REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4510-4514 OF 2011

D. Sudhakar & Ors. … Appellants   

Vs.

D.N. Jeevaraju & Ors.  … Respondents

WITH CIVIL APPEAL NOS.4517-4521 OF 2011

J U D G M E N T

ALTAMAS KABIR, J.

1. The  operative  portion  of  this  judgment  was  

pronounced on 13th May, 2011.  The full text of the  

judgment is now being pronounced.

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2. Civil Appeal Nos. 4510-4514 of 2011 arising out  

of SLP(C) Nos. 5966-5970 of 2011 are filed by five  

Independent  Members  of  the  Karnataka  Legislative  

Assembly against a judgment of the Full Bench of  

the Karnataka High Court upholding an order passed  

by  the  Speaker  of  the  Karnataka  Legislative  

Assembly disqualifying them under Paragraph 2(2) of  

Tenth Schedule of the Constitution of India on the  

ground that they had joined the Bharatiya Janata  

Party (BJP) after their election to the Legislative  

Assembly as Independent candidates. The said order  

of disqualification was passed by the Speaker on  

Disqualification Application No.2 of 2010 filed by  

Shri  D.N.  Jeevaraju,  Chief  Whip,  BJP,  Karnataka  

Legislative Assembly and Shri C.T. Revi, Member of  

the  Karnataka  Legislative  Assembly.  Civil  Appeal  

Nos. 4517-4521 of 2011 arising out of SLP(C) Nos.  

5995-5999 of 2011 are filed by the very same five  

Independent  Members  of  the  Karnataka  Legislative  

Assembly challenging the very same judgment of the

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Full Bench of the Karnataka High Court upholding  

the order passed by the Speaker of the Karnataka  

Legislative  Assembly  disqualifying  them  under  

Paragraph  2(2)  of  Tenth  Schedule  of  the  

Constitution of India. The said order was passed by  

the Speaker on Disqualification Application Nos. 3  

to  7  of  2010  filed  by  the  voters  from  the  

constituencies represented by the five MLAs. Since  

the Speaker of the Karnataka Legislative Assembly  

had passed a Common Order dated 10th October, 2010  

on  Disqualification  Application  Nos.  2  to  7  of  

2010, the impugned judgment of the Full Bench of  

the High Court also was a Common Order passed in  

Writ  Petition  Nos.  32674-32678/2010  and  Writ  

Petition Nos. 33998-34002/2010. Therefore the basic  

dispute  in  these  Civil  Appeals  relates  to  the  

validity of the order of disqualification passed by  

the Speaker of the Karnataka Legislative Assembly  

against  the  Appellants  on  Disqualification  

Application Nos. 2 to 7 of 2010.  

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3. The  Appellants  herein  were  elected  to  the  

Thirteenth  Karnataka  Legislative  Assembly  as  

independent  candidates  in  the  elections  held  in  

May, 2008.  On 30th May, 2008, they were sworn in as  

Ministers in the Cabinet of the government headed  

by Shri B.S. Yeddyurappa, who was elected as the  

leader  of  the  B.J.P.  Legislature  Party  and  was  

sworn in as the Chief Minister of the State of  

Karnataka.   On  6th October,  2010,  the  Appellants  

submitted  separate  letters  to  the  Governor  of  

Karnataka stating that having become disillusioned  

with the functioning of the Government headed by  

Shri  B.S.  Yeddyurappa,  in  which  there  was  

widespread corruption and nepotism, a situation had  

arisen where the governance of the State could not  

be carried on in accordance with the provisions of  

the  Constitution  of  India.   The  Appellants  also  

indicated  that  Shri  B.S.  Yeddyurappa  had,  

therefore, forfeited his right to continue as Chief  

Minister having lost the confidence of the people

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and in the interest of the State and the people of  

Karnataka,  they  were  expressing  their  lack  of  

confidence in the Government headed by Shri B.S.  

Yeddyurappa  and  as  such  they  were  withdrawing  

support  to  the  Government  headed  by  him  as  the  

Chief Minister.  The Governor was also requested to  

intervene and institute the constitutional process  

as constitutional head of the State.  On the same  

day, on the basis of the letters written by the  

Appellants and others, the Governor of Karnataka  

asked the Chief Minister to prove his majority on  

the Floor of the House by 12th October, 2010.    

4. On the very next day i.e. on 7th October, 2010,  

the  Respondent  Nos.1  and  3,  namely,  Shri  D.N.  

Jeevaraju and Shri C.T. Ravi, the Chief Whip and  

the  General  Secretary  of  the  Bharatiya  Janata  

Party, respectively, filed Complaint No.2 of 2010  

dated  6th October,  2010  with  the  Speaker  of  the  

Karnataka Legislative Assembly under Rule 6 of the

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Karnataka Legislative Assembly (Disqualification of  

Members  on  Ground  of  Defection)  Rules,  1986,  

hereinafter  referred  to  as  the  “Disqualification  

Rules”, to declare that the Appellants had incurred  

disqualification  on  the  ground  of  defection  as  

contained  in  the  Tenth  Schedule  to  the  

Constitution.  On  the  basis  of  the  said  

Disqualification Application, on 8th October, 2010  

the  Speaker  issued  Show-Cause  Notices  to  the  

Appellants informing them of the Disqualification  

Application  filed  by  the  Chief  Whip  of  the  

Bharatiya Janata Party and the General Secretary  

thereof, indicating that despite having got elected  

as independent candidates, they became members of  

the  B.J.P.  Legislature  Party  and  also  became  

Ministers and thereby they violated Paragraph 2(2)  

of  the  Tenth  Schedule  to  the  Constitution.  The  

Appellants  were  informed  that  they  had  acted  in  

violation of paragraph 2(2) of the Tenth Schedule  

of the Constitution of India and it disqualified

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them from continuing as Members of the Legislature.  

The Appellants were given time till 5.00 p.m. on  

10th October, 2010, to submit their objections, if  

any, to the Disqualification Application either in  

writing or presenting themselves in person, failing  

which  it  would  be  presumed  that  they  had  no  

explanation  to  offer  and  further  action  would  

thereafter  be  taken  ex-parte in  accordance  with  

law.   In  the  meanwhile  on  9th October,  2010,  

Disqualification Application Nos.3 to 7 were filed  

by  some  voters  against  the  Appellants  and  show-

cause notices were issued by the Speaker on the  

same day requiring the Appellants to submit their  

explanation before 5.00 p.m. on 10th October, 2010.  

5. Having  come  to  know  about  the  show-cause  

notices from the media, the Appellants through an  

Advocate submitted a letter to the Speaker on 9th  

October,  2010,  indicating  that  they  had  come  to  

learn from the media that the show-cause notices

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had been issued to them as per the orders of the  

Speaker.  In the said letter it was categorically  

stated that the procedural requirements of Rule 7  

of the Disqualification Rules had not been complied  

with as copies of the Petition and annexures were  

not supplied to the Appellants and a period of 7  

days to submit the reply was not given to them. A  

specific request was made to the Speaker to supply  

the said documents and to grant a period of 7 days  

to submit the reply.  Though the documents were not  

supplied,  the  Appellants  though  their  Advocate  

submitted an interim reply on 10th October, 2010,  

during the proceedings before the Speaker.  It was  

specifically  stated  in  the  reply  that  it  was  

submitted as an interim reply without prejudice to  

and by way of abundant caution and reserving the  

right of the Appellants to submit exhaustive reply.  

