REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.4444-4476     OF 2011 (Arising out of SLP(C)Nos.33123-33155 of 2010)

Balchandra L. Jarkiholi & Ors. … Appellants   

Vs.

B.S. Yeddyurappa & Ors.  … Respondents

WITH C.A.Nos…4522-4554/2011 @ SLP(C)Nos. 33185- 33217 of 2010 and C.A.Nos…4477-4509/2011 @  SLP(C)Nos.33533-33565 of 2010

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. All the above-mentioned appeals arise out of  

the order dated 10th October, 2010, passed by the  

Speaker of the Karnataka State Legislative Assembly  

on Disqualification Application No.1 of 2010, filed  

by  Shri  B.S.  Yeddyurappa,  the  Legislature  Party  

Leader of the Bharatiya Janata Party in Karnataka  

Legislative  Assembly,  who  is  also  the  Chief  

Minister of the State of Karnataka, on 6th October,  

2010,  under  Rule  6  of  the  Karnataka  Legislative  

Assembly (Disqualification of Members on Ground of  

Defection)  Rules,  1986,  against  Shri  M.P.  

Renukacharya and 12 others, claiming that the said  

respondents, who were all Members of the Karnataka  

Legislative Assembly, would have to be disqualified  

from the membership of the House under the Tenth  

Schedule of the Constitution of India.  In order to  

understand  the  circumstances  in  which  the  

Disqualification Application came to be filed by  

Shri  Yeddyurappa  for  disqualification  of  the  13  

named persons from the membership of the Karnakata  

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Legislature, it is necessary to briefly set out in  

sequence the events preceding the said application.

3. On 6th October, 2010, all the above-mentioned 13  

members  of  the  Karnataka  Legislative  Assembly,  

belonging  to  the  Bharatiya  Janata  Party,  

hereinafter  referred  to  as  the  “MLAs”,  wrote  

identical  letters  to  the  Governor  of  the  State  

indicating that they had been elected as MLAs on  

Bharatiya  Janata  Party  tickets,  but  had  become  

disillusioned  with  the  functioning  of  the  

Government headed by Shri B.S. Yeddyurappa and were  

convinced that a situation had arisen in which the  

Government of the State could not be carried on in  

accordance with the provisions of the Constitution  

and  that  Shri  Yeddyurappa  had  forfeited  the  

confidence of the people as the Chief Minister of  

the State.  Accordingly, in the interest of the  

State and the people of Karnataka, the legislators  

expressed  their  lack  of  confidence  in  the  

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Government  headed  by  Shri  B.S.  Yeddyurappa  and  

withdrew their support to the said Government.  The  

contents of one of the aforesaid letters dated 6th  

October, 2010, are reproduced hereinbelow :

“His Excellency,

I was elected as an MLA on BJP ticket.  I  being  an  MLA  of  the  BJP  got  disillusioned with the functioning of the  Government  headed  by  Shri  B.S.  Yeddyurappa.  There  have  been  widespread  corruption,  nepotism,  favouritism,  abuse  of power, misusing of government machinery  in  the  functioning  of  the  government  headed  by  Chief  Minister  Shri  B.S.  Yeddyurappa  and  a  situation  has  arisen  that the governance of the State cannot be  carried  on  in  accordance  with  the  provisions  of  the  Constitution  and  Shri  Yeddyurappa  as  Chief  Minister  has  forfeited  the  confidence  of  the  people.  In  the  interest  of  the  State  and  the  people  of  Karnataka  I  hereby  express  my  lack  of  confidence  in  the  government  headed  by  Shri  B.S.  Yeddyurappa  and  as  

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such  I  withdraw  my  support  to  the  Government headed by Shri B.S. Yeddyurappa  the  Chief  Minister.  I  request  you  to  intervene and institute the constitutional  process  as  constitutional  head  of  the  State.

With regards,

I remain

Yours faithfully,

Shri H.R. Bharadwaj, His Excellency Governor of Karnataka, Raj Bhavan, Bangalore.”             

Five independent MLAs also expressed lack of  

confidence and withdrew support to the Government  

led by Shri B.S. Yeddyurappa.

4. On the basis of the aforesaid letters addressed  

to  him,  the  Governor  addressed  a  letter  to  the  

Chief Minister, Shri B.S. Yeddyurappa, on the same  

day (6.10.2010) informing him that letters had been  

received from 13 BJP MLAs and 5 independent MLAs,  

withdrawing  their  support  to  the  Government.   A  

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doubt  having  arisen  about  the  majority  support  

enjoyed  by  the  Government  in  the  Legislative  

Assembly, the Governor requested Shri Yeddyurappa  

to prove that he still continued to command the  

support of the majority of the Members of the House  

by introducing and getting passed a suitable motion  

expressing  confidence  in  his  Government  in  the  

Legislative Assembly on or before 12th October, 2010  

by 5 p.m.  In his letter he indicated that the  

Speaker had also been requested accordingly.  On  

the very same day, Shri B.S. Yeddyurappa, as the  

leader  of  the  BJP  Legislature  Party  in  the  

Karnataka  Legislative  Assembly,  filed  an  

application before the Speaker under Rule 6 of the  

Karnataka Legislative Assembly (Disqualification of  

Members on Ground of Defection) Rules, 1986, being  

Disqualification Application No.1 of 2010, praying  

to declare that all the said thirteen MLAs elected  

on  BJP  tickets  had  incurred  disqualification  in  

view of the Tenth Schedule to the Constitution.   

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5. As will appear from the materials on record,  

Show-Cause notices were thereafter issued to all  

the 13 MLAs on 7th October, 2010, informing them of  

the  Disqualification  Application  filed  by  Shri  

Yeddyurappa stating that having been elected to the  

Assembly  as  Members  of  the  BJP,  they  had  

unilaterally submitted a letter on 6th October, 2010  

to the Governor against his Government withdrawing  

the  support  given  to  the  Government  under  his  

leadership.   The  Appellants  were  informed  that  

their act was in violation of paragraph 2(1)(a) of  

the Tenth Schedule of the Constitution of India and  

it disqualified them from continuing as Members of  

the Legislature.  Time was given to the Appellants  

till 5 p.m. on 10th October, 2010, to submit their  

objections, if any, to the application.  They were  

also directed to appear in person and submit their  

objections  orally  or  in  writing  to  the  Speaker,  

failing which it would be presumed that they had no  

explanation  to  offer  and  further  action  would  

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thereafter be taken  ex-parte, in accordance with  

law.   

6. It also appears that replies were submitted by  

the Appellants to the Speaker on 9th October, 2010  

indicating that having come to learn from the media  

that a Show-Cause notice had been issued as per the  

orders of the Speaker and had been pasted on the  

doors of the MLA quarters in the MLA hostels at  

Bangalore,  which  were  locked  and  used  by  the  

legislators  only  when  the  House  was  in  session,  

they had the contents of the notices read out to  

them on the basis whereof interim replies to the  

Show-Cause  notices  were  being  submitted.  In  the  

interim  replies  filed  by  the  Appellants  on  9th  

October, 2010, it was categorically indicated that  

the  interim  reply  was  being  submitted,  without  

prejudice and by way of abundant caution, as none  

of  the  documents  seeking  disqualification  had  

either been pasted on the doors of the MLA quarters  

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or forwarded to the Appellants along with the Show-

Cause notice.  Similarly, a copy of the Governor’s  

letter, which was made an enclosure to the Show-

Cause notice, was also not pasted on the doors of  

the  residential  quarters  of  the  Appellants  or  

otherwise served on them personally.  A categorical  

request was made to the Speaker to supply the said  

documents and the Appellants reserved their right  

to give exhaustive replies after going through the  

aforesaid enclosures to the Show-Cause notice as  

and when supplied.   

7. Having said this, the Appellants submitted that  

the  notice  was  in  clear  violation  of  the  

Disqualification Rules, 1986, and especially Rules  

6 and 7 thereof.  It was mentioned that Rule 7(3)  

requires  copies  of  the  petition  and  annexures  

thereto to be forwarded with the Show-Cause notice.  

The notice dated 7th October, 2010 called upon the  

Appellants to appear and reply by 5 p.m. on 10th  

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October, 2010, which was in flagrant violation of  

Rule 7 of the aforesaid Rules which laid down a  

mandatory  procedure  for  dealing  with  a  petition  

seeking disqualification filed under the Rules.  

8.  It was pointed out that Rule 7 requires that  

the Appellants had to be given 7 days’ time to  

reply or such further period as the Speaker may for  

sufficient cause allow.  Under the said Rule the  

Speaker could only extend the period of 7 days, but  

could not curtail the time from 7 days to 3 days.  

It was the categorical case of the Appellants that  

the  minimum  notice  period  of  7  days  was  a  

requirement  of  the  basic  principles  of  natural  

justice in order to enable a MLA to effectively  

reply  to  the  Show-Cause  notice  issued  to  him  

seeking his disqualification from the Legislative  

Assembly.  It was mentioned in the reply to the  

Show-Cause notice that issuance of such Show-Cause  

notice within a truncated period was an abuse and  

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misuse  of  the  Constitutional  provisions  for  the  

purpose of achieving the unconstitutional object of  

disqualifying sufficient number of Members of the  

Assembly from the membership of the House in order  

to prevent them from participating in the Vote of  

Trust  scheduled  to  be  taken  by  Shri  B.S.  

Yeddyurappa on the Floor of the House at 11 a.m. on  

11th October, 2010.  It was contended that the Show-

Cause  notices  was  ex-facie  unconstitutional  and  

illegal, besides being motivated and mala fide and  

devoid of jurisdiction.   

9. In addition to the above, it was also sought to  

be explained that it was not the intention of the  

Appellants to withdraw support to the BJP, but only  

to the Government headed by Shri Yeddyurappa as the  

leader of the BJP in the House.  It was contended  

that  withdrawing  of  support  from  the  Government  

headed  by  Shri  B.S.  Yeddyurappa  as  the  Chief  

Minister of Karnataka did not fall within the scope  

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and  purview  of  the  Tenth  Schedule  to  the  

Constitution  of  India.   It  was  urged  that  the  

conduct of the Appellants did not fall within the  

meaning  of  “defection”  or  within  the  scope  of  

paragraph  2(1)(a)  of  the  Tenth  Schedule  or  the  

scheme and object of the Constitution of India.  It  

was  further  emphasized  that  even  prima  facie,  

“defection”  means  leaving  the  party  and  joining  

another,  which  is  not  the  case  as  far  as  the  

Appellants were concerned who had not left the BJP  

at all.  It was repeatedly emphasized in the reply  

to the Show-Cause notice that the Appellants had  

chosen  to  withdraw  their  support  only  to  the  

Government headed by Shri B.S. Yeddyurappa as Chief  

Minister,  as  he  was  corrupt  and  encouraged  

corruption, and not to the BJP itself, which could  

form another Government which could be led by any  

other person, other than Shri Yeddyurappa, to whom  

the Appellants would extend support.  In the reply  

to the Show-Cause notice it was, inter alia, stated  

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as follows :-

“My letter submitted to H.E. Governor of  Karnataka of withdrawing the support from  the  Government  headed  by  Shri  B.S.  Yeddyurappa as Chief Minister of the State  is an act of an honest worker of the BJP  party  and  a  member  of  the  Legislative  Assembly  to  salvage  the  image  and  reputation of the BJP or the BJP as such.  In fact my letter is aimed at cleansing  the image of the party by getting rid of  Shri B.S. Yeddyurappa as Chief Minister of  the State who has been acting as a corrupt  despot in violation of the Constitution of  India and contrary to the interests of the  people of the State.”

10. It  was  also  categorically  stated  that  as  

disciplined  soldiers  of  the  BJP  the  Appellants  

would continue to support any Government headed by  

a clean and efficient person who could provide good  

governance  to  the  people  of  Karnataka.   The  

Appellants appealed to the Speaker not to become  

the tool in the hands of a corrupt Chief Minister  

and  not  to  do  anything  which  could  invite  

strictures  from  the  judiciary.   A  request  was,  

therefore, made to withdraw the Show-Cause notices  

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and to dismiss the petition dated 6th October, 2010  

moved by Shri B.S. Yeddyurappa, in the capacity of  

the  leader  of  the  Legislature  Party  of  the  

Bharatiya  Janata  Party  and  also  as  the  Chief  

Minister, with mala fide intention and the oblique  

motive of seeking disqualification of the answering  

MLAs  and  preventing  them  from  voting  on  the  

confidence motion on 11th October, 2010.  

11. The  Speaker  took  up  the  Disqualification  

Application  No.1  of  2010  filed  by  Shri  B.S.  

Yeddyurappa, the Respondent No.1 herein, along with  

the replies to the Show-Cause notices issued to the  

thirteen MLAs, who had submitted individual letters  

to  the  Governor  indicating  their  withdrawal  of  

support to the Government led by Shri Yeddyurappa.  

Except  for  Shri  M.P.  Renukacharya  and  Shri  

Narasimha  Nayak,  all  the  other  MLAs  were  

represented by their learned advocates before the  

Speaker.  It was noticed during the hearing that  

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Shri Renukacharya had subsequently filed a petition  

stating that he continued to support the Government  

and  also  prayed  for  withdrawal  of  any  action  

proposed against him.  He reiterated his confidence  

in the Government headed by Shri Yeddyurappa and  

alleged that a fraud had been perpetrated at the  

time when the individual letters were submitted to  

the  Governor  and  that  he  had  no  intention  of  

withdrawing support to the Government in which he  

had full confidence. A similar stand was taken on  

behalf of Shri Narasimha Nayak also.  In addition  

to the above, an affidavit along with supporting  

documents,  affirmed  by  one  Shri  K.S.  Eswarappa,  

State  President  of  the  Bharatiya  Janata  Party  

(B.J.P.)  was  filed  and  it  was  taken  into  

consideration by the Speaker.  On the basis of the  

above, the following two issues were framed by the  

Speaker :

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“(a)Whether  the  respondents  are  

disqualified  under  paragraph  2(1)(a)  of  

Tenth  Schedule  of  the  Constitution  of  

India, as alleged by the Applicant?

(b) Is there a requirement to give seven  

days’ time to the respondents as stated in  

their objection statement?”

12. Answering  the  aforesaid  issues,  the  Speaker  

arrived  at  the  finding  that  after  having  been  

elected from a political party and having consented  

and supported the formation of a Government by the  

leader of the said party, the respondents, who are  

the  Appellants  herein,  other  than  Shri  M.P.  

