BALCHANDRA L. JARKIHOLI & ORS. v. B.S. YEDDYURAPPA & ORS.

926 SUPREME COURT REPORTS [2011] 10 S.C.R.

A ·nor can they be put in a legal strait jacket." Mr. Sorabjee submitted that the same view had been reiterated in Jagjit Singh's case (supra) and the contention that the Speaker ought not to have relied upon his personal knowledge was specifically rejected in the said case. B

54Copy pinpoint54. Mr. Sorabjee urged that this Court in Kihoto Hol/ohan's case (supra) had drawn a distinction between the procedure followed by the Speaker and the decision rendered by him and had held that the procedure followed would be immune from judicial review, being administrative in nature, though the decision could be challenged on grounds of jurisdictional errors. It was urged that in any event the decision in Ravi S. Naik's case (supra) which had been subsequently approved in Dr. Mahachandra Prasad Singh's case (supra) is binding upon this Bench, having been rendered by a Bench of three Judges.

55Copy pinpoint55. As far as the charge of mala fides against the Speaker is concerned, Mr. Sorabjee submitted that such a charge was not maintainable since the Speaker had been made a E Respondent in the proceedings not in his personal capacity but in his capacity as Speaker. It was contended that as had been held by this Court in Sangramsinh P. Gaekwad Vs. Shantadevi P. Gaekwad [(2005) 11 SCC 314], allegation of mala fide has to be pleaded with full particulars in support of the charge. Making bald allegations that the Chief Minister had influenced the Speaker to get the Appellants removed from the membership of the House before the Trust Vote scheduled to be held on 11th October, 2010, with.out any material in support of such allegations, could not and did not amount to mala fides on the part of the Speaker. Mr. Sorabjee submitted that as was also observed in the case of E.P. Royappa Vs. State of Tamil Nadu [(1974) 4 sec 3), the allegations of mala fide are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility.

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 927 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

56Copy pinpoint56. Mr. Sorabjee submitted that coupled with the allegation of mala fides was the allegation that the Speaker had conducted the entire exercise of disqualifying the Appellants from the membership of the House in great haste so that they would not be able to participate in the Trust Vote. Mr. Sorabjee submitted that proceedings under the Tenth Schedule have to be decided as early as possible in order to avoid the participation of a disqualified Member in the House. It was contended that in view of the decision of the Constitution Bench in Rajendra Singh Rana's case, the Speaker was under an obligation to decide the issue of eligibility of the Member to cast c his vote before the Confidence Vote was taken. Mr. Sorabjee submitted that as had been held in Rajendra Singh Rana's case, disqualification occurs on the date of the act of the Member and not on the date of the Speaker's order. Applying the said analogy to the facts of this case, it had to be presumed 0 that the disqualification had already occurred when the concerned Member had presented his letter to the Governor and as a result since the Vote of Confidence was fixed for the next day, the Speaker had no option but to decide the question of disqualification before·the Vote of Confidence was taken. Mr. Sorabjee submitted that even N. Kumar, J. while dissenting from the order of the Chief Justice, concurred with him on the issue regarding absence of mala fides on the part of the Speaker.

57Copy pinpoint57. Mr. Sorabjee urged that although various charges had been made against the Appellants, they had neither denied the same before the Speaker nor in the Writ Petition nor in the proceedings before the High Court, which gave rise to a presumption that there was a ring of truth in such allegations. Mr. Sorabjee urged that the case of the Appellants that they had not been provided a proper opportunity of dealing with and replying to the Show-Cause notices, was completely incorrect, since they had sent detailed replies to the Speaker in response to the Show-Cause notices. H

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58Copy pinpoint58. Mr. Sorabjee submitted that after detailed replies had been filed by the Appellants, a full-fledged hearing had been given to them and hence the Appellants did not suffer any prejudice on account of the procedure adopted by the Speaker in disposing of Shri Yeddyurappa's Disqualification application. B

59Copy pinpoint59. On the question as to whether the Appellants incurred disqualification under paragraph 2(1 )(a) of the Tenth Schedule on account of their conduct, Mr. Sorabjee submitted that it was settled law that for a Member to incur disqualification under paragraph 2(1 )(a) of the Tenth Schedule, he was not required to formally resign from the party, but an inference to that effect could be drawn from his conduct which may be incompatible with his political allegiance to the Party. Relying again on paragraph 11 of the decision in Ravi S. Naik's case (supra), Mr. Sorabjee submitted that a person could voluntarily give up his membership of a political party, even without tendering his resignation from the membership of that party ·and in the absence of a formal resignation from the membership, an inference can be drawn from the c :-riduct of the Mernber that he had voluntarily given up his membership of the political party to which he belonged. Mr. Sorabjee submitted that the view expressed in Ravi S. Naik's case (supra) had been reiterated in Jagjit Singh's case (surpa) and had also been approved by the Constitution Bench in Rajendra Singh Rana's case (supra).

