# 10 S.C.R. 877 BALCHANDRA L. JARKIHOLI & ORS v. B.S. YEDDYURAPPA & ORS

- **Citation:** [2011] 10 S.C.R. 877
- **Court:** Supreme Court of India
- **Decided:** 2011-05-13
- **Case number:** Civil Appeal Nos.4444-4476 of 2011
- **Bench:** Altamas Kabir, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/10-s-c-r-877-balchandra-l-jarkiholi-ors-v-b-s-yeddyurappa-ors-27098
- **Pages:** 72

## Headnote

Constitution of India, 1950 - Tenth Schedule, Paragraph
2(1)(a) - Disqualification application against MLA on ground
A
B
of defection - Manner of disposal by the Speaker- Challenge
C
to - Tests of natural justice and fair play - Respondent no. 1
was the Legislature Party Leader of BJP in the Kamataka
Legislative Assembly, and also the Chief Minister of the State
of Kamataka - 13 BJP MLAs including the appellants and
two others-'MPR' and 'NN' wrote to the Governor of the State
D
that they were withdrawing support to the Government led by
Respondent no. 1 - Governor asked Respondent no. 1 to seek
vote of confidence on the floor of the House, and also
intimated the Speaker accordingly - Respondent no.1, as
leader of the BJP Legislature Party in the Legislative E
Assembly, filed Disqualification application before the
Speaker against all the said 13 MLAs - Speaker issued· ShowCause notices to all the said MLAs - Meanwhile 'MPR' and
'NN' retracted their stand, stating that they .,&ontinued to
support the Government led by Respondent no. 1 - Also,
F
'KSE', State President of the BJP filed affidavit along with
supporting documents, adverse to the interests of the
appellants - Speaker disqualified the appellants reasoning
that they had voluntarily given up their membership of the BJP
by their acts and conduct, but did not disqualify 'MPR' and G
'NN' taking note of the retraction made by them - Justification
- Held: Except for the affidavit filed by 'KSE', State President
of the B.J.P., and the statements of 'MPR' and 'NN', there was
nothing on record in support of the allegations made in the
877
H
878.
SUPREME COURT REPORTS
•
'-'
[2011) 10 S.C.R.
A Disqualification application - No presumption could be drawn
from the action of the appellants that they had voluntarily given
up their membership of the BJP - All along the appellants
emphasized their position that they not only continued to be
members of the BJP, but were also willing to support any
B Government formed by the BJP headed by any leader, other
than Respondent no. 1, as the Chief Minister of the State -
The Speaker acted in hot haste in disposing of the
Disqualification application filed by Respondent no. 1 - No
convincing explanation was given as to why notices to sho~
c 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· - The proceedings conducted by the
Speaker did not meet the twin tests of natural justice and fair
0
play - Procedure adopted by the Speaker seems to indicate
that he was trying to ensure that the appellants stood
disqualified prior to the date on which the Floor Test was to
be held, so that they could not participate and, in their
absence Respondent no. 1 was able to prove his majority in
the House - Also, although the same allegations, as were
E made against the Appellants by Respondent no.1, were also
made against 'MPR' and 'NN', their retraction was accepted
by the Speaker and they were, accordingly, permitted to
participate i• the Confidence Vote - The Speaker proceeded
in the matter as if he was required to meet the deadline set
F 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,
and in contravention of the basic principles that go hand-inhand with the concept of a fair hearing - Even if the
G Disqualification Rules were only directory in nature, sufficient
opportunity should have been given to the Appellants to meet
the allegations levelled against them - Affidavits, affirmeq by
'KSE', 'MPR' and 'NN', were served on the Advocates
appearing for the Appellants only on the date of hearing before
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
879
YEDDYURAPPA & ORS.
the Speaker and that too just before the hearing was to
A
commence - Extraneous considerations writ large on the face
o

## Text

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(2011] 10 S.C.R. 877
BALCHANDRA L. JARKIHOLI & ORS.
v.