Renukacharya  and  Shri  Narasimha  Nayak,  had  

voluntarily given up their membership of the party  

by withdrawing support to the said Government.  In  

arriving at such a conclusion, the Speaker took  

into  consideration  the  allegations  made  by  Shri  

Yeddyurappa that after submitting their respective  

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letters to the Governor withdrawing support to the  

Government,  the  said  respondents  had  gone  from  

Karnataka to Goa and other places and had declared  

that they were a separate group and that they were  

together and that they had withdrawn their support  

to the Government.  The Speaker also took personal  

notice of statements alleged to have been made by  

the  Appellants  and  observed  that  they  had  not  

denied  the  allegations  made  by  Shri  Yeddyurappa  

that they had negotiated with the State Janata Dal,  

its  members  and  leader,  Shri  H.D.  Kumaraswamy,  

regarding  formation  of  another  Government.   In  

support of the same, the Speaker relied on media  

reports and the affidavit filed by Shri Eswarappa.  

The Speaker recorded that the same had not been  

denied by the Appellants herein.

13. Referring  to  the  Tenth  Schedule  and  certain  

decisions  of  this  Court  as  to  how  statutory  

provisions are to be interpreted in order to avoid  

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mischief  and  to  advance  remedy  in  the  light  of  

Heyden’s Rule, the Speaker extracted a portion of a  

passage  from  Lord  Denning’s  judgment  in  Seaford  

Court Estates Ltd. Vs. Asher, wherein Lord Denning  

had stated that a Judge must not alter the material  

of which the Act is woven, but he can and should  

iron out the creases.  The Speaker was of the view  

that  in  the  event  of  a  difference  of  opinion  

regarding  leadership  in  a  political  party,  the  

matter had to be discussed in the platform of the  

party and not by writing a letter to the Governor  

withdrawing support to the Government.  The Speaker  

also observed that the Governor never elects the  

leader of the legislature party.  Accordingly, from  

the conduct of the Appellants in writing to the  

Governor that they had withdrawn support, joining  

hands with the leader of another party and issuing  

statements to the media, it was evident that by  

their conduct the Appellants had become liable to  

be  disqualified  under  the  Tenth  Schedule.   In  

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coming to the said conclusion, the Speaker placed  

reliance on several decisions of this Court and in  

particular, the decision in Ravi S. Naik Vs. Union  

of  India [(1994)  Suppl.2  SCC  641],  wherein  the  

question  of  a  member  voluntarily  giving  up  his  

membership of a political party was considered in  

detail.  Special  emphasis  was  laid  on  the  

observation made in the said decision to the effect  

that  a  person  can  voluntarily  give  up  his  

membership of a political party even though he may  

not  have  tendered  his  resignation  from  the  

membership of the party.  In the said decision it  

was further observed that even in the absence of a  

formal  resignation  from  membership,  an  inference  

could be drawn from the conduct of a member that he  

had  voluntarily  given  up  his  membership  of  the  

political party to which he belonged.   

14. The Speaker also referred to and relied on the  

decision of this Court in Jagjit Singh Vs. State of  

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Haryana [(2006)  11  SCC  1],  wherein,  it  was  

expressed that to determine whether an independent  

member had joined a political party, the test to be  

considered  was  whether  he  had  fulfilled  the  

formalities  for  joining  a  political  party.   The  

test was whether he had given up his independent  

character  on  which  he  was  elected  by  the  

electorate.

15. Yet another decision relied upon by the Speaker  

was the decision in Rajendra Singh Rana & Ors. Vs.  

Swami  Prasad  Maurya  &  Ors. [(2007)  4  SCC  270],  

wherein  the  question  of  voluntarily  giving  up  

membership  of  a  political  party  was  also  under  

consideration. The Speaker relied on paragraphs 48  

and  49  of  the  said  judgment,  wherein  it  was  

indicated  that  the  act  of  giving  a  letter  

requesting the Governor to call upon the leader of  

the other side to form a Government would itself  

amount  to  an  act  of  voluntarily  giving  up  the  

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membership of the party on whose ticket the member  

was elected.   

16. The Speaker observed that the Appellants herein  

had  not  denied  their  conduct  anywhere  and  had  

justified  the  same  even  during  their  arguments.  

The Speaker was of the view that by their conduct  

the  Appellants  had  voluntarily  given  up  the  

membership  of  the  party  from  which  they  were  

elected, which attracted disqualification under the  

Tenth Schedule.  The Speaker further held that the  

act of withdrawing support and acting against the  

leader  of  the  party  from  which  they  had  been  

elected, amounted to violation of the object of the  

Tenth  Schedule  and  that  any  law  should  be  

interpreted  by  keeping  in  mind  the  purpose  for  

which it was enacted.   

17. The Speaker then took note of the retraction by  

Shri M.P. Renukacharya and Shri Narasimha Nayak,  

indicating  that  they  had  no  intention  of  

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withdrawing support to the Government led by Shri  

Yeddyurappa and that they extended support to the  

party and the Government and their elected leader.  

The Speaker also relied on the affidavit filed by  

Shri K.S. Eswarappa   and on considering the same,  

arrived at the decision that the said two MLAs were  

not disqualified under the Tenth Schedule of the  

Constitution.   As  far  as  the  Appellants  are  

concerned, the Speaker held that in view of the  

reasons stated and the factual background, he was  

convinced that they were disqualified from their  

respective posts of MLAs under paragraph 2(1)(a) of  

the Tenth Schedule of the Constitution.   

18. The Speaker then took up the objection taken on  

behalf of the Appellants herein that the Show-Cause  

notice  to  the  Appellants  had  been  issued  in  

violation of the provisions of Rules 6 and 7 of the  

Karnataka Legislative Assembly (Disqualification of  

Members  on  Ground  of  Defection)  Rules,  1986,  

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hereinafter  referred  to  as  “the  Disqualification  

Rules,1986”, inasmuch as, they were not given seven  

days’ time to reply to the Show-Cause notice, as  

contemplated by Rule 7(3) of the aforesaid Rules.  

The  Speaker,  without  answering  the  objection  

raised, skirted the issue by stating that it was  

sufficient  for  attracting  the  provisions  of  

paragraph  2(1)(a)  of  the  Tenth  Schedule  to  the  

Constitution of India that the Appellants herein  

had admitted that they had withdrawn support to the  

Government.   The Speaker further recorded that the  

Appellants had been represented by counsel who had  

justified  the  withdrawal  of  support  and  

“recognizing themselves with the leader and MLAs of  

another party”. Without giving details, the Speaker  

observed  that  this  Court  had  stated  that  the  

Disqualification  Rules  were  directory  and  not  

mandatory as they were to be followed for the sake  

of convenience.  The stand taken by the Speaker was  

that since the Appellants had appeared and filed  

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objection  and  submitted  detailed  arguments,  the  

objection taken with regard to insufficient time  

being given in violation of the Rules to reply to  

the  Show-Cause  notice,  was  only  a  technical  

objection and was not relevant to a decision in the  

matter.  On the basis of his aforesaid reasoning,  

the Speaker rejected the objection filed on behalf  

of  Appellants  and  went  on  to  disqualify  the  

Appellants herein under paragraph 2(1)(a) of the  

Tenth Schedule to the Constitution with immediate  

effect.  The application seeking disqualification  

of Shri M.P. Renukacharya and Shri Narasimha Nayak  

was dismissed.   

19. The Appellants herein challenged the decision  

of the Speaker in Writ Petition Nos.32660-32670 of  

2010,  which  were  listed  for  hearing  before  the  

Chief  Justice  of  Karnataka  and  the  Hon’ble  Mr.  

Justice  N.  Kumar.  In  his  judgment,  the  Hon’ble  

Chief  Justice  took  up  the  objections  taken  on  

24

behalf of the Appellants herein, beginning with the  

objection that the application for disqualification  

filed  by  Shri  Yeddyurappa  was  not  in  conformity  

with  Rules  6  and  7  of  the  Defection  Rules.  

Referring to Sub-rules (5) and (6) of Rule 6, the  

Chief Justice held that there had been substantive  

compliance with the said Rules which had been held  

to be directory in nature and that it would not be  

possible merely on account of the violation of the  

procedure contemplated under the Rules to set aside  

the order of the Speaker, unless the violation of  

the  procedure  was  shown  to  have  resulted  in  

prejudice to the Appellants.  Repeating the reasons  

given by the Speaker to reject the objection of the  

Appellants on the aforesaid score and relying on  

the judgments rendered by this Court in  Ravi S.  

Naik’s  case  (supra)  and  in  the  case  of  Dr.  

Mahachandra  Prasad  Singh vs.  Chairman,  Bihar  

Legislative Council & Ors. [(2004) 8 SCC 747] the  

Chief  Justice  held  that  it  was  not  possible  to  

25

accept the contentions of the learned counsel for  

the Appellants and rejected the same.   

20. On the second contention relating to violation  

of the rules of natural justice and the proceedings  

conducted by the Speaker in extreme haste, thereby  

depriving  the  Appellants  of  a  reasonable  

opportunity  of  defending  themselves,  the  Chief  

Justice, placing reliance on the decision in  Ravi  

S.  Naik’s  case  (supra),  negated  the  submissions  

made on behalf of the Appellants upon holding that  

since  no  prejudice  had  been  caused  to  the  

Appellants,  it  was  difficult  to  accept  the  

contention advanced on their behalf that the entire  

proceedings  of  the  Speaker  deserved  to  be  set  

aside.

21. Regarding the other objection taken on behalf  

of  the  Appellants  on  the  question  of  reliance  

having been placed on the affidavit filed by the  

State President of the Bharatiya Janata Party, the  

26

Chief Justice held that none of the Appellants had  

disputed  the  factual  position  expressed  in  the  

newspaper  cuttings  which  formed  part  of  the  

affidavit and that the submission made on behalf of  

the Appellants that had they been afforded proper  

time to deal with the said affidavit, they would  

have been able to show that the facts recorded in  

the  newspaper  article  were  incorrect,   was,  

therefore, without any basis.   

22. On the main question as to whether the action  

of the Appellants had attracted the provisions of  

paragraph  2(1)(a)  of  the  Tenth  Schedule  to  the  

Constitution,  the  Chief  Justice  came  to  a  

categorical  finding  that  the  Appellants  had  

defected from the Bharatiya Janata Party and had  

voluntarily  given  up  their  membership  thereof.  

Furthermore,  while  doing  so,  the  Appellants  had  

indicated  that  the  constitutional  machinery  had  

broken  down  leading  to  a  situation  where  the  

27

governance of the State could not be carried on in  

accordance with the Constitution and requested the  

Governor  to  intervene  and  institute  the  

constitutional process as the constitutional head  

of the State.  Referring to the wordings of Article  

356  of  the  Constitution  which  provides  for  

proclaiming President’s Rule in a State where it  

was no longer possible to carry on the governance  

of the State in accordance with the provisions of  

the Constitution of India, the Chief Justice agreed  

with  the  view  expressed  by  the  Speaker  that  by  

withdrawing support from the Government led by Shri  

Yeddyurappa, the Appellants had voluntarily chosen  

to  disassociate  themselves  from  the  Bharatiya  

Janata Party with the intention of bringing down  

the Government.  

23. The Chief Justice also rejected the allegations  

of mala fide on account of the speed with which the  

Speaker  had  conducted  the  disqualification  

28

proceedings within five days i.e. one day ahead of  

the  Trust  Vote  which  was  to  be  taken  by  Shri  

Yeddyurappa  on  the  Floor  of  the  Assembly.   The  

Chief Justice, accordingly, found no merit in any  

of  the  contentions  raised  on  behalf  of  the  

Appellants  and  holding  that  the  order  of  the  

Speaker  did  not  suffer  from  any  infirmity,  

dismissed  the  Writ  Petitions  filed  by  the  

Appellants.  

24. Mr. Justice N. Kumar, who, along with the Chief  

Justice,  heard  the  writ  petition  filed  by  the  

Appellants  herein,  in  his  separate  judgment,  

differed  with  the  views  expressed  by  the  Chief  

Justice  in  regard  to  the  interpretation  of  

paragraph  2(1)(a)  of  the  Tenth  Schedule  of  the  

Constitution.  Observing that in a parliamentary  

democracy the mandate to rule the State is given  

not to any individual but to a political party, the  

learned Judge further observed that the Council of  

29

Ministers headed by the Chief Minister can continue  

in  the  office  as  long  as  they  enjoyed  the  

confidence of the majority of the Members of the  

House. If the House expressed no confidence in the  

Chief Minister, it was not only the Chief Minister,  

but his entire Council of Ministers who cease to be  

in  office.   Regarding  interpretation  of  the  

provisions  of  paragraph  2(1)(a)  of  the  Tenth  

Schedule of the Constitution, Kumar,J., referred to  

the  decisions  rendered  by  this  Court  in  -  (1)  

Kihoto Hollohan Vs. Zachillhu & Ors. [(1992) Supp.2  

SCC 651]; (2)  G. Viswanathan Vs.  Hon’ble Speaker  

Tamil  Nadu  Legislative  Assembly,  Madras  &  Anr.  

[(1996)  2  SCC  353];  (3)  Dr.  Mahachandra  Prasad  

Singh Vs.  Chairman,  Bihar  Legislative  Council  &  

Ors. [(2004) 8 SCC 747]; and (4)  Rajendra Singh  

Rana & Ors Vs. Swami Prasad Maurya & Ors. [(2007) 4  

SCC 270], and held that from the scheme of the  

Tenth Schedule it was clear that the same applied  

only to a Member of the House.  Such Member could  

30

be elected on the ticket of any political party or  

as  an  Independent,  but  a  member  of  a  political  

party who is elected as a Member of the House,  

would  automatically  become  a  member  of  the  

Legislature Party in the said House.  The learned  

Judge held that paragraph 2 of the Tenth Schedule  

deals  with  disqualification  of  Members  of  the  

House.  The learned Judge also held that paragraph  

2(1) deals with disqualification of a Member of a  

House  who  belongs  to  a  political  party,  while  

paragraph  2(2)  deals  with  disqualification  of  a  

Member of a House elected as an Independent.  In  

the  case  of  a  Member  of  a  House  elected  as  an  

Independent  candidate,  the  question  of  his  

voluntarily giving up his membership of a political  

party would not arise.  Similarly, when he did not  

belong  to  any  political  party,  the  question  of  

voting  or  abstaining  from  voting  in  such  House  

contrary to the directions issued by the political  

party would not arise.  The learned Judge observed  

31

that once a person gets elected as an Independent  

candidate, the mandate of the voters is that he  

should remain independent throughout his tenure in  

the House and under no circumstances could he join  

any political party.  However, in the case of a  

Member of the House belonging to a political party,  

the  disqualification  occurs  when  he  voluntarily  

gives up the membership of that political party.  

