# SHRIMANTH BALASAHEB PATIL v. HON'BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS

- **Citation:** [2019] 16 S.C.R. 886
- **Court:** Supreme Court of India
- **Decided:** 2019-11-13
- **Bench:** N. V. Ramana, Sanjiv Khanna, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shrimanth-balasaheb-patil-v-hon-ble-speaker-karnataka-legislative-assembly-and-33916
- **Pages:** 85

## Headnote

Constitution of India - Tenth Schedule; Arts.190(3)(b),
191(1), 191(2) - Acceptance/rejection of the resignation of the
members of the House by the Speaker - Scope of judicial review
u/Arts.32 - Writ petitioners were elected as members of the 15th
Karnataka Legislative Assembly - Though the BJP was the single
largest party, but could not form the Government - A coalition
government of INC and JD(S) was formed - Disqualification
Petition No.1 of 2019 was instituted against the petitioners in
W.P.(C) No. 997/19 alleging that their conduct was in violation of
the whip issued by INC - Said petitioners submitted resignations
to the Speaker - Other petitioners also submitted their resignations
- No call taken by the Speaker on the resignations - Most of them
filed W. P.(C) No. 872/19 wherein Supreme Court inter alia directed
the Speaker to take decision qua the resignations forthwith - No
decision taken by the Speaker on the resignations - Further,
Disqualification Petition Nos.3-5 were filed against 13 petitioners
(Three in W.P (C) No. 1005/19 and 10 in W.P (C) Nos. 998/19,
1000/19, 1001/19, 1006/19 & 1007/19) - Disqualification Petition
Nos. 7 & 8 of 2019 were also filed - Chief Minister resigned on
losing the trust vote on 23.07.2019 - On 25.07.2019 and
28.07.2019, the Speaker passed the five impugned orders in the
above Disqualification Petitions rejecting the resignation of the
members asserting that they were not voluntary or genuine;
disqualifying all the Petitioners, the disqualification being till the
end of the 15th Legislative Assembly term - Held: Speaker, while
adjudicating a disqualification petition, acts as a quasi-judicial
authority - However, ordinarily, the party challenging the
disqualification is required to first approach the High Court as the
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same would be appropriate, effective and expeditious - Speaker's
scope of inquiry with respect to acceptance/rejection of a
resignation tendered by a member of the legislature is limited to
examine whether such a resignation was tendered voluntarily or
genuinely - Once it is demonstrated that a member is willing to
resign out of his free will, the speaker has no option but to accept
the resignation - In the present case, the Petitioners stated and
re-affirmed before the Speaker and this Court, in unequivocal
terms, that they voluntarily and genuinely resigned their
membership of the House - It is constitutionally impermissible for
the Speaker to take into account any extraneous factors while
considering the resignation - Satisfaction of the Speaker is subject
to judicial review - Further, in light of the existing Constitutional
mandate, the Speaker is not empowered to disqualify any member
till the end of the term - Also, no substantial question of law exists
in the present matter, which needs reference to a larger bench -
Petitioners failed to show any illegality in the orders of the Speaker
- Orders dated. 25.07.2019 and 28.07.2019 passed by the Speaker
in Disqualification Petition Nos. 1, 3-5, 7 & 8 of 2019, are upheld
to the extent of the disqualification of the Petitioners therein,
however, the part of the orders detailing the duration of
disqualification, viz., from the date of the respective order till the
expiry of the term of the 15th Legislative Assembly of Karnataka
is set aside - Rules of Procedure and Conduct of Business in
Karnataka Legislative Assembly - Chapter 22, r.202 (2) -
Constitution (Thirty- third Amendment) Act, 1974 - Constitution
(Fifty-second Amendment) Act, 1985 - Constitution (Ninety-first
Amendment) Act, 2003 - Arts. 75(1B), 164(1B) and 361B -
Karnataka Legislative Assembly (Disqualification of Members on
Ground of Defection) Rules, 1986 - r.7(3)(b) - Principles of
Natural Justice - Representation of the People Act, 1951 - s.36(2).
Constitution of India - Constitution (Thirty-third Amendment)
Act, 1974 - Proviso to Art.190(3)(b) - Respondents contended that
the acceptance/rejection of resignati

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SHRIMANTH BALASAHEB PATIL
v.