6. The Appellants further submitted in the interim  

reply that the notice was in clear violation of the

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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 along with the show-cause  

notice.  The notice which was 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,  

called upon the Appellants to reply to the notice  

by 5.00 p.m. on 10th October, 2010, which was in  

complete violation of Rule 7 of the above-mentioned  

Rules  which  laid  down  a  mandatory  procedure  for  

dealing with the petition seeking disqualification  

under the Rules. In fact, even the time to reply to  

the notices was reduced to the severe prejudice to  

the  Appellants.  It  was  pointed  out  that  Rule  7  

requires that the Appellants should have been given  

7 days’ time to reply or within such further period  

as the Speaker may for sufficient cause allow.  It  

was contended that under the said Rule the Speaker

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could only extend the time by a further period of 7  

days, but could not curtail the same from 7 days to  

3  days.  It  was  the  categorical  case  of  the  

Appellants that the minimum notice period of 7 days  

was a mandatory 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  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. Yeddiyurappa on the Floor  

of the House at 11 a.m. on 11th October, 2010.  It  

was contended that the Show-Cause Notice was  ex-

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facie  unconstitutional and illegal, besides being  

motivated and malafide and devoid of jurisdiction.

7. 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 government  

formed by the B.J.P., but only to the Government  

headed by Shri Yeddiyurappa.  It was contended that  

withdrawal of support from the Government headed by  

Shri  B.S.  Yeddiyurappa  as  the  Chief  Minister  of  

Karnataka,  did  not  fall  within  the  scope  and  

purview of the Tenth Schedule to the Constitution  

of  India.  In  the  reply,  the  Appellants  

categorically denied the allegation that they had  

joined the Bharatiya Janata Party.  It was asserted  

that they remained independents and they had not  

joined  any  political  party  including  Bharatiya  

Janata Party.  It was claimed that they were always  

treated as independents only. It was urged that the  

conduct of the Appellants did not fall within the

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meaning of “defection” or within the scope of para  

2(2) of the Tenth Schedule of Constitution of India  

or the Scheme and object thereof.   However, on 10th  

October, 2010 itself, the Speaker passed an order  

“disqualifying the Appellants from the post of MLA  

for violation of Para 2 of the Tenth Schedule of  

the Constitution of India with immediate effect.”  

The said disqualification is the subject matter of  

this litigation.   

8. At this juncture, it is necessary to take note  

of  the  fact  that  13  MLAs,  belonging  to  the  

Bharatiya Janata Party, had also withdrawn their  

support  to  the  Government  led  by  Shri  B.S.  

Yeddyurappa and had made the same request to the  

Governor,  as  had  been  made  by  the  Appellants  

herein, for initiating the constitutional process  

in the wake of their withdrawal of support to the  

Government led by Shri B.S. Yeddyurappa. This had  

resulted  in  the  filing  of  Disqualification

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Application No.1 by Shri Yeddyurappa against the  

said MLAs and ultimately in their disqualification  

from  the  membership  of  the  House.   The  Civil  

Appeals challenging their disqualification has been  

heard by this Court and judgment has been reserved.  

Learned counsel for the Appellants submits that the  

same issues as were involved in the earlier cases  

are also involved in the present case, except that  

while in the case involving the 13 B.J.P. MLAs, the  

allegation  made  against  them  was  that  they  had  

voluntarily left the Bharatiya Janata Party, in the  

present case the allegation against the Appellants  

is  that  having  got  elected  as  independent  

candidates  they  had  joined  the  Bharatiya  Janata  

Party by extending support to Shri B.S. Yeddyurappa  

and by joining his Ministry as Cabinet Ministers.  

The same grievances as were raised by the 11 B.J.P.  

MLAs who were disqualified have been raised by the  

Appellants  herein.   It  has  been  reiterated  on  

behalf  of  the  Appellants  that  the  very  basic

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requirements of natural justice and administrative  

fair play had been denied to them.  On the other  

hand, not only were they not served with notice of  

the disqualification proceedings, but they were not  

even  given  sufficient  time  to  deal  with  the  

allegations made against them.  According to the  

Appellants, the proceedings before the Speaker, who  

had  acted  in  hot  haste  in  disqualifying  the  

Appellants before the Vote of Confidence was to be  

taken by Shri B.S. Yeddyurappa, had been vitiated  

as a result of such conduct on the part of the  

Speaker.

9. Appearing  in  support  of  the  Civil  Appeals  

arising out of SLP(C) Nos.5966-5970 of 2011, Mr.  

P.P. Rao, learned Senior Advocate, contended that  

by not allowing the Appellants sufficient time to  

even  reply  to  the  Show-Cause  Notices  issued  to  

them,  in  violation  of  Rule  7  of  the  Karnataka  

Legislative  Assembly  (Disqualification  of  Members

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on Ground of Defection) Rules, 1986, the Appellants  

had been deprived of a valuable opportunity to meet  

the allegations, although their membership of the  

House  depended  on  a  decision  on  the  said  

allegations and their response thereto.  Mr. Rao  

also  submitted  that  apart  from  being  denied  a  

proper hearing in terms of the statutory rules, the  

High  Court  had  erroneously  interpreted  the  

provisions of paragraph 2(2) of the Tenth Schedule  

to the Constitution of India in holding that the  

Appellants had joined the Bharatiya Janata Party,  

as alleged by the complainants.  Mr. Rao submitted  

that it had been alleged that the Appellants had  

joined the Bharatiya Janata Party either when prior  

to the formation of the Ministry they had given  

individual letters of support to Shri Yeddyurappa  

as the leader of the B.J.P. Legislature Party, or  

when they had joined the Cabinet as Ministers in  

the B.J.P. Government led by Shri B.S. Yeddyurappa.

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10. Mr. Rao then urged that the High Court had also  

misconstrued the concept of whips being issued to  

ensure  compliance  by  Members  of  a  particular  

political  party,  who  were  also  Members  of  the  

Legislature  Party  of  the  said  political  party.  

Mr. Rao urged that such whip had been issued to the  

Appellants, who as Members of the Government may  

have acted in terms thereof, but that did not mean  

that  the  Appellants  had  formally  joined  the  

Bharatiya Janata Party, as had been concluded by  

the Speaker.  

