SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS
vidhipandit.com/case/sc-2019-16-886-970
Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
Constitution of India – Tenth Schedule; Arts.190(3)(b), C 191(1), 191(2) – Acceptance/rejection of the resignation of the members of the House by the Speaker – Scope of judicial review u/Arts.32 – Writ petitioners were elected as members of the 15th Karnataka Legislative Assembly – Though the BJP was the single largest party, but could not form the Government – A coalition government of INC and JD(S) was formed – Disqualification Petition No.1 of 2019 was instituted against the petitioners in W.P.(C) No. 997/19 alleging that their conduct was in violation of the whip issued by INC – Said petitioners submitted resignations to the Speaker – Other petitioners also submitted their resignations – No call taken by the Speaker on the resignations – Most of them filed W. P.(C) No. 872/19 wherein Supreme Court inter alia directed the Speaker to take decision qua the resignations forthwith – No decision taken by the Speaker on the resignations – Further, Disqualification Petition Nos.3-5 were filed against 13 petitioners (Three in W.P (C) No. 1005/19 and 10 in W.P (C) Nos. 998/19, F 1000/19, 1001/19, 1006/19 & 1007/19) – Disqualification Petition Nos. 7 & 8 of 2019 were also filed – Chief Minister resigned on losing the trust vote on 23.07.2019 – On 25.07.2019 and 28.07.2019, the Speaker passed the five impugned orders in the above Disqualification Petitions rejecting the resignation of the members asserting that they were not voluntary or genuine; disqualifying all the Petitioners, the disqualification being till the end of the 15th Legislative Assembly term –
Held
Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority – However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the H 886
Catchwords
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 887 KARNATAKA LEGISLATIVE ASSEMBLY same would be appropriate, effective and expeditious – Speaker’s A scope of inquiry with respect to acceptance/rejection of a resignation tendered by a member of the legislature is limited to examine whether such a resignation was tendered voluntarily or genuinely – Once it is demonstrated that a member is willing to resign out of his free will, the speaker has no option but to accept the resignation – In the present case, the Petitioners stated and re-affirmed before the Speaker and this Court, in unequivocal terms, that they voluntarily and genuinely resigned their membership of the House – It is constitutionally impermissible for the Speaker to take into account any extraneous factors while considering the resignation – Satisfaction of the Speaker is subject to judicial review – Further, in light of the existing Constitutional mandate, the Speaker is not empowered to disqualify any member till the end of the term – Also, no substantial question of law exists in the present matter, which needs reference to a larger bench – Petitioners failed to show any illegality in the orders of the Speaker D – Orders dated. 25.07.2019 and 28.07.2019 passed by the Speaker in Disqualification Petition Nos. 1, 3-5, 7 & 8 of 2019, are upheld to the extent of the disqualification of the Petitioners therein, however, the part of the orders detailing the duration of disqualification, viz., from the date of the respective order till the expiry of the term of the 15th Legislative Assembly of Karnataka is set aside – Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly – Chapter 22, r.202 (2) – Constitution (Thirty- third Amendment) Act, 1974 – Constitution (Fifty-second Amendment) Act, 1985 – Constitution (Ninety-first Amendment) Act, 2003 – Arts. 75(1B), 164(1B) and 361B – F Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 – r.7(3)(b) – Principles of Natural Justice – Representation of the People Act, 1951 – s.36(2). Constitution of India – Constitution (Thirty-third Amendment) Act, 1974 – Proviso to Art.190(3)(b) – Respondents contended that the acceptance/rejection of resignation is based on the subjective satisfaction of the Speaker which is immune from judicial review –
Held
Unable to agree with this contention – It is true that 33rd Constitutional Amendment changed the constitutional position by conferring discretion on the Speaker to reject the resignation – However, such discretion is not unqualified, as the resignation can
A only be rejected if the Speaker is “satisfied that such resignation is not voluntary or genuine” – Determination of whether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the Speaker, instead it has to be based on his “satisfaction” – Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine – This satisfaction of the Speaker is subject to judicial review. Constitution of India – Art.190(3)(b) – Speaker’s duty under – Scope of – Discussed. C Constitution of India – Constitution (Ninety-first Amendment) Act, 2003 – Arts. 75(1B), 164(1B) & 361B – Various Disqualification Petitions were filed against the petitioners wherein the Speaker passed the impugned orders – However, 15 of the 17 Petitioners had tendered their resignation from the House before the disqualification petitions were adjudicated – Petitioners contended that the Speaker did not have the jurisdiction to deal with disqualification petitions, as the Petitioners having resigned were no longer members who could have been disqualified –
Held
This issue does not apply to the Pe-titioners in W. P. (C) No. 992/ 19 and W. P. (C) No. 1003/19 as they did not tender their resignation – Further, if it is held that the disqualification proceedings would become infructuous upon tendering resignation, any member who is on the verge of being disqualified would immediately resign and would escape from the sanctions provided u/Arts. 75(1B), 164(1B) & 361B – Such an interpretation would therefore not only be against the intent behind the introduction of the Tenth Schedule, but also defeat the spirit of the 91st Constitutional Amendment – In addition, the decision of the Speaker that a member is disqualified, relates back to the date of the disqualifying action complained of – Constitution (Fifty-second Amendment) Act, 1985 – Tenth Schedule. G Constitution of India – Arts. 102(2), 164(1B), 168, 172, 190(3), 191(1), (2), 192, 361(B) – Scheme of the Constitution with respect to State Legislatures – Discussed. Constitution of India – Tenth Schedule; Arts.190(3)(b), 191 – Scope of the Speaker’s power on disqualification – Discussed. H
Catchwords
Constitution of India – Arts.191(1) and (2) – Contrast in phraseology between Arts.191(1) and 191(2) –
Held
Exclusion of the phrase “for being chosen as” a mem-ber in Art.191(2) suggests that the disqualification under the Tenth Schedule is qualita-tively and constitutionally different from the other types of disqualification that are provided for u/Art. 191(1) – Phrase “for being chosen as” has a specific connotation, meaning that a person cannot become a member of the House, if suffering from a disqualification u/Art.191(1) – At the same time, the absence of these words in Art.191(2) suggests that a person who is no longer a member due to disqualification under the Tenth Schedule does not suffer from the additional infirmity of not being allowed to become a member subsequently – Therefore, such a person is not barred from contesting elections – Representation of the People Act, 1951 – ss.7-11, 36(2) – Constitution (Ninety-first Amendment) Act, 2003 – Arts. 164(1B) & 361B.
Catchwords
Constitution of India – Tenth Schedule – Resignation and disqualification on account of defection under the said Schedule –
Held
Both result in vacancy of the seat held by the member in the legislature, but further consequences envisaged are different.
Catchwords
Constitution of India – Disqualification under the Tenth Schedule – Sanctions under Arts. 75(1B), 164(1B) and 361B – E
Held
Speaker is not empowered to disqualify any member till the end of the term – However, a member disqualified under the Tenth Schedule shall be subjected to sanctions provided u/Arts. 75(1B), 164(1B) & 361B which provides for a bar from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re-elected to the legislature, whichever is earlier. Constitution of India – Duty of constitutional functionaries to uphold constitutionalism and constitutional morality – Discussed.
Catchwords
Constitution of India – Art.145(3) – Interpretation of –
Held
Two important phrases occurring in Art.145(3) are ‘substantial question of law’ and ‘interpretation of the Constitution’ – Two conditions can be culled out before a reference is made: (i) The Court is satisfied that the case involves a substantial question of
A law as to the interpretation of this Constitution; (ii) The determination of which is necessary for the disposal of the case – Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to the final outcome, cannot be considered as a substantial question of law – Existence of substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the question of law will have on the final determination. Words & Phrases – “voluntary” and “genuine” – Ambit of, in context of Art.190(3)(b)– Constitution of India – Art. 190(3)(b) - Explained. C Words & Phrases – ‘disqualification’ – Meaning of – Constitution (Fifty-second Amendment) Act, 1985 – Tenth Schedule. Words & Phrases – “violation of constitutional mandate” – D
Held
Phrase “violation of constitutional mandate” speaks for itself and does not need much elaboration. A “constitutional mandate” can be understood as what is required under, or by, the Constitution – In the context of the Tenth Schedule, and an order of disqualification passed by the Speaker thereunder, the “constitutional mandate” is therefore nothing but what is constitutionally required of the Speaker – A “violation of constitutional mandate” is merely an unconstitutional act of the Speaker, one that cannot be defended on the touch-stone of the Tenth Schedule and the powers or duties of the Speaker therein and is in contravention or violation of the same – Constitution F (Fifty-second Amendment) Act, 1985 – Tenth Schedule. Disposing of the writ petitions, the Court HELD: 1.1 Writ jurisdiction is one of the valuable rights provided under Article 32 of the Constitution, which in itself forms part of the basic structure of the Constitution. After the decision in the Kihoto Hollohan case, the Speaker, while exercising the power to disqualify, is a Tribunal and the validity of the orders are amenable to judicial review. On a perusal of the judgment in the Kihoto Hollohan case, no explicit or implicit bar is found to adjudicate the issue under the writ jurisdiction of this Court. The jurisdiction conferred on this Court by Article
Reporter's headnote (continued) and case details
886 [2019] SUPREME COURT 16 S.C.R. 886 REPORTS [2019] 16 S.C.R.