B.S. YEDDYURAPPA & ORS.
(Civil Appeal Nos.4444-4476 of 2011)
MAY 13, 2011
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
Constitution of India, 1950 - Tenth Schedule, Paragraph
2(1)(a) - Disqualification application against MLA on ground
A
B
of defection - Manner of disposal by the Speaker- Challenge
C
to - Tests of natural justice and fair play - Respondent no. 1
was the Legislature Party Leader of BJP in the Kamataka
Legislative Assembly, and also the Chief Minister of the State
of Kamataka - 13 BJP MLAs including the appellants and
two others-'MPR' and 'NN' wrote to the Governor of the State
D
that they were withdrawing support to the Government led by
Respondent no. 1 - Governor asked Respondent no. 1 to seek
vote of confidence on the floor of the House, and also
intimated the Speaker accordingly - Respondent no.1, as
leader of the BJP Legislature Party in the Legislative E
Assembly, filed Disqualification application before the
Speaker against all the said 13 MLAs - Speaker issued· ShowCause notices to all the said MLAs - Meanwhile 'MPR' and
'NN' retracted their stand, stating that they .,&ontinued to
support the Government led by Respondent no. 1 - Also,
F
'KSE', State President of the BJP filed affidavit along with
supporting documents, adverse to the interests of the
appellants - Speaker disqualified the appellants reasoning
that they had voluntarily given up their membership of the BJP
by their acts and conduct, but did not disqualify 'MPR' and G
'NN' taking note of the retraction made by them - Justification
- Held: Except for the affidavit filed by 'KSE', State President
of the B.J.P., and the statements of 'MPR' and 'NN', there was
nothing on record in support of the allegations made in the
877
H
878.
SUPREME COURT REPORTS
•
'-'
[2011) 10 S.C.R.
A Disqualification application - No presumption could be drawn
from the action of the appellants that they had voluntarily given
up their membership of the BJP - All along the appellants
emphasized their position that they not only continued to be
members of the BJP, but were also willing to support any
B Government formed by the BJP headed by any leader, other
than Respondent no. 1, as the Chief Minister of the State -
The Speaker acted in hot haste in disposing of the
Disqualification application filed by Respondent no. 1 - No
convincing explanation was given as to why notices to sho~
c 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· - The proceedings conducted by the
Speaker did not meet the twin tests of natural justice and fair
0
play - Procedure adopted by the Speaker seems to indicate
that he was trying to ensure that the appellants stood
disqualified prior to the date on which the Floor Test was to
be held, so that they could not participate and, in their
absence Respondent no. 1 was able to prove his majority in
the House - Also, although the same allegations, as were
E made against the Appellants by Respondent no.1, were also
made against 'MPR' and 'NN', their retraction was accepted
by the Speaker and they were, accordingly, permitted to
participate i• the Confidence Vote - The Speaker proceeded
in the matter as if he was required to meet the deadline set
F 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,
and in contravention of the basic principles that go hand-inhand with the concept of a fair hearing - Even if the
G Disqualification Rules were only directory in nature, sufficient
opportunity should have been given to the Appellants to meet
the allegations levelled against them - Affidavits, affirmeq by
'KSE', 'MPR' and 'NN', were served on the Advocates
appearing for the Appellants only on the date of hearing before
H
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
879
YEDDYURAPPA & ORS.
the Speaker and that too just before the hearing was to
A
commence - Extraneous considerations writ large on the face
of the order of the Speaker and therefore the same has to be
set aside - Disqualification application filed by Respondent
no. 1 accordingly dismissed - Karnataka Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules,
B
1986 - Rules 6 and 7. ·
Constitution of India, 1950 -
Tenth Schedule,
Paragraphs 2(1)(a) and 6 - Power of the superior Courts to
judicially review order passed by Speaker under paragraph C
2(1 )(a) of the Tenth Schedule - Held: Under paragraph 2(1 )(a)
of the Tenth Schedule, the Speaker functions in a quasijudicial capacity, which makes an order passed by him in such
capacity, subject to judicial review - Judicial Review.