60Copy pinpoint60. Once again referring to the letters written by the Appellants withdrawing support from the Government of their own political party and asserting that a situation had arisen in which the governance of the State could not be carried on in· accordance with the provisions of the Constitution, Mr. Sorabjee submitted that the language of the letters submitted by the G Appellants contemplated a situation where the governance of the State could not be carried out in accordance with the provisions of the Constitution. It was submitted that the reproduction of the words of Article 356 of the Constitution, which enables imposition of President's Rule and dissolution H

BALCHANDRA L. JARKIHOLI & ORS. v. 8.S. 929 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

of the Assembly, coupled with the request to the Governor to A intervene and initiate the constitutional process, could only mean that the Appellants had voluntarily resigned from the Bharatiya Janata Party and wanted President's Rule to be imposed in the State. B

61Copy pinpoint61. Mr. Sorabjee submitted that there is no constitutional provision which permits the Members of a House from withdrawing support to the Chief Minister alone. It is the entire Council of Ministers that is collectively responsible to the House. In other words, a Vote of Confidence is expressed in the entire C Council of Ministers and not in the Chief Minister alone. According, to Mr. Sorabjee, the arguments advanced on behalf of the Appellants, that expression of honest political dissent must not be seen as defection, had been rejected in Kihoto Hollohan's case (supra) where this Hon'ble Court observed that a political party functions on the strength of shared beliefs. Its D own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independent of the political party's declared policies, would not only embarrass its public image E · and popularity but also undermine public confidence in it. Mr. Sorabjee submitted that it necessarily follows that as long as a Member professes to belong to a political party, he must abide by and be bound by the decision of the majority within the party. He is free to express dissent within the party platform, F but disparate stands in public or public display of revolt against the party, undeniably undermines the very foundation of the party. The very object of the Tenth Schedule was to bring about political stability and prevent members from conspirir'g with the opposite p~rty. G

62Copy pinpoint62. Having dealt with the disqualification of the Appellants by the Speaker, Mr. Sorabjee next took up the question of the rejection of the disqualification application in relation to Shri M.P. Renukacharya and Shri Narasimha Nayak, who were H

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A among the 13 MLAs who had submitted individual but identical letters to the Governor withdrawing support to the Bharatiya Janata Party Government led by Shri B.S. Yeddyurappa, on the ground that they had lost confidence in him in view of the corruption and nepotism prevalent in the administration under B him. It was pointed out that the Speaker had made a distinction between the said two MLAs and the other eleven on the ground that while the other two MLA$ had retracted their letter to the Governor, they had also indicated that they had full faith in the Government led by Shri Yeddyurappa, whereas the Appellants c had simply indicated that they were willing to support any other Government formed by the Bharatiya Janata Party, but with a different Chief Minister. Mr. Sorabjee submitted that while the two MLAs had retracted their letters to the Governor upon reiterating their faith in the Government led by Shri 0 Yeddyurappa, the Appellants were bent upon bringing down the Bharatiya Janata Party Government with the ulterior motive of forming a new Government with the Members of the opposition. It was submitted that the concept of collective responsibility is essentially a political concept. The Cabinet E which takes a collective decision relating to policy stands or falls together and any individual member of the Governmen! cannot show a face which is different from that of the Cabinet, as anything contrary would contribute to serious weakening of the Government itself.

63Copy pinpoint63. Mr. Sorabjee submitted that even if the Speaker's decision was wrong, it could not be said to be a perverse order, since there was no deviation from the accepted rules and norms which had prejudiced the Appellants. It was also urged that while the Chief Justice and V.G. Sabhahit, J. had taken one view, N. G Kumar, J. had taken a different view, which only reinforced the proposition that in this case two views are possible since the majority decision was that the view of the Speaker could not be regarded as perverse, the Appeals were liable to be dismissed. H

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 931 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

64Copy pinpoint64. In addition to the submissions made by Mr. Sorabjee, A · which he adopted, Shri Satyapal Jain, appearing for Shri Yeddyurappa in the several Civil Appeals, submitted that two other issues were also required to be taken into consideration, namely, (1) whether the Appellants had been prejudiced by the action of the Speaker; and (2) whether the action of withdrawing support from the Chief Minister amounted to voluntarily giving up the membership of the Bharatiya Janata Party which disqualified them under paragraph 2(i)(a) of the Tenth Schedule.

