

According to Shri Subhash C. Kashyap, former Secretary-General of Lok Sabha, between the fourth and the fifth general elections in 1967 and 1972, there were nearly 2000 cases of defection and counter-defection, and that the lure of office played a dominant part in this Act.

The Committee on Defections recommended, inter alia: “Articles 102(1)(e) and 191(1)(e) of Constitution empower Parliament to make a law providing for disqualification of a person for being chosen as, and for being, a member of either House of Parliament or of the State Legislative Assembly or Legislative Council. As standing for election to Parliament or State Legislature is only a statutory right as distinguished from a fundamental right, it is open to Parliament to impose such restrictions or conditions on the exercise and enjoyment of that right as it considers necessary or reasonable in public interest. On that basis, it is possible to provide in a special legislation that a legislator who renounces the membership of or repudiates his allegiance to a political party shall be disqualified from continuing as a member of Parliament/State Legislature.

He will nevertheless be free to stand for election again if he so wishes, and to sit as a member in case he gets elected. Where, however, a legislator defects for a pecuniary advantage or for an office of profit, an element of aggravation enters into his action which, we feel, has to be visited with greater severity. This may be done by providing that in addition to being disqualified from continuing as a member of Parliament/State Legislature, he will also be disqualified from being chosen as a member of Parliament/State Legislature for a particular period. In this context, we consider the term “office of profit” as used in Article 102/191 to be inclusive of ministership (as is evident from the explanation contained in Cl.(2) of that Article); hence, defection for the sake of ministership can, without difficulty, be brought under the aggravated category.

If any person who has been elected as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State and who was allotted the reserved symbol of any political party in respect of such election renounces (whether by words, conduct or any other manner) after the said election allegiance to, or association with, such political party, he shall upon such renunciation, be disqualified for being a member of the House of Parliament, Legislative Assembly or Legislative Council to which he was so elected.”

Meanwhile, the Election Commission also in its Report on the Mid-term General Election in India, 1968-69, lamented:-

“When the results of the Fourth General Elections of 1967 were declared, it was found that the Indian National Congress which had till then been the dominant political party throughout India had lost its majority in a number of state Legislative Assemblies and its majority in the House of the People had also drastically dwindled. This not only resulted in the formation of non-congress Governments in a number of State Assemblies but also made the members of such state Assemblies forget the election-promises and pledges held out to the electorate at the time of election by and on behalf of the parties by whom they were sponsored and started defecting in large numbers in quick succession from their respective parties. The elected representatives forgot that defection and re-defection from one party to another is not paying in the long-run, and more often than not it acts as a boomerang hitting the person by whom it is resorted to. The moral consequences of defection and floor-crossing are sometimes far-reaching and serious.”

21. Keeping in view the recommendations of the Committee on defections, the Constitution (Thirty-Second Amendment) Bill, 1973 was introduced in the Lok Sabha in 1973 seeking to amend Articles 102 and 191 of the Constitution and to provide, inter alia, for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up of the membership of the political party by which he was set up as candidate at such election, etc. The Bill, however, lapsed with the dissolution of the House on 18.1.1977.

22. Subsequently, another Bill viz., the Constitution (Forty-Eight Amendment) Bill was introduced in the Lok Sabha on 28.8.1978. Unlike the earlier Bill, this Bill sought to specify defection from a Member’s original political party as a disqualification under articles 102 or 191, as the case may be, and to insert a new Schedule viz., Tenth schedule in the Constitution to deal with various aspects of defection. But, the 1978-Bill was withdrawn on the same day.

However, having experienced the worst political indiscipline and betrayal to the democratic ethics, and as sufficient damage was caused to the political morale in the country by then due to defections, the Constitution (Fifty-Second Amendment) Bill, 1985 was introduced and passed in the Parliament in the end of January, 1985. The Act came into force from 1.3.1985. The Statement of objects and Reasons for bringing the Constitution (Fifty-second Amendment) Act, 1985, makes the intention for the introduction of Tenth Schedule to the Constitution clear, and the same is as follows:-

“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. The Bill is meant for outlawing defection and fulfilling the above assurance.”

From the above it is clear that the purpose of enacting the Constitution) Fifty-Second Amendment) Act, 1985, i.e., incorporation of the Tenth Schedule and other amendments has a long history which was of serious concern and not only to stabilize the legally elected Governments and to prevent the political immorality and corruption, but also to make them effective.

23. Though we are conscious that all statements made during the debate in Parliament will not form a part of the law when the Bill is ultimately made as law, we deem it necessary and find it beneficial to notice certain of the opinions expressed during the debate made in the Parliament while introducing Constitution (Fifty-Second Amendment) Bill. This is so, since the people’s representatives themselves have expressed serious concern about the falling political standard, defection and floor crossing for personal benefit. The Bill was therefore introduced keeping in mind the phenomenon of the defection which became acute and apparent after the Fourth General Elections in the year 1967. Whereas, up to 1967, there have been only about 400 defections, but within one year from the election of 1967, there were 500-odd defections, of which, the figures also say, 118 were by persons who became Ministers or Ministers of State. Among 157 independents out of a total of 367 elected, joined various parties during the period between March 1967 to February 1968. The problem became so important from the point of view of preserving the best traditions of democracy and of setting certain norms of political behaviour that a Committee of defection was set up in the month of October 1967 under the Chairmanship of the then Union Home Minister Sri Y.B. Chavan, and consisting of eminent jurists like Mr. Daphtary, Mr. Seervai and also independents and Members of different political parties represented in Parliament. The said Committee made certain recommendations and those recommendations were considered when the 1973 Constitution (Amendment) Bill was introduced first; and that Bill, for the first time, took cognizance of this phenomenon of what has come to be termed as “Aya Ram And Gaya Ram”. People crossed the Floor without any intelligible principle, but crossed the Floor mainly actuated by opportunise or for the purpose of gaining a political advantage or a personal advantage. The drama of changing colour of the mantle started then; and every section of the House and every section of the people was unanimously of the view that unless this phenomenon was completely obliterated from our politics, it would not only discredit our democracy but also doom the future growth of mature and healthy political conventions, which alone, apart from the constitutional provisions, sustain a strong democracy. Some of the relevant views expressed in the Debate over the Bill are as hereunder:

Sri Sharad Dighe, Member, expressed that, any act of a Member which brings down the Government has to be punished because he has already given a commitment to his voters that he would stand by that party, he would stand by their manifesto and discipline of that party. Therefore, voting against the party or abstaining from voting has not been allowed.

Sri Zainul Basheer, Member, has expressed that, if after winning the election with the support of the party, the Legislator defects from that party, it is a great fraud. That the Legislators do not deceive themselves or the Government or the party, but they deceive those people who elect them. Such Legislators stabbed the back of those people who have voted for a particular member keeping in view the ideology, election manifesto and the symbol of the party. If he defects from his party and joins the other, he stabs his voters in the back. He deceives those voters.

Sri Vijay N. Patil, Member, has expressed that, seldom independent members get elected. That is very true of the Parliament as also of the Assembly. Hence, to defy the voters and cross over to the other side is a treachery and it must be punished by disqualification from the Membership of the House.

Sri Giridhar Gomango, Member, has stated that definitely, this Bill is a blow to the politicians, who have been crossing or changing the floors, have been resorting to carpet crossing, political turn-coatism, the politics of musical chair, the politics of opportunism and the politics of defection. There are four groups in politics, namely the spectator group, the factor group, the defector group and that group which is more dangerous than others have given some concession for splitters. This Bill definitely check all these kinds of political groups.

It is further debated that the Bill is not meant for the people, but for the Legislators themselves. Due to some historical reason, or vested interest, the politicians lost purity, as well as principles in politics. Therefore, the Legislators are legislating the law for themselves to make themselves disciplined politicians.

Even recording the role of the independent members, the Debate went on and Sri. B.K. Gadhvi, one of the Member has expressed his views as under:

“It is stated that independents elected by the people cannot join any political party. I do not understand any rational behind this. If some change is not done here, then, five or six independents in a State may tilt the balance this side or that side and there will again be the menace of “Ayarams” and Gayarams”. Therefore, when a man is selected independently, he has got the verdict of the people on his own account. If a person is selected as an independent with the tacit or active support of any political party, then it is justified to say that he cannot be allowed to join any political party. But, once a person is independently, then his right to act independently also exists along with his position. I think, it would not be proper to curtail or to put fetters on the right of an independent person. My humble submission for the consideration of the hon. Law Minister is that in the case of Independents we should not put any fetters of their later joining any political party.

The objectives of this Bill are laudable and it will definitely act as a deterrent against defections. But the basic aim and idea of the Bill is that with a view to create a healthy democracy in the country, independence, non-recognised political parties, small parochial and regional parties are not conducive to the growth of democracy. Therefore, our aim is that if we want to maintain and develop democracy, national parties of equal caliber and contest should be developed. Unfortunately, it is not happening. The blame can be put on the other side. But, I am not going into that aspect. Since democracy is a sine qua non for a healthy nation, there should be national parties all over the country of good matching strength until it is developed, democracy in the true sense would not be developing. Therefore, my submission would be that with a view to discourage the independence, with a view to discourage some small regional or parochial groups to contest and come in the forefront of the democratic forum or arena of this country, some measures are to be adopted. If there are Independents, then tacitly people would try and the Independents would become an instrument of horse-trading because they will be voting once on this side and at another time on that side. When there is a crucial moment, when there is a narrower contest between the rival parties in the House, then they would be playing their role and horse-trading cannot be eliminated for which we aim in this Bill.”

(Emphasis supplied)

Sri Kamal Nath, Member, has expressed his views on the Bill as under:

“Coming to the loophole, the disqualification arising out of defection in this Bill is only a partial deterrent to a person who defects because of inducement of office for the defector can be appointed a Minister for six months, without contesting any election. It is true he will have to seek election within lose his seat after six months. But he can be appointed as Minister for six months by the party, which may be in office, to which he has defected. This is an inherent weakness of this Bill. We have not fully and totally prevented nor we are trying to stem. In the short run, any one can avail of this opportunity. I would suggest that there should be some sort of deterrent, that he cannot hold a Government office, or that he cannot seek re-election for a couple of years, say, six or eight years.”