HON'BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS
(Writ Petition (Civil) No. 992 of 2019)
NOVEMBER 13, 2019
[N. V. RAMANA, SANJIV KHANNA
AND KRISHNA MURARI, JJ.]
Constitution of India - Tenth Schedule; Arts.190(3)(b),
191(1), 191(2) - Acceptance/rejection of the resignation of the
members of the House by the Speaker - Scope of judicial review
u/Arts.32 - Writ petitioners were elected as members of the 15th
Karnataka Legislative Assembly - Though the BJP was the single
largest party, but could not form the Government - A coalition
government of INC and JD(S) was formed - Disqualification
Petition No.1 of 2019 was instituted against the petitioners in
W.P.(C) No. 997/19 alleging that their conduct was in violation of
the whip issued by INC - Said petitioners submitted resignations
to the Speaker - Other petitioners also submitted their resignations
- No call taken by the Speaker on the resignations - Most of them
filed W. P.(C) No. 872/19 wherein Supreme Court inter alia directed
the Speaker to take decision qua the resignations forthwith - No
decision taken by the Speaker on the resignations - Further,
Disqualification Petition Nos.3-5 were filed against 13 petitioners
(Three in W.P (C) No. 1005/19 and 10 in W.P (C) Nos. 998/19,
1000/19, 1001/19, 1006/19 & 1007/19) - Disqualification Petition
Nos. 7 & 8 of 2019 were also filed - Chief Minister resigned on
losing the trust vote on 23.07.2019 - On 25.07.2019 and
28.07.2019, the Speaker passed the five impugned orders in the
above Disqualification Petitions rejecting the resignation of the
members asserting that they were not voluntary or genuine;
disqualifying all the Petitioners, the disqualification being till the
end of the 15th Legislative Assembly term - Held: Speaker, while
adjudicating a disqualification petition, acts as a quasi-judicial
authority - However, ordinarily, the party challenging the
disqualification is required to first approach the High Court as the
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same would be appropriate, effective and expeditious - Speaker's
scope of inquiry with respect to acceptance/rejection of a
resignation tendered by a member of the legislature is limited to
examine whether such a resignation was tendered voluntarily or
genuinely - Once it is demonstrated that a member is willing to
resign out of his free will, the speaker has no option but to accept
the resignation - In the present case, the Petitioners stated and
re-affirmed before the Speaker and this Court, in unequivocal
terms, that they voluntarily and genuinely resigned their
membership of the House - It is constitutionally impermissible for
the Speaker to take into account any extraneous factors while
considering the resignation - Satisfaction of the Speaker is subject
to judicial review - Further, in light of the existing Constitutional
mandate, the Speaker is not empowered to disqualify any member
till the end of the term - Also, no substantial question of law exists
in the present matter, which needs reference to a larger bench -
Petitioners failed to show any illegality in the orders of the Speaker
- Orders dated. 25.07.2019 and 28.07.2019 passed by the Speaker
in Disqualification Petition Nos. 1, 3-5, 7 & 8 of 2019, are upheld
to the extent of the disqualification of the Petitioners therein,
however, the part of the orders detailing the duration of
disqualification, viz., from the date of the respective order till the
expiry of the term of the 15th Legislative Assembly of Karnataka
is set aside - Rules of Procedure and Conduct of Business in
Karnataka Legislative Assembly - Chapter 22, r.202 (2) -
Constitution (Thirty- third Amendment) Act, 1974 - Constitution
(Fifty-second Amendment) Act, 1985 - Constitution (Ninety-first
Amendment) Act, 2003 - Arts. 75(1B), 164(1B) and 361B -
Karnataka Legislative Assembly (Disqualification of Members on
Ground of Defection) Rules, 1986 - r.7(3)(b) - Principles of
Natural Justice - Representation of the People Act, 1951 - s.36(2).
Constitution of India - Constitution (Thirty-third Amendment)
Act, 1974 - Proviso to Art.190(3)(b) - Respondents contended that
the acceptance/rejection of resignation is based on the subjective
satisfaction of the Speaker which is immune from judicial review
- Held: Unable to agree with this contention - It is true that 33rd
Constitutional Amendment changed the constitutional position by
conferring discretion on the Speaker to reject the resignation -
However, such discretion is not unqualified, as the resignation can
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only be rejected if the Speaker is "satisfied that such resignation
is not voluntary or genuine" - Determination of whether the
resignations were "voluntary" or "genuine" cannot be based on
the ipse dixit of the Speaker, instead it has to be based on his
"satisfaction" - Even though the satisfaction is subjective, it has
to be based on objective material showing that resignation is not
voluntary or genuine - This satisfaction of the Speaker is subject
to judicial review.