It is because of the mandate of the people that he  

should continue to be the member of that political  

party  which  set  him  up  as  a  candidate  for  the  

election.  He was, however, free to give up his  

membership of the party, but for the said purpose  

he had to resign from the membership of the House  

as well as the membership of the political party  

and then contest the election in the vacancy caused  

because of his resignation and then only he would  

have an independent course of choice.   

32

25. After analyzing the intent behind the inclusion  

of  the  Tenth  Schedule  to  the  Constitution,  the  

learned Judge also observed that the anti-defection  

law  was  enacted  to  prevent  floor  crossing  and  

destabilizing the Government which is duly elected  

for a term.  If, however, a Member of the House  

voluntarily gave up his membership of a political  

party, the object of the anti-defection law was to  

prevent  him  from  extending  support  to  the  

opposition party to form the Government by his vote  

or  to  ensure  that  if  he  has  resigned  from  the  

membership  of  a  party,  his  support  was  not  

available for forming an alternative Government by  

the opposition party.  The learned Judge observed  

that if a Member violates the above conditions, the  

Parliament has taken care to see by enacting the  

Tenth Schedule that such Member would be instantly  

disqualified  from  being  a  Member  of  the  House.  

Once  the  act  of  disqualification  occurred,  the  

question of condoning such act or taking him back  

33

to  the  party  on  his  tendering  an  apology  or  

expressing his intention to come back to the party,  

would  not  arise.   Therefore,  if  the  act  falls  

within the ambit of paragraph 2(1)(a) of the Tenth  

Schedule, his membership becomes void.  However, if  

such disqualification was incurred under paragraph  

2(1)(b), such disqualification did not render his  

membership void but it was voidable at the option  

of the political party.   

26. The learned Judge went on to further hold that  

when  a  Member  of  a  House  expressed  his  no-

confidence in the leader of a Legislature Party and  

if he happened to be the Chief Minister who is  

heading the Council of Ministers and had written to  

the Governor in that regard, such act by itself  

would  not  amount  to  an  act  of  floor  crossing.  

Similarly, if the Governor, after taking note of  

the expression of no-confidence, was satisfied that  

the Chief Minister had lost majority support in the  

34

House, he could call upon the Chief Minister to  

prove his majority on the Floor of the House.  It  

was further observed that if the Chief Minister, on  

such request,  failed to establish that he enjoyed  

the support of the majority of the Members, his  

Ministry would fall, but such act of the Member of  

the House would not constitute ‘defection’ under  

the Tenth Schedule.  By such act, the political  

party which had formed the Government, would not  

lose its right to form a Government again.  It is  

not as if the Governor can recommend the imposition  

of  President’s  Rule  under  Article  356  of  the  

Constitution  or  call  upon  the  leader  of  the  

opposition to form an alternative Government after  

the  fall  of  the  earlier  Government.   Before  

embarking  upon  either  of  the  two  options,  the  

Governor was expected to explore the possibility of  

formation of an alternative Government. The Speaker  

could call upon the leader who enjoyed the majority  

support of the Members of the House to form an  

35

alternative Government. In such case it was open to  

the political party, whose Government had fallen on  

the Floor of the House, to once again stake a claim  

before the Governor, either with the same leader or  

another leader elected by the party, by showing the  

majority support of the Members of the House.  In  

that a situation, the stability of the Government  

of the political party is not disturbed.  On the  

other hand, what is disturbed by such an act is the  

Government of the political party with a particular  

leader in whom the Members of the House belonging  

to  the  same  political  party  have  no  confidence.  

But this would not mean that the member of the  

political  party  to  which  the  Chief  Minister  

belonged  had  given  up  his  membership  of  the  

political party. Other provisions have been made in  

the Constitution for dealing with such dissenting  

members.  In such a case, by issuing a whip, those  

who had expressed their no-confidence in the leader  

of the House, can be directed to vote in his favour  

36

at the time of voting on the floor of the House.  

Once such direction is given, the member concerned  

can neither abstain from voting nor vote contrary  

to  the  direction.   If  he  does  so,  he  incurs  

disqualification  under  paragraph  2(1)(b)  of  the  

Tenth Schedule to the Constitution.  The learned  

Judge  observed  further  that,  in  fact,  the  said  

provision  also  provides  for  such  an  act  being  

condoned so that by persuasion or by entering into  

an  understanding,  their  support  could  still  be  

relied upon by the party to save the Government  

before  voting  or  in  forming  a  fresh  Government  

after such voting, if in the voting the Government  

fails.  The said dissent amounts to the dissent  

within the party itself.   

27. The learned Judge observed that the two grounds  

set out in paragraph 2 of the Tenth Schedule to the  

Constitution are mutually exclusive and operate in  

two different fields. While paragraph 2(1)(a) deals  

37

with the Member who voluntarily walks out of the  

party, paragraph 2(1)(b) deals with the Member who  

remains in the party but acts in a manner which is  

contrary  to  the  directions  of  the  party.  The  

learned Judge, however, went on to observe that if  

a Member voluntarily gives up his membership from  

the  party,  then  paragraph  2(1)(b)  is  no  longer  

attracted.  In either event, it is the political  

party which is aggrieved by such conduct.  However,  

it was left to the party to condone the conduct  

contemplated in paragraph 2(1)(b), but such conduct  

would have to be condoned within 15 days from the  

date of such voting or abstention.

28.  Having  dealt  with  the  various  decisions  

referred to hereinabove, the learned Judge came to  

the conclusion that it was clear that an act of no  

confidence in the leader of the legislative party  

does not amount to his voluntarily giving up the  

membership of the political party.  Similarly, his  

38

act of expressing no confidence in the Government  

formed by the party, with a particular leader as  

Chief  Minister,  would  not  also  amount  to  a  

voluntary act of giving up the membership of the  

political party. The learned Judge further observed  

that  deserting  the  leader  and  deserting  the  

Government  is  not  synonymous  with  deserting  the  

party.  If a Minister resigned from the Ministry,  

it would not amount to defection.  What constitutes  

defection  under  paragraph  2(1)(a)  of  the  Tenth  

Schedule is deserting the party. The learned Judge  

observed  that  dissent  is  not  defection  and  the  

Tenth Schedule while recognising dissent prohibits  

defection.   

29. The learned Judge also considered the case of  

Shri M.P. Renukacharya and Shri Narasimha Nayak,  

who  were  among  the  13  members  against  whom  the  

disqualification  petition  had  been  filed  by  the  

Chief Minister.  The learned Judge pointed out that  

39

along with the Appellants herein, the aforesaid two  

members had also signed a representation which had  

been given to the Governor and if such an act would  

amount to voluntarily giving up the membership of a  

political party and the case fell within paragraph  

2(1)(a), the disqualification becomes automatic and  

the membership of such persons becomes void. The  

question of those members retracting their steps  

and  reaffirming  their  confidence  in  the  Chief  

Minister  and  the  Party  President  confirming  the  

same on a subsequent date, is of no consequence.  

The learned Judge held that the same yardstick had  

not been applied for the Appellants and the two  

other  members  against  whom  the  disqualification  

petition filed by the Chief Minister was dismissed.  

30. Expressing his views with regard to the manner  

in which the Speaker had acted in the matter in hot  

haste,  the  learned  Judge  referred  to  paragraphs  

180, 181 and 182 of the decision rendered by this  

40

Court in Kihoto Hollohan’s case (supra), which was  

the  minority  view,  but  had  suggested  that  the  

office of the Speaker which was attached with great  

dignity should not be made the target of bias since  

his tenure as Speaker is dependent on the will of  

the  majority  of  the  House.   While  holding  that  

right to dissent is the essence of democracy, for  

the  success  of  democracy  and  democratic  

institutions honest dissent is to be respected by  

persons in authority. On the basis of his aforesaid  

conclusions, the learned Judge held that the order  

of the Speaker impugned in the writ petition was in  

violation of the constitutional mandate and also  

suffered from perversity and could not, therefore,  

be sustained.  The impugned order of the Speaker  

was, therefore, set aside by the learned Judge.  

31. On  account  of  such  difference  of  opinion  

between the Chief Justice and his companion Judge,  

41

the  matter  was  referred  to  a  third  Judge  to  

consider the following issue :-

“Whether  the  impugned  order  dated  10.10.2010  passed  by  the  Speaker  of  the  Karnataka State Legislative Assembly is in  consonance  with  the  provisions  of  paragraph 2(1)(a) of the Tenth Schedule of  the Constitution of India.”

32. On the basis of the said reference, the matter  

was  referred  to  the  Hon’ble  Mr.  Justice  V.G.  

Sabhahit, who by his judgment and order dated 29th  

October, 2010, concurred with the decision rendered  

by the Chief Justice upholding the order passed by  

the Speaker.  As a result, the majority view in the  

writ  petitions  was  that  the  Hon’ble  Speaker  was  

justified in holding that the Appellants herein had  

voluntarily resigned from their membership of the  

Bharatiya  Janata  Party  by  their  conduct,  which  

attracted the provisions of paragraph 2(1)(a) of  

the  Tenth  Schedule  to  the  Constitution  and  were  

42

rightly  disqualified  from  the  membership  of  the  

House.  

33. Mr.  R.F.  Nariman,  learned  Senior  Advocate,  

appearing  for  the  Appellants  in  SLP(C)Nos.33123-

33155 of 2010,  Balchandra L. Jarkiholi & Ors. Vs.  

B.S. Yeddyurappa & Ors. (now appeals), questioned  

the order of the Speaker dated 10th October, 2010,  

disqualifying the Appellants from membership of the  

House, on grounds of mala fide and violation of  

Rules  6(5)(b)  and  7(3)  of  the  Disqualification  

Rules,  1986,  as  also  the  principles  of  natural  

justice.   Contending that the order passed by the  

Speaker on 10th October, 2010, was vitiated by mala  

fides, Mr. Nariman submitted that the same had been  

passed with the oblique motive of preventing the  

Appellants  from  participating  in  the  Trust  Vote  

which was to be taken by the Chief Minister on 11th  

October, 2010.  Learned counsel also submitted that  

the letters dated 6th March, 2010, addressed by the  

43

Appellants  individually  along  with  Shri  M.P.  

Renukacharya  and  Shri  Narasimha  Nayak  to  the  

Governor  did  not  even  suggest  that  they  had  

intended to leave the Bharatiya Janata Party or to  

join  another  political  party  but  that  they  were  

disillusioned  with  the  functioning  of  the  

Government  under  Shri  B.S.  Yeddyurappa  and  had,  

therefore,  decided  to  withdraw  support  to  the  

Government headed by him.  Furthermore, apart from  

mentioning that the Appellants had written to the  

Governor  withdrawing  their  support  to  the  

Government,  the  Disqualification  Application  does  

not also contain any averment that the Appellants  

had met any person from any other political party.  

Although  certain  press  statements  had  been  

mentioned in the petition, the same had not been  

annexed to the application.   Mr. Nariman submitted  

that, in fact, no documentary evidence was at all  

annexed to the said application.

44

34. In  addition  to  the  above,  Mr.  Nariman  also  

pointed out that the Disqualification Application  

had not been properly verified in terms of Rules  

6(6) of the Disqualification Rules, 1986, and that  

the said application was, therefore, liable to be  

rejected on such ground also. Instead of rejecting  

the  application  or  even  returning  the  same  for  

proper verification, the Speaker chose to ignore  

the shortcomings and issued Show-Cause notices to  

the  Appellants  in  undue  haste  with  the  oblique  

motive of disqualifying them from the membership of  

the House prior to the Trust Vote to be taken on  

11th October,  2010.   Applications  sans  annexures  

were not even served on the Appellants, but merely  

pasted on the doors of the official residence of  

the Appellants which were locked since the Assembly  

was not in session.  Mr. Nariman submitted that the  

Appellants were granted time till 5.00 p.m. on 10th  

October, 2010, to respond to the Show-Cause notices  

although Rule 7(3) provided for seven days’ time or  

45

more to respond to such an application.  Instead,  

in  complete  violation  of  the  said  Rules,  the  

Appellants  were  given  only  three  days’  time  to  

respond  to  the  Show-Cause  notices  and  even  more  

serious objection was taken by Mr. Nariman that it  

was in the Show-Cause notices that for the first  

time,  it  was  stated  that  the  actions  of  the  

Appellants were in violation of paragraph 2(1)(a)  

of the Tenth Schedule of the Constitution, although  

no  such  specific  averment  had  been  made  by  the  

Respondent No.1 in his application.  It was urged  

that on account of the short time given by the  

Speaker to the Appellants to respond to the Show-

Cause notices, they could only submit an interim  

reply  of  a  general  nature  and  it  had  been  

categorically mentioned that on receipt of all the  

documents  on  which  reliance  had  been  placed,  a  

detailed response would be given to the Show-Cause  

notices.   Mr.  Nariman  contended  that  certain  

documents  were  made  available  to  the  learned  

46

Advocate of the Appellants just before the hearing  

was  to  be  conducted  before  the  Speaker  on  10th  

October, 2010, which contained facts which could be  

answered  only  by  the  Appellants  personally.  

However, since the Appellants were not available in  

Karnataka at the relevant point of time, it was not  

possible  for  the  learned  Advocate  appearing  on  

their behalf to respond to the issues raised in the  

additional documents.  It was submitted that the  

Speaker  acted  against  all  principles  of  natural  

justice and the propriety in taking on record the  

affidavit affirmed by the State President of the  

Bharatiya Janata Party Shri K.S. Eswarappa, with  

the sole intention of supplying the inadequacies in  

the  Disqualification  Application  filed  by  Shri  

Yeddyurappa.   In addition, the Speaker also took  

into  consideration  the  statements  of  retraction  

made by Shri M.P. Renukacharya and Shri Narasimha  

Nayak  and  allowed  the  same,  whereafter  they  

proceeded  to  make  allegations  against  the  

47

Appellants that they had intended to remove the BJP  

Government  and  to  support  any  Government  led  by  

Shri H.D. Kumaraswamy.  Mr. Nariman submitted that  

the Speaker had applied two different yardsticks as  

far as the Appellants and Shri M.P. Renukacharya  

and Shri Narasimha Nayak are concerned, despite the  

fact that they too had written identical letters to  

the Governor withdrawing support to the Government  

led  by  Shri  Yeddyurappa.   Mr.  Nariman  submitted  

that once Shri M.P. Renukacharya and Shri Narasimha  

Nayak had written to the Governor expressing their  

decision  to  withdraw  support  to  the  Government  

headed  by  Shri  Yeddyurappa,  the  provisions  of  

paragraph 2(1)(a) of the Tenth Schedule came into  

operation immediately and the Speaker was no longer  

competent to reverse the same.    