Constitution of India, 1950 - Tenth Schedule, Paragraph D
5 - Object of - Held: The object behind the paragraph 5 is to
enst..ire 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.
Respondent no.1 was the Legislature Party Leader
of the Bharatiya Janata Party (BJP) in the Karnataka
Legislative Assembly, and also the Chief Minister of the
State of Karnataka.
E
On 6th October, 2010, 13 BJP MLAs of the Karnataka
F
Legislative Assembly including the appellants and two
others- MPR' and 'NN', wrote identical letters to the
Governor of the State stating that they were withdrawing
their support to the Government led by Respondent no.1.
Five independent MLAs also withdrew support to the said G
Government. The same day, the Governor addressed
letter to Respondent no.1 informing him of the
developments regarding the withdrawal of support by 13
BJP MLAs and 5 independent MLAs and requesting
H
880
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A Respondent no.1 to seek vote of confidence on the floor
of the House on or before 12th October, 2010 by 5 p.m.
The Speaker was also requested accordingly.
On the very same day, Respondent no.1, as the
8
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, praying to declare that all the said
C 13 MLAs elected on BJP tickets had incurred
disqualification from the Legislative Assembly in view of
the Tenth Schedule to the Constitution.
The Speaker issued Show-Cause notices to all the
aforesaid 13 MLAs on 7th October, 2010, informing them
' D of the Disqualification Application filed by Respondent
no.1, but the appellants were not served with the notices
directly. Instead the notices were pasted on the outer
doors of their quarters in the IV.I.A complex. Time was
given to them till 5 p.m. on 10th October, 2010 (i.e. within
E 3 days), to submit their objections, if any, to the
application.
The appellants made objections stating that the
notice was in clear violation of the Disqualification Rules,
F 1986, especially Rules 6 and 7 thereof; that copies of the
disqualification petition and annexures thereto were not
forwarded with the Show-cause notice as required under
the Rules; that the appellants ought to have been given
a minimum notice period of 7 days' to reply and the
Speaker could only extend the period of 7 days, but could
G not curtail the time from 7 days to 3 days. In addition, the
appellants also sought to explain that they had chosen
to withdraw their support only to the Government headed
by Respondent no.1 as Chief Minister, as he was corrupt
and encouraged corruption, and not to the BJP itself,
H which could form another Government which could be
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
881
YEDDYURAPPA & ORS.
led by any other person, other than Respondent no.1, to A
whom the Appellants would extend support. Accordingly,
the appellants prayed for withdrawal of the Show-Cause
notices and for dismissal of the petition dated 6th
October, 2010 moved by Respondent no.1, alleging that
the same was made with ma/a fide intention and the
B
oblique motive of seeking their disqualification and
thereby preventing them from voting on the confidence
motion.
· Meanwhile both 'MPR' and 'NN' retracted their stand, C
stating that they continued to support the Government
led by Respondent no.1 and had no intention of
withdrawing such support and accordingly prayed for
withdrawal of any action proposed against them. Also,
'KSE', State President of the BJP filed affidavit along with
supporting documents, which were adverse to the D
Appellants' interests.
The Speaker rejected the objections filed on behalf
of Appellants and thereafter went on to disqualify the
appellants under Paragraph 2(1)(afof the Tenth Schedule
E
with immediate effect stating that 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 the appellants had voluntarily given up the
F
membership of the party from which they were elected.
The Speaker then took note of the retraction by 'MPR' and
'NN', and arrived at the decision that the said two MLAs
were not disqualified under the Tenth Schedule of the
Constitution.
The Appellants filed writ petitions challenging the
decision of the Speaker, which were listed before the
Hon'ble Chief Justice of High Court and his companion
Judge (Hon'ble Mr. Justice N. Kumar). On account of
G
H
882
SUPREME COURT REPORTS
(2011) 10 S.C.R.