11. Mr. Rao contended that neither the Speaker nor  

the High Court had addressed these issues correctly  

in relation to the evidence available before him,  

as had been observed by the Constitution Bench in  

Rajendra Singh Rana & Ors. Vs. Swami Prasad Maurya  

& Ors. [(2007) 4 SCC 270].  Mr. Rao submitted that  

events  subsequent  to  the  date  on  which  an  

independent Member joins a political party is not

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material  for  a  decision  as  to  whether  the  

particular  Member  had,  in  fact,  joined  the  

political party or not.  Mr. Rao also urged that  

neither the decision in the case of Dr. Mahachandra  

Prasad  Singh Vs.  Chairman,  Bihar  Legislative  

Council & Ors. [(2004) 8 SCC 747], nor the decision  

in the case of  Jagjit Singh Vs.  State of Haryana  

[(2006) 11 SCC 1], had any application to the facts  

of this case, since in the said cases what was  

sought to be explained by this Court is that the  

Speaker  could  not  give  a  finding  regarding  

disqualification on the basis of conduct subsequent  

to the date on which a M.L.A. becomes disqualified  

from being a Member of the House.  It was also  

observed that when the view taken by the Tribunal  

is a reasonable one, the Court would be slow to  

strike down the view regarding disqualification on  

the ground that another view was better.  Mr. Rao  

urged that in the instant case, reliance by the  

Speaker on the decision of this Court in the case

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of G. Vishwanath Vs. Speaker [(1996) 3 SCC 353], is  

not of much assistance to the Respondents, because  

even from the conduct of the Appellants, it could  

not  be  said  that  they  had  joined  the  B.J.P.  

Legislature Party.  Mr. Rao urged that the fact  

that the Appellants had attended meetings of the  

B.J.P. Legislature Party was of little help to the  

Respondents since in the Attendance Register of the  

meetings they had been shown as independent Members  

and a separate group under the heading “Independent  

Co-Members”.   

12. Mr. Rao urged that the Appellants had always  

been treated as a separate group from the B.J.P.  

Legislature Party and it is only in connection with  

this  case  that  the  Respondents  had  attempted  to  

show that the Appellants had joined the Bharatiya  

Janata Party and by withdrawing support from the  

B.J.P.  Government  led  by  Shri  B.S.  Yeddyurappa,

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they had incurred disqualification under paragraph  

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

13. Mr. Rao also contended that the Whip issued by  

the Chief Whip of the B.J.P. Legislature Party did  

not form part of the documents produced before the  

Speaker, and, in any event, no Whip was served on  

the Appellants nor had they signed such a Whip.  

Therefore, the allegation that they had acted in  

accordance with such Whip did not and could not  

arise  and  the  finding  of  the  Speaker  to  the  

contrary, was perverse.  Mr. Rao added that the  

Whips  which  have  been  subsequently  brought  on  

record  in  W.P.(C)Nos.32674-32678  of  2010,  reveal  

that when the Whips were addressed to the ruling  

party Members, including the Ministers, they were  

addressed  as  Members  of  the  Party,  whereas  the  

remaining  five  Whips  were  addressed  to  the  

Appellants as Hon’ble Ministers.

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14. Mr. Rao also submitted that in the Whips issued  

to  the  Appellants  nowhere  had  it  been  indicated  

that they had joined the Bharatiya Janata Party.  

Mr. Rao urged that the positive case made out by  

the  Respondents  in  the  application  for  

disqualification was that the Appellants had joined  

the B.J.P. before they were sworn in as Ministers  

of Cabinet rank on 30th May, 2008, and not that they  

joined  the  B.J.P.  later  before  the  issuance  of  

Whips on 29th December, 2009.  Mr. Rao repeated his  

earlier  contention  that  the  question  before  the  

Speaker  for  consideration  was  whether  the  

Appellants had joined the B.J.P. before their being  

sworn  in  on  30th May,  2008,  or  not.   It  was  

submitted  that  it  was  beyond  the  Speaker’s  

jurisdiction to decide any matter other than what  

had  been  indicated  in  the  Disqualification  

Application.  

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15. On the question of scope of judicial review of  

the  Speaker’s  order,  Mr.  Rao  submitted  that  

although reliance had been placed on paragraph 109  

of the decision of this Court in  Kihoto Hollohan  

Vs. Zachillhu [(1992) Supp.2 SCC 651], wherein, it  

was held that judicial review of the order of the  

Speaker should be confined to jurisdictional errors  

only, the observations contained in paragraph 103  

of the judgment had not been noticed.  Mr. Rao  

submitted that in the said paragraph, it had been  

clarified that the finality clause in paragraph 6  

of the Tenth Schedule to the Constitution does not  

completely exclude the jurisdiction of the Courts  

under  Articles  136,  226  and  227  of  the  

Constitution, though, it does have the effect of  

limiting  the  scope  of  the  Courts’  jurisdiction  

under the said provision.  It was further observed  

that the principle applied by the courts is that  

inspite of a finality clause it is always open to  

the  High  Court  or  the  Supreme  Court  to  examine

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whether the action of the authority is ultra vires  

the powers conferred on it or whether the power so  

exercised  was  in  contravention  of  a  mandatory  

provision of law.  Mr. Rao urged that the judgment  

in Kihoto Hollohan’s case (supra) could not be read  

piecemeal, but would have to be read as a whole.

16. Mr. Rao submitted that in the instant case, the  

Speaker’s  order  had  been  made  in  violation  of  

paragraph 2(2) of the Tenth Schedule by erroneously  

equating the expression “Political Party” with the  

Government of the State.  Mr. Rao also submitted  

that the order of the Speaker had been passed in  

disregard of the relevant statutory Rules, namely,  

the  Karnataka  Disqualification  Rules  and  without  

reconsidering  the  materials  available  with  the  

Speaker under the aforesaid Rules.   

17. Mr. Rao then urged that the Speaker has also  

erred in entertaining the applications of voters in  

violation of Rule 6 of the aforesaid Rules and also

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Rule  7(3)  which  require  the  Speaker  to  give  a  

minimum of 7 days’ time to reply to the show-cause  

notice issued by him.  Mr. Rao submitted that the  

order was also liable to be quashed on the ground  

of violation of the principles of natural justice  

by  not  giving  the  Appellants  a  reasonable  

opportunity to present their case effectively.   

18. Mr. Rao lastly submitted that the order of the  

Speaker was perverse and was tailored to suit the  

Government led by Shri B.S. Yeddyurappa in the Vote  

of Confidence that was to follow the day after the  

decision had been pronounced by the Speaker.  Mr.  

Rao also repeated his earlier submissions that the  

Speaker had proceeded in the matter in great haste  

to meet the aforesaid deadline.                 

19. Mr. Rao submitted that the Speaker had acted in  

a mala fide manner in order to bail out the Chief  

Minister and to save his own Chair by not referring  

the  case  to  the  Committee  of  Privileges  having

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regard  to  the  allegations  of  bias  made  by  the  

Appellants  in  their  replies  to  the  Show-Cause  

Notices  and  deciding  the  case  himself,  while  

continuing to be a Member of the Bharatiya Janata  

Party while occupying the Chair of the Speaker.   

20. On  the  question  as  to  whether  the  

Disqualification Rules were mandatory or directory,  

Mr. Rao submitted that the decision in Ravi S. Naik  

Vs. Union of India [(1994) Suppl.2 SCC 641] was per  

incuriam  as it had not adverted to the decision of  

the Constitution Bench in  Kihoto Hollohan’s case  

(supra),  wherein  it  had  been  held  that  the  

Speaker’s  decision  while  exercising  power  under  

paragraph  6(1)  of  the  Tenth  Schedule  to  the  

Constitution  did  not  enjoy  the  immunity  under  

Articles 122 and 212 from judicial scrutiny as had  

also  been  pointed  out  by  K.T.  Thomas,  J.  in  

Mayawati Vs.  Markandeya Chand [(1998) 7 SCC 517].  

