# D. SUDHAKAR & ORS v. D.N. JEEVARAJU & ORS

- **Citation:** [2012] 2 S.C.R. 330
- **Court:** Supreme Court of India
- **Decided:** 2012-01-25
- **Case number:** Civil Appeal Nos.4510-4514 of 2011
- **Bench:** Altamas Kabir, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-sudhakar-ors-v-d-n-jeevaraju-ors-28131
- **Pages:** 36

## Headnote

KARNATAKA
LEGISLATIVE
ASSEMBLY
(DISQUALIFICATION OF MEMBERS ON GROUND OF
C DEFECTION) RULES, 1986:
rr:6 and 7 - Extension of support by appellants-
. Independents to BJP led Government and joining
Government as Cabinet Ministers ~ Withdrawal of support by
0
appellants - Speaker of Legislative Assembly disqualifying
them on the ground that they had joined BJP after their
elections as independent candidates - Held: Extension of
support by Independents to or joining the government as
Minister by independents would not by itself mean that the
E independents have joined the political party which formed the
government - There was no evidence to show that the
appellants were accepted and treated as members of the BJP
- The appellants while participating in the meetings of the
BJP Legislature Party were treated differently from members
of BJP and were considered to be only lending support to the
F Government led by 'Y' without losing their independent status
- Mere participation in the rallies or public meetings
organised by the BJP would not mean that the appellants had
joined the BJP - Even in the Registers maintained by the
Speaker under rr. 3 and 4, the appellants were shown as
G Independents - Thus, by extending support to 'Y' in the
formation of the BJP led government, the appellants cannot
be said to have sacrificed their independent identities - In
view of finding that the appellants had not joined any political
party, the order of disqualification passed by the Speaker was
H
330
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 331
against the Constitutional mandate in paragraph 2(2) of the
A
Tenth Schedule of the Constitution - Constitution of India,
1950 - Tenth Schedule.
rr. 6 and l -
Disqualification application against
appellants on the ground that having joined BJP led 8
government after their elections as independent candidates
they violated para 2(2) of the Tenth Schedule of the
Constitution - Show-Cause Notices issued by Speaker -
Validity of - Held: Evidence on record that Show-Cause
-Notices issued to appellants Were not in conformity with the C
provisions of rr. 6 and 7 as the appellants were not given 7
days' time to reply to Show-Cause Notices as contemplated
u/r. 7(3) of Rules - The Speaker wrongly relied upon the
affidavit filed by_ the State President of the BJP, although there
was nothing on record to support the a/legations which were
made therein - In fact, the said affidavit was not served on
D
the appellants - Thus failure of the Speaker to cause service
of copies of the affidavit affirmed by the State President of the
BJP 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 -
E
Speaker's order being in violation of rr. 6 and 7 and rules of
natural justice , such violation resulted in prejudice to
appellants - Even if rr. 6 and 7 were only directory and not
mandatory, violation of rr. 6 and 7 resulting in violation of rules
of natural justice vitiated the order of the Speaker and held
F
liable to be set aside
CONSTITUTION OF /NOIA, 1950: Tenth Schedule -
Paragraph 2 - Held: The expression of finality in paragraph
2 of the Tenth Schedule to the Constitution did not bar the
G
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.
H
332
SUPREME COURT REPORTS
(2012] 2 S.C.R.
A
The appellants were elected to the 13th Karnataka
Legislative Assembly as independent candidates in the
elections held in May 2008. The appellants declared their
support to 'Y' who was elected as the leader of the
Bharatiya Janata Party (B.J.P.) Legislature Party. On 30th
B May, 2008, 'Y' was sworn in as Chief Minister of Karnataka
along with the appellants

## Text

_Characters 0–39,977 of 75,876. This is a partial read: ask again with offset=39977 for what follows._

A
B
[2012] 2 S.C.R. 330
D. SUDHAKAR & ORS.
v.
D.N. JEEVARAJU & ORS.
(Civil Appeal Nos.4510-4514 of 2011)
JANUARY 25, 2012.
[ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
KARNATAKA
LEGISLATIVE
ASSEMBLY
(DISQUALIFICATION OF MEMBERS ON GROUND OF
C DEFECTION) RULES, 1986:
rr:6 and 7 - Extension of support by appellants-
. Independents to BJP led Government and joining
Government as Cabinet Ministers ~ Withdrawal of support by
0
appellants - Speaker of Legislative Assembly disqualifying
them on the ground that they had joined BJP after their
elections as independent candidates - Held: Extension of
support by Independents to or joining the government as
Minister by independents would not by itself mean that the
E independents have joined the political party which formed the
government - There was no evidence to show that the
appellants were accepted and treated as members of the BJP
- The appellants while participating in the meetings of the
BJP Legislature Party were treated differently from members
of BJP and were considered to be only lending support to the
F Government led by 'Y' without losing their independent status
- Mere participation in the rallies or public meetings
organised by the BJP would not mean that the appellants had
joined the BJP - Even in the Registers maintained by the
Speaker under rr. 3 and 4, the appellants were shown as
G Independents - Thus, by extending support to 'Y' in the
formation of the BJP led government, the appellants cannot
be said to have sacrificed their independent identities - In
view of finding that the appellants had not joined any political
party, the order of disqualification passed by the Speaker was
H
330
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 331
against the Constitutional mandate in paragraph 2(2) of the
A
Tenth Schedule of the Constitution - Constitution of India,
1950 - Tenth Schedule.
rr. 6 and l -
Disqualification application against
appellants on the ground that having joined BJP led 8
government after their elections as independent candidates
they violated para 2(2) of the Tenth Schedule of the
Constitution - Show-Cause Notices issued by Speaker -
Validity of - Held: Evidence on record that Show-Cause
-Notices issued to appellants Were not in conformity with the C
provisions of rr. 6 and 7 as the appellants were not given 7
days' time to reply to Show-Cause Notices as contemplated
u/r. 7(3) of Rules - The Speaker wrongly relied upon the
affidavit filed by_ the State President of the BJP, although there
was nothing on record to support the a/legations which were
made therein - In fact, the said affidavit was not served on
D
the appellants - Thus failure of the Speaker to cause service
of copies of the affidavit affirmed by the State President of the
BJP 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 -
E
Speaker's order being in violation of rr. 6 and 7 and rules of
natural justice , such violation resulted in prejudice to
appellants - Even if rr. 6 and 7 were only directory and not
mandatory, violation of rr. 6 and 7 resulting in violation of rules
of natural justice vitiated the order of the Speaker and held
F
liable to be set aside
CONSTITUTION OF /NOIA, 1950: Tenth Schedule -
Paragraph 2 - Held: The expression of finality in paragraph
2 of the Tenth Schedule to the Constitution did not bar the
G
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.
H
332
SUPREME COURT REPORTS
(2012] 2 S.C.R.
A
The appellants were elected to the 13th Karnataka
Legislative Assembly as independent candidates in the
elections held in May 2008. The appellants declared their
support to 'Y' who was elected as the leader of the
Bharatiya Janata Party (B.J.P.) Legislature Party. On 30th
B May, 2008, 'Y' 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.
On 6th October, 2010, the appellants submitted
separate letters to the Governor of Karnataka expressing
C . their lack of confidence in the Government headed by 'Y'
and withdrawal of their support. The Governor on the
very same day wrote a letter to the Chief Minister
regarding the withdrawal of support of the appellants (5
independent MLAs) and 13 B.J.P. MLAs and requesting
D him to prove his majority on the Floor of the House on
or before 12th October, 2010 by 5.00 p.m. On the very
same day, 'Y' as the leader of the B.J.P. in the Legislative
Assembly, filed an application before the Speaker under
Rule 6 of the Karnataka Legislative Assembly
E (Disqualification of Members on Ground of Defection)
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 and 8th
F October, 2010, the Speaker issued Show-Cause Notices
to the concerned MLAs and the appellants informing
them of the Disqualification Application filed by 'Y' and
also informing them that by withdrawing support to the
Government led by 'Y', they were disqualified from
G continuing as Members of the House. They 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. Another
disqualification application was filed by the voters from
H the constituencies represented by the appellants. After
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 333
concluding the hearing on 10th October, 2010 by 5.00 A
p.m., the Speaker passed detailed orders holding that the
appellants and the other MLAs stood disqualified as
Members of the House. The Full Bench of the High Court
upheld the said order of disqualification.