(Emphasis supplied)

Sri Jagan Nath Kaushal, Member, has expressed his views as under:

“In fact, it is very simple Bill as it stands. The controversial Clause has been taken out. Now the Bill is very simple. If he resigns from that political party, on the label of which he won the election, the least what should be done is that he should forfeit his seat. Some hon. Members are even suggesting that not only he should forfeit his seat, he should be disqualified for a number of years more. Some people have gone to this length. They say merely because he loses his seat, it is not enough punishment, he should be disqualified for a number of years. But we have not gone to that length. For the moment, we are on this that he should lose his seat and go back to the electorate by telling them “I have renounced that party. Now I am coming on the ticker of another party”, or “I am coming as an independent person. Would you elect me?

There was an extensive debate relating to the status of the independent members. Sri Jagan Nath Kaushal, Member, has expressed his views on this point in the Debate as under:

“One of my hon. Friends just raised the question: why have you brought in independents in this net? Independent is an independents. He forgets the base. The basic idea is this. When he went to the electorate, he told everybody, I do not like any of these political parties, these political parties are so arrogant that they did not give to a person like me the party ticket and, therefore, I will fight independently. Now let him stick to what he told his electorate. He has fought independently; he has secured the verdict of the electorate as an independent candidate. Therefore, he must continue as an independent candidate. The moment he loses his independence, he is subject to this law because of the very base is the promise he made to the electorate the; electorate was the final authority which decided that he was a fit person to be elected because he was independent.

(Emphasis supplied)

I conclude by saying what Prof. Madu Dandavate has said. On this solemn day, we have taken a step and that is a step which certainly bring credit to this Parliament that they have taken a very bold step, which could not be taken for the last twenty years, in order to clean the public life.”

Expressing his gratitude, the then Law Minister Sri. A.K. Sen said thus:

“I want to express my gratitude to the House, to the Prime Minister and to the Members of my party for the strong support which they have given for making this a reality. This proves once again, if proof was needed, the maturity and the stability of our democracy. Amidst the clash of arms and bickerings of parties, when the call of the nation has gone out, the people, irrespective of parties, have closed their ranks and come and needed to the call of the nation. I remember, in this very House, when the Chinese attack came, when our late leader Sri Jawahar Lal Nehru, was speaking on the proclamation of Emergency, he uttered these great words, which are still ringing in my ears: “this is our finest hour. We must all stand like a solid rock and repeal this invasion.” And the country did stand like a solid rock. The opposition here and outside and everywhere rallied round the flag of India.

I remember the Vijaya Chowk procession of that year on the republic day when the entire Opposition turned out along with our great leader and marched bare footed along the path of the Vijiya Chowk. I remember when the Pakistani attack came in 1971 and Indira Gandhi gave a clarion call to the nation again to rally round, this nation did rally round and amidst the class of arms it responded to the call of the nation.

So, again today the conscious of our democracy and our duty to the nation fall has brought us altogether to support the Prime Minister in the pledge he gave immediately after he came and took over the administration of this great country, that this Bill well be reality after all. And so it is a reality.”

“MR. SPEAKER: Subject to correction, the result of the Division is: Ayes 418; Noes Nil.

The Motion is carried by a majority of the total membership of the House and by a majority of not less than two-thirds of the members present and voting. The Bill, as amended, is passed by the requisite majority in accordance with the provisions of article 368 of the Constitution.

The Motion was adopted.

(Emphasis Supplied)

It is apposite to quote the concluding remarks made by Prof. Madu Dandavate, and reply by the Speaker which is not just witty but it is the punch line that sums up the entire intent, purpose and object of the Tenth Schedule.

PROF. MADU DANDAVATE: Sir, what about obituary reference to defectors?

MR. SPEAKER: The passing of this Bill is itself an obituary to defectors.”

(Emphasis supplied)

24. The object is to curb the evil of political defections motivated by lure of office, monetary gain or other similar considerations, which endanger the foundations of our democracy and deny the citizens of being governed by a stable government by laying emphasis on development. The object is also to preserve democratic structure of the Legislature and safeguard political morality in legislators. The object sought to be achieved by the Tenth Schedule is to ensure loyalty of the legislators to a political party which sponsored the candidature. It further prevents independent members from loosing their independent character as such and prohibits them from joining a political party.

The object is also to ensure the voters of a particular constituency from which a member is elected as an independent candidate that such candidate would not join any political party after the elections. While electing a person as an independent member of Legislature, the majority of the voters of the constituency would reject the candidates from the political parties contesting from such constituency. As such, it is expected and it is incumbent on the elected independent member to retain his independent character without joining any political party and without imbibing or following the policies or ideas of any political party. The electorate while choosing to vote for the independent would be aware that if elected, their representative would not be a part of the Government which in any event will be formed by one or the other political party.

25. Thus, the provisions of Tenth Schedule are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections (See Kihoto Hollohon vs. Zachillhu-AIR 1993 SC 412)

ANALYSIS OF THE RIVAL CONTENTIONS:

26. In this background, to resolve the issues arising in these petitions, it is beneficial to note the following provisions:

Paragraph-2(2) of the Tenth Schedule of the Constitution of India:

“2(2): An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.”

Paragraph-6 of the Tenth Schedule of the Constitution of India:

“Decision on questions as to disqualification on ground of defection:

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

PROVIDED that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a state within the meaning of article 212.”

Paragraph-8 of the Tenth Schedule of the Constitution of India:

“8. Rules:

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

(a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong;

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

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

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

(2) The rules made by the Chairman or the Speaker of House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved they shall be of no effect.

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

Pursuant to paragraph-8 of the Tenth Schedule of the Constitution of India, The Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, are framed by the Speaker of the Karnataka Legislative Assembly. Rule 3 of the Rules mandates that the leader of the Legislature Party shall, within thirty days after the first sitting of the House, or where such Legislature Party is formed after the first sitting, within thirty days after its formation, furnish a statement in writing containing the names of members of such Legislature Party together with other particulars regarding such Members. Sub-rule (4) of Rule 3 clarifies that whenever any change takes place in the information furnished by the leader of a Legislature Party under sub-rule (1), he shall within thirty days thereafter or within such further period as the speaker may for sufficient cause allow to furnish in writing information to the Speaker with respect to such change. Rule 4 deals with certain information to be furnished by the members of the Legislative Assembly. Sub-rule (3) of Rule 4 mandates that a summary of the information furnished by the members under this rule shall be published in the official Bulletin. Rule 5 of the Rules reveals that the Secretary of the House shall maintain a register based on the information furnished under Rules 3 and 4 in relation to the members and the information in relation to each member shall be recorded on a separate page in the Register.

Rule 6 of the Disqualification Rules reads thus:

“6. Reference to be by petitions:

(1) No reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of this rule.

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

Provided that a petition in relation to the Speaker shall be addressed to the Secretary.

(3) The Secretary shall,-

(a) as soon as may be after the receipt of a petition under the proviso to sub-rule (2) make a report in respect thereof to the House; and

(b) as soon as may be after House has elected a member in pursuance of the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule place the petition before such member.

(4) Before making any petition in relation to any member, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such member has become subject to disqualification under the Tenth Schedule.

(5) Every petition,-

(a) shall contain a concise statement of the material facts on which the petitioner relies; and

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

(6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings.

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

Rule 7 deals with the procedure to be adopted by the Speaker on receipt of the petition under Rule-6 in relation to disqualification. The same reads thus:

“7. Procedure:

(1) On receipt of a petition under rule 6, the Speaker shall consider whether the petition complies with the requirements of that rule.

(2) If the petition does not comply with the requirements of rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly.

(3) If the petition complies with the requirements of rule 6, the Speaker shall cause copies of the petition and of the annexures thereto be forwarded-

(a) to the member in relation to whom the petition has been made; and

(b) where such member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader, and such member or leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker.

(4) After considering the comments, if any, in relation to the petition, received under sub-rule (3) within the period allowed (whether originally or an extension under that sub-rule), the Speaker may either proceed to determine the question or if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to the Committee for making a preliminary inquiry and submitting a report to him.

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

(6) Where the Speaker makes a reference under sub-rule (4) to the Committee, he shall proceed to determine the question as soon as may be after receipt of the report from the Committee.

(7) The procedure which shall be followed by the speaker for determining any question and the procedure which shall be followed by the Committee for the purpose of making a preliminary inquiry under sub-rule (4) shall be, so far as may be, the same as the procedure for inquiry and determination by the Committee of any question as to breach of privilege of the House by a member, and neither the Speaker nor the Committee shall come to any finding that a member has become subject to disqualification under the Tenth Schedule without affording a reasonable opportunity to such member to represent his case and to be heard in person.

The decision on disqualification petition is taken as per Rule 8 of the Rules. The same read thus:

“8. Decisions on Petitions: (1) At the conclusion of with respect to a petition in relation to the speaker as they apply with respect to a petition in elation to any other member and for this purpose, reference to the Speaker in these sub-rules shall be construed as including references to the member elected by the House under the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule.

8. Decision on Petitions:

(1) At the conclusion of the consideration of the petition, the Speaker or, as the case may be, the member elected under the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule shall be order in writing-

(a) dismiss the petition, or

(b) declare that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule,

and cause copies of the order to be delivered or forwarded to the petitioner, the member in relation to whom the petition, has been made and to the Leader of the Legislature Party, if any, concerned.

(2) Every decision declaring a member to have become subject to disqualification under the Tenth Schedule shall be reported to the House forthwith if the House is in Session and if the House is not in Session immediately after the House reassembles.

(3) Every decision referred to in sub-rule (1) shall be published in the Bulletin and notified in the Official Gazette and copies of such decision forwarded by the Secretary to the Election Commission of India and the State Government.”

In the light of the foregoing, we shall now advert to the points which require consideration.