Constitution of India - Art.190(3)(b) - Speaker's duty under
- Scope of - Discussed.
Constitution of India - Constitution (Ninety-first Amendment)
Act, 2003 - Arts. 75(1B), 164(1B) & 361B - Various
Disqualification Petitions were filed against the petitioners wherein
the Speaker passed the impugned orders - However, 15 of the 17
Petitioners had tendered their resignation from the House before
the disqualification petitions were adjudicated - Petitioners
contended that the Speaker did not have the jurisdiction to deal
with disqualification petitions, as the Petitioners having resigned
were no longer members who could have been disqualified - Held:
This issue does not apply to the Pe-titioners in W. P. (C) No. 992/
19 and W. P. (C) No. 1003/19 as they did not tender their
resignation - Further, if it is held that the disqualification
proceedings would become infructuous upon tendering resignation,
any member who is on the verge of being disqualified would
immediately resign and would escape from the sanctions provided
u/Arts. 75(1B), 164(1B) & 361B - Such an interpretation would
therefore not only be against the intent behind the introduction of
the Tenth Schedule, but also defeat the spirit of the 91st
Constitutional Amendment - In addition, the decision of the
Speaker that a member is disqualified, relates back to the date of
the disqualifying action complained of - Constitution (Fifty-second
Amendment) Act, 1985 - Tenth Schedule.
Constitution of India - Arts. 102(2), 164(1B), 168, 172,
190(3), 191(1), (2), 192, 361(B) - Scheme of the Constitution with
respect to State Legislatures - Discussed.
Constitution of India - Tenth Schedule; Arts.190(3)(b), 191
- Scope of the Speaker's power on disqualification - Discussed.
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Constitution of India - Arts.191(1) and (2) - Contrast in
phraseology between Arts.191(1) and 191(2) - Held: Exclusion of
the phrase "for being chosen as" a mem-ber in Art.191(2) suggests
that the disqualification under the Tenth Schedule is qualita-tively
and constitutionally different from the other types of
disqualification that are provided for u/Art. 191(1) - Phrase "for
being chosen as" has a specific connotation, meaning that a
person cannot become a member of the House, if suffering from a
disqualification u/Art.191(1) - At the same time, the absence of
these words in Art.191(2) suggests that a person who is no longer
a member due to disqualification under the Tenth Schedule does
not suffer from the additional infirmity of not being allowed to
become a member subsequently - Therefore, such a person is not
barred from contesting elections - Representation of the People
Act, 1951 - ss.7-11, 36(2) - Constitution (Ninety-first Amendment)
Act, 2003 - Arts. 164(1B) & 361B.
Constitution of India - Tenth Schedule - Resignation and
disqualification on account of defection under the said Schedule
- Held: Both result in vacancy of the seat held by the member in
the legislature, but further consequences envisaged are different.
Constitution of India - Disqualification under the Tenth
Schedule - Sanctions under Arts. 75(1B), 164(1B) and 361B -
Held: Speaker is not empowered to disqualify any member till the
end of the term - However, a member disqualified under the Tenth
Schedule shall be subjected to sanctions provided u/Arts. 75(1B),
164(1B) & 361B which provides for a bar from being appointed
as a Minister or from holding any remunerative political post from
the date of disqualification till the date on which the term of his
office would expire or if he is re-elected to the legislature,
whichever is earlier.
Constitution of India - Duty of constitutional functionaries
to uphold constitutionalism and constitutional morality -
Discussed.
Constitution of India - Art.145(3) - Interpretation of - Held:
Two important phrases occurring in Art.145(3) are 'substantial
question of law' and 'interpretation of the Constitution' - Two
conditions can be culled out before a reference is made: (i) The
Court is satisfied that the case involves a substantial question of
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law as to the interpretation of this Constitution; (ii) The
determination of which is necessary for the disposal of the case -
Any question of law of general importance arising incidentally, or
any ancillary question of law having no significance to the final
outcome, cannot be considered as a substantial question of law -
Existence of substantial question of law does not weigh on the
stakes involved in the case, rather, it depends on the impact the
question of law will have on the final determination.