35. Mr. Nariman submitted that the action taken by  

the  Speaker  on  the  Disqualification  Application  

filed  against  Shri  M.P.  Renukacharya  and  Shri  

48

Narasimha  Nayak  made  it  obvious  that  such  steps  

were taken by the Speaker to save the membership of  

the said two MLAs to enable them to participate in  

the Trust Vote.  It was also submitted that to make  

matters  worse,  the  Speaker  took  personal  notice  

about  the  statements  allegedly  made  by  the  

Appellants to the effect that they wanted to topple  

the BJP Government and to form a new Government  

with  the  others.   It  was  submitted  that  while  

performing an adjudicatory function under the Tenth  

Schedule, while holding a highly dignified office,  

all personal knowledge which the Speaker may have  

acquired,  should  not  have  been  taken  into  

consideration in taking a decision in the matter.  

In  this  regard,  Mr.  Nariman  referred  to  the  

decision of this Court in S. Partap Singh Vs. State  

of Punjab [(1964) 4 SCR 733], wherein it was held  

that  if  while  exercising  a  power,  an  authority  

takes  into  account  a  factor  which  it  was  not  

entitled to, the exercise of the power would be  

49

bad.  However,  where  the  purpose  sought  to  be  

achieved  are  mixed,  some  relevant  and  some  not  

germane to the purpose, the difficulty is resolved  

by finding the dominant purpose which impelled the  

action and where the power itself is conditioned by  

a purpose, such exercise of power was required to  

be invalidated.   

36. Mr. Nariman submitted that at every stage the  

Speaker  had  favoured  Shri  Yeddyurappa  and  even  

though Rule 7(2) of the 1986 Rules provided for the  

dismissal of the petition which did not comply with  

the requirements of Rule 6, as in the present case,  

the Speaker did not do so.  Even the period of  

seven days’ which was required to be granted to  

allow the Appellants to respond to the Show-Cause  

notices, only three days’ time was given to the  

Appellants to submit their response which could be  

done  only  in  a  hurried  manner  for  an  interim  

purpose  and  despite  the  request  made  by  the  

50

Appellants to the Speaker to postpone the date in  

order to give the Appellants a proper opportunity  

of responding to the allegations contained in the  

Show-Cause notices, such request was turned down  

thereby denying the Appellants a proper opportunity  

of  representing  their  case,  particularly  when  

neither  the  Show-Cause  notices  nor  the  

Disqualification  Application  filed  by  Shri  

Yeddyurappa  along  with  all  annexures  had  been  

supplied to the Appellants.

37. Referring  to  the  decisions  which  had  been  

mentioned by the Speaker in his order, Mr. Nariman  

pointed out that both in Mahachandra Prasad Singh’s  

case and also in Ravi S. Naik’s case (supra), this  

Court  had  held  that  the  1986  Rules  were  only  

directory in nature and that as a result the order  

dated 10th October, 2010, could be questioned not  

only on the ground of violation of the Rules, but  

in the facts of the case itself.  It was pointed  

51

out that in Mahachandra Prasad Singh’s case it had  

never been disputed that the petitioner therein had  

been  elected  to  the  Legislative  Council  on  an  

Indian National Congress ticket and had contested  

Parliamentary  elections  as  an  independent  

candidate.  It was submitted that it was in such  

background that this Court had held that non-supply  

of  a  copy  of  the  letter  of  the  Leader  of  the  

Congress  Legislative  Party  had  not  caused  any  

prejudice  to  the  petitioner.   Mr.  Nariman  

reiterated  that  the  Appellants  had  all  said  in  

separate voices that they had not left the BJP and  

had only withdrawn support to the Government led by  

Shri  Yeddyurappa  and  that  they  were  ready  to  

support  any  new  Government  formed  by  the  BJP,  

without Shri Yeddyurappa as its leader.

38. Mr. Nariman also referred to the decision of  

this Court in  Kihoto Hollohan’s case (supra) and  

urged  that  the  order  of  disqualification  passed  

52

against the Appellants for merely expressing their  

disagreement with the manner of functioning of the  

Respondent  No.1  as  Chief  Minister,  had  not  only  

impinged upon the Appellants’ right of free speech,  

as  guaranteed  under  Article  19(1)(a)  of  the  

Constitution, but from a bare reading of the letter  

dated 6th October, 2010, written by the Appellants  

to the Governor, it could not be held that the same  

indicated their intention to voluntarily give up  

the membership of the BJP.  Mr. Nariman submitted  

that  the  impugned  orders  and  the  order  of  the  

Speaker dated 10th October, 2010, were unsustainable  

since  they  had  been  engineered  to  prevent  the  

Appellants  from  participating  in  the  Vote  of  

Confidence fixed on 11th October, 2010.            

39. Mr.  P.P.  Rao,  learned  Senior  Advocate,  who  

appeared for the Appellants in the Civil Appeals  

arising  out  of  Special  Leave  Petition  (Civil)  

Nos.33533-33565 of 2010, submitted that in order to  

53

attract the disqualification clause under paragraph  

2(1)(a) of the Tenth Schedule, Shri Yeddyurappa had  

first  to  establish  that  the  Appellants  had  

voluntarily given up their membership of the BJP.  

It  was  submitted  that  in  the  Disqualification  

Application filed by Shri Yeddyurappa, there is no  

averment  to  the  said  effect  and  what  has  been  

averred is that the Appellants had withdrawn their  

support  to  his  government  and  had  informed  the  

Governor of Karnataka about their decision, despite  

there  being  no  decision  in  the  party  in  this  

regard, which made such action a clear violation of  

the Tenth Schedule to the Constitution.  Mr. Rao  

submitted that the Disqualification Application did  

not even refer to paragraph 2(1)(a) of the Tenth  

Schedule  to  the  Constitution  and  that  the  same  

should,  therefore,  have  been  rejected  by  the  

Speaker in terms of Rule 6(2) of the 1986 Rules.  

54

40. Reiterating Mr. Nariman’s submissions, Mr. Rao  

submitted  that  withdrawal  of  support  by  the  

Appellants  to  the  Government  led  by  Shri  

Yeddyurappa  did  not  amount  to  voluntarily  

relinquishing the membership of the BJP since the  

Government  led  by  a  particular  leader  and  the  

political party are not synonymous.   Mr. Rao also  

urged  that  asking  the  Governor  to  institute  the  

constitutional  process  for  replacing  one  Chief  

Minister  by  another,  did  not  also  amount  to  

voluntary relinquishment of the membership of the  

party.  According to Mr. Rao, withdrawal of support  

to  the  incumbent  Chief  Minister  and  intimation  

thereof to the Governor, could, at best, be said to  

be a pre-voting exercise in regard to the Vote of  

Confidence sought by the Chief Minister, but the  

question of disqualification will arise only if the  

Appellants  voted  in  the  House  contrary  to  the  

directions of the whip issued by the BJP.  However,  

even such a transgression could be condoned by the  

55

party  within  15  days  of  such  voting.  Mr.  Rao  

submitted  that  announcement  of  withdrawal  of  

support to the Chief Minister before actual voting  

in violation of the whip would not bring the case  

within the ambit of paragraph 2(1)(a) of the Tenth  

Schedule to the Constitution and make him liable to  

disqualification.    

41. Mr. Rao submitted that the minority view taken  

by  N.  Kumar,  J.  that  “dissent”  could  not  be  

regarded as defection was a correct view and did  

not amount to voluntarily relinquishing membership  

of the political party, since such act expresses a  

lack of confidence in the leader of the party, but  

not in the party itself. Quoting the minority view  

expressed by N. Kumar, J., Mr. Rao submitted that  

the object of paragraph 2(1)(a) was not to curb  

internal democracy or the right to dissent, since  

dissent  is  the  very  essence  of  democracy,  but  

neither  the  Chief  Justice  nor  V.G.  Sabhahit,  J.  

56

even  adverted  to  such  basic  principle  of  

Parliamentary  democracy  and  erred  in  equating  

withdrawal of support to the Government led by Shri  

B.S. Yeddyurappa with withdrawing support to the  

BJP  Government.   According  to  Mr.  Rao,  the  

Appellants were only doing their duty as conscious  

citizens to expose the corruption and nepotism in  

the Government led by Shri B.S. Yeddyurappa.  Mr.  

Rao referred to and relied upon the decisions of  

this  Court  in  (1)  State  of  M.P. Vs.  Ram  Singh  

[(2000) 5 SCC 88] and (2) B.R. Kapur Vs. State of  

T.N. [(2001) 7 SCC 231], wherein, such sentiments  

had also been expressed. Mr. Rao contended that it  

is  a  well-settled  principle  of  law  that  when  a  

power is conferred by the Statute and the procedure  

for executing such power is prescribed, the power  

has  to  be  exercised  according  to  the  procedure  

prescribed or not at all.  In this regard, Mr. Rao  

referred to the celebrated decision of the Privy  

Council in Nazir Ahmad Vs. King Emperor [63 Indian  

57

Appeals 372] and  State of U.P. Vs.  Singhara Singh  

[(1964) 4 SCR 485].  Mr. Rao urged that the 1986  

Rules had a statutory flavour and had to be treated  

as part of the Representation of the Peoples Act,  

1951.  Going one step further, Mr. Rao also urged  

that the Rules and Administrative Instructions lay  

down  certain  norms  and  guidelines  and  violation  

thereof  would  attract  Article  14  of  the  

Constitution  and  even  if  the  said  Rules  were  

directory, they had to be substantially complied  

with.  

42. Mr.  Rao  also  contended  that  the  order  of  

disqualification passed by the Speaker was vitiated  

by mala fide on the part of the Chief Minister Shri  

Yeddyurappa,  who  filed  the  application  for  

disqualification with the deliberate intention of  

preventing the Appellants from participating in the  

Trust Vote to be taken on 11th October, 2010.   It  

was urged that such mala fide acts on the part of  

58

the Speaker would be evident from the fact that  

although the Disqualification Application did not  

conform to Rules 6(4), (6) and (7) of the 1986  

Rules read with Order VI Rule 15(2)(4) of the Code  

of Civil Procedure, the same was entertained by the  

Speaker  and  a  separate  page  of  verification  was  

subsequently inserted, which ought not to have been  

permitted by the Speaker.  Mr. Rao reiterated the  

submissions  made  by  Mr.  Nariman  that  the  

Disqualification  Application  was  liable  to  be  

dismissed under Rule 7(2) of the aforesaid Rules  

which says that “if the petition does not comply  

with the requirement of Rule 6, the Speaker shall  

dismiss the petition and intimate the petitioner”.  

Despite  the  fact  that  the  application  was  not  

properly  verified,  the  same  was  not  dismissed.  

Mr. Rao submitted that in blatant disregard of the  

above-mentioned Rules, the Speaker had entertained  

the defective petition filed by Shri Yeddyurappa in  

complete disregard of Rules 6 and 7 of the 1986  

59

Rules.  It was submitted that the said steps were  

taken  by  the  Speaker  in  a  partisan  manner  and  

against the highest traditions of the Office of the  

Speaker with the obvious intention of bailing out  

the Chief Minister to whom he owed his Chair as  

Speaker, which he could lose if the Chief Minister  

failed  to  win  the  Vote  of  Confidence  in  the  

Assembly.  

43. Mr.  Rao  repeated  Mr.  Nariman’s  submissions  

regarding the purported violation of Rule 7(3) of  

the 1986 Rules, but added that such breach not only  

amounted  to  violation  of  principles  of  natural  

justice but also in violation of Article 14 of the  

Constitution itself, as was held in Union of India  

Vs.  Tulsiram Patel [(1985) 3 SCC 398].  Mr. Rao  

submitted that this was a clear case of abuse of  

constitutional powers conferred on the Speaker by  

paragraph 6 of the Tenth Schedule, with the sole  

motive of saving his own Chair and the Chair of the  

60

Chief Minister. The Show-Cause notice was not only  

unconstitutional  and  illegal,  but  motivated  and  

mala fide and devoid of jurisdiction.  

44. Referring to the judgment of the Chief Justice,  

which  was  in  variance  with  the  decision  of  N.  

Kumar, J., Mr. Rao urged that the Chief Justice had  

only noted and considered ground “K” to the Writ  

Petition, without considering grounds C, D, F, H  

and I, which dealt with the very maintainability of  

the  Disqualification  application  on  account  of  

improper  verification.   Mr.  Rao  submitted  that  

indecent  haste  with  which  the  Disqualification  

Application was processed was clearly in violation  

of the mandate of Rule 7 of the 1986 Rules, which  

provided for at least 7 days’ time to reply to a  

Show-Cause notice issued under Rule 6.

45. Mr.  Rao  also  submitted  that  despite  pointed  

references made to the corruption and nepotism in  

the Government led by Shri Yeddyurappa, the same  

61

has not been denied by Shri B.S. Yeddyurappa and  

this Court should draw an adverse inference when  

such allegations of bias or mala fide had not been  

denied by Shri B.S. Yeddyurappa.  

46. Mr.  Rao  also  repeated  and  reiterated  Mr.  

Nariman’s  submissions  regarding  non-service  of  

Notices  and  copies  of  the  application  and  the  

annexures  thereto  on  the  Appellants  and  the  

introduction of the affidavit filed by Shri K.S.  

Eshwarappa  and  the  Statements  of  Shri  M.P.  

Renukacharya  and  Shri  Narasimha  Nayak  without  

serving copies thereof on the Appellants and giving  

them reasonable opportunity to deal with the same.  

It was submitted that by adopting the procedure as  

mentioned above, the Speaker denied the Appellants  

a  proper  opportunity  of  contesting  the  

Disqualification Application despite the fact that  

the additional affidavit and the submissions made  

by Shri M.P. Renukacharya and Shri Narasimha Nayak  

62

contained  factual  allegations  against  the  

Appellants which they could only answer.  Mr. Rao  

submitted  that  the  Speaker  rushed  through  the  

formalities of an enquiry within four days from the  

issuance of the Show-Cause notices knowing that the  

Chief Minister had to face a Confidence Vote in the  

Assembly on 11th October, 2010.   