27. POINT NO.1 - REGARDING MAINTAINBILITY OF COMPLAINTS FILED BY VOTERS:

It is contended on the behalf of the petitioners that the complaints seeking disqualification filed by five voters are not maintainable and it is only the member of the Legislative Assembly who can file complaint seeking disqualification. Reliance is placed on Rule 6(2) of the Disqualification Rules in support of the said contention. Reference in this context is made to the judgments of the Apex Court in the cases of N.P. Ponnuswamy -vs- Returning Officer, (AIR 1952 SC 64), Jagan Nath –vs- Jaswant Singh and Others (AIR 1954 SC 210), State of Uttar Pradesh and Other –vs- Baburam Upadhya (AIR 1961 SC 751), State of Tamil Nadu –vs- Hind Stone and Others ((1981) 2 SCC 205), Jyothi Basu and Others –vs- Debi Ghosal ((1982) 1 SCC 691), and Union of India –vs- Harjeet Singh Sandhu ((2001) 5 SCC 593). In the said judgments, the sum and substance of what is held by the Apex Court is that the right to vote or contest as a candidate in the election is not a civil right but is a creature of statute and must be subject to imitations imposed by it. Strictly speaking it is the sole right of the Legislature to examine and determine all matters related to the elections and if the Legislature takes it out of its own hands and vests in a special Tribunal which is an entirely new and unknown jurisdiction, that special jurisdiction must be exercised in accordance with law which creates it. The general rule is well settled that the statutory requirements of the election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law. It is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law. However, it is always to be borne in mind that though the election of the successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safe guard the purity of the election process and also to see that people do not get elected by flagrant breach of that law or by corrupt practices.

28. Having considered the said decisions, we are clear that there cannot be any dispute that the rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction and obligation. All the judgments cited by the petitioners reiterate the aforementioned legal position. There cannot be any dispute in respect of the said proposition of law. However, none of the judgments cited by the petitioners support their contention that voters have no locus standi to file complaints seeking application praying for disqualification on the grounds of defection in relation to Tenth Schedule of the Constitution of India. They either relate to Representation of People Act or other statutes in the facts arising therein and as such, are not of assistance in this case. The matter on hand is to be viewed keeping in mind the intention with which Tenth Schedule is inserted by virtue of Fifty-second Amendment to the Constitution and the role of a voter in the electoral process in that context. Tenth Schedule of the constitution nowhere restricts filing of complaint seeking disqualification by a voter of that particular constituency. Tenth Schedule nowhere contemplates that the complaint seeking disqualification shall be moved only by the member of the House i.e. the Assembly or the Council as the case may be. The provisions of Tenth Schedule, as held by the Apex Court Kihoto Hollohon’s Case (cited supra) do not violate the freedom of speech, freedom of vote and conscience. They do not subvert democratic rights of elected members of parliament and legislatures of the states. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled, unethical political defections. In order to curb conducting of elections at irregular intervals and in order to protect and sustain the purity of electoral process, Tenth Schedule is brought in the Constitution of India. With this object in mind, the matter needs to be looked into. In case if none of the member of the House complains about the illegal defections, because of members’ unholy mutual understanding, there is no reason as to why the voters who cast their votes with a purpose should remain a mute spectator. Each of the MLA is elected from a particular Assembly constituency. Majority of the voters of that constituency would have reposed confidence in the elected candidate and the political party to which he belongs, or otherwise, before electing. Thus it is the wish and will of the majority of the voters of that particular constituency which is a relevant and paramount consideration to be borne in mind. The voters of that constituency should not be placed in a helpless situation if none of the members of the House complains about the illegal defection. Therefore, every voter of the constituency should have an opportunity to oppose the illegal defecting by bringing it to the notice of the Speaker. Since Tenth Schedule of the Constitution does not debar filing of the complaint seeking disqualification of a defected member, every voter in the concerned constituency has got right to file application seeking disqualification since a Rule should not be permitted to bar the remedy which is not barred by the Constitution. If such a construction is not arrived at or if such a meaning is not given, then the intention and the object with which Tenth Schedule is brought into the Constitution will be frustrated. The Rules cannot be permitted to over ride the constitutional provisions.

Rule 6(2) of the Rules merely provides for filing of a petition in relation to a member may be made in writing to the speaker by any other member. The words used in the said sub-rule are “may be” and not “shall be”. The said sub rule does not prohibit the voter of the constituency from making the application seeking for disqualification. However, it merely enables another member of the House to make such an application. In this context a reference may be made to the judgment of the Apex Court in the case of Dr. Mahachandra Prasad Singh vs. The Chairman, Bihar Legislative Council and others, reported in (2004 (8) SCC 747), wherein while considering the Rules made under Tenth Schedule, it is observed that the Rules being in the domain of the procedure are intended to facilitate the holding of enquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being sub-ordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely Tenth Schedule. It is held that the rules are directory in nature. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires. While holding so, the Apex Court observed thus:

“Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which member of the House becomes disqualified for being a member of the House under Paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision i.e. the Tenth Schedule.”

(Emphasis supplied)

As aforementioned, if the members of the house collude with each other by not filing a complaint seeking disqualification of defected member, the defecting legislator, who has otherwise incurred the disqualification under paragraph-2 of Tenth Schedule would be able to get away by taking advantage of silence of the members of the House, which could even be intentional as a bargain or barter for mutual benefit at the cost of public interest. Consequently, the object of the Constitution (Fifty-Second Amendment) Act by which the Tenth Schedule was added would be defeated only because the birds of the same feather have chosen to flock together.

Paragraph-6 of the Tenth Schedule vests the power in the speaker to disqualify the defecting member of the house. It is the substantive provision. The power under paragraph-6 is absolute and without any rider. In that view, even if the words “may be” found in Rule 6(2) of the Rules are read as “shall be” so as to clothe it with mandatory character, it should be read down to achieve the object of substantive provision inasmuch as such mandatory character would not have the sweep to restrict the scope and ambit of the power vested in the Speaker under paragraph-6(1) of the Tenth Schedule since the substantive provision of law would not be stifled by the procedural rule. The exercise of power by the Speaker under paragraph-6(2) of the Tenth Schedule is not dependent upon the framing of Rules under paragraph-8. Even in the absence of the Rules framed for the purpose, the Speaker has the authority to resolve the dispute if raised before him. The authority of the Speaker operates proprio vigore without any fetter being clamped on his power by the Rules. (see the Judgment of the Full Bench in the case of Bhajaman Bobera vs. Speaker, Orissa Legislative Assembly and others, reported in AIR 1990 Orissa 18.)

As aforementioned, a bar cannot be read into Rule 6(2) for an interested voter to approach the Speaker by filing complaint seeking disqualification. Even otherwise, Tenth Schedule does not permit any limitation in the manner as suggested by Sri P.P. Rao. What Paragraph-2 of Tenth Schedule requires is that the question should arise as to whether a member is disqualified because of the defection or not. How the question arises, by whom it is raised and under what circumstances it is raised, are not relevant for the purpose of the application of this paragraph. All that is relevant is that a question of the type mentioned in paragraph-2 of Tenth Schedule should arise and so the limitation which Sri P.P. Rao, seeks to introduce in the construction of paragraph-2 of Tenth Schedule r/w. Rule 6 of the Rules is plainly inconsistent with the words used and the intention behind paragraph-2 of Tenth Schedule. It is conceivable that in some cases complaints made to the Speaker, may be frivolous or fantastic; but if they are of such a character, the Speaker will find no difficulty in expressing his opinion that they should be rejected in limine. The object of Tenth Schedule is plain. No member who has incurred any of the disqualifications specified by Tenth Schedule is entitled to continue to be the member of the Legislative Assembly/Council of the State. Since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Tenth Schedule, there should be no difficulty in holding that any voter of the Constituency is entitled to make a complaint to the Speaker alleging that the MLA representing the said constituency has incurred disqualification mentioned in paragraph-2 of the Tenth Schedule and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status and if any member forfeits that status by reason of a subsequent disqualification, it is in the interest of constituency which such member represents that the matter should be brought to the notice of the Speaker and decided by him in accordance with the provisions of Tenth Schedule. Therefore, we are unable to accept the contention suggesting limitation as to the exercise of jurisdiction by the Speaker on an application filed by the voter. (See the judgments in the case of Brundaban Nayak vs. Election Commission of India and Another, reported in AIR 1965 SC 1892 and in the case of State of Punjab vs. M/s. Geeta Iron and Brass Works Limited, reported in AIR 1978 SC 1608, which fortify our view.)

It is further relevant to note the observations made by the Apex Court in the case of Rajendra Singh Rana and Others vs. Swami Prasad Mourya and Others, reported in AIR 2007 SC 1305, while referring to the Full Bench judgments of Punjab and Haryana High Court, which read thus:-

“The decision of a Full Bench of the Punjab and Haryana High Court in Prakash Singh Badal vs. Union of India and others (AIR 1987 Punjab and Haryana 263) was relied upon to contend that the Speaker gets jurisdiction to render a decision in terms of the Tenth Schedule to the Constitution of India only when in terms of paragraph 6 thereof a question of disqualification arose before him. The Full Bench by a majority held:-

‘Under, para-6, the Speaker would have the jurisdiction in this matter only if any question arises as to whether a member of the House has become subject to disqualification under the said Schedule and the same has been referred to him for decision. The purpose of requirement of a reference obviously is that even when a question as to the disqualification of a member arises, the Speaker is debarred from taking suo moto cognizance and he would seized of the matter only when the question is referred to him by any interested person. The Speaker has not been clothed with a suo moto power for the obvious reason that he is supposed to be a non-party man and has been entrusted with the jurisdiction to act judicially and decide the dispute between the conflicting groups. The other prerequisite for invoking the jurisdiction of the Speaker under para 6 is the existence of a question of disqualification of some member. Such a question can arise only in one way, viz., that any member is alleged to have incurred the disqualification enumerated in para 2(1) and some interested person approaches the Speaker for declaring that the said member is disqualified from being member of the House and the claim is refuted by the member concerned.”

(Emphasis supplied)

29. In view of the above we are of the considered opinion that since there is no bar under the substantial provision of Tenth Schedule of the Constitution, the Rules framed thereunder cannot create a bar for a voter to file complaint before Speaker/Chairman of the House seeking disqualification. Hence, the Disqualification Complaint Nos.3/2010 to 7/2010 filed by the five voters of five constituencies from which respective petitioners herein were elected, are maintainable.