(Writ Petition (Civil) No. 992 of 2019)
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SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 889 KARNATAKA LEGISLATIVE ASSEMBLY
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SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 891 KARNATAKA LEGISLATIVE ASSEMBLY
32 is an important and integral part of the basic structure of the A Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence. In any case, it is noted that by challenging the order directly under Article 32, the B Petitioners have leapfrogged the judicial hierarchy as envisaged under the Constitution. The manner in which the petitioners have knocked on the doors of this Court is not appreciated. Among other reasons, the present matter was proceeded to be heard due to the peculiar facts presented before the Court, wherein certain interim orders were passed herein by another C Co-ordinate Bench of Supreme Court in Writ Petition (C) No. 872 of 2019 filed by some of the present petitioners. The Court had heard the matter at some length on 25.09.2019 and 26.09.2019, when with the consent of the counsel of all the parties, the matter was fixed for final hearing. Since a substantial D amount of time passed in the meanwhile, and to ensure that the same exercise need not be repeated before the High Court, the Court is left with no option but to hear these cases on merits. [Paras 22, 26, 28 and 29] [925-A-B; 926-D-E-H; 927-A-C] Kihoto Hollohan v. Zachillhu (1992) Supp 2 SCC 651 : [1992] 1 SCR 686 – followed. E
Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd. 2019 SCC Online SC 221 – referred to. 1.2 It is true that 33rd Constitutional Amendment changed the constitutional position by conferring discretion on the Speaker to reject the resignation. However, such discretion is not unqualified, as the resignation can only be rejected if the Speaker is “satisfied that such resignation is not voluntary or genuine”. Determination of whether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the Speaker, instead it has to be based on his “satisfaction”. Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine. When a member tenders his resignation in writing, the Speaker must immediately conduct an inquiry to ascertain H
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A if the member intends to relinquish his membership. The inquiry must be in accordance with the provisions of the Constitution and the applicable rules of the House. This satisfaction of the Speaker is subject to judicial review. The 33rd Constitutional Amendment amended Article 190(3)(b) of the Constitution and added a proviso. Thus, prior to the 33rd Constitutional B Amendment, there was no provision in the Article which required the resignation to be accepted by the Speaker to become effective. Originally, the position was that a member of a Legislative Assembly could resign from office by a unilateral act, and the acceptance of resignation was not required. First, as a C starting principle, it has to be accepted that a member of the Legislature has a right to resign. Nothing in the Constitution, or any statute, prevents him from resigning. A member may choose to resign for a variety of reasons and his reasons may be good or bad, but it is his sole prerogative to resign. An elected member cannot be compelled to continue his office if he chooses to resign. The 33rd Constitutional Amendment does not change this position. On the contrary, it ensures that his resignation is on account of his free will. Second, the 33rd Constitutional Amendment requires acceptance of resignation by the Speaker. Thus, merely addressing a resignation letter to the Speaker would not lead to the seat automatically falling vacant. The Speaker has to accept such resignation for the seat to become vacant. However, as discussed above, the Speaker has limited discretion for rejecting the resignation. If the resignation is voluntary or genuine, the Speaker has to accept the resignation and communicate the same. Third, the Speaker F can reject the resignation, if the Speaker is satisfied that resignation was “not voluntary or genuine”. Fourth, although the word “genuine” has not been defined, in this context, it would simply mean that a writing by which a member chooses to resign is by the member himself and is not forged by any third party. G The word “genuine” only relates to the authenticity of the letter of resignation. [Paras 35, 38-42] [928-D-F; 929-D-H; 930-A-B- F-G] Union of India v. Gopal Chandra Misra (1978) 2 SCC 301 : [1978] 3 SCR 12 ; Moti Ram v. Param Dev H (1993) 2 SCC 725 : [1993] 2 SCR 250 – referred to.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 893 KARNATAKA LEGISLATIVE ASSEMBLY
1.3 Similarly, the word “voluntary” has not been defined. A In this context, it would mean the resignation should not be based on threat, force or coercion. The Speaker therefore has a duty to reject the resignation if such resignation is based on coercion, threat or force. The language of Article 190(3)(b) of the Constitution does not permit the Speaker to inquire into the motive of the resignation. When a member is resigning on political pressure, he is still voluntarily doing so. Once the member tenders his resignation it would be “voluntary” and if the writing can be attributed to him, it would be “genuine”. In this regard, there is no doubt that the Petitioners have categorically stated and have re-affirmed before the Speaker and this Court, in unequivocal terms, that they have voluntarily and genuinely resigned their membership of the House. This Court, in the earlier Writ Petition, being Writ Petition (C) No. 872 of 2019, had also directed the Speaker to look into the resignation of the members, but the same was kept pending. The Speaker D can reject a resignation only if the inquiry demonstrates that it is not “voluntary” or “genuine”. The inquiry should be limited to ascertaining if the member intends to relinquish his membership out of his free will. Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. It is constitutionally E impermissible for the Speaker to take into account any other extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review. The aforesaid observations clarify the scope of the Speaker’s duty under Article 190(3)(b) of the Constitution. [Paras 43, 45 and F 46] [930-G-H; 931-D-F; 932-F-H; 933-A-B]
2. The Tenth Schedule was brought in to cure the evil of defection recognising the significant impact it has on the health of our democracy. The 91st Constitutional Amendment also strengthens the aforesaid view that the law needed further strengthening in order to curb the evil of defection. The G aforesaid amendment introduced Articles 75(1B), 164(1B) and 361B in the Constitution. These provisions bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term H
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A of his of-fice would expire or if he is re-elected to the legislature, whichever is earlier. The intent of the amendment is crystal clear. The constitutional amendment sought to create addi-tional consequences resultant from the determination that a person was disqualified un-der the Tenth Schedule. If it is held that the disqualification proceedings would become infructuous upon tendering resignation, any member who is on the verge of being dis-qualified would immediately resign and would escape from the sanctions provided under Articles 75(1B), 164(1B) and 361B. Such an interpretation would therefore not only be against the intent behind the introduction of the Tenth Schedule, but also defeat the spirit of the 91st Constitutional Amendment. In addition to the above, the decision of the Speaker that a member is disqualified, relates back to the date of the disqualifying action complained of. The disqualification relates to the date when such act of defection takes place. The tendering of resignation does not have a bearing on the jurisdiction of the Speaker in this regard. Therefore, the aforesaid principle may be adopted accordingly, wherein the taint of disqualification does not vaporise, on resignation, provided the de-fection has happened prior to the date of resignation. Resignation and disqualification are distinct mechanisms provided under the law which result in vacancy. Further, the factum/manner of resignation may be a relevant consideration while deciding the dis-qualification petition. The submission of the Petitioners that the disqualification pro-ceedings cannot be continued if the resignations are tendered is not agreed with. Even if the resignation is tendered, the act resulting in disqualification arising prior to the resig-nation does not come to an end. The pending or impending disqualification action in the present case would not have been impacted by the submission of the resignation letter, considering the fact that the act of disqualification in this case have arisen prior to the members resigning from the Assembly. [Paras 50, 51, 54-56] [934-D-H; 936-C; 937-A-E-G] Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270 : [2007] 2 SCR 591 – relied on. 3.1 The dictionary meaning of the word ‘disqualification’ H is ‘to officially stop someone from being in a competition or
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 895 KARNATAKA LEGISLATIVE ASSEMBLY doing something because they are not suitable, or they have done something wrong’. However, under the Tenth Schedule this term occupies a specific meaning wherein, a member is stopped from continuing to be a member of a legislative body, if his actions fall in one of the conditions provided under paragraph
2. Article 191(1) of the Constitution provides for disqualification of a person (a) for being chosen as and (b) for being, a member of the Legislative Assembly or the Legislative Council if his actions or candidature attract the grounds therein. For disqualification such as holding an office of profit, unsoundness of mind, insolvency, etc., bars a person from continuing as a member as well as from contesting elections. Article 191(2), on the other hand, bars a person only “for being a member” of the Legislative Assembly or the Legislative Council. Article 192 of the Constitution provides that the Governor will be the authority for determination of disqualification on the grounds as contained under Article 191(1) of the Constitution. In contrast, the decision as to disqualification on the ground as contained in Article 191(2) of the Constitution vests exclusively in the Speaker in terms of paragraph 6 of the Tenth Schedule. There is no dispute that provisions under Tenth Schedule are relatable to disqualification as provided under Articles 102(2) and 191(2) of the Constitution. The disqualification of a member, apart from the political taint, results in two further restrictions as a means of punitive actions against the members disqualified under the Tenth Schedule. Paragraph 6 of the Tenth Schedule has an important bearing upon extent of the judicial review in case of disqualification. Disqualification is with respect to the status of being a member of the House and can only be considered by the Speaker if such question, through a petition, is addressed/ referred to the Speaker. It is apparent from the reading of paragraph 6 of the Tenth Schedule that the decision of the Speaker on disqualification under the Tenth Schedule is final. However, the finality which is attached to the order of Speaker cannot be meant to take away the power of this Court to review the same. In the Kihoto Hollohan case this Court recognized the Speaker’s role as a tribunal and allowed judicial review of the orders of the same on the grounds provided therein. The Speaker, being a constitutional functionary, is generally presumed to have H