The question which arose for consideration in the
instant appeals was whether by extending support to 'Y'
in ·the formation of the BJP led government, the
appellants sacrificed their independent identities.
Allowing the appeals, the Court
B
c
HELD: 1.1. There was no 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 0
become a Minister in such government. Ther~ is no legal
bar against such exten.sion of support or joining the
government. Hence, such extension of support or joining
the government as Minister by an independent would not
by itself mean that the appellants have joined the political E
party which formed the government. There was also no
evidence to show that the appellants were accepted and
treated as rnembers of the B.J.P. by that political party.
The complainants before the Speaker had no grievance
about the appellants supporting the B.J.P. Government
and becoming Ministers in the government for more than
F
two years. Only when the appellants withdrew support to
the government led by 'Y' and a Confidence Vote was
scheduled to be held, the issue of alleged disqualification
was raked up by the complainants. The appellants, even
while participating in the meetings of the B.J.P. G
legislature Party, were shown separately in a category
different from the other participants in such ·meetings,
which clearly indicated that the appellants, though
Ministers in the Government led by 'Y' were treated
differently from members of B.J.P. and were considered H
334
SUPREME COURT REPORTS
(2012] 2 S.C'R.
A to be only lending support to the Government led by 'Y'
without losing their independent status. Mere
participation in the rallies or public meetings organised
by the B.J.P. would not mean that the appellants had
joined the B.J.P. The appellants who had been elected
B as Independents declared their support to 'Y' 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,
C the names of appellants were not included in the list of
B.J.P. members. In the Registers maintained by the
Speaker under Rules 3 and 4 of the Disqualification
Rules, the appellants were shown as Independents and
at any time after they were sworn in as Ministers on 30th
0
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
E by the Speaker. [Paras 46-47] [359-B-H; 360-A-D]
1.2. By extending support to 'Y' in the formation of
the B.J.P. led government, the appellants cannot be said
to have sacrificed their independent identities. The fact
F that the said appellants also joined the Council of
Ministers would also not point to such an eventuality. It
is no doubt true that an independent legislator does not
always have to express his intention to join a party in
writing, but the mere extension of support to 'Y' and the
G decision to join his Cabinet were not sufficient to
conclude that the appellants had decided to join and/or
had actually joined the B.J.P. particularly on account of
the subsequent conduct in which they were treated
differently from the Members of the B.J.P. In view of
H finding that the appellants had not joined any political
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 335
party as alleged, the order of disqualification passed by A
the Speaker was against the Constitutional mandate in
para 2(2) of the Tenth Schedule of the Constitution. (Para
48] (360-E-H]
2. The Show-Cause Notices issued to the appellants 8
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 the said Rules. Without replying to the C
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 had admitted that they
had withdrawn support to the Government led by 'Y'. The D
Speaker further recorded that the appellants had been
represented by counsel who had justified the withdrawal
of support to the Government led by 'Y'. Without giving
further details, the Speaker observed that the
Disqualification Rules h.ave been held to be directory and E
not mandatory. The Speaker wrongly relied upon the
affidavit filed by.the 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 the State F
President of the B.J.P. 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 ~he G
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 the State President of the B.J.P.
amounted to denial of natural justice to the appellants, H
336
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A besides revealing a partisan attitude in the Speaker's
approach in disposing of the Disqualification Application
filed by 'Y'. If the Speaker had wanted to rely on the
statements made in the said affidavit, he should have
given the appellants an opportunity of questioning the
B deponent as to the truth of the statements made in his
affidavit. This conduct on the part of the Speaker also
indicated the hot haste with which he disposed of the
Disqualification Application, raising doubts as to the
bona fides of the action taken by him. The explanation
c 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
0
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 'Y'.
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 to be held on 12th October, 2010 .
. E The Speaker's order was in violation of Rules 6 and 7 of
the Disqualification Rules and the rules of natural justice
and that such violation resulted in prejudice to the
appellants. Therefore, even if Rules 6 and 7 are only
directory and not mandatory, the violation of Rules 6 and
F 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. [Para 50) [361-D-H; 362-A-H; 363-A-B]
3. Manner in which the Disqualification Applications
G were proceeded with and disposed of by the Speaker.