30. Having held as above, we deem it proper to consider the submissions made on behalf of the three voters i.e., respondents 3, 5 and 7 who have retracted the complaints.

Respondents 3, 5 and 7 in Writ Petition Nos.33998-34002/2010 have filed affidavits before this Court mentioning therein that they were fraudulently taken to the office of the Speaker and were made to sign certain documents, which they came to know later that such signed papers were misused for preparing the applications seeking disqualification of the MLAs of the respective constituencies. In other words, according to the aforementioned respondents, they have not consciously, voluntarily and knowingly signed and filed the complaints seeking disqualification. On the basis of such averments, it was argued by Sri S.S. Naganand that the proceedings arising out of such applications vitiate, inasmuch as, the Speaker has not acted fairly, but has acted with mala fide intention.

The aforementioned contentions cannot be accepted. The respondents 3, 5 and 7 do not dispute that they have signed and filed the applications before the Speaker. However, according to these respondents, the contents made in such applications are not correct and not voluntarily made. As held by the Apex Court in Dr. Mahachandra Prasad Singh’s Case (cited supra), paragraph-6 of the Tenth Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction of the Speaker of the House. The purpose of Rule-6 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under Paragraph-2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred disqualification. It is not an adversarial kind of litigation where he may be required to lead the evidence. Even if the complainant withdraws the petition, it will make no difference as a duty is cast upon the Speaker to carry out the mandate of the constitutional provision viz., Tenth Schedule.

Even otherwise, we are not satisfied with the explanation offered by respondents 3, 5 and 7 in their affidavits that they were taken to the office of the Speaker through mis-representation and were made to sign certain papers. Though they stated that certain other persons have taken them, the said statements have not been supported. Further, there is inherent contradiction in the statements, wherein at one breath, it is stated that they were taken to the House of Law Minister and the papers were prepared and in the other, they state that it was changed on the instruction of the Speaker which sounds highly improbable. If there was such intention, they could have got persons who are loyal to the party since all that was required was to secure a person from that area. The respondents 3, 5 and 7 should have been more careful and cautious in making such serious allegations against the Constitutional authority like the Speaker. Such grievance was not made by respondents 3, 5 and 7 earlier. The Speaker has filed an affidavit denying the allegations made against him. Even otherwise, the contents of the affidavits of Respondents 3, 5 and 7 are not supported by any other independent material, except the self serving statements. In view of the same, the contentions made on behalf of respondents 3, 5 and 7 are rejected.

31. POINT NO.2 – REGARDING RULES OF NATURAL JUSTICE:

As aforementioned, Rules are framed by the Speaker in exercise of jurisdiction vested in him under paragraph-8 of Tenth Schedule to the Constitution of India. Paragraph-6(2) of the Tenth Schedule clarifies that all proceedings relating to disqualification on the ground of defection under paragraph-6(1) of Tenth Schedule shall be deemed to be the proceedings of the Legislature of the State, within the meaning of Article 212 of the Constitution of India. Article 212 mandates that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of the procedure. As aforementioned, the Apex Court in Kihota Hollohon’s Case (cited supra), has ruled that the order relating to disqualification can be questioned under Articles 226 and 227 of the Constitution under four circumstances one among them being non-compliance with Rules of Natural Justice.

Rule 7 of the Rules deals with the procedure to be followed by the Speaker. Sub rule(3) of Rule 7 reveals that the Speaker shall cause copies of the petition and the annexures thereto, to be forwarded to the Member in relation to whom the complaint of defection has been made and such Member shall within seven days on receipt of copies or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker. Sub rule(3) further provides that after considering the comments, if any, in relation to the complaint received as above, the Speaker may either proceed to determine the question or refer the petition to the Committee for making preliminary enquiry if he is satisfied that it is necessary to do so. In the matter on hand, the Speaker has decided the petition himself.

32. During the course of arguments, the learned advocates appearing on behalf of the petitioners strongly expressed that the copies of the petitions and the documents annexed thereto were not served on the petitioners and consequently, the petitioners were unable to file their detailed statement of objections. While so submitting, they prayed for summoning the records from the Office of the Speaker.

After hearing at length, in order to ward off any doubt, this Court passed the order directing the Speaker to furnish the records maintained by him relating to Disqualification Complaint Nos.2/2010 to 7/2010. While calling for the records, we were conscious of the legal position that the Speaker in such matters exercises jurisdiction as a Tribunal and the functions assigned to the Speaker in such matters are judicial functions. Since we are exercising certiorari jurisdiction, and as we wanted to satisfy ourselves as to whether the Rules of natural justice is followed or not, particularly having regard to the rival contentions on the said issue, we have secured the records as it is open to do so in the facts and circumstances of each case. Accordingly, the records maintained by the Speaker were produced by the Advocate appearing for the Speaker in the sealed covers on 1.2.2011. Though a memo dated 1.2.2011 was filed on behalf of the Speaker depicting the production of record and mentioning that the review being limited, only in certain circumstances the record can be perused, we are of the opinion that appropriate conclusion can be arrived only on perusal of the records. We have therefore perused the original records maintained by the Speaker.

33. Speaker files are maintained by the Speaker in relation to each of the Disqualification Complaint Nos.2/2010 to 7/2010.

34. Disqualification Complaint No.2/2010 is filed by two members of Bharathiya Janata Party viz., Chief Whip and General Secretary of the said party. Same is dated 6.10.2010. The records maintained by the Speaker reveal that the said disqualification complaint was presented in the Office of the Speaker on 7.10.2010. The Speaker has ordered to issue notice on 8.10.2010, fixing the date of hearing on 10.10.2010. However, Sri K.J. Jagadish, learned advocate appeared voluntarily on behalf of the petitioners herein before the Speaker and filed vakalatnama on their behalf on 9.10.2010 and sought for time. The Speaker granted time with a direction to call the matter at 3.30 p.m. on 10.10.2010. On the very day, i.e., on 9.10.2010, the Speaker has mentioned in the proceedings sheet that notice be issued to the complainants and the copy of the disqualification complaints be served on the petitioners herein (respondents before the Speaker); as also the copy of the reply filed by the respondents therein, was ordered to be served on the complainants. On 10.10.2010 a vakalatnama was filed on behalf of the complainants and by consent of the petitioners as well as respondents, Complaint Nos.2/2010 to 7/2010 were clubbed together with a view to consider the common contentions and to pass a common order. The proceedings sheet does not depict that the learned advocate for the petitioners herein either sought for further time or has made any grievance regarding insufficient time but has proceeded with the matter. On that day, the arguments advanced on behalf of rival parties were heard and the matter was posted for orders. On the very day, i.e., on 10.10.2010 the impugned order came to be passed disqualifying the petitioners herein.

On perusal of the records, we find that the Disqualification Complaint No.2/2010 is annexed with the copies of proceedings of BJP Legislature party meetings dated 23.6.2008, 27.7.2008, 16.10.2008, 25.11.2008, 16.1.2009, 25.2.2009, 25.3.2009, 21.5.2009, 4.1.2010, 16.6.2010, 4.7.2010. They show that the petitioners have attended Legislature Party meetings of BJP and have affixed their signatures on one or the other day. The Photostat copies of the newspaper reported dated 15.8.2010 and the copies of the whips issued by the Chief Whip which were served on the petitioners herein as well as copy of the list of the seating arrangement relating to 13th Assembly as allotted to the BJP Members are also annexed. The seats assigned to the petitioners by indicating their names are interspersed with seats assigned to the other BJP members. The file maintained by the Speaker contains the vakalatnama signed by each of the petitioners entrusting the brief to Sri K.J. Jagadish, Advocate, for appearing before the Speaker. The file also contains the written reply filed on behalf of the petitioners by Sri K.J. Jagadish, Advocate, dated 9.10.2010. In the said reply, it is mentioned that none of the requirements as contemplated under Rule 7 of the Rules is complied with and that the copy of the disqualification complaint along with annexures be served on him and that seven days’ time may be given to him for filing statement of objections.

35. The files relating to Disqualification Complaint Nos.3 to 7/2010 are also perused. The proceedings sheet maintained by the Speaker in those complaints reveal that the said Complaints were presented by the voters of five constituencies on 9.10.2010 in person. The Speaker has ordered to issue notice to the respondents forthwith and the matter was ordered to be posted on 10.10.2010. In the proceedings sheet thereafter, it is noted that notice came to be served on the respondents therein i.e., the petitioners herein, on 9.10.2010.

It is also evident that Sri K.J. Jagadish, learned advocate appearing on behalf of the respondents before the Speaker (petitioners herein) has received the show cause notices dated 9.10.2010, copies of the complaints and documents by making the following endorsement:

“Without prejudice received complaint, show cause notice and documents, subject to objection.

9/10/2010 at 9.20 p.m.

Sd/-

K.J. Jagadish

Adv. for Respondents.”

From the above, it is clear that the learned advocate appearing on behalf of the petitioners herein was served with all the applications and the documents annexed thereto on 9th October 2010. Hence, it cannot be said that neither the notices nor the Disqualification Complaints along with the documents were not served on the petitioners as contended by them.

The said learned advocate appearing on behalf of the respondents therein, (i.e., the petitioners herein) has filed detailed statement of objections running to about 12 pages. Five separate copies of the statement of objections are found in the five separate files relating to Disqualification Complaint Nos.3/2010 to 7/2010. The proceedings sheet dated 9.10.2010 maintained in Complaint No.2/2010, as aforementioned reveals that all the applications were clubbed and were heard together and a common order was passed. Hence, it is clear that the statement of objections and the arguments were common to all the complaints. Therefore, it cannot be said that the petitioners herein were not afforded an opportunity to file their detailed statement of objections merely because the endorsement was made by the learned advocate on 9.10.2010 as noticed above.

However, it is mentioned at the end of the statement of objections so filed that the same is an interim reply and is submitted without prejudice and by way of abundant caution. It is argued on behalf of the petitioners that the Speaker ought to have given opportunity to file detailed objections, inasmuch as, they were entitled to minimum of seven days’ notice to contest the matter. Such a submission is opposed by learned advocates appearing on behalf of the respondents herein by contending inter alia that the statement of objections filed on 9.10.2010 by the petitioners is a detailed one and the same answers each and every allegation made in the Disqualification Complaints. The relevant provisions of the Constitution as well as the Rules are adverted to in the statement of objections. Thus, according to the respondents herein, the statement of objections are, in fact, comprehensive and therefore, there was no justification on the part of the respondents therein to ask for further time.