Mr. Rao urged that in any event, the view expressed

25

in Ravi S. Naik’s case (supra) was no longer good  

law  after  the  subsequent  Constitution  Bench  

decision  in  Rajendra  Singh  Rana’s  case  (supra),  

wherein it has been laid down that the Speaker was  

expected to follow the Rules framed under the Tenth  

Schedule which had been approved by the Legislative  

Assembly.  Mr. Rao urged that the Speaker had all  

throughout  treated  the  Appellants  as  independent  

Members as would be evident from the debates of the  

Assembly.    

21. Mr. Rao then submitted that the circumstances  

leading to the disqualification of the Appellants  

was quite obviously stage-managed in order to help  

the Chief Minister to survive the Confidence Vote  

on 11th October, 2010, by any means and the same  

will be evident from the affidavits filed later by  

the  voters  who  had  filed  Disqualification  

Petitions,  which  exposed  the  involvement  of  the  

Speaker and his Office as well as the Political

26

Advisor to the Chief Minister in inducing them to  

sign such applications.  Mr. Rao submitted that the  

decision  of  the  Speaker  having  been  taken  in  

violation of paragraph 2(2) of the Tenth Schedule,  

Rules  3,  4,  5,  6  and  7(3)  of  the  Karnataka  

Legislative  Assembly  (Disqualification  of  Members  

on  Ground  of  Defection)  Rules,  1986,  and  the  

principles  of  natural  justice,  was  perverse  and  

mala fide and was not sustainable either on facts  

or law.

22. Appearing  for  the  Appellants  in  the  Civil  

Appeals  arising  out  of  SLP  (C)  Nos.5995-5999  of  

2011, Mr. K.K. Venugopal, learned Senior Advocate,  

reiterated the submissions made by Mr. P.P. Rao in  

the other set of appeals.  Mr. Venugopal submitted  

that merely because the Appellants had joined the  

Council of Ministers in the Yeddyurappa Government,  it could not be contended that they had joined the  

Bharatiya Janata Party.  Mr. Venugopal submitted

27

that in the past there had been several instances  

where Members elected as independents to the Lok  

Sabha  had  served  in  the  Governments  formed  by  

Political Parties but had retained their status as  

independent Members of the House.  Mr. Venugopal  

referred  to  the  two  instances  when  Mrs.  Maneka  

Gandhi  was  elected  to  the  Lok  Sabha  as  an  

independent Member from Pilibhit in Uttar Pradesh  

and had served as Minister at the Centre in the  

Governments  led  by  the  Bharatiya  Janata  Party.  

Similarly, Shri Biswanath Das, Shri S.F. Khonglam  

and  Shri  Madhu  Koda,  who  were  all  independent  

legislators, became Chief Ministers of the States  

of Orissa, Meghalaya and Jharkhand.

23. Mr. Venugopal submitted that if by joining the  

Yeddyurappa Ministry, the Appellants had shed their  

independent status and had become Members of the  

Bharatiya  Janata  Party,  then  they  stood  

disqualified from the membership of the House at

28

that stage itself.  Such a stand had not, however,  

been  taken  by  the  complainants  or  even  the  

opposition parties, till the Governor directed a  

Vote of Confidence to be held on 12.10.2010.  Mr.  

Venugopal submitted that the said position would  

make it very clear that the Appellants continued to  

enjoy  an  independent  status,  although,  they  had  

extended their support to the B.J.P. Government led  

by  Shri  Yeddyurappa  and  had  also  joined  the  

Ministry as Cabinet Ministers.

24. Mr.  Venugopal  also  repeated  Mr.  Rao’s  

submissions  that  even  at  the  B.J.P.  Legislature  

Party  meetings  the  independent  status  of  the  

Appellants had been duly recognized and in the said  

meetings they had been shown not as a part of the  

Bharatiya Janata Party, but as a separate entity  

with separate serial numbers.  It was further urged  

that it could not also be presumed that by joining  

the  rallies  of  the  Bharatiya  Janata  Party,  the

29

Appellants had joined the Party and had, therefore,  

laid themselves open to disqualification as Members  

of the House under the provisions of the paragraph  

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

25.  Mr.  Venugopal  lastly  submitted  that  the  

Appellants had denied receipt of the Whips said to  

have been issued to them by the Chief Whip of the  

B.J.P.  Legislature  Party  or  having  acted  in  

accordance therewith.  Mr. Venugopal submitted that  

by no stretch of imagination could it be assumed  

that  the  Appellants  by  their  aforesaid  acts  had  

joined  the  Bharatiya  Janata  Party  or  had  even  

intended to do so.  Mr. Venugopal submitted that  

the impugned order of the Speaker was motivated and  

made with the sole intention of disqualifying them  

from participating in the Vote of Confidence which  

was to be held on 11th October, 2010.

26. Appearing  for  the  Respondent  No.1  Shri  D.N.  

Jeevaraju and others in the Civil Appeals arising

30

out of the Special Leave Petitions filed by Shri D.  

Sudhakar  and  others,  Mr.  Satpal  Jain,  learned  

Senior Advocate, submitted that one single incident  

cannot  always  be  a  factor  to  determine  as  to  

whether  an  independent  Member  had  joined  a  

Political Party or not and that there was no bar in  

taking cognizance of subsequent events in order to  

arrive at such a conclusion.   It was submitted  

that even if it be held that the Appellants had  

joined the Bharatiya Janata Party by joining the  

Ministry,  the  Speaker  was  always  entitled  to  

consider the subsequent conduct of the Appellants  

for purposes of corroboration of the earlier facts.  

Mr. Jain submitted that paragraph 2(2) of the Tenth  

Schedule to the Constitution makes it absolutely  

clear that on the joining of a Political Party an  

independent stands disqualified, but a declaration  

to that effect could be made at a later stage.

31

27. Mr. Jain reiterated the stand which had been  

taken on behalf of the Respondent No.1 before the  

Speaker that the Whip which had been issued by the  

Chief Whip was also meant for the Appellants and  

had been served on them and they had also acted  

according to the said Whip.  It was urged that this  

was not a case of support being rendered to the  

B.J.P. Government led by Shri Yeddyurappa, either  

from inside or from the outside, but this was a  

case where the Appellants had wilfully shed their  

independent status and had become Members of the  

ruling Bharatiya Janata Party and by such conduct  

they stood disqualified as Members of the House by  

virtue of paragraph 2(2) of the Tenth Schedule to  

the Constitution.   

28. On  the  allegation  with  regard  to  the  mala  

fides, Mr. Jain submitted that the same would have  

to be considered in the light of the circumstances  

in  which  the  order  of  the  Speaker  came  to  be

32

passed. It was submitted that once the question of  

disqualification of the Appellants was brought to  

his notice before the Vote of Confidence was to  

take place, it became the constitutional duty of  

the Speaker to decide the same before the Vote of  

Confidence  was  taken  in  order  to  ensure  that  

persons  who  were  not  eligible  to  vote,  did  not  

participate in the Vote of Confidence to be taken  

on 11th October, 2010.