Apart from the faCt that the appellants were not given 7
days' time to file their reply to the Show-Cause Notices,
t~e High Court did not give serious consideration to the
fact that even service of the Show-Cause Notices on the
H appellants and the 13 MLAs belonging to the B.J.P. had
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 337
not been properly effected. Furthermore, the MLAs who A
were sought to be disqualified were also not served with
copies of th_e Affidavit filed by State President of the B.J.P.,
although the Speaker relied heavily on the contents
thereof in arriving at the conclusion that they stood
disqualified under paragraph 2(1 )(a)/2(2) of the Tenth
B
Schedule to the Constitution. 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 8.J.P. MLAs stood disqualified prior c
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 holding that the
appellants and the other MLAs stood disqualified as
Members of the House. The Vote of Confidence took 0
place on 11th October, 2010, in which the disqualified
Members could not participate, and in their absence 'Y!
wa~ able to prove his majority in the House. 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 E
a great haste. [Para 51-53) [363-8; G-H; 364-A-B; E-H;
365-A]
4. On the question of justiciability of the Speaker's
order on account of the expression of finality in F
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 G
to the Constitution, the Speaker discharges quasi-judicial
functions, which makes an order passed by him in such
capacity, subject to judicial review. [para 56) [365-E-F]
Rajendra Singh Rana & Ors. v. Swami Prasad Maurya
H
338
SUPREME COURT REPORTS
(2012] 2 S.C.R.
A & Ors. (2007) 4 SCC 270: 2007 (2) SCR 591; Dr.
Mahachandra Prasad Singh v. Chairman, Bihar Legislative
Council & Ors. (2004) 8 SCC 747: 2004 (5) Suppl. SCR 692;
Jagjit Singh v. State of Haryana (2006) 11 SCC 1: 2006 -(10)
Suppl. SCR 521; G. Vishwanath V. Speaker (1996) 3 SCC
B
353; Kihoto Hollohan v. Zachil/hu (1992) Supp.2 SCC 651:
1992 (1) SCR 686; Ravi S. Naik v. Union of India (1994)
Suppl.2 SCC 641: 1994 (1) SCR 754; Mayawati v.
Markandeya Chand (1998) 7 SCC 517: 1998 (2) Suppl. SCR
204; Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad
c (2005) 11 sec 314: 2005 (1) SCR 624; E.P. Royappa v.
State of Tamil Nadu (1974) 4 SCC 3: 1974 (2) SCR 348 -
referred to.
Case Law Reference: .
D
2007 (2) SCR 591
referred to
Para 11,20
2004 (5) Suppl. SCR 692 referred to
Para 11,29,32
2006 (10) Suppl. SCR 521 referred to
Para 11,29,35
(1996) 3 sec 353
referred to
Para 11,37
E
1992 (1) SCR 686
referred to
Para 15, 20,31,
36,37
1994 (1) SCR 754
referred to
Para 20,32,35
F
1998 (2) Suppl. SCR 204 referred to
Para 20 '
2005 (1) SCR 624
referred to
Para 33
1974 (2) SCR 348
referred to
Para 33
G
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4510-4514 of 2011.
H
From the Judgment & Order dated 14.2.2011 of the High
Court of Karnataka at Bangalore in Writ Petition No. 3267432678 of 2010 (GM-RES).
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 339
WITH
C.A. No. 4517-4521of2011.
A
P.P. Rao, K.K. Venugopal, Satpal Jain, P.S. Narsimha,
Dinesh Dwivedi, Jaideep Gupta, Soli J. Sorabji, Prashant
Kumar Mahalakshmi Pavani, Bimola Devi, Triveni Potekar,
B
Ustav Sidhu, Apeksha Sharan, Filza Moonis, Amarjit Singh,
Bedi, Pooja Dhar, Gopal, Chandra Bhushan Prasad,
Bhupender Yadav, Ruchi Kohli, Saurabh Shamsherty, Anish
Kumar Gupta, M.B. Nargan, Deep Shikha Bharati, P.V.
Yogeshwaran, Vikramjeet Banerjee, M.B. Nargund, Prasanna c
Deshmukh, Rajeev Kr. Singh, Vikramjeet, Pritish Kapoor,
Jyotika Kalra for the appearing parties.
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. The operative portion of this
D
judgment was pronounced on 13th May, 2011. The full text of
·the judgment is now being pronounced.