A difference of opinion between the Hon'ble Chief Justice
and his companion Judge, the matter was referred to a
third Judge who concurred with the decision rendered
by the Chief Justice and as a result, per majority, the
order passed by the Speaker was upheld by the High
B Court.
In the instant appeals, the questions which arose for
consideration were:(a) Did the Appellants voluntarily give
up their membership of the BJP; (b) Since only three
C 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 Respondent no.1 introducing a whiff
D of bias as to the procedure adopted and (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 regc.rd to the provisions of
Article 212 thereof.
E
Allowing the appeals, the Court
HELD: 1.1. In the instant case, the Appellants had in
writing informed the Governor on 6th October, 2010, that
F having become disillusioned with the functioning of the
Government headed by Respondent no.1, they had
chosen to withdraw support to the Government headed
by Respondent no.1 and had requested the Speaker to
intervene and institute the constitutional process as
constitutional head of the State. The said stand was reG 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
H
BALCHANDRA L. JARKIHOLI & ORS. v. 8.S.
883
YEDDYURAPPA & ORS.
replies they had categorically indicated that nowhere in
A
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, s
other than Respondent no.1, 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
people of Karnataka according to the Constitution of c
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. The letter dated 6th
October, 2010, written by the Appellants to the Governor
0
clearly indicates that the authors thereof who had been
elected as a MLA on a BJP ticket, having become
disillusioned with the functioning of the Government
headed by Respondent no.1 on account of widespread
corruption, nepotism, favouritism, abuse of power and
misuse of Government machinery, were convinced that
E
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 Respondent no.1
had forfeited the confidence of the people. The letter
further indicates that it was in the interest of the State and
F
the people of Karnataka that the authors were expressing
their lack of confidence in the Government headed by
Respondent no.1 and that they were, accordingly,
withdrawing their support to the Government headed by
Respondent no.1 with a request to the Governor to
G
intervene and institute the constitutional process as
constitutional head of the State. [Paras 74, 75) [934-D-H;
935-A-E]
1.2. Although, the language used in the letter dated
H-
884
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A 6th October, 2010 was similar to the language used in
Article 356 of the Constitution, but the same could not be
said to be an explicit invitation to the Governor to ·take
action in accordance with the said Article. The
"constitutional process", as hinted at in the said letter did
B not necessarily mean the constitutional process of
proclamation of President's rule, but could also mean the
process of removal of the Chief Minister through
constitutional means. On account thereof, the BJP was
not necessarily deprived of a further opportunity of
c forming a Government after a change in the leadership
of the legislature party. In fact, the same is evident from
tile 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
0
only continued to be members of the BJP, but would also
support any Government formed by the BJP headed by
any leader, other than Respondent no.1, as the Chief
Minister of the State. The conclusion arrived at by the
Speaker does not find support from the contents of the
E said letter of 6th October, 2010, so as to· empower the
Speaker to take such a drastic step as to remove the
Appellants from the membership of the House. [Para 76]
[935-E-H; 936-A-B]
1.3. The Speaker concluded that by leaving
F
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
Respondent no.1 and the formation of a new Government,
the Appellants had voluntarily given up their membership
G of the B.J.P. and were contemplating the formation of a
Government excluding the BJP. The Speaker 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
H by the Appellants. The Speaker apparently did not take
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
885
YEDDYURAPPA & ORS.