65Copy pinpoint65. Mr. Jain submitted that the crucial facts had not been denied by the Appellants and hence it could not be said that any prejudice had been caused to them. Mr. Jain submitted that it was for the Appellants to deny the allegations made regarding their moving in a group from Karnataka to Goa and to other places where they had issued press releases stating that they were together and had withdrawn support to the Government. D Mr. Jain also submitted that the Appellants had not denied the allegation that they had negotiated with another party of the State led by Shri H.D. Kumaraswamy, exploring the possibility of forming an alternate Government. E

66Copy pinpoint66. Mr. Jain submitted that apart from denying the allegations made against them, the Appellants could not establish that they had in any way been prejudiced by the order passed by the Speaker and such fact had been duly noted by the Chief Justice in his judgment. F

67Copy pinpoint67. On the question of construction of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, Mr. Jain reiterated the submissions made by Mr. Sorabjee relying on the decision of this Court in Ravi S. Naik's case (supra) which was upheld in Rajendra Singh Rana's case (supra). G

68Copy pinpoint68. Mr. Jain submitted that even the question of not having received the copy of the notice sent by the Speaker was a clear afterthought, since detailed replies had been submitted by them and if the Appellants had to differ with the functioning of Shri H

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A Yeddyurappa, they should have taken up the matter within the party without writing to the Governor withdrawing their support to the Bharatiya Janata Party Gov~rnment led by Shri Yeddyurappa. Mr. Jain submitted that it was quite obvious from the letters written by the Appellants to the Governor that they s were bent upon effecting the fall of the Bharatiya Janata Party Government, led by Shri Yeddyurappa, in breach of party discipline, and, as a result, the order passed by the Speaker was fully justified and did not warrant any interference in these proceedings. c 69. The main questions which emerge from the submissions made on behalf of the respective parties and the facts of the case may be summarised as follows :

(a) Did the Appellants voluntarily give up their membership of the Bharatiya Janata Party?

(b) Since only three days' time was given to the Appellants to reply to the Show-Cause notices, as against the period of 7 days or more, prescribed in Rule 7(3) of the Disqualification Rules, were the said notices vitiated?

(c) Did the Speaker act in hot haste in disposing of the· Disqualification Application filed by Shri S.S. Yeddyurappa introducing a whiff of bias as to the procedure adopted?

(d) What is the scope of judicial review of an order passed by the Speaker under Paragraph 2(1)(a) of the Tenth Schedule to the Constitution, having regard to the provisions of Article 212 thereof? G

70Copy pinpoint70. The facts of the case reveal that the Appellants along with Shri M.P. Renukacharya and Shri Narasimha Nayak, wrote identical letters to the Governor on 6th October, 2010, indicating that as MLAs of the Bharatiya Janata Party they had become disillusioned with the functioning of the Government headed by

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 933 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

Shri B.S. Yeddyurappa. According to them, there was widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery in the functioning of the Government headed by Chief Minister, Shri Yeddyurappa, and that a situation had arisen when the governance of the State could not be carried on in accordance with the provisions of the Constitution (Emphasis added). Accordingly, they were withdrawing their support from the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and to institute the constitutional process as the constitutional head of the State (Emphasis added). c

71Copy pinpoint71. The Speaker took the view that the said letter and the conduct of the Appellants in moving from Karnataka to Goa and other places and issuing statements both to the print and electronic media regarding withdrawal of support to the BJP Government led by Shri Yeddyurappa and the further fact that D the Appellants are said to have negotiated with Shri H.D. Kumaraswamy, the leader of the State Janata Dal, and its members, regarding the formation of an alternative Government was sufficient to attract the provisions of Paragraph 2(1 )(a) of the Tenth Schedule to the Constitution. It was held by the E Speaker that in the absence of any denial to the allegations made by Shri K.S. Eswarappa, the State President of the BJP, the same had to 'be accepted as having been proved against the Appellants. F

72Copy pinpoint72. In this regard, the Speaker referred to the views expressed by the Constitution Bench in Kihoto Hollohan's case (supra), wherein, one of the issues which had been raised and decided was that the act of voluntarily giving up membership of a political party may be either express or implied. Even G greater emphasis was laid on the decision in Ravi S. Naik's case (supra), wherein, it was observed that there was no provision in the Tenth Schedule which indicated that till a petition, signed and verified in the manner laid down in the Civil Procedure Code for verification of pleadings, was made to the H

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A Chairman or Speaker of the House, he did not get jurisdiction to give a decision as to whether a Member of the House had become subject to disqualification under Paragraph 2(1 )(a) of the Tenth Schedule or not.

73Copy pinpoint73. The aforesaid view taken by the Speaker has to be 8 tested in relation to the action of the concerned Members of the House and it has to be seen whether on account of such action a presumption could have been drawn that they had voluntarily given up their membership of the BJP, thereby C attracting the provisions of Paragraph 2(1 )(a) of the Tenth Schedule.