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A adjudicated with highest traditions of constitutionalism. In view of the same, a limited review was allowed for the courts to adjudicate upon the orders passed by the Speaker under the Tenth Schedule. Here, the difference in the meaning of the terms ‘final’ and ‘conclusive’ needs to be appreciate, in the context B that the order of the Speaker is final but not conclusive and the same is amenable to judicial review. Principles of natural justice cannot be reduced into a straitjacket formula. The yardstick of judging the compliance of natural justice, depends on the facts and circumstances of each case. [Paras 60, 64-66, 68, 69 and 72] [938-G-H; 939-A; 940-D-G; 941-F-H; 942-E-H; 943-F] C 3.2 Further, the phrase “violation of constitutional mandate” speaks for itself and does not need much elaboration. A “constitutional mandate” can be understood as what is re- quired under, or by, the Constitution. In the context of the Tenth Schedule, and an order of disqualification passed by the Speaker D thereunder, the “constitutional mandate” is therefore nothing but what is constitutionally required of the Speaker. A “violation of constitutional mandate” is merely an unconstitutional act of the Speaker, one that cannot be defended on the touchstone of the Tenth Schedule and the powers or duties of the Speaker therein and is in contravention or violation of the same. On the point of violation of constitutional mandate, although the Court is of the opinion that there was an error committed by the Speaker in deciding the disqualification petitions, the same does not rise to a level which requires the Court to quash the disqualification orders in their entirety. The specific error which the Court has identified relates to the period of disqualification imposed by the Speaker in the impugned orders. However, this error is severable, and does not go to the root of the disqualification, and thus does not require the Court to quash the disqualification orders in toto. The ground of malafides is available to an individual challenging the order of the Speaker, G the onus of proof regarding the same is on the one who challenges the said action and has a very heavy burden to dis- charge. In the present case, although the Petitioners claimed that the Speaker acted malafide, they have neither made any specific allegation, nor can it be said that they have discharged the heavy burden that is required to prove that the ground of
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 897 KARNATAKA LEGISLATIVE ASSEMBLY malafide is made out. The Petitioners have contended that the order of the Speaker is perverse; how-ever, they are not able to specifically point out any such instance. “Perversity” has been understood by this Court in a catena of judgments as relating to a situation where the findings assailed before it have been arrived at on the basis of no evidence, or thor-oughly unreliable evidence, and no reasonable person would act upon it. The impugned orders of the Speaker can be sustained from the challenge made on the ground of perver-sity as the Respondents have been able to show that there was sufficient material avail- able before the Speaker to pass the impugned orders. Further, on a consideration of the totality of the facts brought on record, it cannot be held that the findings of the Speaker are so unreasonable or unconscionable that no tribunal could have arrived at the same findings. The Petitioners did not even controvert the material relied upon by the Speaker. In view of the above, the Petitioners failed to show any illegality in the orders of the Speaker. There is no gainsaying that the scope of judicial review is limited to only grounds elaborated under the Kihoto Hollohan case. In this regard, the Petitioners have not been able to establish any illegality in the orders passed by the Speaker. The Speaker had concluded based on material and evidence that the members have voluntarily given up their membership of the party, thereby accruing disqualification in terms of the Tenth Schedule, which facts cannot be reviewed and evaluated by this Court in these writ peti-tions. So, the orders of the Speaker to the extent of disqualification have to be accepted. The Petitioners have submitted that the Speaker, F through the disqualification orders, has prohibited them from contesting elections and becoming members of the House for the remaining duration of the 15th Legislative Assembly of Karnataka. [Paras 77-84] [945-B-F-H; 946-A-H; 947-E-G]
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) G 3 SCC 184 : [2007] 1 SCR 317 ; E. P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : [1974] 2 SCR 348 ; Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699 : [1991] 2 SCR 741 – referred to. H
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A Griffith and Ryle on Parliament Functions, Practice and Procedure (1989 edn., p.119) – referred to. 4.1 The Tenth Schedule of the Constitution while dealing with disqualification on account of defection, does not specify the consequences or period of such disqualification. In fact, the B vacancy which results from the disqualification is provided under Article 190(3) of the Constitution. Article 191 of the Constitution provides for disqualification from the membership of the Legislative Assembly or Legislative Council of a State generally. Article 191(1) of the Constitution is a general provision providing for the disqualification from the membership of the C Legislative Assembly or the Legislative Council of a State on the grounds mentioned therein. Article 191(2) of the Constitution specifically provides that a person disqualified under the Tenth Schedule is disqualified for being a member. Article 191(2) of the Constitution, like the Tenth Schedule, does not provide that the “disqualification” is to operate for a particular period or duration. Article 191(1) of the Constitution provides that a person disqualified under any one of the clauses of Article 191(1) is disqualified both “for being chosen as” and “for being” a member of the house. In contrast, Article 191(2) only uses the phrase “for being a member”, which is the language used in paragraph 2 of the Tenth Schedule. The exclusion of the phrase “for being chosen as” a member in Article 191(2) of the Constitution suggests that the disqualification under the Tenth Schedule is qualitatively and constitutionally different from the other types of disqualification that are provided for under Article F 191(1) of the Constitution. The phrase “for being chosen as” has a specific connotation, meaning that a person cannot become a member of the House, if suffering from a disqualification under Article 191(1) of the Constitution. At the same time, the absence of these words in Article 191(2) of the Constitution suggests that a person who is no longer a member due to disqualification under G the Tenth Schedule of the Constitution does not suffer from the additional infirmity of not being allowed to become a member subsequently. Therefore, such a person is not barred from contesting elections. This interpretation is further supported by the language employed in Section 36(2) of the Representation H of the People Act, 1951. Articles 164(1B) and 361B of the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 899 KARNATAKA LEGISLATIVE ASSEMBLY
Constitution, which were inserted by the 91st Constitutional A Amendment, also show that disqualification under the Tenth Schedule does not bar a person from contesting elections. Both the above constitutional provisions specifically indicate the outer period for which the consequences indicated therein would extend, which is, either till the end of the term or till the disqualified member is elected, whichever is earlier. The fact that the phrase “whichever is earlier” is used in both these provisions, indicates that the Constitution contemplates a situation where an election takes place prior to the end of the term of the House. Further, the term “election” as used in the above provisions has not been constrained by any other word, which strengthens the view that a member who has been disqualified under the Tenth Schedule is not barred from contesting elections. Parliament by way of an enactment under Article 191(1)(e) read with Entry 72 of the Union List in the Seventh Schedule can make a law providing for disqualifications of persons from contesting elections. It is in exercise of this power that the Parliament enacted The Representation of the People Act, 1951. The Preamble to the aforementioned Act makes it evident that it was enacted for the purpose of “providing qualifications and disqualifications for membership” to the Houses of Legislature. Chapter II of Part II of the E Representation of the People Act, 1951 provides for the qualification for membership of the State Legislature while Chapter III vide Sections 7 to 11 provides for disqualification for membership of the Legislature. These sections not only provide for the event of disqualification, but also provide for the F specific periods for which such disqualification shall operate. For instance, under Section 8 of the Representation of the People Act, 1951, different periods of disqualification are provided depending on the specific offence an individual is convicted under. However, the provisions do not provide for and deal with disqualification under the Tenth Schedule. Clearly, Section 36 G of the Representation of the People Act, 1951 also does not contemplate such disqualification. Therefore, neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections. The language of clauses (1) and H
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A (2) of Article 191, Articles 164(1B) and 361B are contrary to the contention of the Respondents. The Speaker does not have any explicit power to specify the period of disqualification under the Tenth Schedule or bar a member from contesting elections after disqualification until the end of the term of the Legislative Assembly. When the express provisions of the Constitution B provide for a specific eventuality, it is not appropriate to read an “inherent” power to confer additional penal consequences. To do so, and accept the contention of the respondents, would be against the express provisions of the Constitution. This Court has repeatedly held that a person cannot be barred from contesting elections if he is otherwise qualified to contest the same. Nothing can be added to the grounds of disqualification based on convenience, equity, logic or perceived political intentions. It is clear that the power to prescribe qualifications and disqualifications for membership to the State Legislature must be specifically provided for under the Constitution or by the Parliament by enacting a law. Since neither the Constitution nor any Act provides for defection to another party as a bar from contesting further elections, reading such a bar into the nebulous concept of the inherent powers of the Speaker is impermissible and invalid. [Paras 90-98, 100, 101, 103, 106] [949-B-H; 950- E A-G; 951-B-F; 952-A-C; 953-E-H; 954-A-B] G. Narayanaswami v. G. Pannerselvam, (1972) 3 SCC 717 : [1973] 1 SCR 172 – referred to. 4.2 The Speaker, in exercise of his powers under the Tenth F Schedule, does not have the power to either indicate the period for which a person is disqualified, nor to bar someone from contesting elections. The desirability of a particular rule or law, should not in any event be confused with the question of existence of the same, and constitutional morality should never be replaced by political morality, in deciding what the G Constitution mandates. [refer to Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217]. It is, therefore, held that part of the impugned orders passed by the Speaker which specifies that the disqualification will last from the date of the order to the expiry of the term of the 15th Legislative Assembly of Karnataka to be ultra vires the constitutional mandate, and strike down this
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 901 KARNATAKA LEGISLATIVE ASSEMBLY portion of the disqualification orders. However, this does not go to the root of the order, and as such, does not affect the aspect of legality of the disqualification orders. [Paras 110, 111] [955- F-G; 956-A-B] Indra Sawhney v. Union of India, (1992) Supp 3 SCC 217 : [1992] 2 Suppl. SCR 454 - referred to. B 5.1 The two important phrases occurring in Article 145(3) of the Constitution are ‘substantial question of law’ and ‘interpretation of the Constitution’. By reading the aforesaid provision, two conditions can be culled out before a reference is made: (i) The Court is satisfied that the case involves a C substantial question of law as to the interpretation of this Constitution; (ii) The determination of which is necessary for the disposal of the case. It may be stated that the Court is not persuaded for referring the present case to a larger bench as the mandate of the aforesaid Article is that this Court needs to D be satisfied as to the existence of a substantial question of law on the Constitutional interpretation. However, this does not mean that every case of constitutional interpretation should be compulsorily referred to a Constitutional Bench. Question of constitutional interpretation would arise only if two or more possible constructions are sought to be placed on a provision. E The ambit of this Court’s jurisdiction under Article 32 of the Constitution is well settled, which does not merit any further reference in this regard. The case mostly turns on the fact that there is ample evidence to portray that the defection of these Petitioners had occurred even before they resigned. In the impugned orders, the Speaker has made out a case that the acts of the Petitioners indicated “voluntary giving up of membership”. Therefore, the question as to the jurisdiction of the Speaker to deal with disqualification after the members have tendered the resignation does not arise, stricto sensu. In view of the aforesaid factual scenario, there is no requirement to deal with the questions of law raised by the Respondents. In view of the aforesaid discussion, the Court declines to refer the case to a larger bench considering that there is no substantial question of constitutional interpretation that arises in this case. [Paras 120, 121, 124-126 and 129] [959-B-E; 960-G; 961-B-D-H] H