into consideration the rule of evidence that a person
A
making an allegation has to prove the same with
supporting evidence and the mere fact that the allegation
was not denied, did not amount to the same having been
proved on account of the silence of the person against
whom such allegations are made. Except for the affidavit
B
filed by 'KSE', 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 t~e allegations which had been
made therein. Significantly, the said affidavits had not c
been served on the Appellants. Since 'KSE' 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. Not
only did the Speaker's action amount to denial of the
0
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
Respondent no.1. If the Speaker wished to rely on the
statements of a third party which were adverse to the
E
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
F
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 'KSE' as also the affidavits of the two
MLAs-, who had originally withdrawn support to the
Government led by Respondent no.1, but ·were later G
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, 'MPR' and 'NN' , were treated differently
H
886
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A on account of their having withdrawn the letters which
they had addressed to the Governor, while, on the other
hand, disqualifying the Appellants who had written
identical letters to the Governor, upon holding that they
had ceased to be members of the BJP, notwithstanding
B 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
c 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
Respondent no.1 in such a great hurry within the time
specified by the Governor to the Speaker to conduct a
0
Vote of Confidence in the Government headed by
Respondent no.1. Apparently, such a course of action
was adopted by the Speaker on 10th October, 2010, since
the Vote of Confidence on the Floor of the House was
slated for 12th October, 2010. The element of hot haste
E is also evident in the action of the Speaker in this regard
as well. [Para 77] [936-C-H; 937-A-H; 938-A]
1.4. Even if 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
F 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 documents relied
G upon by Respondent no.1, 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
H of the affidavit filed by 'KSE' , although, the Speaker relied
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
887
YEDDYURAPPA & ORS.
heavily on the contents thereof in arriving at the A
conclusion that the Appellants stood disqualified under
paragraph 2(1 )(a) of the Tenth Schedule to the
Constitution. Likewise, the Appellants were also not
supplied with the copies of the affidavits filed by 'MPR'
and 'NN' , whereby they retracted the statements which
B
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 them on the basis of
such retraction, after having held in the case of the c
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 Respondent no.1. The
Speaker ignored the claim of the Appellants to be given
reasonable time to respond to the Show-Cause notices D ·
and also to the documents which were handed over to
the 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
E
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 'KSE',
'MPR' and 'NN' , but the time given to submit the ShowCause on 10th October, 2010, was preponed from 5.00
p.m. to 3.00 p.m., making it even more difficult for the
F
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 te$t of
fairness when one takes into consideration the fact that G
various allegations had been made in the three affidavits
filed by 'KSE', 'MPR' and 'NN' , which could only be
answered by the Appellants themselves and not by their
Advocates. [Paras 84, 85) [943-A-H; 944-A-C]
H
888
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
1.5. 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
B date on which the Floor Test was to be held. Having
concluded the hearing on 10th October, 2010, by 5.00
p.m., the Speaker passed a detailed order in which
various judgments, both of Indian Courts and foreign
Courts, and principles of law from various authorities
c were referred to, on the same day, holding that the
Appellants had voluntarily given up their membership of
the BJP 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
0
Vote of Confidence took place on 11th October, 2010, in
which the disqualified members could not participate
and, in their absence Respondent no.1was able to prove
his majority in the House. [Para 86) [944-E-G)
1.6. Unless it was to ensure that the Trust Vote did
E 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 case and in Ravi
S.
Naik's case, this Court had held that the
F 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 that such an irregularity should not be such
G so as to prejudice any authority who is affected adversely
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
H when except for the newspaper cuttings said to have
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
889
YEDDYURAPPA & ORS.
been filed by Respondent no.1 along with the A
Disqualification Application, there was no other evidence
at all available against the Appellants. [Para 87] [944-H;
945-A-C]
1.7. In the present case, the Disqualification
8
Application filed by Respondent no.1contained only bald
allegations, which were not corroborated by any direct
evidence. The application did not even mention the
provision under which the same had been made. By
allqwing 'KSE', who was not even a party to the
proceedings, and 'MPR' and 'NN' to file their respective C
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 D
Appellants, but on their 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. [Para 88]
(945-D-H; 946-A-C]
E
1.8. Also, although the same allegations, as were
made against the Appellants by Respondent no.1, were
also made against 'MPR' and 'NN', their .retraction was
accepted by the Speaker, despite the view expressed by
F
him that upon submitting the letter withdrawing support
-to the BJP Government led by Respondent no.1, all the
MLAs stood immediately disqualified under paragraph
2(1 )(a) of the Tenth Schedule to the Constitution, and ttiey
were, accordingly, permitted to participate in the G
Confidence Vote for reasons which are not required to
be spelt out. [Para. 89) (946-D-E]
Dr. Mahachandra Prasad Singh vs. Chairman, Bihar
Legislative Council & Ors. (2004) 8 SCC 747: 2004 (5) Suppl.