29. Mr.  Jain  referred  to  and  relied  on  the  

decisions of this Court in  Dr. Mahachandra Prasad  

Singh’s case (supra)and Jagjit Singh’s case (supra)  

in support of his contention that in order to incur  

disqualification under paragraph 2(2) of the Tenth  

Schedule  to  the  Constitution,  it  was  not  always  

necessary that a written communication would have  

to be made to the Party in that regard.

30.  Mr. Jain also contended that in the translated  

copy of the Whip which had been issued by the Chief

33

Whip  of  the  B.J.P.  Legislature  Party,  the  very  

vital  words  describing  the  Appellants  as  

Legislators of the Ruling Party had been omitted.  

Mr.  Jain  submitted  that  this  fact  had  not  been  

noticed by the High Court, particularly, since the  

Whip was a single-line Whip.  Mr. Jain submitted  

that the Whip had been issued to all Members of the  

Bharatiya  Janata  Party  and  its  Ministers  in  the  

same  fashion  as  it  had  been  issued  to  the  

Appellants.  Mr. Jain submitted that the order of  

the Speaker disqualifying the Appellants from the  

Membership  of  the  House  did  not  call  for  any  

interference  and  the  Appeals  were  liable  to  be  

dismissed.

31. While dealing with the submissions of Mr. P.P.  

Rao  and  Mr.  Venugopal,  Mr.  Soli  J.  Sorabjee,  

learned Senior advocate, who appeared for Shri C.T.  

Ravi,  the  Respondent  No.3  in  the  Civil  Appeals  

arising out of the Special Leave Petitions filed by

34

Shri  D.  Sudhakar  and  others,  submitted  that  the  

provisions of paragraph 6 of the Tenth Schedule to  

the  Constitution  made  it  quite  clear  that  the  

decision relating to disqualification on ground of  

defection was final and, accordingly, the scope of  

judicial review available against the order of the  

Speaker  in  exercise  of  powers  under  the  Tenth  

Schedule to the Constitution was extremely limited,  

as  had  been  indicated  in  Kihoto  Hollohan’s  case  

(supra),  and  was  confined  and  limited  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  the  Appeals  did  not  

suffer from any of the above-mentioned infirmities  

and hence no judicial review was available to the  

Appellants in the present case.

35

32. Mr.  Sorabjee  also  relied  heavily  on  the  

decision  of  this  Court  in  Ravi  S.  Naik’s  case  

(supra) and also in Dr. Mahachandra Prasad Singh’s  

case  (supra),  where  the  Disqualification  Rules  

framed  by  the  Speaker  in  exercise  of  the  power  

conferred under paragraph 8 of the Tenth Schedule  

to the Constitution, was held to enjoy a status  

which was subordinate to the Constitution and could  

not  be  equated  with  the  provisions  of  the  

Constitution.  They  could  not,  therefore,  be  

regarded  as  constitutional  mandates  and  any  

violation  of  the  Disqualification  Rules  did  not  

also  afford  a  ground  for  judicial  review.   Mr.  

Sorabjee  submitted  that  the  aforesaid  questions  

were  no  longer  res  integra and  had  been  

authoritatively settled by the aforesaid decision  

of this Court.

33. On the question of  mala fides, Mr. Sorabjee  

submitted that as had been observed by this Court

36

in Sangramsinh P. Gaekwad Vs. Shantadevi P. Gaekwad  

[(2005) 11 SCC 314], a series of repetitive and  

almost abusive allegations against the Speaker was  

not sufficient to support a charge of  mala fides,  

especially  when  it  is  leveled  against  a  high  

functionary  such  as  the  Speaker.   Mr.  Sorabjee  

submitted that the law, as was also stated by this  

Court  in  E.P.  Royappa Vs.  State  of  Tamil  Nadu  

[(1974)  4  SCC  3],  is  clear  that  the  burden  of  

establishing  mala  fides is  very  heavily  on  the  

person  who  alleges  it,  since  the  allegations  of  

mala fides are often more easily made than proved.  

Mr. Sorabjee submitted that the Court could not and  

should not uphold a plea of mala fides on the basis  

of mere probabilities.   

34. On the question of undue haste, which was one  

of the pillars of the submissions relating to mala  

fides, Mr. Sorabjee submitted that the Speaker was  

bound  to  a  schedule  which  had  been  set  by  the

37

Governor for holding the Vote of Confidence and he,  

therefore, had no option but to reduce the time for  

the Appellants to show cause as to why they should  

not  be  disqualified  from  the  membership  of  the  

House to a period which was less than 7 days, as  

was stipulated under Rule 7 of the Disqualification  

Rules.  

35. On  the  question  of  natural  justice,  Mr.  

Sorabjee once again referred to the observations  

made by this Court in Ravi S. Naik’s case (supra),  

wherein it was observed that the rules of natural  

justice  were  not  immutable  but  flexible.   Mr.  

Sorabjee  submitted  that  the  same  view  had  been  

reiterated  in  Jagjit  Singh’s  case  (supra)  also.  

Mr.  Sorabjee  contended  that  even  if  a  different  

view  was  possible  from  the  view  which  had  been  

taken by the Speaker, unless the decision of the  

Speaker was shown to be wholly perverse or contrary  

to  the  provisions  of  the  Constitution,  the  same

38

ought not to be discarded and substituted for a  

different view which this Court may also consider  

to be possible.    

36. Mr. Sorabjee concluded on the note that the  

essence of being an independent lies in his acting  

according  to  the  dictates  of  his  independent  

conscience, untrammeled by the dictates of the Whip  

of any political party. Accordingly, an independent  

could  support  a  proposal  of  the  Government  or  

oppose  it,  but  that  would  be  according  to  his  

independent conscience and if such an independent  

member joins as a Minister in the Government formed  

by  a  political  party,  his  independence  is  

compromised and as indicated in  Kihoto Hollohan’s  

case  (supra),  it  was  for  him  to  resign  his  

membership  of  the  House  and  go  back  to  the  

Electorate for a fresh mandate.   

37. While  adopting  Mr.  Satpal  Jain’s  and  Mr.  

Sorabjee’s submissions, Mr. Jaideep Gupta, learned

39

Senior Advocate, who appeared for the Respondent  

Nos.4 and 5 in the Civil Appeals arising out of the  

Special  Leave  Petitions  filed  by  Sri  Shivraj  S.  

Thangadgi  and  others,  submitted  that  the  said  

Respondents as voters of the Constituency which had  

elected  the  Appellants  as  independents  were  

aggrieved by the fact that the Appellants had acted  

in a manner which was contradictory to the object  

underlining the provisions in the Tenth Schedule to  

the  Constitution,  namely,  to  curb  the  evil  of  

political defections motivated by lure of office or  

other  similar  considerations  which  endanger  the  

foundation of our democracy.  Mr. Gupta also relied  

on the decisions of this Court in Kihoto Hollohan’s  

case  (supra)  and  G.  Vishwanath’s  case  (supra).  