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A Abdul Rahim Ismail C. Rahimtoola v. State of Bombay, AIR 1959 SC 1315 : [1960] SCR 285 ; Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682 : [1964] SCR 378 ; People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399 : [2003] 2 SCR 1136 – referred to. B 5.2 W.P. (C) NO. 992 OF 2019 The order of the Speaker does not suffer from perversity. Even the petitioner has not submitted material to controvert the findings recorded by the Speaker in the impugned order. With C regard to the assertion that there was violation of principles of natural justice would not also stand in view of the fact that the Speaker has taken a holistic view and gave sound reasons to disqualify the petitioner after providing him sufficient opportunity to defend himself. Alleged violation of principles of natural justice also do not carry any weight in view of the factual background of the case read in light of the fact that trust vote had to be voted upon. [Para 134] [963-B-C] 5.3 W. P. (C) NO. 997 OF 2019 The Speaker in the impugned order has taken note of the surrounding circumstances, including the conduct of the Petitioners from February 2019 onwards. The Speaker had sufficient material before him to pass the order of disqualification. There exist no infirmities in the order, which calls for our indulgence and interference. [Paras 136-138] [963-H; 964-A-E]
F 5.4 W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007 OF 2019 The three Petitioners in Writ Petition (C) No. 1005 of 2019 were members of the JD(S), against whom a separate Disqualification Petition No. 5 of 2019 was moved. The Speaker passed a separate impugned order dated 28.07.2019 against these Petitioners. Petitioners in Writ Petition (C) Nos. 998, 1000, 1001, 1006 and 1007 of 2019 were all members of the INC, against whom Disqualification Petition Nos. 3 and 4 of 2019 were moved. A common order dated 28.07.2019, disqualifying the 10 Petitioners, was passed by the Speaker. A notice of three days with an opportunity for hearing would have been sufficient in the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 903 KARNATAKA LEGISLATIVE ASSEMBLY facts and circumstances of this case, when viewed in light of the deci-sion in the Ravi S Naik case. In this regard, the attention of the Court was drawn to the fact that notices were sent to their emails, and their permanent addresses within their constituency. In view of the unique facts, it cannot be said that an opportunity was not provided to the Petitioners to appear before the Speaker. B It is altogether a different mat-ter that the aforesaid Petitioners were in Mumbai even though they were aware of the notice, and some of them did not even bother to be represented before the Speaker. In this light, it cannot be said that effective opportunity was not granted to the Petitioners. Consequently, it cannot be said as well that there has been a violation of principles of C natural justice as against the aforesaid Petitioners. [Para 139- 140-143] [964-F-G; 965-F-H] Ravi S. Naik v. Union of India, (1994) Supp 2 SCC 641 : [1994] 1 SCR 754 - referred to. 5.5 W.P. (C) NO. 1003 OF 2019 D
No reason and good ground is found to hold that the findings in the impugned order are perverse and based on no evidence. Rather the stand and plea taken by the Petitioner is devoid of merit. Similarly, the plea predicated on the violation of principles of natural justice must fail in the light of the above facts. The findings on allegations of not granting specific time in all the above cases are based on the unique facts and circumstances of each case. It should not be understood to mean that the Speaker could cut short the hearing period. The Speaker should give sufficient opportunity to a member before deciding a disqualification proceeding and ordinarily follow the time limit prescribed in the Rules of the Legislature. [Paras 150, 151] [967-D-E] 6.1 In light of the discussion above, summary of law as held herein is as follows: (a) The Speaker, while adjudicating a G disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed can be questioned before this Court under Article 32 of the Constitution. However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the same would be appropriate, effective and expeditious. (b) The Speaker’s scope of inquiry with H
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A respect to acceptance or rejection of a resignation tendered by a member of the legislature is limited to examine whether such a resignation was tendered voluntarily or genuinely. Once it is demonstrated that a member is willing to resign out of his free will, the speaker has no option but to accept the resignation. It B is constitutionally impermissible for the Speaker to take into account any extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review. (c) Resignation and disqualification on account of defection under the Tenth Schedule, both result in vacancy of the seat held by the member in the legislature, but further C consequences envisaged are different. (d) Object and purpose of the Tenth Schedule is to curb the evil of political defection motivated by lure of office or rather similar considerations which endanger the foundation of our democracy. By the 91st Constitutional Amendment, Articles 71 (1B), 164(1B) and 361B D were enacted to ensure that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or till the date on which his term of office would expire or he/she is re-elected to the legislature, whichever is earlier. (e) Disqualification relates back to the date when the act E of defection takes place. Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s F resignation letter. (f) In the earlier Constitution Bench judgment of Kihoto Hollohan, the order of the Speaker under Tenth Schedule can be subject to judicial review on four grounds: mala fide, perversity, violation of the constitutional mandate and order passed in violation of natural justice. (g) Findings on allegations of not granting specific time in all the above cases are based on G the unique facts and circumstances of the case. It should not be understood to mean that the Speaker could cut short the hearing period. The Speaker should give sufficient opportunity to a member before deciding a disqualification proceeding and ordinarily follow the time limit prescribed in the Rules of the H Legislature. (h) In light of the existing Constitutional mandate,
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 905 KARNATAKA LEGISLATIVE ASSEMBLY the Speaker is not empowered to disqualify any member till the end of the term. However, a member disqualified under the Tenth Schedule shall be subjected to sanctions provided under Articles 75(1B), 164(1B) and 361B of Constitution, which provides for a bar from being appointed as a Minister or from holding any remunerative political post from the date of disqualification till the date on which the term of his office would expire or if he is re-elected to the legislature, whichever is earlier. (i) There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. C Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked. (j) The existence of a substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the “question of law” will have on the final determination. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”. In any case, no substantial question of law exists in the present matter, which needs reference to a larger bench. [Para 152] [967-F-H; 968-A-H; 969-A-H] 6.2 The following order is passed: Orders dated 25.07.2019 and 28.07.2019 passed by the Speaker in Disqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019, are upheld to the extent of the disqualification of the Petitioners F therein. However, the part of Speaker’s orders detailing the duration of disqualification, viz., from the date of the respective order till the expiry of the term of the 15th Legislative Assembly of Karnataka, is accordingly set aside. [Paras 153] [970-A-C] Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC G 1621 : [1963] SCR 778 ; Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 : [1966] SCR 744 – followed. Jagjit Singh v. State of Haryana (2006) 11 SCC 1 ; D. Sanjeevayya v. Election Tribunal, Andhra Pradesh H
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A AIR 1967 SC 1211 : [1967] SCR 489 ; N.S. Vardachari v. G. Vasantha Pai, (1972) 2 SCC 594 : [1973] 1 SCR 886 – relied on. U.P. State Spinning Co. Ltd. v. R.S. Pandey (2005) 8 SCC 264 : [2005] 3 Suppl. SCR 603 ; State of Uttar B Pradesh v. Mohammad Nooh AIR 1958 SC 86 : [1958] SCR 595 ; Harbanslal Sahnia v. Indian Oil Corporation Ltd. (2003) 2 SCC 107 ; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621 ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress (1991) Supp 1 SCC 600 : [1990] 1 Suppl. C SCR 142 ; State (NCT of Delhi) v. Union of India (2018) 8 SCC 501 : [2018] 7 SCR 1 ; R.S. Dass v. Union of India, (1986) Supp SCC 617 : [1987] SCR 527 ; Balachandra L. Jarkhiholi v. B. S. Yeddyurappa, (2011) 7 SCC 1 : [2011] 10 SCR 877 ; Mayawati v. Markandeya Chand, (1998) 7 SCC 517 : [1998] 2 D Suppl. SCR 204 ; Public Interest Foundation v. Union of India (2019) 3 SCC 224 : [2018] 10 SCR 14 – referred to. Case Law Reference [2005] 3 Suppl. SCR 603 referred to Para 20 E [1958] SCR 595 referred to Para 20 (2003) 2 SCC 107 referred to Para 20 [1992] 1 SCR 686 followed Para 21 [1978] 2 SCR 621 referred to Para 23 F [1963] SCR 778 followed Para 24 [1966] SCR 744 followed Para 24 (2006) 11 SCC 1 relied on Para 25 [1978] 3 SCR 12 referred to Para 38 [1993] 2 SCR 250 referred to Para 38 G [1990] 1 Suppl. SCR 142 referred to Para 52 [2018] 7 SCR 1 referred to Para 53 [2007] 2 SCR 591 relied on Para 53 [1967] SCR 489 relied on Para 55 H [1987] SCR 527 referred to Para 72
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 907 KARNATAKA LEGISLATIVE ASSEMBLY
[1994] 1 SCR 754 referred to Para 73 A [2011] 10 SCR 877 referred to Para 74 [2007] 1 SCR 317 referred to Para 77 [1974] 2 SCR 348 referred to Para 79 [1991] 2 SCR 741 referred to Para 79 B [1998] 2 Suppl. SCR 204 referred to Para 81 [1973] 1 SCR 172 referred to Para 101 [1973] 1 SCR 886 relied on Para 102 [1992] 2 Suppl. SCR 454 referred to Para 110 C [1960] SCR 285 referred to Para 123 [1964] SCR 378 referred to Para 123 [2003] 2 SCR 1136 referred to Para 123 [2018] 10 SCR 14 referred to Para 128 D CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 992 of 2019. [Under Article 32 of The Constitution of India] With E Writ Petition (C) Nos. 997, 1000, 998, 1005, 1003, 1001, 1007, 1006 of 2019. Mukul Rohatgi, V. Giri, K.V. Vishwanathan, Gangadhar R. Gurumath, C.A. Sundaram, Sajan Poovayya, Rakesh Dwivedi, Kapil Sibal, Dr. Rajeev Dhavan, Devadutt Kamat, K. Shashikiran Shetty, Sr. F Advs., Shubhranshu Padhi, Kush Chaturvedi, Sandeep Patil, Ms. Prerna Priyadarshini, Apoorv Singhal, Ms. Priyashree Sharma PH, Ashish Yadav, Rakshit Jain, Ms. S. Shankar, Ms. Palak Mahajan, Ms. Diksha Rai, T. V. Ratnam, Devraje Gowda G., Vikram Hegde, Ms. Rohini Musa, Zaffar Inayat, Abhishek Gupta, Shantanu Lakhotia, Kashi V., G Pratibhanu Kharolla, Ms. Raksha Agarwal, Ms. Hima Lawrence, Mishra Saurabh, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms. Ayiala Imti, Prateek Kumar, Eklavya Dwivedi, Sunil Fernandes, Nizam Pasha, Javedur Rehman, Ms. Priyansha Indra Sharma, Ashwin G. Raj, Ms. Siddhi Padia, Mahesh Thakur, Ms. Sheffali Chaudhary, Mrs. Vipasha Singh, Vybhav Ramesh, Advs. for the appearing parties. H
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Judgment
A JUDGMENT Table of Contents Introduction A Contentions B B Issues C Maintainability of Writ Petition D Rejection of Resignations E Disqualification Proceedings After Resignation F C Validity of Disqualification order G Power of the Speaker to direct disqualification till the expiry of the term H Reference to Constitution Bench I D Individual Cases J Conclusions K