SCR 692; Ravi S. Naik v. Union of India (1994) Suppl.2 SCC
H
890
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A 641: 1994 (1) SCR 754 and Jagjit Singh v. State of Haryana
(2006) 11 sec 1: 2006 (1 O) Suppl. SCR 521 -
distinguished.
Rajendra Singh Rana & Ors. Vs. Swami Prasad Maurya
B & Ors. (2007) 4 SCC 270: 2007 (2) SCR 591; Kihoto
Hollohan Vs. Zachillhu & Ors. (1992) Supp.2 SCC 651: 1992
(1) SCR 686; G. Viswanathan Vs. Hon'b/e Speaker Tamil
Nadu Legislative Assembly, Madras & Anr. (1996) 2 SCC
353: 1996 (1) SCR 895; S. Partap Singh Vs. State of Punjab
C (1964) 4 SCR 733; State of M.P. Vs. Ram Singh (200.0) 5
SCC 88: 2000 (1) SCR 579; B.R. Kapur Vs. State of T.N.
(2001) 7 SCC 231: 2001 (3) Suppl. SCR 191; Nazir Ahmad
Vs. King Emperor 63 Indian Appeals 372; State of U.P. Vs.
Singhara Singh (1964) 4 SCR 485; Union of India v. Tulsiram
Patel (1985) 3 sec 398: 1985 (2) Suppl. SCR 131;
D E:angramsinh P. Gaekwad v. Shantadevi P. Gaekwad (2005)
11 SCC 314: 2005 (1) SCR 624; E.P. Royappa Vs. State of
Tamil Nadu (1974) 4 SCC 3: 1974 (2) SCR 348 - referred
to.
E
2. 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
F 32, 226 and 136 of 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
G paragraph 2(1 )(a) of the Tenth Schedule to the
Constitution, therefore, enables the Speaker in a quasijudicial 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
H Constitution. [Para 90] [946-F-H; 947-A]
BALCHANDRA L. JARKIHOLI & ORS. v. S.S.
891
YEDDYURAPPA & ORS.
3. The proceedings conducted by the Speaker on the A
Disqualification Application filed by Respondent no.1do
not meet the twin tests of natural justice and fair play. The
Speaker proceeded in the matter as if he was required to
meet the deadline set by the Governor, irrespective of
whether, in the process, he was ignoring the B
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. [Para 91] [947-B·
D]
C
4. 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 ShowCause notices were issued within the time fixed by the D
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 Respondent no.1 along with his
application, but it is hard to explain as,to how the E
affidavits, affirmed by 'KSE', 'MPR' and 'NN', were served
on the 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
F
has to be set aside. [Para 92] [947 -E-G]
5. 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 G
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 H
89'2
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A Chairman of the Council of States or the Chairman or the
Deputy Chairman of the Legislative Council of the State
or the Speaker or the Deputy Speaker of the Legislative
Assembly of a State, shall not be disqualified under the
Schedule if he by reason of his election to such office,
B 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 politicai party. The object behind the said
c 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. [Para 93] [947-H; 948-A-D]
6. The order of the Speaker dated 10th October, 2010,
D disqualifying the Appellants from the membership of the
House under paragraph 2(1)(a) of the Tenth Schedule to
the Constitution is set aside along with the majority
judgment delivered by the High Court in the Writ Petitions,
and the portions of the judgment delivered by Hon'ble
E Justice N. Kumar concurring with the views expressed
by the Hon'ble Chief Justice of the High Court, upholding
the decision of the Speaker on the Disqualification
Application filed by Respondent no.1. Consequently, the
Disqualification Application filed by Respondent no.1 is
F dismissed. [Para 94] [948-E-F]
G
H
1994 (1) SCR 754
Case Law Reference:
distinguished Paras 13,19,20,
37,51,53, 54,
67,72,81,83,87
2006 (10) Suppl. SCR 521 distinguished Paras 14,53,_
59,88
2007 (2) SCR 591
referred to
Paras 15,24,
48,56,59
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
893
YEDDYURAPPA & ORS.