47. On  the  scope  of  justiceability  of  an  order  

passed  by  the  Speaker  under  paragraph  6  of  the  

Tenth  Schedule  to  the  Constitution,  Mr.  Rao  

submitted that such a question had been gone into  

and  settled  by  this  Court  firstly  by  the  

Constitution  Bench  in  Kihoto  Hollohan’s  case  

(supra) and thereafter in  Dr. Mahachandra Prasad  

Singh’s case (supra), wherein it had been held that  

Rules 6 and 7 of the Disqualification Rules were  

directory and not mandatory in nature and hence the  

finality clause in paragraph 6 did not completely  

excluded  the  jurisdiction  of  the  Courts  under  

63

Articles 136, 226 and 227 of the Constitution.  It  

is pointed out that it had been indicated in Kihoto  

Hollohan’s  case  (supra)  that  the  very  deeming  

provision  implies  that  the  proceedings  for  

disqualification are not before the House but only  

before  the  Speaker  as  a  substantially  distinct  

authority  and  that  the  decision  under  paragraph  

6(1) of the Tenth Schedule is not the decision of  

the House nor is it subject to approval of the  

House  and  that  the  said  decision  operates  

independently of the House.   It was accordingly  

held that there was no immunity under Articles 122  

and 212 from judicial scrutiny of the decision of  

the  Speaker  or  Chairman  exercising  powers  under  

paragraph  6(1)  of  the  Tenth  Schedule.   Mr.  Rao  

pointed out that paragraph 100 of the decision in  

Kihoto Hollohan’s case (supra) declares the Speaker  

or the Chairman acting under paragraph 6 of the  

Tenth Schedule to be a Tribunal.  Mr. Rao submitted  

that the view taken in Ravi S. Naik’s case (supra)  

64

that the Disqualification Rules being procedural in  

nature, any violation of the same would amount to  

irregularity  in  procedure  which  was  immune  from  

judicial scrutiny in view of Rule 6(2) of the 1986  

Rules, was an inaccurate statement of law in view  

of the decision of the Constitution Bench in Kihoto  

Hollohan’s case (supra).  Mr. Rao also pointed out  

that the decision in  Ravi S. Naik’s case (supra)  

had been considered by a Bench of 3 Judges of this  

Court in  Mayawati Vs.  Markandeya Chand [(1998) 7  

SCC 517], wherein K.T. Thomas J. had observed that  

the decision in Kihoto Hollohan’s case had not been  

considered in  Ravi S. Naik’s case in its proper  

perspective.   M. Srinivasan, J. did not agree with  

the views expressed by K.T. Thomas, J. and quoted  

approvingly  from  the  decision  in  Ravi  S.  Naik’s  

case (supra).  However, Chief Justice M.M. Punchhi  

took the view that the matter was required to be  

referred to a Constitution Bench, as the decision  

in Kihoto Hollohan’s case (supra) is silent on the  

65

question  as  to  whether  cognizance  taken  by  the  

Speaker  of  the  occurrence  of  a  split  is  

administrative  in  nature,  unconnected  with  the  

decision  making  process  or  is  it  an  adjunct  

thereto.  Mr. Rao submitted that the decision in  

Dr.  Mahachandra  Prasad  Singh’s  case  (supra)  

suffered from the same vice and was, therefore, per  

incuriam.   

48. Mr.  Rao  also  contended  that  the  view  

subsequently  taken  by  the  Constitution  Bench  in  

Rajendra Singh Rana Vs. Swami Prasad Maurya [(2007)  

4 SCC 270] that the failure on the part of the  

Speaker  to  decide  an  application  seeking  

disqualification cannot be said to be merely in the  

realm  of  procedure,  goes  against  the  very  

constitutional scheme contemplated under the Tenth  

Schedule, read in the context of Articles 102 and  

191 of the Constitution.  It was also observed that  

it  also  went  against  the  Rules  framed  in  that  

66

behalf and the procedure that was expected to be  

followed by the Speaker. It was further observed  

that the lapse on the part of the Speaker amounted  

to  jurisdictional  error.  Mr.  Rao  urged  that  the  

pronouncement in the aforesaid case was final on  

this aspect of the matter and was required to be  

reiterated in the present case.   

49. The  submissions  made  on  behalf  of  the  

Appellants  were  strongly  opposed  by  Mr.  Soli  J.  

Sorabjee, learned Senior Advocate appearing for the  

Respondent  No.1,  Shri  B.S.  Yeddyurappa,  Chief  

Minister  of  Karnataka.  He  identified  six  issues  

which, according to him, had arisen in the Appeals  

for  consideration.  The  same  are  reproduced  

hereinbelow:-

(i) The  extent  and  scope  of  Judicial  Review  available  against  the  order  of the Speaker passed in exercise of  powers under the Tenth Schedule to  the Constitution.

67

(ii) Whether  the  Karnataka  Disqualification  Rules  framed  in  exercise of powers under paragraph 8  of the Tenth Schedule are directory  and procedural in nature and whether  judicial review is available against  an alleged breach of the said Rules?

(iii) Whether the Speaker’s order impugned  herein is mala fide?

(iv) Whether Speaker’s order can be said  to be vitiated on account of non- compliance  with  the  principles  of  natural justice?

(v) The  scope  of  paragraph  2(1)(a)  of  the Tenth schedule; and  

(vi) Whether the Speaker’s inference from  the  conduct  of  the  MLA’s  in  the  present case that they have given up  the  membership  of  the  political  party to which they belong, can be  said to be ‘perverse’?

50. It was submitted that the scope of judicial  

review  of  the  order  of  the  Speaker  of  the  

Legislative Assembly was extremely limited in view  

of  the  finality  attached  to  the  Speaker’s  order  

under paragraph 6(1) of the Tenth Schedule.  Mr.  

Sorabjee submitted that in  Kihoto Hollohan’s case  

68

this Court had held that the immunity granted under  

sub-paragraph (2) of paragraph 6 was in respect of  

the  procedural  aspect  of  the  disqualification  

proceedings, but that the decision itself was not  

totally  immune  from  judicial  scrutiny.  However,  

having  regard  to  the  finality  attached  to  the  

decision  of  the  Speaker,  as  indicated  in  sub-

paragraph (1), judicial review of the said order  

would  be  confined  to  infirmities  based  on  (a)  

violation  of  constitutional  mandate;  (b)  mala  

fides; (c) non-compliance with the rules of natural  

justice; and (d) perversity. Mr. Sorabjee submitted  

that  the  Speaker’s  order  impugned  in  these  

proceedings  did  not  suffer  from  any  of  the  

infirmities  mentioned  in  paragraph  6(1)  of  the  

Tenth  Schedule  to  the  Constitution  and  that  on  

account of the decision in  Kihoto Hollohan’s case  

(supra), the decision of the Speaker could not be  

assailed even on the ground of violation of any of  

the Rules framed by the Speaker.  

69

51. Relying heavily on the decision of this Court  

in  Ravi  S.  Naik’s  case  (supra),  Mr.  Sorabjee  

pointed out that this Court had held that the 1986  

Rules had been framed to regulate the procedure to  

be  followed  by  the  Speaker  for  exercising  his  

powers under paragraph 6(1) of the Tenth Schedule.  

The same are, therefore, procedural in nature and  

any  violation  thereof  would  be  a  procedural  

irregularity which is immune from judicial scrutiny  

in view of the provisions of paragraph 6(2) as was  

construed by this Court in  Kihoto Hollohan’s case  

(supra).   Mr.  Sorabjee  submitted  that  the  1986  

Rules  framed  by  the  Speaker  being  subordinate  

legislation, the same could not be equated with the  

provisions  of  the  Constitution  and  could  not,  

therefore, be regarded as constitutional mandates  

and violation of the 1986 Rules did not afford a  

ground  for  judicial  review  of  the  order  of  the  

Speaker.   

70

52. Mr. Sorabjee also placed strong reliance on the  

decision of this Court in  Dr. Mahachandra Prasad  

Singh’s  case  (supra),  wherein  the  same  view  was  

reiterated.  It was observed that the Rules being  

in the domain of procedure, they were intended to  

facilitate the holding of an inquiry and not to  

frustrate  or  obstruct  the  same  by  introducing  

innumerable technicalities.  Mr. Sorabjee submitted  

that the Rules being directory, any alleged breach  

thereof cannot also be a ground for striking down  

the Speaker’s order or make the same susceptible to  

judicial review as per the parameters laid down in  

Kihoto  Hollohan’s  case  (supra).  It  was  also  

submitted that the power of the Speaker flowed from  

the Tenth Schedule and was not dependent on the  

framing of Rules and even in the absence of Rules,  

the Speaker always has the authority to resolve any  

dispute raised before him, without any fetter on  

his powers by the Rules.  

71

53. As to the period of three days given to the  

Appellants  to  reply  to  the  Show-Cause  notices,  

instead of seven days mentioned in Rule 7(3) of the  

1986  Rules,  Mr.  Sorabjee  submitted  that  it  was  

quite clear that the use of the expression “within  

7 days” clearly indicated that the full period of 7  

days was not required to be given by the Speaker  

for showing cause by the Member concerned.  Mr.  

Sorabjee submitted that since the period of 7 days  

was  the  maximum  period  prescribed,  it  did  not  

circumscribe  the  Speaker’s  authority  to  require  

such  response  to  the  Show-Cause  notice  within  a  

lesser period and, in any event, the said issue was  

a non-starter since the Rules had been held by this  

Court to be directory and not mandatory.  In any  

event, in Ravi S. Naik’s case (supra), it had been  

observed  that  while  applying  the  principles  of  

natural justice, it had to be kept in mind that  

“they were not cast in a rigid mould nor can they  

be  put  in  a  legal  strait  jacket.”  Mr.  Sorabjee  

72

submitted that the same view had been reiterated in  

Jagjit Singh’s case (supra) and the contention that  

the  Speaker  ought  not  to  have  relied  upon  his  

personal knowledge was specifically rejected in the  

said case.

54. Mr. Sorabjee urged that this Court in  Kihoto  

Hollohan’s  case  (supra)  had  drawn  a  distinction  

between the procedure followed by the Speaker and  

the decision rendered by him and had held that the  

procedure followed would be immune from judicial  

review, being administrative in nature, though the  

decision  could  be  challenged  on  grounds  of  

jurisdictional errors.  It was urged that in any  

event the decision in Ravi S. Naik’s case (supra)  

which  had  been  subsequently  approved  in  Dr.  

Mahachandra Prasad Singh’s case (supra) is binding  

upon this Bench, having been rendered by a Bench of  

three Judges.   

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55. As far as the charge of mala fides against the  

Speaker is concerned, Mr. Sorabjee submitted that  

such  a  charge  was  not  maintainable  since  the  

Speaker  had  been  made  a  Respondent  in  the  

proceedings not in his personal capacity but in his  

capacity as Speaker.  It was contended that as had  

been held by this Court in Sangramsinh P. Gaekwad  

Vs.  Shantadevi  P.  Gaekwad [(2005)  11  SCC  314],  

allegation of mala fide has to be pleaded with full  

particulars in support of the charge.  Making bald  

allegations that the Chief Minister had influenced  

the Speaker to get the Appellants removed from the  

membership  of  the  House  before  the  Trust  Vote  

scheduled to be held on 11th October, 2010, without  

any material in support of such allegations, could  

not and did not amount to mala fides on the part of  

the Speaker.   Mr. Sorabjee submitted that as was  

also observed in the case of E.P. Royappa Vs. State  

of Tamil Nadu [(1974) 4 SCC 3], the allegations of  

mala fide are often more easily made than proved  

74

and  the  very  seriousness  of  such  allegations  

demands proof of a high order of credibility.

56. Mr. Sorabjee submitted that coupled with the  

allegation of  mala fides was the allegation that  

the Speaker had conducted the entire exercise of  

disqualifying the Appellants from the membership of  

the House in great haste so that they would not be  

able  to  participate  in  the  Trust  Vote.   Mr.  

Sorabjee submitted that proceedings under the Tenth  

Schedule have to be decided as early as possible in  

order to avoid the participation of a disqualified  

Member in the House.  It was contended that in view  

of  the  decision  of  the  Constitution  Bench  in  

Rajendra Singh Rana’s case, the Speaker was under  

an obligation to decide the issue of eligibility of  

the Member to cast his vote before the Confidence  

Vote was taken. Mr. Sorabjee submitted that as had  

been  held  in  Rajendra  Singh  Rana’s  case,  

disqualification occurs on the date of the act of  

75

the Member and not on the date of the Speaker’s  

order. Applying the said analogy to the facts of  

this  case,  it  had  to  be  presumed  that  the  

disqualification  had  already  occurred  when  the  

concerned Member had presented his letter to the  

Governor  and  as  a  result  since  the  Vote  of  

Confidence was fixed for the next day, the Speaker  

had  no  option  but  to  decide  the  question  of  

disqualification before the Vote of Confidence was  

taken.  Mr. Sorabjee submitted that even N. Kumar,  

J. while dissenting from the order of the Chief  

Justice, concurred with him on the issue regarding  

absence of mala fides on the part of the Speaker.  

57. Mr.  Sorabjee  urged  that  although  various  

charges had been made against the Appellants, they  

had neither denied the same before the Speaker nor  

in the Writ Petition nor in the proceedings before  

the High Court, which gave rise to a presumption  

that there was a ring of truth in such allegations.  

76

Mr. Sorabjee urged that the case of the Appellants  

that  they  had  not  been  provided  a  proper  

opportunity  of  dealing  with  and  replying  to  the  

Show-Cause notices, was completely incorrect, since  

they had sent detailed replies to the Speaker in  

response to the Show-Cause notices.   

58. Mr.  Sorabjee  submitted  that  after  detailed  

replies had been filed by the Appellants, a full-

fledged hearing had been given to them and hence  

the  Appellants  did  not  suffer  any  prejudice  on  

account of the procedure adopted by the Speaker in  

disposing  of  Shri  Yeddyurappa’s  Disqualification  

application.   