Words & Phrases - "voluntary" and "genuine" - Ambit of,
in context of Art.190(3)(b)- Constitution of India - Art. 190(3)(b)
- Explained.
Words & Phrases - 'disqualification' - Meaning of -
Constitution (Fifty-second Amendment) Act, 1985 - Tenth
Schedule.
Words & Phrases - "violation of constitutional mandate" -
Held: Phrase "violation of constitutional mandate" speaks for itself
and does not need much elaboration. A "constitutional mandate"
can be understood as what is required under, or by, the
Constitution - In the context of the Tenth Schedule, and an order
of disqualification passed by the Speaker thereunder, the
"constitutional mandate" is therefore nothing but what is
constitutionally required of the Speaker - A "violation of
constitutional mandate" is merely an unconstitutional act of the
Speaker, one that cannot be defended on the touch-stone of the
Tenth Schedule and the powers or duties of the Speaker therein
and is in contravention or violation of the same - Constitution
(Fifty-second Amendment) Act, 1985 - Tenth Schedule.
Disposing of the writ petitions, the Court
HELD: 1.1 Writ jurisdiction is one of the valuable rights
provided under Article 32 of the Constitution, which in itself
forms part of the basic structure of the Constitution. After the
decision in the Kihoto Hollohan case, the Speaker, while
exercising the power to disqualify, is a Tribunal and the validity
of the orders are amenable to judicial review. On a perusal of
the judgment in the Kihoto Hollohan case, no explicit or implicit
bar is found to adjudicate the issue under the writ jurisdiction
of this Court. The jurisdiction conferred on this Court by Article
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32 is an important and integral part of the basic structure of the
Constitution of India and no act of Parliament can abrogate it or
take it away except by way of impermissible erosion of
fundamental principles of the constitutional scheme are settled
propositions of Indian jurisprudence. In any case, it is noted that
by challenging the order directly under Article 32, the
Petitioners have leapfrogged the judicial hierarchy as envisaged
under the Constitution. The manner in which the petitioners
have knocked on the doors of this Court is not appreciated.
Among other reasons, the present matter was proceeded to be
heard due to the peculiar facts presented before the Court,
wherein certain interim orders were passed herein by another
Co-ordinate Bench of Supreme Court in Writ Petition (C) No.
872 of 2019 filed by some of the present petitioners. The Court
had heard the matter at some length on 25.09.2019 and
26.09.2019, when with the consent of the counsel of all the
parties, the matter was fixed for final hearing. Since a substantial
amount of time passed in the meanwhile, and to ensure that the
same exercise need not be repeated before the High Court, the
Court is left with no option but to hear these cases on merits.
[Paras 22, 26, 28 and 29] [925-A-B; 926-D-E-H; 927-A-C]
Kihoto Hollohan v. Zachillhu (1992) Supp 2 SCC
651 : [1992] 1 SCR 686 - followed.
Tamil Nadu Pollution Control Board v. Sterlite
Industries (I) Ltd. 2019 SCC Online SC 221 - referred
to.
1.2 It is true that 33rd Constitutional Amendment changed
the constitutional position by conferring discretion on the
Speaker to reject the resignation. However, such discretion is
not unqualified, as the resignation can only be rejected if the
Speaker is "satisfied that such resignation is not voluntary or
genuine". Determination of whether the resignations were
"voluntary" or "genuine" cannot be based on the ipse dixit of
the Speaker, instead it has to be based on his "satisfaction".