Although, the locus standi of the Respondent Nos.4  

and  5  to  maintain  a  complaint  under  the  

Disqualification Rules was strongly disputed in the  

absence of any mention of a voter having a right to  

file a complaint, Mr. Gupta submitted that even if

40

no  rules  had  been  framed  by  the  Speaker  under  

paragraph  8  of  the  Tenth  Schedule  to  the  

Constitution, the Speaker was still vested with the  

authority  to  take  action  against  an  independent  

member on information received by him.  Mr. Gupta  

also relied on the decisions cited by Mr. Satpal  

Jain and Mr. Soli J. Sorabjee in support of his  

aforesaid contention and submitted that the order  

of the Speaker impugned in these appeals did not  

call  for  any  interference  and  the  Appeals  were,  

therefore, liable to be dismissed.

38. Appearing for Shri B.S. Yeddyurappa in these  

appeals,  Mr.  P.S.  Narsimha,  learned  Senior  

Advocate, urged that the allegations made against  

Shri Yeddyurappa of colluding with the Speaker to  

obtain  an  order  of  disqualification  of  the  

Appellants before the date scheduled for the Vote  

of Confidence in the House, was wholly unjustified  

and uncalled for.  Mr. Narsimha submitted that Shri

41

Yeddyurappa was duty bound to inform the Speaker of  

any incident or incidents that may have occurred  

after the Members had been elected to the House,  

which  would  disqualify  them  from  the  membership  

thereof and Shri Yeddyurappa had, therefore, acted  

as part of the duties of his office in informing  

the  Speaker  by  way  of  the  Disqualification  

Application regarding the conduct of the Appellants  

as well as some of the other MLAs belonging to the  

Bharatiya Janata Party.   

39. Referring  to  the  concept  of  collective  

responsibility  of  the  Council  of  Ministers  as  

envisaged in Article 75 of the Constitution, Mr.  

Narsimha submitted that as had been commented upon  

in M.P. Jain’s “Indian Constitutional Law”, (Sixth  

Edition),  “a  notable  principle  underlying  the  

working  of  Parliamentary  Government  is  the  

principle  of  collective  responsibility  which  

represents  ministerial  accountability  to  the

42

legislature” and that Article 75(3) lays down that  

the  Council  of  Ministers  shall  be  collectively  

responsible to the Lok Sabha.  Mr. Narsimha urged  

that  the  principle  of  collective  responsibility  

ensured the unity of the Members of the Government  

and also made sure that each individual Minister  

took responsibility in regard to Cabinet decisions  

and to take action to implement the same.  

40. Mr.  Narsimha  submitted  that  as  soon  as  the  

Appellants  joined  the  Ministry  led  by  Shri  

Yeddyurappa as Ministers, they divested themselves  

of  their  independent  character  and  became  

collectively responsible to the other Members of  

the Cabinet and the Members of the State Assembly  

for governance of the State.

41. Most of the grounds taken in the present set of  

appeals  were  also  taken  in  the  Civil  Appeals  

arising out of Special Leave Petition Nos.33123-

33155 of 2010 and other connected appeals filed by

43

Balachandra L. Jarkiholi and others.  As indicated  

hereinbefore the only point of difference between  

the  two  sets  of  appeals  is  that  while  in  the  

earlier  set  of  appeals  the  issue  involved  was  

whether  the  Appellants  had  voluntarily  given  up  

their membership of the Bharatiya Janata Party so  

as  to  attract  the  disqualification  provisions  

contained in paragraph 2(a) of the Tenth Schedule  

to the Constitution, in the present set of appeals  

the question is whether the Appellants having been  

elected  as  independent  members  of  the  Karnataka  

Assembly had incurred disqualification  from the  

membership of the House in terms of paragraph 2(2)  

of  the  Tenth  Schedule  of  the  Constitution  by  

joining the Bharatiya Janata Party through their  

acts of extending support to a government led by  

Shri B.S. Yeddyurappa and becoming Ministers in the  

said government.

44

42. From the facts as disclosed during the hearing  

and the materials on record, it is the admitted  

case of both the parties that the Appellants had  

been  elected  to  the  13th Karnataka  Legislative  

Assembly as independent candidates in the elections  

held in May 2008.  It is also not disputed that  

immediately after the declaration of the results of  

the  Assembly  Elections  on  25.5.2008,  Shri  B.  S.  

Yeddyurappa  secured  letters  of  support  from  the  

Appellants herein on 26th May, 2008, and on the same  

day he addressed a letter to the Governor claiming  

majority support of the House which included the  

support of the Appellants herein, with a request to  

the Governor to appoint him as Chief Minister of  

the State. It is also undisputed that on 30.5.2008  

Shri Yeddyurappa was sworn in as Chief Minister of  

Karnataka  along  with  the  Appellants  as  Cabinet  

Ministers and on 4.6.2008, he proved his majority  

in the House.

45

43. The question with which we are concerned is  

whether  by  their  said  acts,  or  acts  subsequent  

thereto,  the  Appellants  could  be  said  to  have  

joined the Bharatiya Janata Party.

44. After having been sworn in as Ministers in the  

Government led by Shri Yeddyurappa, the Appellants  

undisputedly  attended  meetings  of  the  B.J.P.  

Legislature  Party  and  had  also  participated  in  

rallies  and  public  meetings  which  had  been  

conducted by the said party.   The Speaker, as well  

as the Full Bench of the High Court, came to the  

conclusion that by offering letters of support to  

Shri  Yeddyurappa  and  joining  his  Council  of  

Ministers,  the  Appellants  had  shed  their  

independent  status  and  had  joined  the  Bharatiya  

Janata  Party,  and  the  same  was  subsequently  

corroborated by their further action in attending  

the meetings of the B.J.P. Legislature Party and  

participating in its programmes.  Both the Speaker

46

and  the  High  Court,  therefore,  held  that  the  

Appellants  had  become  disqualified  from  the  

Membership of the House under paragraph 2(2) of the  

Tenth Schedule of the Constitution.

45.  In  the  absence  of  any  written  and/or  

documentary  proof  of  the  Appellants  having  

joined the Bharatiya Janata Party, both the Speaker  

and the High Court relied on the decision of this  

Court  in  Ravi  Naik’s  case  (supra),  which  was  

subsequently  followed  in  Dr.  Mahachandra  Prasad  

Singh’s  case  (supra)  and  Jagjit  Singh’s  case  

(supra), in which it was held that  in order to  

incur disqualification under  paragraph 2(2) of the  

Tenth  Schedule  to  the  Constitution  it  was  not  

always necessary that a written communication would  

have to be made to the political party in that  

regard.  As far as issuance of Whip by the Chief  

Whip of the Bharatiya Janata Party is concerned,  

such  an  act  would  not  ipso  facto be  taken  as

47

conclusive  proof  that  the  Appellants  had  joined  

Bharatiya Janata Party.  Furthermore, in the face  

of denial by the Appellants of having been served  

with the Whip, there is nothing on record to prove  

that they were actually received by the Appellants.