74Copy pinpoint74. In the instant case, the Appellants had in writing informed the Governor on 6th October, 2010, that having become disillusioned with the functioning of the Government D headed by Shri B.S. Yeddyurappa, they had chosen to withdraw support to the Government headed by Shri B.S. Yeddyurappa and had requested the Speaker to intervene and institute the constitutional process as constitutional head of the State. The said stand was re-emphasized in their replies to the Show- E Cause notices submitted by the Appellants on 9th October, 2010, wherein they had, inter alia, denied that their conduct had attracted the vice of "defection" within the scope of Paragraph 2(1)(a) of the Tenth Schedule. In their said replies they had categorically indicated that nowhere in the letter ot 6th October, F 2010, had they indicated that they would not continue as Members of the Legislature Party of the BJP. On the other hand, they had reiterated that t.hey would continue to support the BJP and any Government formed by the BJP headed by · any leader, other than Shri B.S. Yeddyurappa, as Chief Minister G of the State. They also reiterated that they would continue to support any Government headed by a clean and efficient person who could provide good governance to the people of Karnataka according to the Constitution of India and that it was only to save the party and Government and to ensure that the H State was rid of a corrupt Chief Minister, that the letter had been

BALCHANDRA L. JARKIHOLI & ORS. v. S.S. 935 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

submitted to the Governor on 6th October, 2010. A

75Copy pinpoint75. At this point let us consider the contents of the letter dated 6th October, 2010, written by the Appellants to the Governor, which has been reproduced hereinbefore. The letter clearly indicates that the author thereof who had been elected 8 as a MLA on a Bharatiya Janata Party ticket, having become disillusioned with the functioning of the Government headed by Shri S.S. Yeddyurappa on account of widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery, was convinced that a situation had arisen in which the governance of the State could not be carried C on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people. The letter further indicates that it was in the interest of the State and the people of Karnataka that the author was expressing his lack of confidence in the Government headed by Shri D Yeddyurappa and that he was, accordingly, withdrawing his support to the Government headed by Shri Yeddyurappa with a request to the Governor to intervene and institute the constitutional process as constitutional head of the State. E

76Copy pinpoint76. Although, ·Mr. Sorabjee was at pains to point out that the language used in the letter was similar to the language used in Article 356 of the Constitution, which, according to him, was an invitation to the Governor to take action in accordance with the said Article, the same is not as explicit as Mr. Sorabjee F would have us believe. The "constitutional process", as hinted at in the said letter did not necessarily mean the constitutional process of proclamation of President's rule, but could also mean the process of removal of the Chief Minister through constitutional means. On account thereof, the Bharatiya Janata G Party was not necessarily deprived of a further opportunity of forming a Government after a change in the leadership of the legislature party. In fact, the same is evident from the reply given by the Appellants on 9th October, 2010, in reply to the Show- Cause notices issued to them, in which they had re-emphasized H

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A their position that they not only continued to be members of the Bharatiya Janata Party, but would also support any Government formed by the Bharatiya Janata Party headed by any leader, other than Shri B.S. Yeddyurappa, as the Chief Minister of the State. The conclusion arrived at by the Speaker does not find B support from the contents of the said letter of 6th October, 2010, so as to empower the Speaker to take such a drastic step as to remove the Appellants from the membership of the House.

77Copy pinpoint77. The question which now arises is whether the Speaker C was justified in concluding that by leaving Karnataka and going to Goa or to any other part of the country or by allegedly making statements regarding the withdrawal of support to the Government led by Shri Yeddyurappa and the formation of a new Government, the Appellants had voluntarily given up their membership of the B.J.P. and were contemplating the formation of a Government excluding the Bh<>ratiya Janata Party. The Speaker has proceeded on the basis that the allegations must be deemed to have been proved, even in the absence of any corroborative evidence, simply because the same had not been denied by the Appellants. The Speaker apparently did not take into consideration the rule of evidence that a person making an allegation has to prove the same with supporting evidence and the mere fact that the allegation was not denied, did not amount to the same having been proved on account of the silence of the person against whom such allegations are made. Except for the affidavit filed by Shri K.S. Eswarappa, State President of the B.J.P., and the statements of two of the thirteen MLAs, who had been joined in the Disqualification Application, there is nothing on record in support of the allegations which had been made therein. Significantly, the said affidavits had not been served on the Appellants. Since Shri K.S. Eswarappa was not a party to the proceedings, the Speaker should have caused service of copies of the same on the Appellants to enable them to meet the allegations made therein. In our view, not only did the Speaker's action amount to denial of the principles of

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 937 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

natural justice to the Appellants, but it also reveals a partisan trait in the Speaker's approach in disposing of the Disqualification Application filed by Shri B.S. Yeddyurappa. If the Speaker wished to rely on the statements of a third party which were adverse to the Appellants' interests, it was obligatory on his part to have given the Appellants an opportunity of questioning'the deponent as to the veracity of the statements made in the affidavit. This conduct on the part of the Speaker is also indicative of the "hot haste" with which the Speaker disposed of the Disqualification Petition as complained of by the Appellants. The question does, therefore, c arise as to why the Speaker did not send copies of the affidavit affirmed and filed by Sh.ri Eswarappa as also the affidavits of the two MLAs, who had originally withdrawn support to the Government led by Shri Yeddyurappa, but were later allowed to retract their statements, to the Appellants. Given an 0 opportunity to deal with the said affidavits, the Appellants could have raised the question as to why the said two MLAs, Shri M.P. Renukacharya and Shri Narasimha Nayak, were treated differently on account of their having withdrawn the letters which they had addressed to the Governor, while, on the other hand, disqualifying the Appellants who had written identical letters to the Governor, upon holding that they had ceased to be members of the Bharatiya Janata Party, notwithstanding the Show-Cause notices issued to them. The explanation given as to why notices to show cause had been issued to the Appellants under Rule 7 of the Disqualification Rules, giving the Appellants only three days' time to respond to the same, despite the stipulated time of seven days or more indicated in Rule 7(3) itself, is not very convincing. There was no compulsion on the Speaker to decide the Disqualification Application filed by Shri Yeddyurappa in such a great hurry within the time specified by the Governor to the Speaker to conduct a Vote of Confidence in the Government headed by Shri Yeddyurappa. It would appear that such a course of action was adopted by the Speaker on 10th October, 2010, since the Vote of Confidence on the Floor of the House was slated for 12th October, 2010. The element of H