2004 (5) Suppl. SCR 692 distinguished Paras 19,78,
79,80,84,87
1992 (1) SCR 686
referred to
Paras 24,30,38,47,
50,51,52,
54,61,72
1996 (1) SCR 895
referred to
Para 24
2004 (5) Suppl. SCR 692 referred to Paras 24,37,47,
48,52, 54,67
(1964) 4 SCR 733
referred to
Para 24
2000 (1) SCR 579
referred to
Para 41
2001 (3) Suppl. SCR 191 referred to Para 41
63 Indian Appeals 372 referred to
Para 41
(1964) 4 SCR 485
referred to
Para 41
1985 (2) Suppl. SCR 131 referred to Para 43
2005 (1) SCR 624
referred to
Para 55
197 4 (2) SCR 348
referred to
Para 55
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4444-4476 of 2011.
A
B
c
D
E
From the Judgment & Order dated 15.11.2010 of the
F
Division Bench of High Court of Karnataka at Bangalore in Writ
Petition Nos. 32660-32670 of 2010.
C.A. Nos. 4522-4544 of 2011
C.A. Nos. 4477-4509 of 2011
WITH
Soli J. S.orabje and P.P. Rao, Jayashree Wad, Ashish
Wad, Tamali Wad, Sameer Abhyankar, Dipti Shikhar Srivastava
G
H
894
SUPREME COURT REPORTS
[2011] 10 S.C.R.
A
(for J.S. Wad & Co.) Prashant Kumar, Mahalaxmi Pavani,
Triveni Poteker, Bimala Devi, Purushottam Sharma Tripathi,
Apeksha Sharan, A.S. Ponnanna, A.P. Ranganatha (for Ajay
Sharma), Temple Law Firm, Bhupender Yadav, S.S.
Shamshery, Vikramjit Banejet, Pruhsh Kapur and S.N. Bhat for
B the appearing parties.
The Judgment of the Court was delivered by
. ALTAMAS KABIR, J. 1. Leave granted.
c
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
D 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
E
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
F
from the membership of the Karnakata 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
G 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
H functioning of the Government headed by Shri S.S.
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
895
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
Yeddyurappa and were convinced that a situation had arisen
A
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 B
expressed their lack of confidence in the 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,
c
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,
D
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
E
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 such I withdraw my support to the
F
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,
Shri H.R. Bharadwaj,
His Excellency Governor of Karnataka,
Raj Bhavan, Bangalore."
I remain
Yours faithfully,
G
H
896
SUPREME COURT REPORTS
(2011] 10 S.C.R.
A
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,
8
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 doubt having arisen about the majority support
C
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
D
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, fil~d an application before the
Speaker under Rule 6 of the Karnataka Legislative Assembly
E
(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.
F
5. As will appear from the materials on record, ShowCause 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
G 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
H the Tenth Schedule of the Constitution of India and it disqualified
BALCHANDRA L. JARKIHOLI & ORS. v. B.S.
897
YEDDYURAPPA & ORS. [ALTAMAS KABIR, J.]
them from continuing as Members of the Legislature. Time was
A
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
B
would 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
C
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
D
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
E
MLA quarters 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
F
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
G
be forwarded with the Show-Cau.se notice. The notice dated
H
7th October, 2010 called upon the Appellants to appear and
898
SUPREME COURT REPORTS
[2011) 10 S.C.R.
A reply by 5 p.m.