36. The documents produced by the complainants along with the Disqualification Complaint No.2/2010, as aforementioned, are copies of the legislature party meetings of BJP, copies of the whips, copy of the seating arrangement made for the Assembly members of BJP and the news paper reports. Veracity of none of these documents nor the signatures appearing therein are denied by the petitioners herein with specific averment to that effect in the writ petitions. If really the petitioners had anything more to submit in relation to the documents produced by the complainants along with the Disqualification Complaints, they would have definitely stated so before the Speaker at the time of hearing or at least in the memorandum of writ petitions. The correctness of the facts found in the said documents are also not disputed in the writ petitions except attempting to explain the circumstances under which the said documents have come into being. If it is so, no useful purpose would have been served in granting further time for filing the statement of objections by the Speaker. Even assuming that the Speaker had granted additional time for filing the statement of objections to the sow cause notices, nothing more could have been said by the petitioners and as such, no prejudice has been established.

The petitioners have also not averred in the writ petitions that they wanted to produce any particular record in their favour which could have dispelled the inference drawn by the Speaker. They have merely stated in the writ petitions that sufficient opportunity was not granted to them and therefore, there is violation of principles of natural justice. However, it was argued on behalf of the petitioners that, had the Speaker afforded sufficient opportunity, the respondents before the Speaker would have produced certain newspaper reports wherein the Chief Minister and one other Minister are alleged to have made statements at an earlier point acknowledging that the respondents are independents. We are unable to accept the said contention. Firstly, since the said press reports are of a period much earlier to the date of the proceedings and if the petitioners really desired, they could have been part of the objections before the Speaker when the petitioners were in a position to submit such detailed objections with the help of the learned advocate. Secondly, the petitioners herein were not even diligent to appear in person before the Speaker in a matter of this nature and explain their stand if they had personal knowledge of all these aspects so as to put forth the same before the Speaker. Thirdly, the said press reports have been produced before this Court on 25.11.2010 along with the rejoiner long after the filing of the writ petitions on 11.10.2010. This makes it clear that the petitioners herein would not have produced such press reports even if they had been granted the seven days’ time as sought for before the Speaker. If such is the conduct displayed by them, they cannot be heard to complain about prejudice being caused to them.

37. The petitioners admit that the notices were pasted on the doors of their respective rooms at the Legislator’s Home.

Rule 7(3) provides that the member against whom the Disqualification Complaint is made shall within seven days of the receipt of the copy of the Disqualification Complaint along with the records, forward his comments in writing thereon to the Speaker. The words “within seven days” clearly mean that the comments should be forwarded by the concerned member to the Speaker within the maximum period of seven days and not that it should necessarily be the inner limit of seven days. The seven days prescribed under the Rules is the maximum period and not the minimum period as contended by the petitioners’ advocates. Considering that the complaint would be of defection and if it is shown to be true, a member cannot continue with the status for long and as such, an appropriate outer limit is fixed keeping in view the urgency with which it should be concluded. The Speaker may even allow further time if sufficient cause is shown. In the matter on hand, the Speaker having found that the statement of objections filed by the petitioners is exhaustive, has proceeded to hear the matter on merits. Both the parties were represented by their respective advocates and they had consented for clubbing the cases and the statement of objections filed indicates that it is addressed to the Speaker and not restricted with any particular case number and as such, is common to the cases filed by the BJP functionaries and the voters. It is brought to the notice of the Court during the course of arguments by learned advocates appearing on behalf of the respondents herein that the Speaker heard the arguments in detail for about three hours on each and every aspect of the matter and thereafter, the impugned order is passed. Such submission is not controverted by the petitioners’ advocates before us.

38. It has been held by the Apex Court in the case of Ravi S. Naik vs. Union of India, reported in 1994 Suppl.(2) SCC 641 that the Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising power conferred on him under sub-paragraph (1) of paragraph-1 of the Tenth Schedule to the Constitution of India. The Rules are therefore procedural in nature and any violation of the same would only amount to irregular procedure which is not subjected to judicial scrutiny in view of sub-paragraph (2) of paragraph-6 to the Tenth Schedule of Constitution of India and as construed by the Apex Court in Kihoto Hollohon’s Case (cited supra), however subject to certain exceptions. As aforementioned, in the very judgment, the Apex Court has observed that the field of judicial review in respect of orders passed by the Speaker under sub-paragraph (1) of paragraph 6 of Tenth Schedule to the Constitution is confined to prejudice of constitutional mandates, mala fides or non-compliance with the Rules of natural justice and perversity. It is held that Principles of natural justice are important force in the modern administrative law. They have been defined to mean “fair play in action”. The order of an authority exercising judicial or quasi judicial functions passed in violation of principles of natural justice is perversely ultra vires and therefore suffers from jurisdictional error. But while applying the principles of natural justice, it may be borne in mind that the rules of natural justice are not immutable, but flexible. They are not cast in a rigid mould and they cannot be put in a legal straight jacket. Thus, the question as to whether the requirements of natural justice have been complied with or not has to be considered in the context of facts and circumstances of a particular case.

The facts in Ravi S. Naik’s Case (cited supra) reveal that the disqualified members were given only two days time for submitting the replies. The replies were submitted to the Speaker within the said period. The replies so submitted were quite detailed. In the replies, the concerned MLAs. did not deny the crucial allegations made against them. Having regard to the facts and circumstances of that case, the Apex Court held that it cannot be said that insufficient time is given for submitting replies which has resulted in denial of adequate opportunity to the concerned MLAs.

39. In the matters on hand also, though the petitioners herein were granted two days time for filing statement of objections, they voluntarily filed their replies within a day i.e., on 9.10.2010. The replies filed by the petitioners are quite detailed. In the replies, the petitioners have alleged mala fides against the Speaker. Further, they have put forth their case in detail. However, the petitioners did not deny the contents and veracity of the documents produced along with the disqualification applications. They have also not stated anything in the replies that they wanted to produce any particular document in their support. In fact, the tenor of the contents in para-13 of the reply statement to the Speaker indicates that by the objection raised by them, they sought a decision from the Speaker to withdraw the show cause notice and dismiss the petition, failing which to grant at least seven days time. They did not even come forward to appear before the Speaker personally to contend that they would adduce any evidence on their behalf. Even the advocates appearing on behalf of the petitioners did not submit so before the Speaker. As aforementioned, the petitioners have not stated anything even in the writ petitions denying the contents of the documents produced along with the Disqualification Complaints. On the other hand, the petitioners do not dispute the contents of the documents except contending that the said documents will not lead to any inference against them by seeking to explain the same. Even if more time was to be granted to the petitioners, no useful purpose would have been served, inasmuch as, factual aspects borne out from the documents produced along with the Disqualification Complaints were not denied even in the writ petitions. On the other hand, it appears that the attempt was only to prolong it beyond 11.10.2010. In fact, while answering similar contentions in the case of Jagajit Singh vs. State of Haryana (2006 (11) SCC 1) wherein an interim reply was filed and thereafter the complainant had filed additional documents, the Apex Court rejected the contention. Thus, it cannot be said that non grant of further time for submitting the reply has resulted in denial of adequate opportunity to the petitioners to controvert the allegations contained in the Disqualification Complaints. As aforementioned, the petitioners voluntarily appeared through their learned Advocate before the Speaker on 9.10.2010 though the time granted to them was to appear on 10.10.2010. They filed their reply on the very day. They have consented for clubbing all the complaints. With consent, all the complaints were clubbed, heard and are decided together. In view of the above, it cannot be said that the petitioners were put to prejudice in any manner. Hence, it cannot be said that the rules of natural justice are not complied with in the matters on hand.

40. POINT NO.3: REGARDING VALIDITY OF THE IMPUGNED ORDER INCLUDING QUESTION OF MALA FIDES AND PERVERSITY:

Even while considering these aspects of the matter, the entire matter will have to be examined keeping in mind the object with which Tenth Schedule is inserted in the Constitution by virtue of Fifty-Second Amendment and the manner of consideration should be in the direction of achieving the objects and not to defeat the intention with which Tenth Schedule is inserted.

In that regard, a perusal of the impugned order would indicate that the Speaker while passing the impugned order has relied upon the following circumstances against the petitioners to infer that they have joined the BJP and incurred disqualification in terms of paragraph 2(2) of Tenth Schedule viz.,

(a) That the petitioners have joined Ministry formed by BJP,

(b) That the petitioners have attended Legislature party meetings of BJP and signed the relevant registers,

(c) That the petitioners have received the whip issued by the Chief Whip of BJP and have acted in accordance to the whip issued,

(d) Petitioners have participated in the programme of the political party viz., BJP under its flag and symbol along with the leaders of the BJP.