N. V. RAMANA, J.
E A. INTRODUCTION
11. Reflecting on Indian parliamentary democracy, the words of André Béteille, Professor Emeritus of Sociology, need to be observed: “In a parliamentary democracy, the obligations of constitutional morality are expected to be equally binding on the government and the opposition. In India, the same political party treats these obligations very differently when it is in office, and when it is out of it. This has contributed greatly to the popular perception of our political system as being amoral…”1 Although the framers of the Constitution entrusted ‘we the people’ with the responsibility to uphold the constitutional values having attained freedom, the question which begs herein to be answered is to what extent we have discharged our duty and sustained our democratic and constitutional obligations. 1 André Béteille, ‘Constitutional Morality’, Economic and Political Weekly, Volume H 43 (40)(4th October 2008).
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 909 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
22. In this context, the questions arising in this batch of Writ A Petitions concern the importance of party politics in a democracy and the requirement to have stability within the government to facilitate good governance, as mandated under the Constitution. We need to keep in mind that the separating line between dissent and defection requires to be made apparent, so that democratic values are upheld in balance with other constitutional considerations. In an endeavor to maintain such B balance, the role of the Speaker is critical in maintaining the balance between democratic values and constitutional considerations. In this regard, this Court’s role is only to ascertain whether the Speaker, as a neutral member, upheld the tradition of his office to uphold the Constitution. C
33. These Writ Petitions are filed against five different orders passed by the Speaker of the Karnataka Legislative Assembly: two orders dated 25.07.2019 in Disqualification Petition No. 01 of 2019 and Disqualification Petition No. 07 of 2019 respectively; two orders dated 28.07.2019 in Disqualification Petition No. 05 of 2019 and Disqualification Petition No. 08 of 2019 respectively; and a common D order dated 28.07.2019 in Disqualification Petition Nos. 3 and 4 of 2019.
44. Brief facts which are necessary for the disposal of the present petitions are that the results of the 15th Karnataka Legislative Assembly were declared on 15.05.2018. The contesting political parties secured the following seats: E Party Seat Won
Bahujan Samaj Party 1
Bharatiya Janata Party [BJP] 104 F
Indian National Congress [INC] 78
Janata Dal (Secular) [JD(S)] 37
Karnataka Pragnyavantha Janatha Party [KPJP] 1 G
Independent 1
Total 222 H
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55. The Petitioners herein were elected as members of 15 th Karnataka Legislative Assembly, as per the details given below: W.P. (C) NO. PETITIONERS(S) PARTY CONSTITUENCY 992/2019 Shrimanth Balasaheb Patil INC Kagawad 997/2019 1. Ramesh Jarkhiholi INC 1. Gokak
B 2. Mahesh Kumathalli 2. Athani 998/2019 1. Pratap Gouda Patil INC 1. Maski
2. B.C. Patil 2. Hirekerur
3. Arbail Shivaram Hebbar 3. Yellapur
4. S.T. Somashekhar 4. Yeshvanthapura
5. B.A. Basvaraja 5. KR Pura C
66. Munirathna 6. RR Nagar 1000/2019 Dr. K. Sudhakar INC Chikkaballapur 1001/2019 Anand Singh INC Vijayanagara 1003/2019 R. Shankar KPJP Ranebennur Independent D 1005/2019 1. A.H. Vishwanath JD(S) 1. Hunsur
2. K. Gopalaiah 2. Mahalakshmi Layout
3. K.C. Narayanagowda 3. Krishanarajapet 1006/2019 Roshan Baig INC Shivajinagar 1007/2019 N. Nagaraju MTB INC Hosakote E
6. Though the BJP was the single largest party, its attempt to form the Government was not successful. A coalition government of INC and JD(S) was formed under the leadership of Mr. Kumaraswamy (one of the Respondents herein). This Government had a short life of about 14 months. The events leading up to the resignation of the Chief F Minister, on losing the trust vote on 23.07.2019, after several days delay, form the backdrop to the case of the present Petitioners.
77. On 11.02.2019 Disqualification Petition No. 1 of 2019 was instituted against Ramesh L. Jarkhiholi, Mahesh Iranagaud Kumathalli, Umesh G. Jadhav and B. Nagendra. The main allegations against the aforesaid persons were that they did not participate in the meetings of the party and the proceedings of the Assembly session held from 06.02.2019 onwards, and the conduct of all the aforesaid members’ was in violation of the whip issued by the INC in this regard. Thereafter, Petitioners in Writ Petition (C) No. 997 of 2019, Ramesh L. Jarkhiholi and Mahesh Iranagaud Kumathalli, are said to have submitted their resignations to the Speaker on 06.07.2019.
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 911 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
88. Other Petitioners, including, Dr. K. Sudhakar, Pratap Gouda A Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekar, B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C. Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baig submitted their resignations from the membership of the House between 01.07.2019 to 11.07.2019. B
99. However, the Speaker did not take any call on the resignation of the above persons. Aggrieved by the fact that their resignations were not accepted, and with the impending trust vote being inevitable, most of the above persons approached this Court by way of a Writ Petition, being Writ Petition (C) No. 872 of 2019. This Court, on 11.07.2019, in C the aforesaid Writ Petition directed the Speaker to take a decision qua the resignations forthwith, and further directed the same to be laid before this Court. The relevant extract of the said order is as under:- “....Having regard to the facts of the case, we permit the petitioners, ten in number, to appear before the Hon’ble Speaker D of the Karnataka Legislative Assembly at 6.00 p.m. today. We request the Hon’ble Speaker to grant an audience to the ten petitioners at the said time. The petitioners, if they so wish and are so inclined, shall intimate the Hon’ble Speaker of the Assembly their decision to resign, in which event, the Hon’ble E Speaker shall take a decision forthwith and, in any case, in the course of the remaining part of the day. Such decision of the Hon’ble Speaker as may be taken in terms of the present order, be laid before the Court tomorrow (12.07.2019)...”
1010. Meanwhile, on 11.07.2019, members of the INC withdrew F their disqualification complaint against B. Nagendra in Disqualification Petition No.1 of 2019. The Speaker, it appears, did not take any decision on the resignation in spite of the order of this Court. Simultaneously, a whip was issued by the INC and the JD(S) on 12.07.2019 calling upon their members to attend proceedings, and cautioning the members of disqualification if they failed to attend the same. Further, Disqualification G Petition Nos. 3, 4 and 5 were filed against Dr. K. Sudhakar, Pratap Gouda Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekhar, B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C. Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baig between 10.07.2019 to 12.07.2019. H
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1111. Subsequently, when the aforesaid Writ Petition came up for hearing on 12.07.2019, this Court passed the order as under: “Having regard to the weighty issues that have arisen and the incomplete state of facts, as indicated above, we are of the view that the matter should be considered by the Court further on 16th B July, 2019. In the meantime, the status quo as on today, with regard to the ten petitioners, be maintained, namely, that neither the issue of resignation nor the issue of disqualification will be decided by the Hon’ble Speaker. C This order has been passed by this Court only to enable the Court to decide the larger constitutional questions arising as indicated above.” (emphasis supplied)
1212. Further, this Court on 17.07.2019, passed the following order: D “The issue arising in the case is whether resignations submitted by Members of the Legislative Assembly at a point of time earlier than petitions for their disqualification under the Tenth Schedule of the Constitution should have priority in the decision making process or whether both sets of proceedings should be taken up simultaneously or the disqualification proceedings should have precedence over the request(s) for resignation. Arguments have been advanced by the learned counsels for the parties on the touchstone of Articles 164, 190, 191, 212 and 361B and the Tenth Schedule of the Constitution. We have considered the same. Constitutional principles should not receive an exhaustive enumeration by the Court unless such an exercise is inevitable and unavoidable to resolve the issues that may have arisen in any judicial proceeding. In the present case, having regard to the stage at which the above issues are poised in the light of the facts and circumstances surrounding the same, we are of the view that the aforesaid questions should receive an answer only at a later stage of the proceedings. The imperative necessity, at this stage, is to maintain the constitutional balance and the conflicting and competing rights that have been canvassed before us. Such H an interim exercise has become prudent in view of certain
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 913 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
time frame exercise(s) that is in the offing in the A Karnataka Legislative Assembly, particularly, the no trust motion against the present Government, which we are told is due for being taken up on 18th July, 2019. In these circumstances, the competing claims have to be balanced by an appropriate interim order, which according to us, should be to permit the Hon’ble Speaker of the House to decide on the request for resignations by the 15 Members of the House within such time frame as the Hon’ble Speaker may consider appropriate. We also take the view that in the present case the discretion of the Hon’ble Speaker while deciding the above issue should not be fettered by any direction or observation of this Court and the Hon’ble Speaker should be left free to decide the issue in accordance with Article 190 read with Rule 202 of the Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly framed in exercise of the powers under Article 208 of the Constitution. D The order of the Hon’ble Speaker on the resignation issue, as and when passed, be placed before the Court. We also make it clear that until further orders the 15 Members of the Assembly, ought not to be compelled to participate in the E proceedings of the ongoing session of the House and an option should be given to them that they can take part in the said proceedings or to opt to remain out of the same. We order accordingly.” (emphasis supplied) F
1313. Disqualification Petition No. 7 of 2019 was filed against R. Shankar on 16.07.2019 and Disqualification Petition No. 8 of 2019 was filed against Shrimanth Balasaheb Patel on 20.07.2019. The Speaker thereupon issued emergent notices between 18.07.2019 to 20.07.2019 to all the Petitioners regarding the pending disqualification petitions to G appear before him on the date of hearing fixed for 23.07.2019 and 24.07.2019. The notices did not refer to the resignation letters which had been submitted by 15 Petitioners, who are parties to the Writ Petition (C) No. 872 of 2019 filed before this Court. The Petitioners have alleged that the period given in the aforesaid notices was too short and in fact some of them had not even received notices within time to respond. H
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1414. While the aforesaid disqualification petitions/resignation letters were pending, the INC on 20.07.2019 had again issued a whip requiring their members of the Legislative Assembly to attend the proceedings of the House on 22.07.2019.