938 SUPREME COURT REPORTS [2011] 10 S.C.R.

A hot haste is also evident in the action of the Speaker in this regard as well.

78Copy pinpoint78. In arriving at the conclusion that by such short notice, no prejudice has been caused to the Appellants, since they had filed their detailed replies to the Show-Cause notices, the 8 Speaker had relied on the two decisions of this Court, referred to hereinbefore in Dr. Mahachandra Prasad Singh's case and Ravi S. Naik's case, wherein it had been held that the 1986 Rules were directory and not mandatory in nature, and, as a result, the order dated 10th October, 2010, could not be set C aside only on the ground of departure therefrom. Even if less than seven days' time is given to reply to the Show-Cause notice, t~e legislator must not be prejudiced or precluded from giving an effective reply to such notice.

79Copy pinpoint79. One of the questions which was raised and answered in Dr. Mahachandra Prasad Singh's case was the nature and effect of non-compliance with the provisions of Rules 6 and 7 of the Disqualification Rules, 1994. It was held therein by a Bench of Three Judges of this Court that the said provisions were directory and not mandatory and the omission to file an affidavit neither rendered the petition invalid nor did it affect the assumption of jurisdiction by the Chairman to initiate proceedings to determine the question of disqualification of a Member of the House. In the facts of the said case it was held that the 1994 Rules being subordinate legislation, they were directory and not mandatory as they could not curtail the content and scope of the substantive provision under which they were made. However, the facts of this case differ significantly from the facts in Mahachandra's case (supra).

80Copy pinpoint80. In Mahachandra's case, a member of the Indian National Congress, who had been elected as a Member of the Legislative Council on the ticket of the Indian National Congress, contested a Parliamentary election as an independent candidate, which facts were part of official records H

BALCHANDRA L JARKIHOLI & ORS. v. B.S. 939 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

A and not merely hearsay, as in the present case. In the aforesaid circumstances, the Chairman held that by contesting as an Independent Candidate, the said Member had given up his membership of the Indian National Congress. It is in that context that it was held that since the Member had not disputed the allegations, but had, in fact, admitted the same in his writ petition, he had not suffered any prejudice in not being provided with a copy.of the letter from the leader of the Indian National Congress on which reliance had been placed by the Chairman. The distinguishing feature of the facts of Mahachandra Prasad Singh's case and this case is that the facts in the former case were admitted and were part of the official records, while in this case the allegations are highly disputed and are in the realms of allegation which were yet to be proved with corroborating evidence, though according to the Speaker, such allegations were not disputed. D

81Copy pinpoint81. As far as the decision in Ravi S. Naik's case (supra) is concerned, the facts of the said case are somewhat different from the facts of this case. What is commonly known and referred to as Ravi S. Naik's case is, in fact, a decision in respect of the two Civil Appeals, namely, Civil Appeal No.2904 of 1993 filed by Ravi S. Naik and Civil Appeal No.3309of1993 filed by Shri Sanjay Bandekar and Shri Ratnakar Chopdekar. There is a certain degree of similarity between the facts of the latter appeal and this case. At the relevant time, the Congress (I) initially formed the Government with the support of one independent member. Subsequently, seven members of the Congress (I) left the party and formed the Goan People's Party and formed a coalition government with the Maharashtrawadi Gomantak Party under the banner of Progressive Democratic Front (PDF). The said government was also short-lived and ultimately President's Rule was imposed in the State and the Legislative Assembly was suspended on 14th December,

1990. Prior to proclamation of President's Rule, Shri Ramakant Khalap, who was the leader of the Progressive Dem~cratic Front, staked his claim to form a Government, but no further H