41. Based on the above materials, since the Speaker has held that the petitioners have incurred disqualification and since the petitioners have alleged mala fides against the Speaker for acting at the behest of the Chief Minister, that aspect needs consideration at the outset. Having heard the learned advocates at length and having perused the entire materials on record, we are of the considered opinion that the impugned action of the Speaker is not actuated by mala fides as alleged by the petitioners. It is no doubt true that certain allegations are made against the Speaker both in the reply statement filed by the petitioners before the Speaker as well as in the writ petitions. Further, allegations are also made against the Chief Minister to the effect that he was instrumental for getting the impugned order passed at the hands of the Speaker in a hurried manner in order to see that these petitioners do not participate and vote against the Chief Minister in the Confidence Motion moved by the Chief Minister which was scheduled to be discussed in the Assembly on 11.10.2010. But, we find that such allegations stand unsubstantiated. If in law the petitioners have incurred disqualification and if the Speaker proceeds in that regard and if it is not against law, merely because the allegation is made that it is done to aid the Chief Minister in the Vote of Confidence at his behest, the mala fides cannot be assumed. If the petitioners were to succeed on this allegation, they should not only establish that they had not incurred disqualification, but should also come out with specific details about the manner in which the Chief Minister prevailed upon the Speaker to pass a particular type of order by following a particular procedure. On the other hand, the petitioners have not disclosed the source of their information that the Chief Minister had influenced the Speaker for getting the order passed and also the details. Neither are any materials placed by the petitioners in support of their allegations from which such conclusion can be drawn. These allegations are not grounded on any factual knowledge, but has only been stated as “reasons to believe”. Even for their belief, the petitioners do not disclose any reasons on which they were founded except assuming so because the order is passed prior to the Vote of Confidence, which, in our view, cannot be the basis for the reasons stated aforesaid and for the reasons that would be discussed in the succeeding part of this order. It is no doubt true that in a case of this kind, it would be difficult for the petitioners to have personal knowledge in regard to an averment of mala fides, but then the details from where such knowledge is gathered is wanting. The petitioners ought to have disclosed their knowledge so that the other side gets a fair chance to verify it and to respondent to the same. In such a situation, the Apex Court in the case of State of Bombay vs. Purushtam Jog Naik (AIR 1952 SC 317) has observed that as slip-shod verification of affidavits might lead to their rejection, they should be modeled on the lines of Order XIX Rule 3 of the Civil Procedure Code and that where an averment is not based on personal knowledge, the source of information should be clearly deposed. In the absence of tangible materials, the only answer which the respondents against whom the allegations are made as to mala fides could be one of general denial. In the matter on hand, the Speaker, as well as, the Chief Minister have filed their affidavits denying the allegations. They have specifically denied the contention that the impugned order is passed at the behest of the Chief Minister. We must not overlook the well established legal position that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. In this regard reference may be made to the judgment of the Apex Court in the case of E.P. Royappa vs. State of Tamil Nadu and Another (AIR 1974 SC 555) wherein it is observed thus:

“Para-92: Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up – these considerations are wholly irrelevant in judicial approach – but because otherwise functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.”

Since the petitioners have failed to discharge the burden of establishing mala fides, the allegations of mala fides cannot be accepted. Even otherwise, we do not find that the impugned order is actuated by mala fides.

42. The arguments advanced on behalf of the petitioners that the Speaker passed the impugned order is great haste as the discussion on Confidence Motion was fixed on 11.10.2010, and therefore, smacks of mala fides is a double edged one. It can also lead to the inference that it is because of that reason the petitioners were interested in prolonging the proceedings beyond 11.10.2010, but the Speaker wanted to decide before it, if the petitioners had incurred disqualification under Tenth Schedule, which, in fact, was towards upholding the law. As a matter of fact, the proceedings under Tenth Schedule will have to be decided as early as possible so as to avoid a defected member’s participation in the House. If the Speaker had not discharged his legal obligation, he would have been faulted on that ground. Hence, this Court cannot accept the allegations made only because of that reason. While concluding as above, we have also kept in view the observations of the Apex Court about the high tradition of the Speaker’s office and its role. The observations made in Kihoto Hollohon’s Case (cited supra), which reads as hereunder would also be apt for the aspects to be considered hereinafter as well:

“Para-115:- The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of the Parliamentary democracy has its pivot the institution of the Speaker. ‘The Speaker holds a high important and ceremonial office. All questions of the well being of the House are matters of Speaker’s concern’. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character.

Para-116:- Mavalankar, who was himself a distinguished occupant of that high office says:

‘In parliamentary democracy the office of the Speaker is held in very high esteem and respect. There are many reasons for this. Some of them are purely historical and some are inherent in the concept of Parliamentary democracy and the powers and duties of the Speaker. Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because as a human being he has his human drawbacks and shortcomings. However, everybody knows that he will intentionally do no injustice or show partiality. Such a person is naturally held in respect by all.’

Para-117: Pandit Nehru referring to the office of the Speaker said:

‘…. The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Therefore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.” ….

Para-118: It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside.

Para-119: Accordingly, the contention that the vesting of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far-reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable.”

(Emphasis supplied)

43. The undisputed facts in the instant case are that the petitioners were elected as independent members. After elections, they supported the Government formed by BJP which was the single largest party in the 13th Legislative Assembly. They, by their separate letters dated 26.5.2008 pledged their unconditional support to the BJP Legislature Party leader Sri B.S. Yeddyurappa to form the Government. They were sworn in as Ministers when the Government was formed by BJP. In this context, it was argued by Sri Satyapal Jain, appearing on behalf of the contesting respondents that the very fact that the petitioners were sworn in as Ministers in the Government formed by BJP itself would be sufficient to hold that the petitioners have joined a political party viz., BJP as it was not an outside support. The same is opposed by Sri P.P. Rao, and other Advocates appearing on behalf of the petitioners by contending that the mere act of the petitioners joining the Council of Ministers would not be sufficient to incur disqualification as contained in paragraph 2(2) of Tenth Schedule as they have not joined the political party after they were elected. According to the petitioners, there is nothing on record to show that the petitioners have joined any political party, much less, BJP. They are not enrolled as Members of BJP, their names are not found as BJP MLAs in the relevant registers maintained by the Speaker as required under Rules 3 and 4 of the Disqualification Rules and that the petitioners were only giving outside support.

44. Before we proceed further to consider the validity or otherwise of the impugned order on all other aspects, it would be appropriate for us to take note of the decision of the Apex Court, inasmuch as, the facts of this case are almost similar to the facts in Jagjit Singh’s Case (cited supra). In the said matter also, independent members of Legislative Assembly were disqualified by the Speaker on the ground of defection ahead of the election which was scheduled for electing the Member to the Rajya Sabha from the Assembly. Similar contentions as are raised in this matter, were raised before the Apex Court. While considering the rival contentions urged by the parties, the Apex Court in the said matter, has observed thus:-

“Para-28: We have no difficulty in accepting the contention that there is a fundamental difference between an independent elected member and the one who contests and wins on ticket given by a political party. This difference is recognized by various provisions of the Tenth Schedule. An independent elected member of a House incurs disqualification when he joins any political party after election as provided in paragraph 2(2) of the Tenth Schedule. There is also no difficulty in accepting the proposition that giving of outside support by an independent elected member is not the same thing as joining any political party after election. To find out whether an independent member has extended only outside support or, in fact, has joined a political party, materials available and also the conduct of the member is to be examined by the Speaker. It may be possible in a given situation for a Speaker to draw an inference that an independent member of the Assembly has joined a political party. No hard and fast rule can be laid down when the answer is dependent on the facts of each case.

Para-29: It is also essential to bear in mind the objects for enacting the defection law also, namely, to curb the menace of defection. Despite defection a member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities. The substance and spirit of law is the guiding factor to decide whether an elected independent member has joined or not a political party after his election. It would not be a valid plea for a person who may have otherwise joined political party to contend that he has not filled up the requisite membership form necessary to join a political party or has not paid requisite fee for such membership. The completion of such formalities would be in consequential if facts otherwise show that the independent member has joined a political party. The facts of the four cases of independent elected members are required to be examined in the light of these principles.

Para-37: The sufficiency of the time granted depends upon the facts and circumstances of each case. Having regard to the facts as noticed hereinbefore, we are unable to accept the contention that in the present case, the petitioners were not granted sufficient time to meet the case against them.

Para-47: From the facts and circumstances of the case and the conduct of the petitioners, it can be reasonably inferred that they were only interested in prolonging the proceedings beyond 28th June, 2004, the date fixed for Rajya Sabha elections. The argument that the Speaker passed the impugned order in haste as voting for Rajya Sabha elections was fixed for 28th June 2004, is a double edged one since the petitioners were interested in prolonging the proceedings beyond 28th June, 2004 and the Speaker wanted to decide before it, if the petitioners had incurred disqualification under the Tenth Schedule.

Para-50: It was also contended that paragraph 2(2) of the Tenth Schedule deserved to be strictly construed. The submission is that the word ‘join’ in Paragraph 2(2) deserves a strict interpretation in view of serious consequences of disqualification flowing therefrom on an order that may be made by the Speaker. Paragraph 2(2) of the Tenth Schedule reads as under:

“2(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.

Para-51: As noted earlier, the object of the defection law has to be borne in mind. The question to be considered is whether a member formally joining a political party is the requirement so as to earn disqualification or the factum of joining can be inferred from facts and conduct of a member, without a member formally joining a political party inasmuch as not filling form required to be filled by a member of the political party under the rules and regulations of that party or payment of any prescribed fee. The respondents pleaded for a liberal construction and submitted that inference from conduct was sufficient to establish that an independent member has joined a political party. These are two extreme views on the issue.

Para-52: We are of the view that to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. At the same time, non-fulfillment of formalities with a view to defeat the intent of paragraph 2(2) is also of non consequence. The question of fact that a member has given up his independent character and joined for all intent and purposes, a political party though not formally so as to incur disqualification provided in paragraph 2(2) is to be determined on appreciation of the material on record.”

(emphasis supplied)

From the above observations, it is clear that substance and spirit of law is the guiding factor to decide whether an elected member has joined a political party after his elections. It would not be a valid plea for a person who may have otherwise joined a political party by his conduct, to contend that he has not filled up requisite membership form necessary to join a political party and has not paid requisite fee for such membership. The completion of such formalities would be inconsequential, if facts leading to the conduct otherwise show that the independent member has joined a political party or lost his independent status. In the very judgment, it is held that the conduct and behaviour of the elected candidate will have to be seen to infer as to whether such candidate has joined a political party or not. In the case on hand also, the petitioners have not become the members of the BJP expressly i.e., by filling up the form, etc. Hence, by conduct and behaviour of the petitioners whether it can be inferred that they have joined a political party is the issue to be determined. Since the petitioners have not expressly joined the party by paying membership fees and filling up the form, there is no question of their names being entered in the Register maintained by the Speaker under Rules 3 and 4 of the Disqualification Rules and as such, the change not being effected, cannot lead us to the conclusion. Therefore, it is not possible for us to accept the contentions of Sri P.P. Rao, that the names of the petitioners are not changed in the Register maintained by the Speaker as required under Rule 3(4) of the Rules by intimating the change if they had become members of BJP. For the very reason, the contention of Sri P.P. Rao, that the independent status of the petitioners is evident from the records of the Legislature, cannot be accepted. It is needless to observe that none of the political parties which is benefited either by express or implied defection by an independent member would inform the Speaker about the fact of joining the said political party, inasmuch as, such intimation to the Speaker would invite disqualification and consequently, such political party will lose the support of such independent member thereafter. So also, any independent member joining the political party will not inform the Speaker for effecting change under Rules 3(4) and 4 of the Disqualification Rules, for the very reason. In view of the non-intimation of the fact of joining the BJP by the Legislature party leader of BJP at an earlier point of time, for reasons best known to him, has resulted in a situation where the Speaker has to determine the said question as per the Constitutional mandate envisaged in the Tenth Schedule.