1515. The trust vote was finally taken up for consideration on B 23.07.2019. The 17 Petitioners did not attend the House. As a result, the INC and JD(S) coalition Government, under the leadership of Mr. Kumaraswamy was in a minority, resulting in the resignation of Mr. Kumaraswamy as Chief Minister.
1616. Further, as detailed above, on 25.07.2019 and 28.07.2019, the C Speaker passed the five impugned orders in Disqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019. In these orders, the Speaker: a. Rejected the resignation of the members asserting that they were not voluntary or genuine b. Disqualified all the Petitioners, and D c. Disqualified the Petitioners till the end of the 15th Legislative Assembly term
1717. Aggrieved, by the aforesaid disqualifications, all the Petitioners herein have approached this Court under Article 32 of the Constitution. E B. CONTENTIONS LEARNED SENIOR COUNSEL MR. MUKUL ROHATGI ON BEHALF OF PETITIONERS IN W.P. (C) NOS. 997, 998, 1006 AND 1007 OF 2019 Learned Senior Counsel Mr. Mukul Rohatgi, argued that the members of the house have an indefeasible right to resign but the speaker went beyond his constitutionally mandated duty and gave an opinion on the motive of the members and wrongfully rejected the resignations tendered by them. On the contrary, the speaker has to accept the resignation once it has been tendered in the correct format. Explaining the connection between resignation and disqualification under the Tenth Schedule of the Constitution, Mr. Rohatgi stressed that once resignation was validly tendered, there was no question of the
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 915 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
Speaker exercising his jurisdiction to disqualify a A member. Disqualification under the Tenth Schedule was only with respect to a person who was a member, and not otherwise. The learned Senior Counsel challenging the legality of the disqualification order submitted that the same can B be interfered with, if the Court finds that the order is perverse, results from non-application of mind, or is in violation of principles of natural justice. It was contended that in the present case, all three of the above infirmities are made out in the disqualification order of the Speaker. C The Speaker, in issuing “emergent” notice returnable in 3-4 days is in contravention of the requirement for 7 days’ notice under the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986. This makes the order of the Speaker bad for non-compliance of the principles of natural justice, D particularly when the Petitioners had only sought time of 4 weeks to produce documents. Lastly, learned Senior Counsel vehemently submitted that even if disqualification is held to be valid in law, the same cannot take away the right of the Petitioners E to contest in the upcoming elections, as there exists no bar on the right to contest elections under Tenth Schedule of the Constitution. LEARNED SENIOR COUNSEL CA SUNDARAM ON BEHALF OF PETITIONER IN W.P. (C) NO. 1000 OF F 2019 The learned Senior Counsel submitted that the resignation tendered in the present case was resignation from the House and not from the party. G If resignation is tendered under Article 190, the Speaker’s role is limited to the extent of determining voluntariness and genuineness of the same. The inquiry of the Speaker as to the “voluntariness” is limited in its scope to the question of whether the member was coerced to resign or not. The enquiry as to H
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A “genuineness” only related to whether the resignation letter was forged, or not actually made by the member. Additionally, when a member hands over the letter of resignation to the Speaker personally and informs the Speaker that the same is voluntary and genuine, then the Speaker has to accept the resignation immediately. B The learned Senior Counsel also submitted that the motive behind the resignation is immaterial, as the proviso to Article 190(3) of the Constitution restricts the scope of inquiry by the Speaker only to voluntariness and genuineness. C LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF PETITIONER IN W.P.(C) NO. 1003 OF 2019 The learned Senior Counsel distinguished the case of the Petitioner on the basis that he had never tendered his resignation. In spite of that, a separate disqualification order was passed against him. In the present case, the Petitioner belonged to KPJP. Although the party had decided to merge with the INC and had intimated the Speaker about the same, there was no formal order of merger. When the whip was issued by the INC, the Petitioner herein requested the Speaker to provide him with a separate seat with the opposition members. But the Speaker refused the same, recognizing the Petitioner to be affiliated with the INC. F The learned Senior Counsel for the Petitioner brought to the notice of the Court the letter of intimation issued by the Executive Committee of his party directing him to stay on the side of the opposition. Therefore, without any formal order of merger, the Petitioner was not bound by the whip issued by the INC. G LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF PETITIONER IN W.P. (C) NO. 992 OF 2019 The case of the Petitioner can be distinguished factually from the case of most of the other Petitioners as he had not tendered his resignation. When the whip was issued,
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 917 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
due to prevailing medical conditions, the Petitioner had to urgently travel to Mumbai, pursuant to which he failed to participate in the proceedings of the House. Although these facts were intimated to the Speaker with supporting medical records, the Speaker passed the order of disqualification in haste without giving due notice to the Petitioner. The learned Senior Counsel submitted that such an ex parte order of disqualification, without considering relevant material on record and placing reliance upon extraneous circumstances, is untenable. LEARNED SENIOR COUNSEL A.K GANGULY ON C BEHALF OF PETITIONERS IN W.P.(C) NO. 1005 OF 2019 This Court, vide its order dated 17.07.2019 in Writ Petition (C) No. 872 of 2019, granted liberty to the Petitioners herein to either participate or opt out of the proceedings of the ongoing session of the House. But the aforesaid order was ignored by the political party of the Petitioners herein by issuing the whip, and by the Speaker in relying upon the same to disqualify the Petitioners. The learned Senior Counsel also submitted that the sanctity of the Petitioners’ resignation should be protected. The order of disqualification rendered by the Speaker is mala fide and is not supported by any cogent reasons. Learned Senior Counsel K.V. Vishwanathan on behalf of F Petitioners in W.P. (C) No. 997 of 2019 The learned senior counsel submitted that on 11.02.2019, a disqualification petition was filed against 4 MLAs including Dr. Umesh Yadav and the Petitioners herein. Subsequently, during the pendency of the said G disqualification petition, Dr. Umesh Yadav submitted his resignation which was accepted by the Speaker. However, the Speaker, acting in a mala fide manner, kept the resignation letter submitted by the Petitioners herein pending until the disqualification petition was decided. H
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A Despite the orders of this Court directing the Speaker to decide the resignation, the Speaker kept the matter pending till the decision on the disqualification petition. The learned Senior Counsel further contended that the Speaker wrongly took into consideration actions B pursuant to the orders of this Court dated 17.07.2019, wherein the Petitioners were granted the liberty not to participate in the ongoing proceedings of the house. LEARNED SENIOR COUNSEL SAJAN POOVAYYA ON BEHALF OF PETITIONER IN W.P. (C) NO. 1001 OF C 2019 The Petitioner was a member of the INC who had resigned on 01.07.2019 in protest against certain land dealing in his Constituency. However, he was put in the same group as the other disqualified Petitioners by the Speaker. The learned Senior Counsel contends that omnibus statements and allegations have been rendered in the disqualification order and the same was passed without taking into consideration the documents submitted by the Petitioner herein. The learned Senior Counsel reiterated the earlier contention that the actions of the Petitioner stood protected by virtue of the interim order dated 17.07.2019 passed by a Co-ordinate Bench of this Court in Writ Petition (C) No. 872 of 2019. LEARNED SOLICITOR GENERAL TUSHAR MEHTA F ON BEHALF OF THE SPEAKER: The learned Solicitor General submitted that members of the House have the right to resign. The learned Solicitor General submitted that this was a G fit case for the matter to be remanded to the Speaker for fresh hearing. LEARNED SENIOR COUNSEL KAPIL SIBAL ON BEHALF OF RESPONDENT NOS. 2 AND 3 IN W.P. (C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007 H OF 2019
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 919 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
The learned Senior Counsel firstly stated that the impugned orders of disqualification can only be challenged under Article 226 and not under Article 32 of the Constitution, as these are matters involving merely statutory rights. There is no alleged violation of fundamental rights which mandates the invocation of jurisdiction under Article 32 of the Constitution. Further, the Speaker is a quasi-judicial authority, the remedy against whose order lies only under Article 226 of the Constitution. The learned Senior Counsel emphasized upon the conduct of the Petitioners to prove that their resignations were motivated. The counsel urged this Court to take a note of the conduct of the members both prior and subsequent to the act of resignation to comprehend the motive behind such resignation. He stated that motive has to be decided to determine the “genuineness” and D “voluntariness” of the resignation, as it is the motive which acts as an umbilical cord between the issues of genuineness and voluntariness. In light of the same, learned Senior Counsel pointed out that the Petitioners, after tendering their resignation, never went to the Speaker; rather they approached the Governor and the E Supreme Court. It ought to be noted that the letters of resignation were tendered collectively. The power vested in the Speaker is a judicial exercise of power. The Court’s discretion in this arena is quite limited. Moreover, the Speaker, being the master of the F House, can impose any restriction pursuant to the act of disqualification. It ought to be noted that the acts of disqualification took place within the House and therefore it is well within the inherent powers of the Speaker to impose any sanction consequent to the act G of defection. Without such power of sanction, the position of the Speaker is equivalent to that of a toothless tiger. Additionally, it was submitted that although the Petitioners have repeatedly contended that the rules of H