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A action was taken on such claim since the Assembly was suspended on 14th December, 1990. However, Shri Ramakant Khalap filed a petition before the Speaker under Article 191(2) read with paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution for disqualification of two B Members, who had joined the Congress Democratic Front inspite of being Members of the Maharashtrawadi Gomantak Party. By his order dated 13th December, 1990, the Speaker disqualified the said two Members from the House on the ground of defection. c 82. On 25th January, 1991, President's Rule was revoked and Shri Ravi S. Naik was sworn in as Chief Minister of Goa. On the same day, one Dr. Kashinath G. Jhalmi, belonging to the Maharashtrawadi Gomantak Party, filed a petition before the Speaker for Shri Naik's disqualification on the ground of D defection. Simultaneously with the above, the Speaker, Shri Sirsat, was removed from the Office and was replaced by the Deputy Speaker who began to function as Speaker in his place. Shri Bandekar and Shri Chopdekar filed an application before the Deputy Speaker for review of the order dated 13th E December, 1990, by which they had been disqualified from the membership of the House. The same was allowed by the Deputy Speaker by his order dated 7th March, 1991, and the earlier order dated 13th December, 1990, was set aside. Similarly, Shri Ravi Naik also filed an application for review of the order dated 15th February, 1991, which was allowed by the Deputy Speaker by his order of 8th March, 1991. The said two orders passed by the Deputy Speaker were challenged by way of Writ Petitions which were allowed and the orders passed by the Deputy Speaker on 7th and 8th March, 1991, were held to be void. Consequently, the Writ Petitions filed by Shri Bandekar and Shri Chopdekar and by Shri Ravi S. Naik stood revived with a direction for disposal of the same on merits. The Writ Petitions were ultimately dismissed against which two appeals were filed. H

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 941 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

83Copy pinpoint83. It was in the appeal filed by Shri Bandekar and Shri A Chopdekar that the issue of voluntary resignation from membership of the Maharashtrawadi Gomantak Party fell for consideration of the High Court, while in Ravi S. Naik's case the question was whether a valid split of the aforesaid party had been effected with Shri Naik forming a new party with seven B other Members of the said party. The said question was answered in Shri Ravi Naik's favour and his appeal was allowed and the order of his disqualification from the House was set aside. The other appeal filed by Shri Bandekar and Shri Chopdekar was dismissed and their disqualification by the c Speaker was upheld. In other words, the High Court approved the proposition that it was not necessary for a Member of the House to formally tender his resignation from the party but that the same should be inferred from his conduct. It was held that a person may voluntarily give up his/her membership of a 0 political party, even though he/she had not tendered his/her resignation from the membership of that party. However, the Division Bench of the High Court approved the said proposition in the facts and circumstances of that case, where, after the Government was initially formed, there was an exodus from the principal party resulting in the formation of a new party which stood protected under paragraph 4 of the Tenth Schedule to the Constitution. Of course, it will also have to be noted that Shri Bandekar and Shri Chopdekar had not only accompanied Dr. Barbosa to the Governor and had informed the Governor that it did not support the Maharashtrawadi Gomantak Party any further, but they had also made it known to the public that they had voluniarily resigned from the membership of the said party. It is in these facts that a presumption was drawn from the conduct of the Members that they had voluntarily resigned from the membership of the Maharashtrawadi Gomantak Party. In G the said case also, after Show-Cause notices were issued, both persons filed their replies stating that they had not given up the membership of the Maharashtrawadi Gomantak Party voluntarily or would otherwise continue to be a Member of the said party and no document had been produced by the H ·

942 SUPREME COURT REPORTS [2011] 10 S.C.R.

A complainant nor has anything disclosed to show that they had resigned from the membership of the party. It was also denied that they had informed the Governor that they did not support the Maharashtrawadi Gomantak Party or that they had informed anybody that they had voluntarily resigned from the B membership of said party. The Speaker, however, rejected the explanation given by Shri Bandekar and Shri Chopdekar and recorded that he was satisfied that by their conduct, actions and speech, they had voluntarily given up the membership of the Maharashtrawadi Gomantak Party. c 84. This brings us to the next question regarding the manner in which the Disqualification Application filed by Shri B.S. Yeddyurappa was proceeded with and disposed of by the Speaker. On 6th October, 2010, on receipt of identical letters from the 13 BJP MLAs and the 5 independent MLAs D withdrawing support to the BJP Government led by Shri B.S. Yeddyurappa, the Governor on the very same day, wrote a letter to the Chief Minister, informing him of the developments regarding the withdrawal of support by 13 BJP MLAs and 5 · independent MLAs and requesting him to prove his majority in E the Assembly on or before 12th October, 2010 by 5.00 p.m. The Speaker was also requested accordingly. On the very same day, Shri Yeddyurappa, as the leader of the Bharatiya Janata Legislative Party in the Legislative Assembly, filed an application before the Speaker under Rule 6 of the F Disqualification Rules, 1986, being Disqualification Application No.1 of 2010, for a declaration that all the thirteen MLAs elected on BJP tickets along with two other MLAs had incurred disqualification in view of the Tenth Schedule to the Constitution. Immediately thereafter, on 7th October, 2010, the Speaker G issued Show-Cause notices to the aforesaid MLAs _informing them of the Disqualification Application filed by Shri B.S. Yeddyurappa and informing them that by submitting letters to the Governor withdrawing support to the Government led by Shri Yeddyurappa, they had violated paragraph 2(1}(a) of the H Tenth Schedule to the Constitution and were, therefore,