46. The  decisions  referred  to  hereinabove  have  

settled  certain  principles  of  law  relating  to  

interpretation  of  the  provisions  of  the  Tenth  

Schedule  to  the  Constitution,  but  the  said  

principles have to be applied in each case in its  

own set of facts.   In the facts of this case,  

there is no material or evidence to show that the  

Appellants had at any time joined the B.J.P.  Even  

as  independents,  the  Appellants  could  extend  

support to a government formed by a political party  

and  could  become  a  Minister  in  such  government.  

There is no legal bar against such extension of  

support  or  joining  the  government.   Hence,  such  

extension of support or joining the government as

48

Minister by an independent does not by itself mean  

that he has joined the political party which formed  

the government.  There is also no evidence to show  

that the Appellants were accepted and treated as  

members of the B.J.P. by that political party.  It  

is  to  be  noted  that  the  Petitioners  before  the  

Speaker  had  no  grievance  about  the  Appellants  

supporting  the  B.J.P.  Government  and  becoming  

Ministers  in  the  government,  for  more  than  two  

years.  Only when the Appellants withdrew support  

to the government led by Shri Yeddyurappa and a  

Confidence  Vote  was  scheduled  to  be  held,  the  

Petitioners  raked  up  the  issue  of  alleged  

disqualification.   The  Appellants,  even  while  

participating  in  the  meetings  of  the  B.J.P.  

Legislature  Party,  were  shown  separately  in  a  

category different from the other participants in  

such  meetings,  which  clearly  indicates  that  the  

Appellants, though Ministers in the Government led  

by Shri Yeddyurappa, were treated differently from

49

members of B.J.P. and were considered to be only  

lending  support  to  the  Government  led  by  Shri  

Yeddyurappa,  without  losing  their  independent  

status.  Mere participation in the rallies or public  

meetings organised by the B.J.P. cannot lead to the  

conclusion  that  the  Appellants  had  joined  the  

B.J.P.   

47. The results of the election were declared on  

25th May, 2008.   Sri B.S. Yeddyurappa was elected  

as Leader of the B.J.P. Legislature Party on 26th  

May, 2008.  The Appellants who had been elected as  

Independents  declared  their  support  to  Sri  

Yeddyurappa as Chief Minister on 26th May, 2008.  In  

the Notification dated 27th May, 2008 constituting  

the Legislative Assembly, the Appellants were shown  

as Independents.  In the statement submitted by the  

Leader of the B.J.P. Legislature Party, the names  

of  Appellants  were  not  included  in  the  list  of  

B.J.P. members.  In the Registers maintained by the

50

Speaker under Rules 3 & 4 of the Disqualification  

Rules, the Appellants were shown as Independents  

and  at  any  time  after  they  were  sworn  in  as  

Ministers on 30th May, 2008, no change was effected  

in  the  Registers.   No  information  was  furnished  

either  by  the  Appellants  or  by  the  B.J.P.  

Legislature Party to include the Appellants among  

B.J.P. members.  Thus, as per the Records of the  

Legislative  Assembly,  the  Appellants  were  not  

members  of  B.J.P.  when  the  order  of  

disqualification was passed by the Speaker.   

48. We are unable to accept the submission made on  

behalf of the Respondents that by extending support  

to  Shri  Yeddyurappa  in  the  formation  of  the  

Bharatiya  Janata  Party  led  government,  the  

Appellants  had  sacrificed  their  independent  

identities.  The fact that the said Appellants also  

joined the Council of Ministers does not also point  

to such an eventuality.  It is no doubt true that

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an independent legislator does not always have to  

express his intention to join a party in writing,  

but  the  mere  extension  of  support  to  Shri  

Yeddyurappa and the decision to join his Cabinet,  

in our view, were not sufficient to conclude that  

the  Appellants  had  decided  to  join  and/or  had  

actually  joined  the  Bharatiya  Janata  Party,  

particularly on account of the subsequent conduct  

in  which  they  were  treated  differently  from  the  

Members of the Bharatiya Janata Party.  In view of  

our finding that the Appellants had not joined any  

political  party  as  alleged,  the  order  of  

disqualification passed by the Speaker was against  

the  Constitutional  mandate  in  para  2(2)  of  the  

Tenth Schedule of the Constitution.  

49. This leaves us with the other question as to  

whether the Speaker acted in contravention of the  

provisions  of  Rule  7(3)  of  the  Disqualification  

Rules under which a Member of the House, to whom a

52

Show-Cause  Notice  is  issued,  has  to  be  given  7  

days’  time  or  more  to  reply  to  the  Show-Cause  

Notice.  The question which immediately follows is  

whether the Speaker acted in hot haste in disposing  

of  the  Disqualification  Application  against  the  

Appellants  for  their  disqualification  from  the  

House. Yet another question which arises is with  

regard to the scope of judicial review of an order  

passed by the Speaker under paragraph 2(2) of the  

Tenth Schedule to the Constitution, having regard  

to the provisions of Article 212 thereof.   

50. There is no denying the fact that the Show-

Cause Notices issued to the Appellants were not in  

conformity with the provisions of Rules 6 and 7 of  

the  Karnataka  Legislative  Assembly  

(Disqualification  of  Members  on  Ground  of  

Defection) Rules, 1986, inasmuch as, the Appellants  

were not given 7 days’ time to reply to the Show-

Cause Notices as contemplated under Rule 7(3) of

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the aforesaid Rules.  Without replying to the said  

objection raised, the Speaker avoided the issue by  

stating that it was sufficient for attracting the  

provisions of paragraph 2(2) of the Tenth Schedule  

to the Constitution that the Appellants herein had  

admitted  that  they  had  withdrawn  support  to  the  

Government  led  by  Shri  B.S.  Yeddyurappa.   The  

Speaker further recorded that the Appellants had  

been represented by counsel who had justified the  

withdrawal of support to the Government led by Shri  

Yeddyurappa.  Without  giving  further  details,  the  

Speaker  observed  that  the  Disqualification  Rules  

had been held by this Court to be directory and not  

mandatory, as they were to be followed for the sake  

of convenience.  The provisions of Rule 7(3) of the  

Disqualification Rules were held by the High Court  

to be directory in nature and that deviation from  

the said Rules could not and did not vitiate the  

procedure contemplated under the Rules, unless the  

violation  of  the  procedure  is  shown  to  have

54

resulted  in  prejudice  to  the  Appellants.  The  

Speaker wrongly relied upon the affidavit filed by  

Shri K.S. Eswarappa, State President of the B.J.P.,  

although there was nothing on record to support the  

allegations which had been made therein. In fact,  

the  said  affidavit  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 meet the allegations made therein.  

Coupled with the fact that the Speaker had violated  

the provisions of Rule 7(3) of the Disqualification  

Rules in giving the Appellants less than 7 days’  

time to reply to the Show-Cause Notices issued to  

them, failure of the Speaker to cause service of  

copies  of  the  affidavit  affirmed  by  Shri  K.S.  

Eswarappa amounted to denial of natural justice to  

the  Appellants,  besides  revealing  a  partisan  

attitude in the Speaker’s approach in disposing of  

the Disqualification Application filed by Shri B.S.