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
E
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
F
election to the Legislative Assembly as lndepe11dent
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
G
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 Full Bench of the Karnataka High Court upholding the order
H
340
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A 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
B five MLAs. Since the Speaker of the Karnataka Legislative
Assembly had passed a Common Order dated 10th October,
201 O 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. 32674C 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.
D
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 e!ected as the leader of
E 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 S.S.
F 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
G continue as Chief Minister having lost the confidence of the
people 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
H him as the Chief Minister. The Governor was also requested
D. SUDHAKAR & ORS. v. D.N. JEEVARAJIJ & ORS. 341
[ALTAMAS KABIR, J.]
.
to intervene and institute the constitutional process as A
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
B
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 Karnataka C
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 D
basis of the said Disqualification Application, on 8th October,
201 O 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 E
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 F
the Constitution of India and it disqualified 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 G
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 H
342
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A 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
B notices 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
C 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,
D 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
E the notice was in clear violation of the Disqualification Rules,
1986, and especially Rules 6 and 7 thereof. It was mentioned
that Rule 7(3) requires copies of the petition and annexures
thereto to be forwarded along with the show-cause notice. The
notice which was pasted on the doors of the MLA quarters in
F 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
G · .. 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
H as the Speaker may for sufficient cause allow. It was contended
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 343
[ALTAMAS KABIR, J.]
that under the said Rule the Speaker could only extend the time A
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 B
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 c
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 0
Show-Cause Notice was ex-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
E
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. Yedd.iyurappa as the Chief Minister of
Karnataka, did not fall within the scope and purview of the Tenth
F
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 G
always treated as 'independents only. It was urged that the
conduct of the Appellants did not fall within the 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 H
344
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
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
8
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
C to the Government led by Shri B.S. Yeddyurappa. This had
resulted in the filing of Disqualification 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
D 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
E 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
F
grievances as were raised by the i 1 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
requirements of natural justice and administrative fair play had
been denied to them. On the other hand, not only were they not
G 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
H was to be taken by Shri B.S. Yeddyurappa, had been vitiated
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 345
[ALTAMAS KABIR, J.]
as a result of such conduct on the part of the Speaker.
A
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
8
Assembly (Disqualification of Members 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 C
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.
D
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 E
Ministers in the B.J.P. Government led by Shri B.S.
Yeddyurappa.
10. Mr. Rao then urged that the High Court had also
misconstrued the concept of whips b~ing issued to ensure
compliance by Members of a particular political party, who were
F
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 G
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
H
346
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A 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 material for
a decision as to whether the particular Member had, in fact,
B 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
c 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
0
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 of G. Vishwanath Vs.
Speaker [(1996) 3 sec 353), is not of much assistance to the
E 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 he1p to the Respondents since in the
F 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
G 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, they had
H incurred disqualification under paragraph 2(2) of the Tenth
Schedule to the Constitution.
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 347
[ALTAMAS KABIR, J.]
13. Mr. Rao also contended that the Whip issued by the A
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 B
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 c
the Party, whereas the remaining five Whips were addressed
to the Appellants as Hon'ble Ministers.
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 D
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 E
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 F
Disqualification Application.
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], G
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 H
348
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A.
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
8 the courts is that inspite of a finality clause it is always open to
the High Court or the Supreme Court to examine whether the
action of the authority is ultra vires the powers conferred on it
or whettier the power so exercised was in contravention of a
mandatory provision :of law. Mr. Rao urged that the judgment
C in Kihoto Ho/lohan'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
o "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.
E
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 Rule 7(3) which require the
Speaker to give a minimum of 7 days' time to reply to the showcause notice issued by him. Mr. Rao submitted that the order
F 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
G Stiri B.S. Yeddyurappa in the Vote of Confidence that was to
follow the day after the decision had been pronounced by the
s!>eaker. Mr. Rao also repeated his earlier submissions that
the' Speaker had proceeded in the matter in great haste to meet
the aforesaid deadline.
H
D. SUDHAKAR & ORS. v. D.N. JEEVARAJU & ORS. 349
[ALTAMAS KABIR, J.]
19. Mr. Rao submitted that the Speaker had acted in a mala A
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 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 B
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 C
sec 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 D
Articles 122 and 212 from judicial scrutiny as had also been
pointed out by K. T. Thomas, J. in Mayawati Vs.