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 943 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

disqualified from continuing as Members of the House. The A Appellants were given time till 5.00 p.m. on 10th October, 2010, to submit their objection, if any, to the said application. Even if as held by this Court in Mahachandra Prasad Singh's case (supra), Rules 6 and 7 of the Disqualification Rules are taken as directory and not mandatory, the Appellants were still B required to be given a proper opportunity of meeting the allegations mentioned in the Show-Cause notices. The fact that the Appellants had not been served with notices directly, but that the same were pasted on the outer doors of their quarters in the MLA complex and that too without copies of the various c documents relied upon by Shri Yeddyurappa, giving them three days' time to reply to the said notices justifies the Appellants' contention that they had not been given sufficient time to give an effective reply to the Show-Cause notices. Furthermore, the Appellants were not served with copies of the affidavit filed by 0 Shri K.S. Eswarappa, although, the Speaker relied heavily on the contents thereof in arriving at the conclusion that the Appellants stood disqualified under paragraph 2(1)(a) of the Tenth Schedule 'to the Constitution.

85Copy pinpoint85. Likewise, the Appellants were also not supplied with E the copies of the affidavits filed by Shri M.P. Renukacharya and Shri Narasimha Nayak, whereby they retracted the statements which they had made in their letters submitted to the Governor on 6th October, 2010. The Speaker not only relied upon the contents of the said affidavits, but also dismissed the F Disqualification Application against them on the basis of such retraction, after having held in the case of the Appellants that the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution were attracted immediately upon their intention to withdraw their support to the Government led by Shri G Yeddyurappa. The Speaker ignored the claim of the Appellants to be given reasonable time to respond to the Show-Cause notices and also to the documents which were handed over to the learned Advocates of the Appellants at the time of hearing of the Disqualification Application. Incidentally, a further H

944 SUPREME COURT REPORTS [2011) 10 S.C.R.

A incidence of partisan behaviour on the part of the Speaker will be evident from the fact that not only were the Appellants not given an adequate opportunity to deal with the contents of the affidavits affirmed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, but the time given B to submit the Show-Cause on 10th October, 2010, was preponed from 5.00 p.m. to 3.00 p.m., making it even more difficult for the Appellants to respond to the Show-Cause notices in a meaningful manner. The explanation given by the Speaker that the Appellants had filed detailed replies to the c Show-Cause notices does not stand up to the test of fairness when one takes into consideration the fact that various allegations had been made in the three affidavits filed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, which could only be answered by the Appellants themselves and not by their learned Advocates. 0

86Copy pinpoint86. The procedure adopted by the Speaker seems to indicate that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the Appellants and the other independent MLAs stood disqualified prior to the date on which the Floor Test was to be held. Having concluded the hearing on 10th October, 2010, by 5.00 p.m., the Speaker passed a detailed order in which various judgments, both of Indian Courts and foreign Courts, and principles of law from various authorities were referred to, on the same day, holding that the Appellants had voluntarily given up their membership of the Bharatiya Janata Party by their acts and conduct which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, whereunder they stood disqualified. The Vote of Confidence took place on G 11th October, 2010, in which the disqualified members could not participate and, in their absence Shri B.S. Yeddyurappa was able to prove his majority in the House.

87Copy pinpoint87. Unless it was to ensure that the Trust Vote did not go against the Chief Minister, there was no conceivable reason H

BALCHANDRA L. JARKIHOLI & ORS. v. S.S. 945 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.)

for the Speaker to have taken up the Disqualification A Application in such a great hurry. Although, in Mahachandra Prasad Singh's case (supra) and in Ravi S. Naik's case (supra), this Court had held that the Disqualification Rules were only directory and not mandatory and that violation thereof amounted to only procedural irregularities and not violation of B a constitutional mandate, it was also observed in Ravi S. Naik's case (supra) that such an irregularity should not be such so as to prejudice any authority who is affected aversely by such breach. In the instant case, it was a matter of survival as far as the Appellants were concerned. In such circumstances, they c deserved a better opportunity of meeting the allegations made against them, particularly when except for the newspaper cuttings said to have been filed by Shri Yeddyurappa along with the Disqualification Application, there was no other evidence at all available against the Appellants. D

88Copy pinpoint88. We are quite alive to the decision in Jagjit Singh's case (supra), where it was held that failure to provide documents relied upon by the Speaker to the concerned Member, whose membership of the House was in question, and denying him the right of cross-examination, did not amount to denial of natural justice and did not vitiate the proceedings. However, a rider was added to the said observation to the effect that the Speaker's decision in such a situation would have to be examined on a case-to-case basis. In Jagjit Singh's case (supra), video recordings of TV interviews, participation in the meeting of the Congress Legislative Party in the premises of the Assembly, the signatures on the register maintained by the Congress Legislative Party, were produced before the Speaker, who decided the matter on the basis thereof. That is not so in the present case.· As mentioned hereinbefore, the G Disqualification Application filed by Shri Yeddyurappa contained only bald allegatrons, which were not corroborated by any direct evidence. The application did not even mention the provision under which the same had been made. By allowing Shri K.S. Eswarappa, w~o was not even a party to the H