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A natural justice have been violated, it ought to be noted that rules of natural justice cannot be put in a straitjacket. Although, these principles are immutable, yet they are flexible, and are not confined to technical limits. The Petitioners herein have to show some real injury or patent perversity in the order of the Speaker. B Moreover, when the whip was issued with respect to a motion of confidence, the members are duty bound to accept the same. The Petitioners, by violating the whip, have voluntarily given up membership of the party. Even assuming that the liberty granted by this Court in the earlier writ proceedings was correct, with respect to non-compulsion of the members for attending the Assembly, there was legal necessity to attend the Assembly at such a determinative point. The learned Senior Counsel made a distinction between ordinary whips and those which are more essential, which were necessary for the survival of the Government- such as those pertaining to a trust vote, a no-confidence motion, or even a whip relating to the budget. He submitted that such a whip must be followed per se, and that a member could not refuse to appear/vote with respect to the same. The learned Senior Counsel proceeded to distinguish between consequences of resignation with that of disqualification. He stated that sole purpose of the Tenth Schedule is to check bulk defections. In light of the same, the Petitioners cannot be allowed to contest the by-elections, as allowing them to contest dilutes the effect of disqualification. There is a clear bar for acceptance of the nomination of disqualified candidates under Section 36 of The Representation of the People G Act, 1951. Therefore, the disqualified members should not be allowed to contest fresh elections. The learned Senior Counsel also contended that the Speaker has the power to disqualify under the Tenth Schedule, which also includes the power of the Speaker H to command that the member disqualified would not be
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eligible to stand for re-election, on the seat falling vacant, A till the end of the term of the House. However, since the matter involves important questions in relation to the power of the Speaker to decide the parallel proceedings of resignation and disqualification, the power of the Speaker to conduct inquiry as to the B “voluntariness” and “genuineness”, the interpretation of the terms “voluntary” and “genuine”, the relevant material to be considered during an inquiry under Article 190(3) of the Constitution, the relevant period of inquiry, etc., the same is required to be considered by a C Constitution Bench. LEARNED SENIOR COUNSEL DR. RAJEEV DHAVAN ON BEHALF OF RESPONDENT NO. 2 IN W.P (C) NO. 1005 OF 2019 The learned Senior Counsel defended the order of D disqualification by stating that the Speaker exercises wide range of power while acting in an adjudicatory capacity and the same should not be reduced to a mechanical exercise. Therefore, while deciding the issues regarding “genuineness” and “voluntariness” E behind the act of resignation, the Speaker can look to the series of events leading to the resignation so as to decide the motive. Pursuant to the above submission, the counsel stated that taking into totality of facts into consideration there exist no ground to claim that the order of the Speaker suffers from perversity or that the same was passed mala fide. The learned Senior Counsel also submitted that there exists no indefeasible right of resignation as these Petitioners are acting in their constitutional capacity as members of the Legislative Assembly. Moreover, the resignations rendered in the present case cannot be qualified as resignation simpliciter, rather they indicate resignation for the cause of defection and in such a situation, the Speaker could not have turned a blind eye to the activities of the Petitioners. H
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A LEARNED SENIOR COUNSEL DEVADUTT KAMAT ON BEHALF OF RESPONDENT NOS. 2 AND 3 IN W.P. (C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007 OF 2019 The learned Senior Counsel reiterated the views B expressed above by the other learned Senior Counsel and defended the orders of the Speaker stating that he had duly complied with the orders of this Court by deciding the resignations submitted by the Petitioners under Article 190 of the Constitution. The learned Senior C Counsel submitted that the orders dated 11.07.2019 and 17.07.2019 passed by a Co-ordinate Bench of this Court in Writ Petition (C) No.872 of 2019 only requested the Speaker to take a decision on the resignations as per his discretion and within such time frame as he may consider appropriate. Acceptance or rejection of the D resignations is dependent on the condition that the same are voluntary and genuine. Further, the disqualification orders passed by the Speaker were based on a totality of circumstances prevailing in which the conduct of the Petitioners was questionable. E The absence of the Petitioners from the proceedings of the House, when the trust motion of their Government was being discussed, clearly shows their intention to act against the party interest. The disqualification orders were based on cumulative facts including the absence F of the Petitioners despite repeated notices to remain present, and their actions and conduct in colluding with the BJP to engineer the fall of the coalition government. LEARNED SENIOR COUNSEL K. SHASHIKIRAN SHETTY ON BEHALF OF RESPONDENT NOS. 2 AND G 3 IN W.P. (C) NOS. 992, 997, 998, 1000, 1001, 1003, 1006 AND 1007 OF 2019 Learned senior advocate supported the arguments advanced by the learned senior advocate, Mr. Kapil Sibal, and stated that the disqualification order could not be reviewed by this Court.
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Further, the Tenth Schedule is clear on the aspect of merger, wherein he pointed out that there is no need to communicate the factum of merger to R. Shankar [Petitioner in Writ Petition (C) No. 1003 of 2019]. LEARNED SENIOR COUNSEL RAKESH DWIVEDI ON BEHALF OF ELECTION COMMISSION OF INDIA B The learned Senior Counsel submitted that it has been a matter of consistent practice that members disqualified under the Tenth Schedule can participate in the next elections. Any bar for a particular period is not anticipated by law with respect to disqualification under C the Tenth Schedule. He further stated that the power of the Speaker is only limited to the adjudication of the disqualification petition. Any consequential action which flows from such disqualification is beyond his jurisdiction. The Speaker D cannot, at will, provide any particular term of disqualification. Disqualification, and the consequences thereof, being punitive, have to be sanctioned by law. When a member gets disqualified under the Tenth Schedule, a consequential vacancy arises thereby. However, it is impermissible for the Speaker to decide E as to who can contest for the said vacancy. C. ISSUES
1818. In view of the arguments contended, following questions arise for our consideration herein: F
1. Whether the Writ Petition challenging the order of the Speaker under Article 32 is maintainable?
2. Whether the order of the Speaker rejecting the resignation and disqualifying the Petitioners is in accordance with the Constitution? G
3. Even if the Speaker’s order of disqualification is valid, does the Speaker have the power to disqualify the members for the rest of the term?
4. Whether the issues raised require a reference to the larger Bench? H
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A D. MAINTAINABILITY OF THE WRIT PETITION
1919. At the outset, it must be noted that learned Senior Counsel, Mr. Kapil Sibal has contended that this Court does not have the jurisdiction under Article 32 of the Constitution of India to deal with this matter. Further, learned Senior Counsel, Dr. Rajeev Dhavan, has supported the aforesaid argument by stating that no fundamental right is violated, more so when the members of Parliament or Legislative Assembly cannot invoke the ‘right to freedom of trade and profession’ under Article 19 (1)(g) of the Constitution of India.
2020. The contours of this Court’s writ jurisdiction has been long established in several decisions of this Court. Where the law provides for a hierarchy of appeals, the parties must exhaust the available remedies before resorting to writ jurisdiction of this Court [See U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264]. At the same time, this Court in a catena of decisions has held that this doctrine is not a rule of law, but essentially a rule of policy, convenience and discretion and thus not a compulsion and where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction warrants, this Court may exercise its writ jurisdiction even if the parties had other adequate legal remedies. [State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86; Harbanslal E Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107]
2121. The learned senior counsel on behalf of the Respondents have challenged the jurisdiction of this Court under Article 32 of the Constitution by placing reliance on the Kihoto Hollohan v. Zachillhu, F 1992 Supp (2) SCC 651, wherein this Court, while dealing with the scope of judicial review stated as under: “109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under G Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”
H (emphasis supplied)
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2222. We may note that writ jurisdiction is one of the valuable rights A provided under Article 32 of the Constitution, which in itself forms part of the basic structure of the Constitution. After the decision in the Kihoto Hollohan case (supra), the Speaker, while exercising the power to disqualify, is a Tribunal and the validity of the orders are amenable to judicial review. On a perusal of the judgment in the Kihoto Hollohan B case (supra), we do not find any explicit or implicit bar to adjudicate the issue under the writ jurisdiction of this Court.
2323. The Petitioners are alleging violation of principles of natural justice and their right to a fair hearing. Principles of natural justice and right to fair hearing can be traceable to right to equality and rule of law enshrined under Article 14 of the Constitution, read with other fundamental rights [refer to Maneka Gandhi v. Union of India,(1978) 1 SCC 248].
2424. A seven Judge Bench of this Court in the case of Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621, held that writ jurisdiction under Article 32 of the Constitution is available when principles of natural justice are violated. This view was affirmed by a nine Judge Bench of this Court in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, in the following terms: E “54. The scope of the jurisdiction of this Court in dealing with writ petitions under Article 32 was examined by a Special Bench of this Court in Ujjam Bai v. State of Uttar Pradesh [(1963) 1 SCR 778]. This decision would show that it was common ground before the court that in three classes of cases a question of the enforcement of the fundamental rights may arise; and if it does arise, an application under Article 32 will lie. These cases are: (1) where action is taken under a statute which is ultra vires the Constitution; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quasi-judicial authority under an obligation to act judicially passes an order in violation of the principles of natural justice.” (emphasis supplied)
2525. In the context of disqualification orders, this Court has exercised its writ jurisdiction under Article 32. A three Judge Bench of H
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A this Court in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, has explicitly held that a challenge to an order of disqualification under the Tenth Schedule is available under the writ jurisdiction of this Court. This Court held as under: “11. The Speaker, while exercising power to disqualify Members, B acts as a Tribunal and though validity of the orders thus passed can be questioned in the writ jurisdiction of this Court or High Courts, the scope of judicial review is limited as laid down by the Constitution Bench in Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651]. The orders can be challenged on the ground of ultra vires or mala fides or having C been made in colourable exercise of power based on extraneous and irrelevant considerations. The order would be a nullity if rules of natural justice are violated.” (emphasis supplied)
2626. Reliance can be placed on the constitutional provisions and debates thereupon which show that this Court can inquire into the legitimacy of the exercise of the power. Dr. B.R. Ambedkar has described Article 32 as the very soul of the Constitution - very heart of it - most important Article. Moreover, the jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence.