59. On the question as to whether the Appellants  

incurred  disqualification  under  paragraph  2(1)(a)  

of the Tenth Schedule on account of their conduct,  

Mr. Sorabjee submitted that it was settled law that  

for  a  Member  to  incur  disqualification  under  

paragraph 2(1)(a) of the Tenth Schedule, he was not  

77

required to formally resign from the party, but an  

inference to that effect could be drawn from his  

conduct  which  may  be  incompatible  with  his  

political allegiance to the Party. Relying again on  

paragraph 11 of the decision in Ravi S. Naik’s case  

(supra), Mr. Sorabjee submitted that a person could  

voluntarily give up his membership of a political  

party, even without tendering his resignation from  

the membership of that party and in the absence of  

a  formal  resignation  from  the  membership,  an  

inference  can  be  drawn  from  the  conduct  of  the  

Member  that  he  had  voluntarily  given  up  his  

membership  of  the  political  party  to  which  he  

belonged.   Mr. Sorabjee submitted that the view  

expressed in Ravi S. Naik’s case (supra) had been  

reiterated in  Jagjit Singh’s case (surpa) and had  

also  been  approved  by  the  Constitution  Bench  in  

Rajendra Singh Rana’s case (supra).

78

60. Once again referring to the letters written by  

the  Appellants  withdrawing  support  from  the  

Government  of  their  own  political  party  and  

asserting that a situation had arisen in which the  

governance of the State could not be carried on in  

accordance with the provisions of the Constitution,  

Mr.  Sorabjee  submitted  that  the  language  of  the  

letters submitted by the Appellants contemplated a  

situation where the governance of the State could  

not  be  carried  out  in  accordance  with  the  

provisions of the Constitution.  It was submitted  

that the reproduction of the words of Article 356  

of the Constitution, which enables imposition of  

President’s Rule and dissolution of the Assembly,  

coupled  with  the  request  to  the  Governor  to  

intervene and initiate the constitutional process,  

could only mean that the Appellants had voluntarily  

resigned from the Bharatiya Janata Party and wanted  

President’s Rule to be imposed in the State.   

79

61. Mr.  Sorabjee  submitted  that  there  is  no  

constitutional provision which permits the Members  

of a House from withdrawing support to the Chief  

Minister  alone.   It  is  the  entire  Council  of  

Ministers that is collectively responsible to the  

House.  In other words, a Vote of Confidence is  

expressed in the entire Council of Ministers and  

not in the Chief Minister alone.  According to Mr.  

Sorabjee, the arguments advanced on behalf of the  

Appellants,  that  expression  of  honest  political  

dissent must not be seen as defection, had been  

rejected in  Kihoto Hollohan’s case (supra) where  

this Hon’ble Court observed that a political party  

functions on the strength of shared beliefs. Its  

own political stability and social utility depends  

on such shared beliefs and concerted action of its  

Members  in  furtherance  of  those  commonly  held  

principles.  Any freedom of its Members to vote as  

they please independent of the political party’s  

declared  policies,  would  not  only  embarrass  its  

80

public  image  and  popularity  but  also  undermine  

public confidence in it. Mr.  Sorabjee  submitted  

that  it  necessarily  follows  that  as  long  as  a  

Member professes to belong to a political party, he  

must abide by and be bound by the decision of the  

majority within the party.  He is free to express  

dissent within the party platform, but disparate  

stands  in  public  or  public  display  of  revolt  

against the party, undeniably undermines the very  

foundation of the party.   The very object of the  

Tenth  Schedule  was  to  bring  about  political  

stability and prevent members from conspiring with  

the opposite party.   

62. Having dealt with the disqualification of the  

Appellants by the Speaker, Mr. Sorabjee next took  

up  the  question  of  the  rejection  of  the  

disqualification  application  in  relation  to  Shri  

M.P.  Renukacharya  and  Shri  Narasimha  Nayak,  who  

were among the 13 MLAs who had submitted individual  

81

but identical letters to the Governor withdrawing  

support to the Bharatiya Janata Party Government  

led by Shri B.S. Yeddyurappa, on the ground that  

they had lost confidence in him in view of the  

corruption  and  nepotism  prevalent  in  the  

administration under him. It was pointed out that  

the Speaker had made a distinction between the said  

two MLAs and the other eleven on the ground that  

while the other two MLAs had retracted their letter  

to the Governor, they had also indicated that they  

had  full  faith  in  the  Government  led  by  Shri  

Yeddyurappa,  whereas  the  Appellants  had  simply  

indicated  that  they  were  willing  to  support  any  

other  Government  formed  by  the  Bharatiya  Janata  

Party, but with a different Chief Minister.  Mr.  

Sorabjee  submitted  that  while  the  two  MLAs  had  

retracted  their  letters  to  the  Governor  upon  

reiterating their faith in the Government led by  

Shri  Yeddyurappa,  the  Appellants  were  bent  upon  

bringing down the Bharatiya Janata Party Government  

82

with  the  ulterior  motive  of  forming  a  new  

Government with the Members of the opposition. It  

was  submitted  that  the  concept  of  collective  

responsibility is essentially a political concept.  

The  Cabinet  which  takes  a  collective  decision  

relating to policy stands or falls together and any  

individual member of the Government cannot show a  

face which is different from that of the Cabinet,  

as anything contrary would contribute to serious  

weakening of the Government itself.   

63. Mr.  Sorabjee  submitted  that  even  if  the  

Speaker’s decision was wrong, it could not be said  

to  be  a  perverse  order,  since  there  was  no  

deviation from the accepted rules and norms which  

had prejudiced the Appellants.  It was also urged  

that while the Chief Justice and V.G. Sabhahit, J.  

had  taken  one  view,  N.  Kumar,  J.  had  taken  a  

different  view,  which  only  reinforced  the  

proposition  that  in  this  case  two  views  are  

83

possible since the majority decision was that the  

view  of  the  Speaker  could  not  be  regarded  as  

perverse, the Appeals were liable to be dismissed.

64. In  addition  to  the  submissions  made  by  Mr.  

Sorabjee,  which  he  adopted,  Shri  Satyapal  Jain,  

appearing for Shri Yeddyurappa in the several Civil  

Appeals, submitted that two other issues were also  

required to be taken into consideration, namely,  

(1) whether the Appellants had been prejudiced by  

the  action  of  the  Speaker;  and  (2)  whether  the  

action  of  withdrawing  support  from  the  Chief  

Minister  amounted  to  voluntarily  giving  up  the  

membership  of  the  Bharatiya  Janata  Party  which  

disqualified them under paragraph 2(i)(a) of the  

Tenth Schedule.   

65. Mr. Jain submitted that the crucial facts had  

not  been  denied  by  the  Appellants  and  hence  it  

could  not  be  said  that  any  prejudice  had  been  

caused to them.   Mr. Jain submitted that it was  

84

for  the  Appellants  to  deny  the  allegations  made  

regarding their moving in a group from Karnataka to  

Goa and to other places where they had issued press  

releases stating that they were together and had  

withdrawn support to the Government. Mr. Jain also  

submitted that the Appellants had not denied the  

allegation that they had negotiated with another  

party of the State led by Shri H.D. Kumaraswamy,  

exploring the possibility of forming an alternate  

Government.   

66. Mr. Jain submitted that apart from denying the  

allegations made against them, the Appellants could  

not  establish  that  they  had  in  any  way  been  

prejudiced by the order passed by the Speaker and  

such fact had been duly noted by the Chief Justice  

in his judgment.   

67. On the question of construction of paragraph  

2(1)(a) of the Tenth Schedule to the Constitution,  

Mr.  Jain  reiterated  the  submissions  made  by  Mr.  

85

Sorabjee relying on the decision of this Court in  

Ravi S. Naik’s case (supra) which was upheld in  

Rajendra Singh Rana’s case (supra).   

68. Mr. Jain submitted that even the question of  

not having received the copy of the notice sent by  

the  Speaker  was  a  clear  afterthought,  since  

detailed replies had been submitted by them and if  

the Appellants had to differ with the functioning  

of Shri Yeddyurappa, they should have taken up the  

matter  within  the  party  without  writing  to  the  

Governor withdrawing their support to the Bharatiya  

Janata Party Government led by Shri Yeddyurappa.  

Mr. Jain submitted that it was quite obvious from  

the  letters  written  by  the  Appellants  to  the  

Governor  that  they  were  bent  upon  effecting  the  

fall of the Bharatiya Janata Party Government, led  

by Shri Yeddyurappa, in breach of party discipline,  

and, as a result, the order passed by the Speaker  

86

was  fully  justified  and  did  not  warrant  any  

interference in these proceedings.   

69. The  main  questions  which  emerge  from  the  

submissions  made  on  behalf  of  the  respective  

parties and the facts of the case may be summarised  

as follows :

(a) Did the Appellants voluntarily give up  

their  membership  of  the  Bharatiya  

Janata Party?

(b) Since only three days’ time was given  

to  the  Appellants  to  reply  to  the  

Show-Cause  notices,  as  against  the  

period of 7 days or more, prescribed  

in Rule 7(3) of the Disqualification  

Rules, were the said notices vitiated?

(c) Did the Speaker act in hot haste in  

disposing  of  the  Disqualification  

Application  filed  by  Shri  B.S.  

87

Yeddyurappa  introducing  a  whiff  of  

bias as to the procedure adopted?

(d) What is the scope of judicial review  

of  an  order  passed  by  the  Speaker  

under Paragraph 2(1)(a) of the Tenth  

Schedule  to  the  Constitution,  having  

regard  to  the  provisions  of  Article  

212 thereof?    

70. The  facts  of  the  case  reveal  that  the  

Appellants along with Shri M.P. Renukacharya and  

Shri Narasimha Nayak, wrote identical letters to  

the Governor on 6th October, 2010, indicating that  

as  MLAs  of  the  Bharatiya  Janata  Party  they  had  

become disillusioned with the functioning of the  

Government  headed  by  Shri  B.S.  Yeddyurappa.  

According to them, there was widespread corruption,  

nepotism, favouritism, abuse of power and misuse of  

Government  machinery  in  the  functioning  of  the  

Government  headed  by  Chief  Minister,  Shri  

88

Yeddyurappa,  and that a situation had arisen when  

the governance of the State could not be carried on  

in  accordance  with  the  provisions  of  the  

Constitution (Emphasis added).  Accordingly, they  

were withdrawing their support from the Government  

headed by Shri Yeddyurappa with a request to the  

Governor  to  intervene  and  to  institute  the  

constitutional process as the constitutional head  

of the State (Emphasis added).

71. The Speaker took the view that the said letter  

and the conduct of the Appellants in moving from  

Karnataka  to  Goa  and  other  places  and  issuing  

statements both to the print and electronic media  

regarding  withdrawal  of  support  to  the  BJP  

Government led by Shri Yeddyurappa and the further  

fact  that  the  Appellants  are  said  to  have  

negotiated with Shri H.D. Kumaraswamy, the leader  

of the State Janata Dal, and its members, regarding  

the  formation  of  an  alternative  Government  was  

89

sufficient to attract the provisions of Paragraph  

2(1)(a) of the Tenth Schedule to the Constitution.  

It was held by the Speaker that in the absence of  

any denial to the allegations made by Shri K.S.  

Eswarappa, the State President of the BJP, the same  

had to be accepted as having been proved against  

the Appellants.   

72. In this regard, the Speaker referred to the  

views expressed by the Constitution Bench in Kihoto  

Hollohan’s case (supra), wherein, one of the issues  

which had been raised and decided was that the act  

of voluntarily giving up membership of a political  

party  may  be  either  express  or  implied.   Even  

greater emphasis was laid on the decision in Ravi  

S. Naik’s case (supra), wherein, it was observed  

that there was no provision in the Tenth Schedule  

which indicated that till a petition, signed and  

verified  in  the  manner  laid  down  in  the  Civil  

Procedure Code for verification of pleadings, was  

90

made to the Chairman or Speaker of the House, he  

did not get jurisdiction to give a decision as to  

whether a Member of the House had become subject to  

disqualification  under  Paragraph  2(1)(a)  of  the  

Tenth Schedule or not.   

73. The aforesaid view taken by the Speaker has to  

be  tested  in  relation  to  the  action  of  the  

concerned Members of the House and it has to be  

seen  whether  on  account  of  such  action  a  

presumption  could  have  been  drawn  that  they  had  

voluntarily given up their membership of the BJP,  

thereby  attracting  the  provisions  of  Paragraph  

2(1)(a) of the Tenth Schedule.   

74. In  the  instant  case,  the  Appellants  had  in  

writing informed the Governor on 6th October, 2010,  

that  having  become  disillusioned  with  the  

functioning of the Government headed by Shri B.S.  

Yeddyurappa, they had chosen to withdraw support to  

the Government headed by Shri B.S. Yeddyurappa and  

91

had  requested  the  Speaker  to  intervene  and  

institute  the  constitutional  process  as  

constitutional head of the State.  The said stand  

was  re-emphasized  in  their  replies  to  the  Show-

Cause  notices  submitted  by  the  Appellants  on  9th  

October, 2010, wherein they had, inter alia, denied  

that  their  conduct  had  attracted  the  vice  of  

“defection” within the scope of Paragraph 2(1)(a)  

of the Tenth Schedule. In their said replies they  

had  categorically  indicated  that  nowhere  in  the  

letter of 6th October, 2010, had they indicated that  

they  would  not  continue  as  Members  of  the  

Legislature Party of the BJP.  On the other hand,  

they  had  reiterated  that  they  would  continue  to  

support the BJP and any Government formed by the  

BJP  headed  by  any  leader,  other  than  Shri  B.S.  

Yeddyurappa, as Chief Minister of the State.  They  

also reiterated that they would continue to support  

any  Government  headed  by  a  clean  and  efficient  

person  who  could  provide  good  governance  to  the  

92

people of Karnataka according to the Constitution  

of India and that it was only to save the party and  

Government and to ensure that the State was rid of  

a corrupt Chief Minister, that the letter had been  

submitted to the Governor on 6th October, 2010.  

75. At this point let us consider the contents of  

the letter dated 6th October, 2010, written by the  

Appellants  to  the  Governor,  which  has  been  

reproduced  hereinbefore.   The  letter  clearly  

indicates  that  the  author  thereof  who  had  been  

elected  as  a  MLA  on  a  Bharatiya  Janata  Party  

ticket,  having  become  disillusioned  with  the  

functioning of the Government headed by Shri B.S.  