Even though the satisfaction is subjective, it has to be based
on objective material showing that resignation is not voluntary
or genuine. When a member tenders his resignation in writing,
the Speaker must immediately conduct an inquiry to ascertain
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if the member intends to relinquish his membership. The inquiry
must be in accordance with the provisions of the Constitution
and the applicable rules of the House. This satisfaction of the
Speaker is subject to judicial review. The 33rd Constitutional
Amendment amended Article 190(3)(b) of the Constitution and
added a proviso. Thus, prior to the 33rd Constitutional
Amendment, there was no provision in the Article which required
the resignation to be accepted by the Speaker to become
effective. Originally, the position was that a member of a
Legislative Assembly could resign from office by a unilateral act,
and the acceptance of resignation was not required. First, as a
starting principle, it has to be accepted that a member of the
Legislature has a right to resign. Nothing in the Constitution,
or any statute, prevents him from resigning. A member may
choose to resign for a variety of reasons and his reasons may
be good or bad, but it is his sole prerogative to resign. An
elected member cannot be compelled to continue his office if
he chooses to resign. The 33rd Constitutional Amendment does
not change this position. On the contrary, it ensures that his
resignation is on account of his free will. Second, the 33rd
Constitutional Amendment requires acceptance of resignation
by the Speaker. Thus, merely addressing a resignation letter to
the Speaker would not lead to the seat automatically falling
vacant. The Speaker has to accept such resignation for the seat
to become vacant. However, as discussed above, the Speaker
has limited discretion for rejecting the resignation. If the
resignation is voluntary or genuine, the Speaker has to accept
the resignation and communicate the same. Third, the Speaker
can reject the resignation, if the Speaker is satisfied that
resignation was "not voluntary or genuine". Fourth, although the
word "genuine" has not been defined, in this context, it would
simply mean that a writing by which a member chooses to resign
is by the member himself and is not forged by any third party.
The word "genuine" only relates to the authenticity of the letter
of resignation. [Paras 35, 38-42] [928-D-F; 929-D-H; 930-A-BF-G]
Union of India v. Gopal Chandra Misra (1978) 2 SCC
301 : [1978] 3 SCR 12 ; Moti Ram v. Param Dev
(1993) 2 SCC 725 : [1993] 2 SCR 250 - referred to.
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1.3 Similarly, the word "voluntary" has not been defined.
In this context, it would mean the resignation should not be
based on threat, force or coercion. The Speaker therefore has
a duty to reject the resignation if such resignation is based on
coercion, threat or force. The language of Article 190(3)(b) of
the Constitution does not permit the Speaker to inquire into the
motive of the resignation. When a member is resigning on
political pressure, he is still voluntarily doing so. Once the
member tenders his resignation it would be "voluntary" and if
the writing can be attributed to him, it would be "genuine". In
this regard, there is no doubt that the Petitioners have
categorically stated and have re-affirmed before the Speaker and
this Court, in unequivocal terms, that they have voluntarily and
genuinely resigned their membership of the House. This Court,
in the earlier Writ Petition, being Writ Petition (C) No. 872 of
2019, had also directed the Speaker to look into the resignation
of the members, but the same was kept pending. The Speaker
can reject a resignation only if the inquiry demonstrates that it
is not "voluntary" or "genuine". The inquiry should be limited
to ascertaining if the member intends to relinquish his
membership out of his free will. Once it is demonstrated that a
member is willing to resign out of his free will, the Speaker has
no option but to accept the resignation. It is constitutionally
impermissible for the Speaker to take into account any other
extraneous factors while considering the resignation. The
satisfaction of the Speaker is subject to judicial review. The
aforesaid observations clarify the scope of the Speaker's duty
under Article 190(3)(b) of the Constitution. [Paras 43, 45 and
46] [930-G-H; 931-D-F; 932-F-H; 933-A-B]
2. The Tenth Schedule was brought in to cure the evil of
defection recognising the significant impact it has on the health
of our democracy. The 91st Constitutional Amendment also
strengthens the aforesaid view that the law needed further
strengthening in order to curb the evil of defection. The
aforesaid amendment introduced Articles 75(1B), 164(1B) and
361B in the Constitution. These provisions bar any person who
is disqualified under the Tenth Schedule from being appointed
as a Minister or from holding any remunerative political post
from the date of disqualification till the date on which the term
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of his of-fice would expire or if he is re-elected to the legislature,
whichever is earlier. The intent of the amendment is crystal
clear. The constitutional amendment sought to create addi-tional
consequences resultant from the determination that a person
was disqualified un-der the Tenth Schedule. If it is held that the
disqualification proceedings would become infructuous upon
tendering resignation, any member who is on the verge of being
dis-qualified would immediately resign and would escape from
the sanctions provided under Articles 75(1B), 164(1B) and 361B.