Sri P.P. Rao submitted that the judgment in Ravi S. Naik’s Case (cited supra) is explained by the Apex Court in the subsequent judgment in the case of Mayawati vs. Markandeya Chand and Others reported in (1998) 7 SCC 517). In Mayawati’s Case the Apex Court did not finally decide the matter. Since two Hon’ble Judges of the Supreme Court differed on certain points, the matter was referred to the Constitutional Bench for decision. Hence, it cannot be said that the Apex Court in Mayawati’s Case has explained the earlier judgment of Apex Court in Ravi S. Naik’s Case.

45. As aforementioned, the Apex Court in Jagjit Singh’s Case (cited supra) has observed that there is no difficulty in accepting the proposition that giving outside support by an independent elected member is not the same as joining any political party after the election. The Apex Court has ruled that giving outside support by an independent MLA is permissible. Hence, it is to be determined whether the manner of support extended by the petitioners herein can be considered as outside support. The words “outside support” are not defined anywhere. We will have to infer the meaning of the words “outside support” as used in common parlance. The general perception of understanding the act of outside support means, supporting the Government from outside without being a part of the Government but adding to the number to have majority in the Assembly, meaning thereby if an elected representative joins the Ministry, he is not giving the outside support to the Government, but is a part of the Government. In such a situation, the question that would arise is as to whether the Government is by a heterogeneous body or a homogenous body. In the instant case, it is not in dispute that the BJP has formed the Government in the State of Karnataka. Though Sri P.P. Rao, sought to contend that each independent member should be considered as a distinct political party having one member being part of the coalition, we are unable to accede to such contention. A political party can only be one as provide under Section 2(f) of Representation of People Act, 1951. Further, such mischief was sought to be remedied by omitting para-3 of the Tenth Schedule to ensure stability of the Government. We must also notice at this juncture that from the debate made in the Parliament which has been extracted above, it is evident that even though there was a view point expressed that the independent member should be excluded from the net of the Tenth Schedule, the same did not find favour with the lawmakers. As noticed, the petitioners have joined the Ministry unconditionally. They have not just supported the Government, but became an integral part of the same. Since the BJP which was the single largest political party, has formed the Government, it is but natural that the BJP manifesto as declared during the election campaign may have to be implemented by the Government. Practically, the policies and programmes of the BJP will be implemented by the Government. Hence, the petitioners being part of the Ministry are bound by the policies and programmes of BJP which would be implemented by the Government. These Ministers will have no independent say in the matter of policy decision, thereby they have lost their independent character as such. Thus, it cannot be said that after being part of the Ministry, they can still retain their independent character. Hence, it cannot be said that the petitioners have given outside support to the Government. Thus, the petitioners having pledged their support due to lure of office unconditionally, the act of joining the Ministry to carry forward the policies and programmes of BJP is the same as joining the BJP and continuing further by the subsequent acts as well.

46. Independent member is the one, who is elected as a candidate, otherwise than set up by any political party. When such candidate went to the electorate, he must have told the voters that he will fight the election independently, since none of the political parties have catered to the needs of the constituency till that date. If it is so, the independent member should stick to what he had assured his electorate as he had fought independently and had secured verdict of the electorate to remain so. Therefore, he must continue as an independent member by desisting and resisting the lure of office by remaining loyal to his electorate. The moment he loses his independent character, he becomes subject to the Tenth Schedule because the very basis is the promise he had made to the electorate. The electorate is the final authority which decided that he is a fit person to be elected because he is an independent.

Therefore, the electorate would be confident that such elected independent member will remain as an independent member and would not join any political party later, since they had rejected all the political party later, since they had rejected all the political parties which were in the fray. Being not a member of any political party, the electorate would also be aware that he would not be a part of any Ministry formed by any political party, which may ultimately secure majority, but were rejected by them and therefore he would not be in a position to assume power by being a part of the Ministry is a foregone conclusion made by the voters of his constituency. Since the electorate of that particular constituency has rejected the political parties, it is incumbent upon the independent member so elected to retain his independent character by not joining any political party, much less, the Ministry formed by any political party. At best, he can lend outside support keeping in view the benefit that would bring to his constituency, so that, he would have sufficient elbow space to take his independent decisions without being bound by the ship or surrendering himself for fear of loosing ministerial berth.

47. Petitioners have produced the copies of their letter of support dated 26.5.2008 submitted to His Excellency the Governor of Karnataka, wherein they have categorically stated that they are extending their unconditional support to Sri B.S. Yeddyurappa, the leader of BJP Legislature party to form the Government. The letters are all identical. One of the letters reads as hereunder:

“Kannadam”

It is also relevant to note that in their reply filed to the show cause notice issued by the Speaker, at paragraph-9, they have stated that Sri B.S. Yeddyurappa, Chief Minister has forfeited the confidence of the people, and, therefore, in the interest of State and people of Karnataka and the BJP, they have withdrawn the support from the Government headed by Sri B.S. Yeddyurappa as Chief Minister and they are within their constitutional rights to do so in a parliamentary democracy. This indicates that they had the interest of the political party at heart and they only wanted a change of the leader which ought not to have been their concern. If they had believed themselves to be still independent all that they were required to do was to be away from the Ministry.

48. In this regard, the contention of Sri Ravivarma Kumar, appearing on behalf of the petitioners, also needs to be considered. He contended that in case the view of the Speaker that the conduct of joining the Ministry amounts to joining the political party is accepted, then, there would be far reaching consequences on the concept of coalition Government. Such apprehension cannot be accepted since in the instant case, it cannot be considered as a coalition Government. The coalition Government is different from the Government formed by a single political party. Coalition Government is the Government by a coalition of political parties formed when political parties unite to secure majority in the House over the other groups. In the coalition Government, all the political parties which form a coalition will retain their independent political character as a heterogeneous combination and they will stick to their own ideologies. One political party of a coalition Government will not impose its ideology on other parties. However, there would be common understanding or common minimum programme to run the Government. No member of such political party which is a part of the coalition will be able to take independent decisions to either join or withdraw from the Ministry, but would be the collective decision without surrendering itself to the other political party which also results in the stability of such Government. Coalition Governments are formed in order to avoid repeated elections or elections at irregular intervals and basically they are formed in the interest of the State and not for individual benefit. But here is a case where the Government is formed by a single largest political party to which the independent members have supported unconditionally and have joined the Ministry. In this regard, it is useful to refer to the definition as found in Ramnath Iyar’s Advanced Law Lexicon, wherein the words ‘coalition’ and the ‘coalition Government’ are explained as under:-

“Coalition: Fusion into one whole; temporary combination between parties retaining distinctive principles. (In diplomacy), an alliance between States for combined action.

Union of political parties to secure a majority in Parliament over other groups; usually takes, place in multi-party system in which no single party is able to command support of a working majority. (Constitutional and Parliamentary Term).

Coalition Government: Government by a coalition of parties is formed when political parties unite to secure majority in Parliament over other groups or in times of war or other great national emergency when a majority party invites minority parties to form government in the interest of national unity; it tends to be unstable and weak as it lacks clear electoral mandate because it reflects diverse and partisan viewpoints; lacks cohesion of its membership; it has to necessarily accommodate minority view point for getting its Parliamentary support. (Constitutional and Parliamentary Term.)”

49. In the above background, a perusal of the documents would indicate the intention of the petitioners when they joined the Ministry and conducted themselves thereafter. The complainants have relied upon the documents relating to BJP Legislature party meeting dated 23.6.2008, 28.7.2008, 16.10.2008, 25.11.2008, 16.1.2009, 25.2.2009, 25.3.2009, 21.5.2009, 4.1.2010, 4.7.2010 and 17.6.2010, to contend that the petitioners herein have participated in Legislature party meetings of BJP and in evidence thereof they have signed the Register. A perusal of those documents reveal that the petitioners have attended Legislature party meetings of BJP and have signed in the Register. In the meetings from 23.6.2008, till the meeting dated 21.5.2009, the names of these petitioners were shown at the concluding portion of the list of Legislature party members of BJP. The petitioners were shown under a different heading viz., ‘Independent Co-members’. On the basis of such a noting, Sri P.P. Rao, contended that the petitioners have merely attended the meeting of BJP as they were the Ministers to discuss policy matters. It is contended that however, they retained their independent identity by signing the Register as independent co-members and the very fact that they are shown as independent co-members itself would go to show that they are not the members of BJP, but they independents and supporting the Government.

However, in the meetings dated 4.1.2010 and 16.6.2010, such a distinction under the heading of ‘Independent Co-members’ is not made. The names of these petitioners though are shown in the concluding portion of the Register in the list of members of Legislature party, in the caption of the Register it is shown as BJP Legislature party. In the meeting dated 4.1.2010 and in the Legislature party meeting dated 16.6.2010, some Legislature party members/members of BJP have signed the Register after the signatures of the petitioners. If they were independent in letter and spirit, the question of showing them as co-members also would not arise. Such distinction is attempted to have been maintained because even the BJP had been benefited by their defection, but the same was to be concealed by retaining the documents in such manner. In the meetings held from 4.1.2010 onwards, no distinction is made in the Register of Legislature party meetings in respect of the petitioners by showing their names along with other Legislature party members of BJP.

Paragraph-1(b) of Tenth Schedule defines “Legislature party” as under:-

“Legislature party’, in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions.”

From the above it is clear that the group consisting of all the members of the House for the time being belonging to that political party would form the Legislature party of such political party. A member of a Legislature party means a member of the House belonging to a particular political party. Since the petitioners have attended and signed the Register relating to BJP Legislature party meetings, it can be inferred that they have treated themselves as members of the House belonging to BJP as a continuing act after joining the Ministry.