Yeddyurappa  on  account  of  widespread  corruption,  

nepotism, favouritism, abuse of power and misuse of  

Government  machinery,  was  convinced  that  a  

situation had arisen in which the governance of the  

State could not be carried on in accordance with  

the provisions of the Constitution and that Shri  

93

Yeddyurappa  had  forfeited  the  confidence  of  the  

people.  The letter further indicates that it was  

in the interest of the State and the people of  

Karnataka that the author was expressing his lack  

of  confidence  in  the  Government  headed  by  Shri  

Yeddyurappa  and  that  he  was,  accordingly,  

withdrawing his support to the Government headed by  

Shri Yeddyurappa with a request to the Governor to  

intervene and institute the constitutional process  

as constitutional head of the State.   

76. Although, Mr. Sorabjee was at pains to point  

out  that  the  language  used  in  the  letter  was  

similar to the language used in Article 356 of the  

Constitution,  which,  according  to  him,  was  an  

invitation  to  the  Governor  to  take  action  in  

accordance with the said Article, the same is not  

as explicit as Mr. Sorabjee would have us believe.  

The “constitutional process”, as hinted at in the  

said  letter  did  not  necessarily  mean  the  

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constitutional  process  of  proclamation  of  

President’s rule, but could also mean the process  

of  removal  of  the  Chief  Minister  through  

constitutional  means.   On  account  thereof,  the  

Bharatiya Janata Party was not necessarily deprived  

of a further opportunity of forming a Government  

after a change in the leadership of the legislature  

party.  In fact, the same is evident from the reply  

given by the Appellants on 9th October, 2010, in  

reply to the Show-Cause notices issued to them, in  

which they had re-emphasized their position that  

they  not  only  continued  to  be  members  of  the  

Bharatiya Janata Party, but would also support any  

Government  formed  by  the  Bharatiya  Janata  Party  

headed  by  any  leader,  other  than  Shri  B.S.  

Yeddyurappa, as the Chief Minister of the State.  

The conclusion arrived at by the Speaker does not  

find support from the contents of the said letter  

of 6th October, 2010, so as to empower the Speaker  

to  take  such  a  drastic  step  as  to  remove  the  

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Appellants from the membership of the House.

77. The question which now arises is whether the  

Speaker was justified in concluding that by leaving  

Karnataka and going to Goa or to any other part of  

the  country  or  by  allegedly  making  statements  

regarding  the  withdrawal  of  support  to  the  

Government  led  by  Shri  Yeddyurappa  and  the  

formation of a new Government, the Appellants had  

voluntarily given up their membership of the B.J.P.  

and  were  contemplating  the  formation  of  a  

Government  excluding  the  Bharatiya  Janata  Party.  

The Speaker has proceeded on the basis that the  

allegations  must  be  deemed  to  have  been  proved,  

even in the absence of any corroborative evidence,  

simply because the same had not been denied by the  

Appellants.  The Speaker apparently did not take  

into  consideration  the  rule  of  evidence  that  a  

person making an allegation has to prove the same  

with supporting evidence and the mere fact that the  

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allegation was not denied, did not amount to the  

same having been proved on account of the silence  

of  the  person  against  whom  such  allegations  are  

made.  Except for the affidavit filed by Shri K.S.  

Eswarappa, State President of the B.J.P., and the  

statements of two of the thirteen MLAs, who had  

been  joined  in  the  Disqualification  Application,  

there  is  nothing  on  record  in  support  of  the  

allegations  which  had  been  made  therein.  

Significantly,  the  said  affidavits  had  not  been  

served  on  the  Appellants.   Since  Shri  K.S.  

Eswarappa was not a party to the proceedings, the  

Speaker should have caused service of copies of the  

same on the Appellants to enable them to meet the  

allegations made therein. In our view, not only did  

the  Speaker’s  action  amount  to  denial  of  the  

principles of natural justice to the Appellants,  

but  it  also  reveals  a  partisan  trait  in  the  

Speaker’s  approach  in  disposing  of  the  

Disqualification  Application  filed  by  Shri  B.S.  

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Yeddyurappa.  If the Speaker wished to rely on the  

statements of a third party which were adverse to  

the Appellants’ interests, it was obligatory on his  

part to have given the Appellants an opportunity of  

questioning the deponent as to the veracity of the  

statements made in the affidavit.  This conduct on  

the part of the Speaker is also indicative of the  

“hot haste” with which the Speaker disposed of the  

Disqualification Petition as complained of by the  

Appellants.  The question does, therefore, arise as  

to  why  the  Speaker  did  not  send  copies  of  the  

affidavit affirmed and filed by Shri Eswarappa as  

also  the  affidavits  of  the  two  MLAs,  who  had  

originally withdrawn support to the Government led  

by  Shri  Yeddyurappa,  but  were  later  allowed  to  

retract their statements, to the Appellants. Given  

an opportunity to deal with the said affidavits,  

the Appellants could have raised the question as to  

why the said two MLAs, Shri M.P. Renukacharya and  

Shri Narasimha Nayak, were treated differently on  

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account  of  their  having   withdrawn  the  letters  

which they had addressed to the Governor, while, on  

the other hand, disqualifying the Appellants who  

had written identical letters to the Governor, upon  

holding that they had ceased to be members of the  

Bharatiya Janata Party, notwithstanding the Show-

Cause notices issued to them. The explanation given  

as to why notices to show cause had been issued to  

the Appellants under Rule 7 of the Disqualification  

Rules, giving the Appellants only three days’ time  

to respond to the same, despite the stipulated time  

of  seven  days  or  more  indicated  in  Rule  7(3)  

itself,  is  not  very  convincing.   There  was  no  

compulsion  on  the  Speaker  to  decide  the  

Disqualification  Application  filed  by  Shri  

Yeddyurappa in such a great hurry within the time  

specified by the Governor to the Speaker to conduct  

a Vote of Confidence in the Government headed by  

Shri  Yeddyurappa.   It  would  appear  that  such  a  

course of action was adopted by the Speaker on 10th  

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October, 2010, since the Vote of Confidence on the  

Floor  of  the  House  was  slated  for  12th October,  

2010.  The element of hot haste is also evident in  

the action of the Speaker in this regard as well.   

78. In  arriving  at  the  conclusion  that  by  such  

short notice, no prejudice has been caused to the  

Appellants,  since  they  had  filed  their  detailed  

replies to the Show-Cause notices, the Speaker had  

relied on the two decisions of this Court, referred  

to hereinbefore in  Dr. Mahachandra Prasad Singh’s  

case and Ravi S. Naik’s case, wherein it had been  

held that the 1986 Rules were directory and not  

mandatory in nature, and, as a result, the order  

dated 10th October, 2010, could not be set aside  

only on the ground of departure therefrom. Even if  

less than seven days’ time is given to reply to the  

Show-Cause  notice,  the  legislator  must  not  be  

prejudiced or precluded from giving an effective  

reply to such notice.  

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  79. One  of  the  questions  which  was  raised  and  

answered in Dr. Mahachandra Prasad Singh’s case was  

the nature and effect of non-compliance with the  

provisions of Rules 6 and 7 of the Disqualification  

Rules, 1994.  It was held therein by a Bench of  

Three Judges of this Court that the said provisions  

were directory and not mandatory and the omission  

to file an affidavit neither rendered the petition  

invalid  nor  did  it  affect  the  assumption  of  

jurisdiction  by  the  Chairman  to  initiate  

proceedings  to  determine  the  question  of  

disqualification of a Member of the House.  In the  

facts of the said case it was held that the 1994  

Rules  being  subordinate  legislation,  they  were  

directory  and  not  mandatory  as  they  could  not  

curtail the content and scope of the substantive  

provision under which they were made.  However, the  

facts of this case differ significantly from the  

facts in Mahachandra’s case (supra).

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80. In  Mahachandra’s case, a member of the Indian  

National Congress, who had been elected as a Member  

of the Legislative Council on the ticket of the  

Indian National Congress, contested a Parliamentary  

election as an independent candidate, which facts  

were  part  of  official  records  and  not  merely  

hearsay, as in the present case.  In the aforesaid  

circumstances, the Chairman held that by contesting  

as an Independent Candidate, the said Member had  

given  up  his  membership  of  the  Indian  National  

Congress.  It is in that context that it was held  

that  since  the  Member  had  not  disputed  the  

allegations, but had, in fact, admitted the same in  

his  writ  petition,  he  had  not  suffered  any  

prejudice in not being provided with a copy of the  

letter  from  the  leader  of  the  Indian  National  

Congress on which reliance had been placed by the  

Chairman.  The distinguishing feature of the facts  

of Mahachandra Prasad Singh’s case and this case is  

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that the facts in the former case were admitted and  

were part of the official records, while in this  

case the allegations are highly disputed and are in  

the  realms  of  allegation  which  were  yet  to  be  

proved  with  corroborating  evidence,  though  

according to the Speaker, such allegations were not  

disputed.

81.  As far as the decision in Ravi S. Naik’s case  

(supra) is concerned, the facts of the said case  

are somewhat different from the facts of this case.  

What is commonly known and referred to as Ravi S.  

Naik’s case is, in fact, a decision in respect of  

the two Civil Appeals, namely, Civil Appeal No.2904  

of 1993 filed by Ravi S. Naik and Civil Appeal  

No.3309 of 1993 filed by Shri Sanjay Bandekar and  

Shri Ratnakar Chopdekar.  There is a certain degree  

of  similarity  between  the  facts  of  the  latter  

appeal and this case.  At the relevant time, the  

Congress (I) initially formed the Government with  

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the  support  of  one  independent  member.  

Subsequently,  seven  members  of  the  Congress  (I)  

left the party and formed the Goan People’s Party  

and  formed  a  coalition  government  with  the  

Maharashtrawadi Gomantak Party under the banner of  

Progressive  Democratic  Front  (PDF).   The  said  

government  was  also  short-lived  and  ultimately  

President’s Rule was imposed in the State and the  

Legislative Assembly was suspended on 14th December,  

1990.  Prior to proclamation of President’s Rule,  

Shri Ramakant Khalap, who was the leader of the  

Progressive Democratic Front, staked his claim to  

form a Government, but no further action was taken  

on such claim since the Assembly was suspended on  

14th December, 1990.  However, Shri Ramakant Khalap  

filed a petition before the Speaker under Article  

191(2) read with paragraphs 2(1)(a) and 2(1)(b) of  

the  Tenth  Schedule  to  the  Constitution  for  

disqualification of two Members, who had joined the  

Congress Democratic Front inspite of being Members  

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of  the  Maharashtrawadi  Gomantak  Party.   By  his  

order  dated  13th December,  1990,  the  Speaker  

disqualified the said two Members from the House on  

the ground of defection.   

82. On  25th January,  1991,  President’s  Rule  was  

revoked and Shri Ravi S. Naik was sworn in as Chief  

Minister of Goa. On the same day, one Dr. Kashinath  

G.  Jhalmi,  belonging  to  the  Maharashtrawadi  

Gomantak Party, filed a petition before the Speaker  

for Shri Naik’s disqualification on the ground of  

defection.  Simultaneously  with  the  above,  the  

Speaker, Shri Sirsat, was removed from the Office  

and was replaced by the Deputy Speaker who began to  

function as Speaker in his place. Shri Bandekar and  

Shri  Chopdekar  filed  an  application  before  the  

Deputy Speaker for review of the order dated 13th  

December, 1990, by which they had been disqualified  

from the membership of the House.  The same was  

allowed by the Deputy Speaker by his order dated 7th  

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March,  1991,  and  the  earlier  order  dated  13th  

December,  1990,  was  set  aside.   Similarly,  Shri  

Ravi Naik also filed an application for review of  

the  order  dated  15th February,  1991,  which  was  

allowed by the Deputy Speaker by his order of 8th  

March, 1991.  The said two orders passed by the  

Deputy  Speaker  were  challenged  by  way  of  Writ  

Petitions which were allowed and the orders passed  

by the Deputy Speaker on 7th and 8th March, 1991,  

were  held  to  be  void.   Consequently,  the  Writ  

Petitions filed by Shri Bandekar and Shri Chopdekar  

and  by  Shri  Ravi  S.  Naik  stood  revived  with  a  

direction for disposal of the same on merits.  The  

Writ  Petitions  were  ultimately  dismissed  against  

which two appeals were filed.

83. It was in the appeal filed by Shri Bandekar and  

Shri  Chopdekar  that  the  issue  of  voluntary  

resignation from membership of the Maharashtrawadi  

Gomantak Party fell for consideration of the High  

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Court, while in  Ravi S. Naik’s case the question  

was whether a valid split of the aforesaid party  

had  been  effected  with  Shri  Naik  forming  a  new  

party with seven other Members of the said party.  

The said question was answered in Shri Ravi Naik’s  

favour and his appeal was allowed and the order of  

his disqualification from the House was set aside.  

The other appeal filed by Shri Bandekar and Shri  

Chopdekar was dismissed and their disqualification  

by the Speaker was upheld. In other words, the High  

Court  approved  the  proposition  that  it  was  not  

necessary for a Member of the House to formally  

tender his resignation from the party but that the  

same should be inferred from his conduct.  It was  

held that a person may voluntarily give up his/her  

membership of a political party, even though he/she  

had  not  tendered  his/her  resignation  from  the  

membership of that party.  However, the Division  

Bench  of  the  High  Court  approved  the  said  

proposition in the facts and circumstances of that  

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case,  where,  after  the  Government  was  initially  

formed,  there  was  an  exodus  from  the  principal  

party resulting in the formation of a new party  

which  stood  protected  under  paragraph  4  of  the  

Tenth Schedule to the Constitution. Of course, it  

will also have to be noted that Shri Bandekar and  

Shri Chopdekar had not only accompanied Dr. Barbosa  

to the Governor and had informed the Governor that  

it  did  not  support  the  Maharashtrawadi  Gomantak  

Party any further, but they had also made it known  

to the public that they had voluntarily resigned  

from the membership of the said party.  It is in  

these facts that a presumption was drawn from the  

conduct of the Members that they had voluntarily  

resigned from the membership of the Maharashtrawadi  

Gomantak Party.  In the said case also, after Show-

Cause notices were issued, both persons filed their  

replies  stating  that  they  had  not  given  up  the  

membership  of  the  Maharashtrawadi  Gomantak  Party  

voluntarily  or  would  otherwise  continue  to  be  a  

108

Member of the said party and no document had been  

produced  by  the  complainant  nor  has  anything  

disclosed to show that they had resigned from the  

membership of the party.   It was also denied that  

they had informed the Governor that they did not  

support the Maharashtrawadi Gomantak Party or that  

they had informed anybody that they had voluntarily  

resigned from the membership of said party.  The  

Speaker, however, rejected the explanation given by  

Shri Bandekar and Shri Chopdekar and recorded that  

he was satisfied that by their conduct, actions and  

speech,  they  had  voluntarily  given  up  the  

membership of the Maharashtrawadi Gomantak Party.