Such an interpretation would therefore not only be against the
intent behind the introduction of the Tenth Schedule, but also
defeat the spirit of the 91st Constitutional Amendment. In
addition to the above, the decision of the Speaker that a member
is disqualified, relates back to the date of the disqualifying action
complained of. The disqualification relates to the date when such
act of defection takes place. The tendering of resignation does
not have a bearing on the jurisdiction of the Speaker in this
regard. Therefore, the aforesaid principle may be adopted
accordingly, wherein the taint of disqualification does not
vaporise, on resignation, provided the de-fection has happened
prior to the date of resignation. Resignation and disqualification
are distinct mechanisms provided under the law which result in
vacancy. Further, the factum/manner of resignation may be a
relevant consideration while deciding the dis-qualification
petition. The submission of the Petitioners that the
disqualification pro-ceedings cannot be continued if the
resignations are tendered is not agreed with. Even if the
resignation is tendered, the act resulting in disqualification
arising prior to the resig-nation does not come to an end. The
pending or impending disqualification action in the present case
would not have been impacted by the submission of the
resignation letter, considering the fact that the act of
disqualification in this case have arisen prior to the members
resigning from the Assembly. [Paras 50, 51, 54-56] [934-D-H;
936-C; 937-A-E-G]
Rajendra Singh Rana v. Swami Prasad Maurya (2007)
4 SCC 270 : [2007] 2 SCR 591 - relied on.
3.1 The dictionary meaning of the word 'disqualification'
is 'to officially stop someone from being in a competition or
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doing something because they are not suitable, or they have
done something wrong'. However, under the Tenth Schedule
this term occupies a specific meaning wherein, a member is
stopped from continuing to be a member of a legislative body, if
his actions fall in one of the conditions provided under paragraph
2. Article 191(1) of the Constitution provides for disqualification
of a person (a) for being chosen as and (b) for being, a member
of the Legislative Assembly or the Legislative Council if his
actions or candidature attract the grounds therein. For
disqualification such as holding an office of profit, unsoundness
of mind, insolvency, etc., bars a person from continuing as a
member as well as from contesting elections. Article 191(2), on
the other hand, bars a person only "for being a member" of the
Legislative Assembly or the Legislative Council. Article 192 of
the Constitution provides that the Governor will be the authority
for determination of disqualification on the grounds as contained
under Article 191(1) of the Constitution. In contrast, the decision
as to disqualification on the ground as contained in Article 191(2)
of the Constitution vests exclusively in the Speaker in terms of
paragraph 6 of the Tenth Schedule. There is no dispute that
provisions under Tenth Schedule are relatable to disqualification
as provided under Articles 102(2) and 191(2) of the Constitution.
The disqualification of a member, apart from the political taint,
results in two further restrictions as a means of punitive actions
against the members disqualified under the Tenth Schedule.
Paragraph 6 of the Tenth Schedule has an important bearing upon
extent of the judicial review in case of disqualification.
Disqualification is with respect to the status of being a member
of the House and can only be considered by the Speaker if such
question, through a petition, is addressed/ referred to the
Speaker. It is apparent from the reading of paragraph 6 of the
Tenth Schedule that the decision of the Speaker on
disqualification under the Tenth Schedule is final. However, the
finality which is attached to the order of Speaker cannot be
meant to take away the power of this Court to review the same.
In the Kihoto Hollohan case this Court recognized the Speaker's
role as a tribunal and allowed judicial review of the orders of
the same on the grounds provided therein. The Speaker, being
a constitutional functionary, is generally presumed to have
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adjudicated with highest traditions of constitutionalism. In view
of the same, a limited review was allowed for the courts to
adjudicate upon the orders passed by the Speaker under the
Tenth Schedule. Here, the difference in the meaning of the terms
'final' and 'conclusive' needs to be appreciate, in the context
that the order of the Speaker is final but not conclusive and the
same is amenable to judicial review. Principles of natural justice
cannot be reduced into a straitjacket formula. The yardstick of
judging the compliance of natural justice, depends on the facts
and circumstances of each case. [Paras 60, 64-66, 68, 69 and 72]
[938-G-H; 939-A; 940-D-G; 941-F-H; 942-E-H; 943-F]
3.2 Further, the phrase "violation of constitutional
mandate" speaks for itself and does not need much elaboration.