2727. This Court, as the highest Constitutional Court, has to, and has always, functioned in accordance with the applicable judicially determined parameters while performing its constitutional duty to judicially review the acts of constitutional functionaries. It has examined questions of both fact and law, so long as it has been vested with the power to do so. The scrupulous discharge of duties by all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs.
2828. In any case, we note that by challenging the order directly under Article 32, the Petitioners have leapfrogged the judicial hierarchy as envisaged under the Constitution [refer to Tamil Nadu Pollution
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 927 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
Control Board v. Sterlite Industries (I) Ltd., 2019 SCC Online SC A 221].
2929. We do not appreciate the manner in which the petitioners have knocked on the doors of this Court. Among other reasons, we proceeded to hear the present matter due to the peculiar facts presented before us, wherein certain interim orders were passed herein by another B Co-ordinate Bench of this Court in Writ Petition (C) No. 872 of 2019 filed by some of the present petitioners. We had heard the matter at some length on 25.09.2019 and 26.09.2019, when with the consent of the counsel of all the parties, the matter was fixed for final hearing. Since a substantial amount of time has passed in the meanwhile, and to ensure that the same exercise need not be repeated before the High C Court, we are left with no option but to hear these cases on merits.
3030. Despite the fact that this Court has sufficient jurisdiction to deal with disqualification cases under the writ jurisdiction, a party challenging a disqualification order is required to first approach the High Court as it would be appropriate, effective and expeditious remedy to deal with such issues. This Court would have the benefit of a considered judicial verdict from the High Court. If the parties are still aggrieved, then they may approach this Court.
3131. Having ascertained that this Court has the jurisdiction to deal with the subject matter of the present petitions, the question concerning the extent of judicial review can be taken up later, when we analyze and discuss the aspects concerning the validity of the orders passed by the Speaker, disqualifying the Petitioners and rejecting their resignations. E. REJECTION OF RESIGNATIONS F
3232. In the present case, 15 of the 17 Petitioners had tendered their resignation from the House before the disqualification petitions were adjudicated. The Speaker vide orders dated 28.07.2019 in Disqualification Petition Nos. 3 and 4 of 2019 and Disqualification Petition No. 5 of 2019, and order dated 25.07.2019 in Disqualification G Petition No. 1 of 2019, rejected the resignation of the Petitioners therein, holding that they were not voluntary and genuine.
3333. Mr. Kapil Sibal, learned Senior Counsel, has contended that rejection of the resignation by the Speaker was appropriate as the same was given only to frustrate the object of disqualification. He has H
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A submitted that the consideration before the Court is limited considering the fact that the bonafides and motive of the Petitioners to resign was appropriately dealt under Article 190(3)(b) of the Constitution. On the other hand, the Petitioners have strenuously contended that the inquiry required under Article 190(3)(b) of the Constitution is limited to “voluntariness” and “genuineness”, and not the motive or the reason for resignation.
3434. The first question we need to consider concerns the scope of judicial review with respect to acceptance/rejection of the resignation by the Speaker. The Respondents have contended on this count that the Court cannot go into this aspect as the acceptance/rejection of resignation is based on the subjective satisfaction of the Speaker, which is immune from judicial review.
3535. We are unable to agree with this contention. It is true that rd 33 Constitutional Amendment changed the constitutional position by conferring discretion on the Speaker to reject the resignation. However, such discretion is not unqualified, as the resignation can only be rejected if the Speaker is “satisfied that such resignation is not voluntary or genuine”. Determination of whether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the Speaker, instead it has to be based on his “satisfaction”. Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine. When a member tenders his resignation in writing, the Speaker must immediately conduct an inquiry to ascertain if the member intends to relinquish his membership. The inquiry must be in accordance with the provisions of the Constitution F and the applicable rules of the House. This satisfaction of the Speaker is subject to judicial review.
3636. The next logical question which arises for consideration concerns the ambit of the terms “voluntary” and “genuine” in Article 190(3)(b) of the Constitution. Prior to the 33 rd Constitutional G Amendment, Article 190(3)(b) read as follows: “(3) If a member of a House of the Legislature of a State— (a) ….. (b) resigns his seat by writing under his hand addressed to H the Speaker or the Chairman, as the case may be.”
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3737. The 33 rd Constitutional Amendment amended Article A 190(3)(b) of the Constitution and added a proviso. The revised clause reads as follows: “(3) If a member of a House of the Legislature of a State— (a) ….. B (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant: C Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.” D rd
3838. Thus, prior to the 33 Constitutional Amendment, there was no provision in the Article which required the resignation to be accepted by the Speaker to become effective. Originally, the position was that a member of a Legislative Assembly could resign from office by a unilateral act, and the acceptance of resignation was not required. [refer to Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301; Moti Ram v. Param Dev, (1993) 2 SCC 725]
3939. First, as a starting principle, it has to be accepted that a member of the Legislature has a right to resign. Nothing in the Constitution, or any statute, prevents him from resigning. A member may choose to resign for a variety of reasons and his reasons may be good or bad, but it is his sole prerogative to resign. An elected member cannot be compelled to continue his office if he chooses to resign. The 33rd Constitutional Amendment does not change this position. On the contrary, it ensures that his resignation is on account of his free will. G
4040. Second, the 33 rd Constitutional Amendment requires acceptance of resignation by the Speaker. Thus, merely addressing a resignation letter to the Speaker would not lead to the seat automatically falling vacant. The Speaker has to accept such resignation for the seat to become vacant. However, as discussed above, the Speaker has limited discretion for rejecting the resignation. If the resignation is H
p. 930
A voluntary or genuine, the Speaker has to accept the resignation and communicate the same.
4141. Third, the Speaker can reject the resignation, if the Speaker is satisfied that resignation was “not voluntary or genuine”. Herein, our attention is drawn to the Chapter 22, Rule 202 (2) of the Rules of B Procedure and Conduct of Business in Karnataka Legislative Assembly, which is extracted as under: “(2) If a member hands over the letter of resignation to the Speaker personally and informs him that the resignation is voluntary and genuine and the Speaker has no information or knowledge to the contrary, and if he is satisfied, the Speaker may accept resignation immediately.” (emphasis supplied) The rule states that the Speaker has to take a call on the resignation letter addressed to him immediately, having been satisfied of the voluntariness and genuineness. Reading the rule in consonance with Article 190(3)(b) of the Constitution and its proviso, it is clear that the Speaker’s satisfaction should be based on the information received and after making such inquiry as he thinks fit. The aforesaid aspects do not require roving inquiry and with the experience of a Speaker, who is the head of the House, he is expected to conduct such inquiry as is necessary and pass an order. If a member appears before him and gives a letter in writing, an inquiry may be a limited inquiry. But if he receives information that a member tendered his resignation under coercion, he may choose to commence a formal inquiry to ascertain if the resignation was voluntary and genuine.
4242. Fourth, although the word “genuine” has not been defined, in this context, it would simply mean that a writing by which a member chooses to resign is by the member himself and is not forged by any third party. The word “genuine” only relates to the authenticity of the letter of resignation.
4343. Similarly, the word “voluntary” has not been defined. In this context, it would mean the resignation should not be based on threat, force or coercion. This is evident from the Statement of Objects and Reasons of the 33rd Constitutional Amendment which is extracted below:
SHRIMANTH BALASAHEB PATIL v. HON’BLE SPEAKER, 931 KARNATAKA LEGISLATIVE ASSEMBLY [N. V. RAMANA, J.]
1. Articles 101 (3) (b), and 190 (3) (b) of the Constitution permit A a member of either House of Parliament or a member of a House of the Legislature of a State to resign his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. In the recent past, there have been instances where coercive measures have been resorted to for B compelling members of’ a Legislative Assembly to resign their membership, if this is not checked, it might become difficult for Legislatures to function in accordance with the provisions of the Constitution. It is therefore, proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman C and to provide that the resignation shall not be accepted by the Speaker or the Chairman if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine. (emphasis supplied) D The Speaker therefore has a duty to reject the resignation if such resignation is based on coercion, threat or force.
4444. Learned Senior Counsel, Mr. Kapil Sibal, has contended that a Speaker, as a part of his inquiry, can also go into the motive of the member and reject his resignation if it was done under political pressure. E We are unable to accept this contention. The language of Article 190(3)(b) of the Constitution does not permit the Speaker to inquire into the motive of the resignation. When a member is resigning on political pressure, he is still voluntarily doing so. Once the member tenders his resignation it would be “voluntary” and if the writing can be attributed to him, it would be “genuine”. Our view is also supported by the debates on the 33rd Constitutional Amendment. It may be necessary to quote the debate dated 03.05.1974 on the 33 rd Constitutional Amendment, which is extracted below: H.R. Gokhale: I do not want to reply elaborately to all the points because I know I will have to deal with these points when the Bill comes up for consideration. In a way, I am thankful to the Hon. Members. They have given me notice of what they are going to say. I will deal with some points raised. Sir, the idea that the Bill prevents any member from resigning is absolutely wrong. On the contrary, the basis on which the Bill proceeds is, H
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