946 SUPREME COURT REPORTS [2011] 10 S.C.R.

A proceedings, and Shri M.P. Renukacharya and Shri Narasimha Nayak to file their respective affidavits, the short-comings in the Disqualification Application were allowed to be made up. The Speaker, however, relied on the same to ultimately declare that the Appellants stood disqualified from the membership of the B House, without even serving copies of the same on the Appellants, but on their learned Advocates, just before the hearing was to be conducted. If one were to take a realistic view of the matter, it was next to impossible to deal with the allegations at such short notice. In the circumstances, we cannot c but hold that the conduct of the proceedings by the Speaker and the decision given by the Speaker on the basis thereof did not meet even the parameters laid down in Jagjit Singh's case (supra).

89Copy pinpoint89. We cannot also lose sight of the fact that although the D same allegations, as were made against the Appellants by Shri Yeddyurappa, were also made against Shri M.P. Renukacharya and Shri Narasimha Nayak, their retraction was accepted by the Speaker, despite the: view expressed by him that upon submitting the letter withdrawing support to the BJP E Government led by Shri Yeddyurappa, all the MLAs stood immediately disqualified under paragraph 2(1 )(a) of the Tenth Schedule to the Constitution, and they were, accordingly, permitted to participate in the Confidence Vote for reasons which are not required to be spelt out. F

90Copy pinpoint90. On the question of justiceability of the Speaker's order on account of the expression of finality in paragraph 6 of the Tenth Schedule to the Constitution, it has now been well-settled that such finality did not include the powers of the superior Courts under Articles 32, 226 and 136 of the Constitution to G judicially review the order of the Speaker. Under paragraph 2(1 )(a) of the Tenth Schedule, the Speaker functions in a quasi- judicial capacity, which makes an order passed by him in such capacity, subject to judicial review. The scope of paragraph 2(1)(a) of the Tenth Schedule to the Constitution, therefore, H

BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 94 7 YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]

enables the Speaker in a quasi-judicial capacity to declare that A a Member of the House stands disqualified for the reasons mentioned in paragraph 2(1)(a) of the Tenth Schedule to the Constitution.

91Copy pinpoint91. Having considered all the different aspects of the 8 matter and having examined the various questions which have been raised, we are constrained to hold that the proceedings conducted by the Speaker on the Disqualification Application filed by Shri B.S. Yeddyurappa do not meet the twin tests of natural justice and fair play. The Speaker, in our view, C proceeded in the matter as if he was required to meet the deadline set by the Governor, irrespective of whether, in the process, he was ignoring the constitutional norms set out in the Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention of the basic principles that go hand-in-hand with the concept of a fair hearing. D

92Copy pinpoint92. As we have earlier indicated, even if the Disqualification Rules were only directory in nature, even then sufficient opportunity should have been given to the Appellants to meet the allegations levelled against them. The fact that the E Show-Cause notices were issued within the time fixed by the Governor for holding the Trust Vote, may explain service of the Show-Cause notices by affixation at the official residence of the Appellants, though without the documents submitted by Shri Yeddyurappa along with his application, but it is hard to explain as to how the affidavits, affirmed by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri Narasimha Nayak, were served on the learned Advocates appearing for the Appellants only on the date of hearing and that too just before the hearing was to commence. Extraneous considerations are writ large on the face of the order of the Speaker and the same has to be set aside.

93Copy pinpoint93. Incidentally, in paragraph 5 of the Tenth Schedule, which was introduced into the Constitution by the Fifty-second Amendment Act, 1985, to deal with the immorality of defection H

948 SUPREME COURT REPORTS [2011) 10 S.C.R.

A and Floor crossing during the tenure of a legislator, it has been indicated that notwithstanding anything contained in the said Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman s or the Deputy Chairman of the Legislative Council of the State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under the Schedule if he by reason of his election to such office, voluntarily gives up the membership· of the political party to which he c belonged immediately before such election, and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party. The object behind the said paragraph is to ensure that the Speaker, while holding office, acts absolutely impartially, without any leaning towards any party, including the party from which he was elected to the House.

94Copy pinpoint94. The Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010, disqualifying the Appellants from the membership of the House under paragraph 2(1 )(a) of the Tenth Schedule to the Constitution is set aside along with the majority judgment delivered in Writ Petition (Civil) No.32660-32670 of 2010, and the portions of the judgment delivered by Justice N. Kumar concurring with the views expressed by the Hon'ble Chief Justice, upholding the decision of the Speaker on the Disqualification Application No.1 of 2010 filed by Shri S.S. Yeddyurappa. Consequently, the Disqualification Application filed by Shri S.S. Yeddyurappa is dismissed.

95Copy pinpoint95. There will be no order as to costs. G S.S.S. Appeals allowed.