50. The documents produced by the contesting respondents before the Speaker, which are relied on by the Speaker during the course of his order also includes the copies of the ‘whip’ issued by the Chief Whip of BJP and addressed to the petitioners. On 29.12.2009, Chief Whip of BJP, Karnataka Legislative Assembly, has issued ‘whip’ to the petitioners directing them to cast their vote in favour of the candidate belonging to the ruling party in the election to be held for the post of Speaker of the Assembly. In the very ‘whip’, it is stated that the petitioners are the Legislators from ruling party. Such whip is received by the petitioners by affixing their signatures on the whip without any objection. The whip issued to each of the petitioners at an undisputed point of time is identically worded. One such ‘whip’ issued to Sri Venkataramanappa, one of the petitioners, is extracted for the purpose of convenience which is as under:

“Kannadam”

(Emphasis supplied)

It is not in dispute that the petitioners have acted in accordance with the direction issued by the Chief Whip. If really the petitioners were not the members of the Legislature party of BJP, they would not have received the ‘whip’ sent by the Chief Whip of that party. There is no reason as to why the petitioners should receive such a direction issued by the Chief Whip of BJP if they had retained their independent character and identity, more particularly, when they were described as the members of ruling party.

It is relevant to note that the petitioners have not denied the contents of the documents, such as the Register relating to BJP Legislature party meetings and the ‘whip’ issued by the Chief Whip, even before us, but have only attempted to explain such documents.

51. One more circumstance relied on by the complainant for inferring that the petitioners have incurred disqualification is that they participated in the rallies conducted by the BJP under its banner and symbol. Certain newspaper reports are produced by the complainants before the Speaker to show that the petitioners have participated in the BJP rallies conducted at Mysore, wherein these petitioners have participated being on the dias along with the other National and State leaders of BJP. In this regard, it was contended on behalf of the petitioners that those rallies were conducted by the Government and being the Ministers they were expected to participate and have participated. The said contention also fails, inasmuch as the photographs printed in the newspapers which have not been disputed clearly reveal that the function organized at Mysore was not the Government function, but it was a party function organized by BJP as depicted from the buntings and the banner in the background. The petitioners have also not denied that they have participated in such rallies at Mysore. The said photographs found in the news papers coupled with the other documents noticed above, would establish that they are part of the BJP.

52. Sri Ravivarma Kumar, appearing on behalf of the petitioners further contends that the power of the Speaker to disqualify should be exercised in a reasonable manner and within a reasonable time. It is contended that more than two years had elapsed from the date of alleged defection and as such, the power could not have been exercised at that stage. He relied upon the judgment of the Apex Court in the case of Mansaram vs. S.P. Pathak and Others, reported in 1984 (1) SCC 125, wherein it is observed thus:-

“Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorized. To slightly differently formulate the proposition, could the initial unauthorized entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of Clause 22(2)? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But, when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in parry delicto could turn the tables against the person who was in possession for 22 years as a tenant. In such a situation even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorized entry and that failure to vacate premises till nine years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Muralidhar Agarwal v. State of U.P. wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by Section 7(2) of the U.P (Temporary) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this Court declined to interfere with that order. No doubt it must be confessed that Section 7-A conferred power on the District Magistrate to take action against unauthorized occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorized occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to Clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But, as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha. In that case Commissioner exercised suo motto revisional jurisdiction under Section 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one year after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat. This Court declined to interfere holding inter alia that the revisional power in the absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor-in-interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the year 1954 was in contravention of Clause 22(2).”

The aforesaid decision, was rendered in a case arising out of Rent Control Enactment. In the said matter, it is held by the Apex Court that even if no limitation is prescribed to initiate action, the exercise of power should be made within a reasonable time. However, in the case on hand, having regard to the object with which Tenth Schedule is inserted by virtue of Fifty-Second Amendment to the Constitution, we are clearly of the opinion that the paramount object would be to safeguard the interest of democratic principles. If the application seeking disqualification is dismissed on the ground of delay and laches, the same would amount to perpetuating the illegality, which runs contrary to the object of the Tenth Schedule.

There cannot be any dispute that whenever an authority is vested with the power, the same should be exercised reasonably and within a reasonable period and that would also depend on the nature of the controversy and the enactment under which it arises. As aforementioned, we are not deciding the inter se litigation between the two rival private parties. If a lis pertains to claiming any personal benefit in favour of the particular litigant, the aforesaid principle may be applicable. But in the matter on hand, the complaints seeking disqualification are made in accordance with the provisions of the Tenth Schedule of the Constitution, which is enacted to sub-serve the public interest. Since the complaints are made in the interest of public at large, the complainants cannot and would not get any personal benefit out of the controversy. The authority can exercise jurisdiction by keeping in mind the object, so as to promote the interest of the public and good administration even if the complaint is delayed. The object is to prevent continuance of usurpation of office or perpetuation of an illegality. In this context, it is relevant to note the observations made by the Apex Court in the case of Dr. Kashinath G. Jalmi and Another vs. The Speaker and Others, reported in AIR 1993 SC 1873, which read thus:-

“Para 27: None of these cases relate to the writ of quo warranto and in them the relief claimed was only for the personal benefit of the claimant. We are not persuaded to hold that on the basis of these decisions, some of which are referred by the High Court, the writ petitions in the present case could have been dismissed merely on the ground of laches of the petitioners.

Para 29: In Halsbury’s Laws of England the statement of law is based primarily on the decision of the privy Council in The Lindsay Petroleum Company (1874 LR 5 PC 221) and those following it. We have already indicated the inapplicability of those decisions in the present case. At the same place one of the decisions referred to, in foot note 3 of para 926, is A.G. v. Proprietors of the Bradford Canal, (1866) LR 2 Equity Cases 71, for the proposition that ‘Laches are not imputable to the Crown or to the Attorney General suing on behalf of the public.’ In this decision distinction was drawn between the claim on behalf of the public and that by an individual plaintiff indicating that even though delay or laches may be attributable to an individual plaintiff, it may not be so to an action brought on behalf of the public. This is more so, when the grievance made is that a person continues to hold a public office without the authority of law.

Para 33: In our opinion the exercise of discretion by the Court even where the application is delayed is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality.

Para 34: We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case, could not be attributed could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself.”

(emphasis supplied)

53. The argument that the elected person may be called as member of Assembly only on taking oath, cannot be accepted, inasmuch as, the elected candidate would be issued with the Certificate of Election by the Returning Officer immediately on his election as provided in Form No.22 under Rule 66 of the Conduct of Election Rules, 1961. However, the member of the Legislative Assembly before taking his seat, make and subscribe before the Governor or some person appointed on his behalf, on oath or affirmation, as per Article 188 of the Constitution of India. Merely because the oath is administered to him on a subsequent date, he cannot be treated as a non-elected representative or a non-member of the House. If such a narrow interpretation as contended by Sri Ravivarma Kumar is given, it will render the Tenth Schedule otiose, inasmuch as, every elected representative would switch over his loyalty after the election and before taking oath depending on the benefit that would accrue to him irrespective of earlier affiliation and would claim immunity, which cannot be permitted. Accordingly, the contention is noticed only to be rejected.

54. Thus, having noticed all aspects of the matter, we are of the view that the impugned order passed by the Speaker is not in violation of constitutional mandate nor is there any infirmity based on mala fides or perversity.

55. Before parting, we deem it necessary to observe that even though on a general perception de-hors the subject matter involved, it may appear that the proceedings were concluded by the Speaker at an undesirable place, what cannot be lost sight of is that the present proceedings is one under the Tenth Schedule to the Constitution. The provisions introduced by the Fifty-Second Amendment is in effect the law of the elected representatives introduced by the elected representatives, which is for the regulation of the conduct of the elected representatives themselves. The most important aspect is that the Constitution (Fifty-Second Amendment) Bill was passed unanimously with all the 418 members present, voting in favour of the Bill. While considering such law, we should go strictly by the spirit and object, which is discernible from the debate made in the Parliament and the earlier decisions of the Hon’ble Supreme Court which have been referred to above. In that context, the fact that a limitation of time to show cause has been fixed for themselves by the Rules will show that the proceedings should be concluded expeditiously. In fact, one of the learned Judges expressing His Lordship’s opinion in Mayawati’s case (cited supra) has observed as under:

“Para-103: But I wish to add that it is absolutely necessary for every Speaker to fix a time schedule in the relevant rules for disposal of the proceedings for disqualification of MLAs. or MPs. In my opinion, all such proceedings shall be concluded and orders should be passed within a period of three weeks from the date on which the petitions are taken on file.”

The above observations would indicate the desire that the entire proceedings under all circumstances should be completed in an outer limit of three weeks if not earlier, even in cases where there is necessity to record evidence. Therefore, such of the elected representatives who indulge in such conduct which leads to disqualification should also be diligent and cannot make out a grievance when the long arm of law catches up with them by holding the shield of procedure and technicalities.

56. It is needless to observe that democracy is the basic feature of the Constitution. It is by now well settled that a right to elect though is fundamental to democracy, is, anomalously enough, neither a fundamental right nor a common law right, but, is a statutory right. So is the right to be elected. Outside of statute, there is no right to be elected. The election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process right from the date of commencement of election process till the completion of the term of the House. The elected members are duty bound to adhere strictly to the democratic norms without making themselves subject to the wrath of the Tenth Schedule. The mandate of the electorate is supreme and the same has to be respected for the entire term of the House. The election promises and pledges held out to the electorate at the time of election have to be maintained. Any deviation of the same would amount to betrayal of the electorate who has reposed confidence in the elected member. We hope and trust that the elected members of the House would realize the avowed object of the Tenth Schedule in order to prevent unholy atmosphere in the House and also in the society. The elected members shall strengthen the fabric of Indian Parliamentary Democracy by curbing unprincipled and unethical political defections.

For all the aforestated reasons, we see no merit in the contentions raised on behalf of the petitioners. Accordingly, all these writ petitions being devoid of merit, stand dismissed.

Rule is discharged.

Parties to bear their own costs.


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