84. This brings us to the next question regarding  

the  manner  in  which  the  Disqualification  

Application  filed  by  Shri  B.S.  Yeddyurappa  was  

proceeded with and disposed of by the Speaker.  On  

6th October, 2010, on receipt of identical letters  

from the 13 BJP MLAs and the 5 independent MLAs  

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withdrawing support to the BJP Government led by  

Shri  B.S.  Yeddyurappa,  the  Governor  on  the  very  

same day, wrote a letter to the Chief Minister,  

informing  him  of  the  developments  regarding  the  

withdrawal  of  support  by  13  BJP  MLAs  and  5  

independent MLAs and requesting him to prove his  

majority in the Assembly on or before 12th October,  

2010 by 5.00 p.m.  The Speaker was also requested  

accordingly.   On  the  very  same  day,  Shri  

Yeddyurappa, as the leader of the Bharatiya Janata  

Legislative  Party  in  the  Legislative  Assembly,  

filed an application before the Speaker under Rule  

6  of  the  Disqualification  Rules,  1986,  being  

Disqualification Application No.1 of 2010, for a  

declaration that all the thirteen MLAs elected on  

BJP tickets along with two other MLAs had incurred  

disqualification in view of the Tenth Schedule to  

the Constitution.  Immediately thereafter, on 7th  

October,  2010,  the  Speaker  issued  Show-Cause  

notices to the aforesaid MLAs informing them of the  

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Disqualification  Application  filed  by  Shri  B.S.  

Yeddyurappa and informing them that by submitting  

letters to the Governor withdrawing support to the  

Government  led  by  Shri  Yeddyurappa,  they  had  

violated paragraph 2(1)(a) of the Tenth Schedule to  

the Constitution and were, therefore, disqualified  

from  continuing  as  Members  of  the  House.   The  

Appellants were given time till 5.00 p.m. on 10th  

October, 2010, to submit their objection, if any,  

to the said application.  Even if as held by this  

Court in  Mahachandra Prasad Singh’s case (supra),  

Rules 6 and 7 of the Disqualification Rules are  

taken  as  directory  and  not  mandatory,  the  

Appellants were still required to be given a proper  

opportunity of meeting the allegations mentioned in  

the  Show-Cause  notices.   The  fact  that  the  

Appellants  had  not  been  served  with  notices  

directly,  but  that  the  same  were  pasted  on  the  

outer doors of their quarters in the MLA complex  

and  that  too  without  copies  of  the  various  

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documents relied upon by Shri Yeddyurappa, giving  

them three days’ time to reply to the said notices  

justifies the Appellants’ contention that they had  

not been given sufficient time to give an effective  

reply to the Show-Cause notices.  Furthermore, the  

Appellants  were  not  served  with  copies  of  the  

affidavit filed by Shri K.S. Eswarappa, although,  

the Speaker relied heavily on the contents thereof  

in arriving at the conclusion that the Appellants  

stood disqualified under paragraph 2(1)(a) of the  

Tenth Schedule to the Constitution.   

85. Likewise, the Appellants were also not supplied  

with the copies of the affidavits filed by Shri  

M.P. Renukacharya and Shri Narasimha Nayak, whereby  

they retracted the statements which they had made  

in their letters submitted to the Governor on 6th  

October, 2010.  The Speaker not only relied upon  

the  contents  of  the  said  affidavits,  but  also  

dismissed the Disqualification Application against  

112

them on the basis of such retraction, after having  

held  in  the  case  of  the  Appellants  that  the  

provisions  of  paragraph  2(1)(a)  of  the  Tenth  

Schedule  to  the  Constitution  were  attracted  

immediately upon their intention to withdraw their  

support to the Government led by Shri Yeddyurappa.  

The Speaker ignored the claim of the Appellants to  

be given reasonable time to respond to the Show-

Cause notices and also to the documents which were  

handed  over  to  the  learned  Advocates  of  the  

Appellants  at  the  time  of  hearing  of  the  

Disqualification  Application.   Incidentally,  a  

further incidence of partisan behaviour on the part  

of the Speaker will be evident from the fact that  

not only were the Appellants not given an adequate  

opportunity  to  deal  with  the  contents  of  the  

affidavits affirmed by Shri K.S. Eswarappa, Shri  

M.P. Renukacharya and Shri Narasimha Nayak, but the  

time given to submit the Show-Cause on 10th October,  

2010, was preponed from 5.00 p.m. to 3.00 p.m.,  

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making it even more difficult for the Appellants to  

respond to the Show-Cause notices in a meaningful  

manner.  The explanation given by the Speaker that  

the Appellants had filed detailed replies to the  

Show-Cause notices does not stand up to the test of  

fairness when one takes into consideration the fact  

that various allegations had been made in the three  

affidavits filed by Shri K.S. Eswarappa, Shri M.P.  

Renukacharya and Shri Narasimha Nayak, which could  

only be answered by the Appellants themselves and  

not by their learned Advocates.

86.  The procedure adopted by the Speaker seems to  

indicate  that  he  was  trying  to  meet  the  time  

schedule  set  by  the  Governor  for  the  trial  of  

strength in the Assembly and to ensure that the  

Appellants  and  the  other  independent  MLAs  stood  

disqualified prior to the date on which the Floor  

Test was to be held.  Having concluded the hearing  

on 10th October, 2010, by 5.00 p.m., the Speaker  

114

passed a detailed order in which various judgments,  

both  of  Indian  Courts  and  foreign  Courts,  and  

principles  of  law  from  various  authorities  were  

referred  to,  on  the  same  day,  holding  that  the  

Appellants  had  voluntarily  given  up  their  

membership of the Bharatiya Janata Party by their  

acts and conduct which attracted the provisions of  

paragraph  2(1)(a)  of  the  Tenth  Schedule  to  the  

Constitution,  whereunder  they  stood  disqualified.  

The Vote of Confidence took place on 11th October,  

2010, in which the disqualified members could not  

participate  and,  in  their  absence  Shri  B.S.  

Yeddyurappa was able to prove his majority in the  

House.   

87. Unless it was to ensure that the Trust Vote did  

not go against the Chief Minister, there was no  

conceivable reason for the Speaker to have taken up  

the Disqualification Application in such a great  

hurry.   Although,  in  Mahachandra  Prasad  Singh’s  

115

case (supra) and in  Ravi S. Naik’s case (supra),  

this Court had held that the Disqualification Rules  

were  only  directory  and  not  mandatory  and  that  

violation  thereof  amounted  to  only  procedural  

irregularities  and  not  violation  of  a  

constitutional  mandate,  it  was  also  observed  in  

Ravi  S.  Naik’s  case  (supra)  that  such  an  

irregularity should not be such so as to prejudice  

any  authority  who  is  affected  aversely  by  such  

breach.  In the instant case, it was a matter of  

survival as far as the Appellants were concerned.  

In  such  circumstances,  they  deserved  a  better  

opportunity of meeting the allegations made against  

them, particularly when except for the newspaper  

cuttings  said  to  have  been  filed  by  Shri  

Yeddyurappa  along  with  the  Disqualification  

Application,  there  was  no  other  evidence  at  all  

available against the Appellants.   

88. We are quite alive to the decision in  Jagjit  

Singh’s  case  (supra),  where  it  was  held  that  

116

failure  to  provide  documents  relied  upon  by  the  

Speaker to the concerned Member, whose membership  

of the House was in question, and denying him the  

right  of  cross-examination,  did  not  amount  to  

denial of natural justice and did not vitiate the  

proceedings.  However, a rider was added to the  

said observation to the effect that the Speaker’s  

decision  in  such  a  situation  would  have  to  be  

examined  on  a  case-to-case  basis.   In  Jagjit  

Singh’s  case  (supra),  video  recordings  of  TV  

interviews,  participation  in  the  meeting  of  the  

Congress Legislative Party in the premises of the  

Assembly, the signatures on the register maintained  

by the Congress Legislative Party, were produced  

before the Speaker, who decided the matter on the  

basis thereof.   That is not so in the present  

case.  As  mentioned  hereinbefore,  the  

Disqualification  Application  filed  by  Shri  

Yeddyurappa contained only bald allegations, which  

were not corroborated by any direct evidence.  The  

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application  did  not  even  mention  the  provision  

under which the same had been made.   By allowing  

Shri K.S. Eswarappa, who was not even a party to  

the  proceedings,  and  Shri  M.P.  Renukacharya  and  

Shri  Narasimha  Nayak  to  file  their  respective  

affidavits,  the  short-comings  in  the  

Disqualification  Application  were  allowed  to  be  

made up.  The Speaker, however, relied on the same  

to  ultimately  declare  that  the  Appellants  stood  

disqualified  from  the  membership  of  the  House,  

without  even  serving  copies  of  the  same  on  the  

Appellants, but on their learned Advocates, just  

before the hearing was to be conducted.  If one  

were to take a realistic view of the matter, it was  

next to impossible to deal with the allegations at  

such short notice.  In the circumstances, we cannot  

but hold that the conduct of the proceedings by the  

Speaker and the decision given by the Speaker on  

the basis thereof did not meet even the parameters  

laid down in Jagjit Singh’s case (supra).   

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89. We  cannot  also  lose  sight  of  the  fact  that  

although the same allegations, as were made against  

the Appellants by Shri Yeddyurappa, were also made  

against Shri M.P. Renukacharya and Shri Narasimha  

Nayak,  their  retraction  was  accepted  by  the  

Speaker,  despite  the  view  expressed  by  him  that  

upon submitting the letter withdrawing support to  

the BJP Government led by Shri Yeddyurappa, all the  

MLAs stood immediately disqualified under paragraph  

2(1)(a) of the Tenth Schedule to the Constitution,  

and  they  were,  accordingly,  permitted  to  

participate  in  the  Confidence  Vote  for  reasons  

which are not required to be spelt out.

90. On  the  question  of  justiceability  of  the  

Speaker’s  order  on  account  of  the  expression  of  

finality in paragraph 6 of the Tenth Schedule to  

the Constitution, it has now been well-settled that  

such finality did not include the powers of the  

superior Courts under Articles 32, 226 and 136 of  

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the Constitution to judicially review the order of  

the Speaker.  Under paragraph 2(1)(a) of the Tenth  

Schedule, the Speaker functions in a quasi-judicial  

capacity, which makes an order passed by him in  

such  capacity,  subject  to  judicial  review.   The  

scope of paragraph 2(1)(a) of the Tenth Schedule to  

the Constitution, therefore, enables the Speaker in  

a quasi-judicial capacity to declare that a Member  

of the House stands disqualified for the reasons  

mentioned  in  paragraph  2(1)(a)  of  the  Tenth  

Schedule to the Constitution.

91. Having considered all the different aspects of  

the  matter  and  having  examined  the  various  

questions  which  have  been  raised,  we  are  

constrained to hold that the proceedings conducted  

by the Speaker on the Disqualification Application  

filed by Shri B.S. Yeddyurappa do not meet the twin  

tests  of  natural  justice  and  fair  play.   The  

Speaker, in our view, proceeded in the matter as if  

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he was required to meet the deadline set by the  

Governor, irrespective of whether, in the process,  

he was ignoring the constitutional norms set out in  

the  Tenth  Schedule  to  the  Constitution  and  the  

Disqualification Rules, 1986, and in contravention  

of the basic principles that go hand-in-hand with  

the concept of a fair hearing.   

92. As  we  have  earlier  indicated,  even  if  the  

Disqualification  Rules  were  only  directory  in  

nature,  even  then  sufficient  opportunity  should  

have  been  given  to  the  Appellants  to  meet  the  

allegations levelled against them.  The fact that  

the Show-Cause notices were issued within the time  

fixed by the Governor for holding the Trust Vote,  

may explain service of the Show-Cause notices by  

affixation  at  the  official  residence  of  the  

Appellants, though without the documents submitted  

by Shri Yeddyurappa along with his application, but  

it is hard to explain as to how the affidavits,  

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affirmed  by  Shri  K.S.  Eswarappa,  Shri  M.P.  

Renukacharya and Shri Narasimha Nayak, were served  

on  the  learned  Advocates  appearing  for  the  

Appellants only on the date of hearing and that too  

just  before  the  hearing  was  to  commence.  

Extraneous  considerations  are  writ  large  on  the  

face of the order of the Speaker and the same has  

to be set aside.   

93. Incidentally,  in  paragraph  5  of  the  Tenth  

Schedule,  which  was  introduced  into  the  

Constitution  by  the  Fifty-second  Amendment  Act,  

1985, to deal with the immorality of defection and  

Floor crossing during the tenure of a legislator,  

it has been indicated that notwithstanding anything  

contained in the said Schedule, a person who has  

been elected to the office of the Speaker or the  

Deputy Speaker of the House of the People or the  

Deputy Chairman of the Council of States or the  

Chairman or the Deputy Chairman of the Legislative  

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Council of the State or the Speaker or the Deputy  

Speaker  of  the  Legislative  Assembly  of  a  State,  

shall not be disqualified under the Schedule if he  

by  reason  of  his  election  to  such  office,  

voluntarily  gives  up  the  membership  of  the  

political party to which he belonged immediately  

before such election, and does not, so long as he  

continues to hold such office thereafter, rejoin  

that political party or become a member of another  

political  party.   The  object  behind  the  said  

paragraph  is  to  ensure  that  the  Speaker,  while  

holding  office,  acts  absolutely  impartially,  

without any leaning towards any party, including  

the party from which he was elected to the House.   

94. The Appeals are, therefore, allowed.  The order  

of  the  Speaker  dated  10th October,  2010,  

disqualifying the Appellants from the membership of  

the  House  under  paragraph  2(1)(a)  of  the  Tenth  

Schedule  to  the  Constitution  is  set  aside  along  

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with  the  majority  judgment  delivered  in  Writ  

Petition (Civil) No.32660-32670 of 2010, and the  

portions of the judgment delivered by Justice N.  

Kumar concurring with the views expressed by the  

Hon’ble Chief Justice, upholding the decision of  

the  Speaker  on  the  Disqualification  Application  

No.1  of  2010  filed  by  Shri  B.S.  Yeddyurappa.  

Consequently,  the  Disqualification  Application  

filed by Shri B.S. Yeddyurappa is dismissed.    

95. There will be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi, Dated: 13.05.2011.

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