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Yeddyurappa.  If the Speaker had wanted to rely on  

the statements made in the aforesaid affidavit, he  

should have given the Appellants an opportunity of  

questioning the deponent as to the truth of the  

statements made in his affidavit.   This conduct on  

the  part  of  the  Speaker  also  indicates  the  hot  

haste  with  which  the  Speaker  disposed  of  the  

Disqualification Application, raising doubts as to  

the bona fides of the action taken by him.  The  

explanation  given  by  the  Speaker  as  to  why  the  

notices  to  show  cause  had  been  issued  to  the  

Appellants  under  Rule  7  of  the  Disqualification  

Rules, giving the Appellants only 3 days’ time to  

respond  to  the  same,  is  not  very  convincing.  

There was no compulsion on the Speaker to decide  

the Disqualification Applications in such a great  

hurry, within the time specified by the Governor  

for the holding of a Vote of Confidence in the  

government  headed  by  Shri  B.S.  Yeddyurappa.   It  

would  appear  that  such  a  course  of  action  was

56

adopted by the Speaker on 10th October, 2010, since  

the Vote of Confidence on the Floor of the House  

was to be held on 12th October, 2010.  We have no  

hesitation to hold that the Speaker’s order was in  

violation of Rules 6 & 7 of the Disqualification  

Rules and the rules of natural justice and that  

such  violation  resulted  in  prejudice  to  the  

Appellants.  Therefore, we hold that even if Rules  

6 & 7 are only directory and not mandatory, the  

violation of Rules 6 & 7 resulting in violation of  

the rules of natural justice has vitiated the order  

of the Speaker and it is liable to be set aside.  

51. We are next faced with the question as to the  

manner in which the Disqualification Applications  

were proceeded with and disposed of by the Speaker.  

On  6th October,  2010,  on  receipt  of  identical  

letters from the Appellants withdrawing support to  

the B.J.P. Government led by Shri B.S. Yeddyurappa,  

the Governor on the very same day wrote a letter to

57

the  Chief  Minister  informing  him  of  the  

developments regarding the withdrawal of support of  

the  5  independent  MLAs  and  13  B.J.P.  MLAs  and  

requesting him to prove his majority on the Floor  

of the House on or before 12th October, 2010 by 5.00  

p.m.  The Speaker was also requested to take steps  

accordingly.   On  the  very  same  day,  Shri  B.S.  

Yeddyurappa, as the leader of the B.J.P. in the  

Legislative Assembly, filed an application before  

the Speaker under Rule 6 of the Disqualification  

Rules, 1986, for a declaration that all the 13 MLAs  

elected  on  B.J.P.  tickets  along  with  two  other  

independent  MLAs,  had  incurred  disqualification  

under  the  Tenth  Schedule  to  the  Constitution.  

Immediately thereafter, on 7th October, 2010, the  

Speaker issued Show-Cause Notices to the concerned  

MLAs  informing  them  of  the  Disqualification  

Application filed by Shri B.S. Yeddyurappa and also  

informing them that by withdrawing support to the  

Government led by Shri B.S. Yeddyurappa, they were

58

disqualified  from  continuing  as  Members  of  the  

House in view of paragraph 2(1)(a) of the Tenth  

Schedule to the Constitution.  On 7th October, 2010  

itself, Petitions were filed against the Appellants  

by the Respondents and the Speaker on 8th October,  

2010 issued show-cause notices to the Appellants.  

The Appellants and the B.J.P. MLAs to whom show-

cause notices were issued were given time till 5.00  

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

objection, if any, to the said application. Apart  

from the fact that the Appellants were not given 7  

days’ time to file their reply to the Show-Cause  

Notices,  the  High  Court  did  not  give  serious  

consideration to the fact that even service of the  

Show-Cause  Notices  on  the  Appellants  and  the  13  

MLAs belonging to the Bharatiya Janata Party had  

not been properly effected. Furthermore, the MLAs  

who were sought to be disqualified were also not  

served with copies of the Affidavit filed by Shri  

K.S. Eswarappa, although the Speaker relied heavily

59

on  the  contents  thereof  in  arriving  at  the  

conclusion  that  they  stood  disqualified  under  

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

Constitution.  The  MLAs  were  not  supplied  with  

copies  of  the  affidavits  filed  by  Sri  M.P.  

Renukacharya and Shri Narasimha Nayak, whereby they  

had retracted the statements which they had made in  

their  letters  submitted  to  the  Governor  on  6th  

October, 2010. What is even more glaring is the  

fact  that  the  Speaker  not  only  relied  upon  the  

contents of the said affidavits, but also dismissed  

the  Disqualification  Application  against  them  on  

the basis of such retraction, after having held in  

the  case  of  13  MLAs  belonging  to  the  Bharatiya  

Janata Party that they had violated the provisions  

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

Constitution  immediately  upon  their  intention  to  

withdraw  their  support  to  the  Government  led  by  

Shri  B.S.  Yeddyurappa  was  communicated  to  the  

Governor.  

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52. It is obvious from the procedure adopted by the  

Speaker  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  13  B.J.P.  MLAs  stood  

disqualified prior to the date on which the Floor  

test was to be held.  Having concluded the hearing  

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

passed detailed orders, 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 and the other MLAs stood disqualified as  

Members of the House.  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.

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

not go against the Chief Minister, there was hardly  

any reason for the Speaker to have taken up the  

Disqualification  Applications  in  such  a  great  

haste.   

54. We cannot lose sight of the fact that although  

the  same  allegations  as  had  been  made  by  Shri  

Yeddyurappa against the disqualified B.J.P. MLAs,  

were made also against Shri M.P. Renukacharya and  

Shri Narasimha Nayak, whose retraction was accepted  

by the Speaker, despite the view expressed by him  

that upon submitting the letter withdrawing support  

to  the  B.J.P.  Government  led  by  Shri  B.S.  

Yeddyurappa,  all  the  MLAs  stood  immediately  

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

Schedule  to  the  Constitution,  the  said  two  

legislators  were  not  disqualified  and  they  were  

allowed to participate in the Confidence Vote, for  

reasons which are obvious.

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55.   Therefore, we hold that the impugned order of  

the Speaker is vitiated by mala fides.

56. On  the  question  of  justiciability  of  the  

Speaker’s  order  on  account  of  the  expression  of  

finality in paragraph 2 of the Tenth Schedule to  

the Constitution, it is now well-settled that such  

finality  did  not  bar  the  jurisdiction  of  the  

superior Courts under Articles 32, 226 and 136 of  

the Constitution to judicially review the order of  

the  Speaker.  Under  paragraph  2  of  the  Tenth  

Schedule  to  the  Constitution,  the  Speaker  

discharges quasi-judicial functions, which makes an  

order passed by him in such capacity, subject to  

judicial review.

57. We  are,  therefore,  unable  to  sustain  the  

decision of the Speaker, as affirmed by the High  

Court on all counts, and we, accordingly, allow the  

appeals  and  set  aside  the  orders  passed  by  the

63

Speaker on 11th October, 2010 and by the Full Bench  

of the High Court on 14th February, 2011.

58.  There will, however, be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 25.01.2012