A "constitutional mandate" can be understood as what is required under, or by, the Constitution. In the context of the Tenth
Schedule, and an order of disqualification passed by the Speaker
thereunder, the "constitutional mandate" is therefore nothing
but what is constitutionally required of the Speaker. A "violation
of constitutional mandate" is merely an unconstitutional act of
the Speaker, one that cannot be defended on the touchstone of
the Tenth Schedule and the powers or duties of the Speaker
therein and is in contravention or violation of the same. On the
point of violation of constitutional mandate, although the Court
is of the opinion that there was an error committed by the
Speaker in deciding the disqualification petitions, the same does
not rise to a level which requires the Court to quash the
disqualification orders in their entirety. The specific error which
the Court has identified relates to the period of disqualification
imposed by the Speaker in the impugned orders. However, this
error is severable, and does not go to the root of the
disqualification, and thus does not require the Court to quash
the disqualification orders in toto. The ground of malafides is
available to an individual challenging the order of the Speaker,
the onus of proof regarding the same is on the one who
challenges the said action and has a very heavy burden to discharge. In the present case, although the Petitioners claimed
that the Speaker acted malafide, they have neither made any
specific allegation, nor can it be said that they have discharged
the heavy burden that is required to prove that the ground of
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malafide is made out. The Petitioners have contended that the
order of the Speaker is perverse; how-ever, they are not able
to specifically point out any such instance. "Perversity" has been
understood by this Court in a catena of judgments as relating
to a situation where the findings assailed before it have been
arrived at on the basis of no evidence, or thor-oughly unreliable
evidence, and no reasonable person would act upon it. The
impugned orders of the Speaker can be sustained from the
challenge made on the ground of perver-sity as the Respondents
have been able to show that there was sufficient material available before the Speaker to pass the impugned orders. Further,
on a consideration of the totality of the facts brought on record,
it cannot be held that the findings of the Speaker are so
unreasonable or unconscionable that no tribunal could have
arrived at the same findings. The Petitioners did not even
controvert the material relied upon by the Speaker. In view of
the above, the Petitioners failed to show any illegality in the
orders of the Speaker. There is no gainsaying that the scope of
judicial review is limited to only grounds elaborated under the
Kihoto Hollohan case. In this regard, the Petitioners have not
been able to establish any illegality in the orders passed by the
Speaker. The Speaker had concluded based on material and
evidence that the members have voluntarily given up their
membership of the party, thereby accruing disqualification in
terms of the Tenth Schedule, which facts cannot be reviewed and
evaluated by this Court in these writ peti-tions. So, the orders
of the Speaker to the extent of disqualification have to be
accepted. The Petitioners have submitted that the Speaker,
through the disqualification orders, has prohibited them from
contesting elections and becoming members of the House for
the remaining duration of the 15th Legislative Assembly of
Karnataka. [Paras 77-84] [945-B-F-H; 946-A-H; 947-E-G]
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007)
3 SCC 184 : [2007] 1 SCR 317 ; E. P. Royappa v. State
of Tamil Nadu, (1974) 4 SCC 3 : [1974] 2 SCR 348 ;
Sub-Committee on Judicial Accountability v. Union of
India, (1991) 4 SCC 699 : [1991] 2 SCR 741 -
referred to.
SHRIMANTH BALASAHEB PATIL v. HON'BLE SPEAKER,
KARNATAKA LEGISLATIVE ASSEMBLY
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Griffith and Ryle on Parliament Functions, Practice
and Procedure (1989 edn., p.119) - referred to.
4.1 The Tenth Schedule of the Constitution while dealing
with disqualification on account of defection, does not specify the
consequences or period of such disqualification. In fact, the
vacancy which results from the disqualification is provided under
Article 190(3) of the Constitution. Article 191 of the Constitution
provides for disqualification from the membership of the
Legislative Assembly or Legislative Council of a State generally.
Article 191(1) of the Constitution is a general provision
providing for the disqualification from the membership of the
Legislative Assembly or the Legislative Council of a State on
the grounds mentioned therein. Article 191(2) of the
Constitution specifically provides that a person disqualified
under the Tenth Schedule is disqualified for being a member.
Article 191(2) of the Constitution, like the Tenth Schedule, does
not provide that the "disqualification" is to operate for a
particular period or duration. Article 191(1) of the Constitution
provides that a person disqualified under any one of the clauses
of Article 191(1) is disqualified both "for being chosen as" and
"for being" a member of the house. In contrast, Article 191(2)
only uses the phrase "for being a member", which is the language
used in paragraph 2 of the Tenth Schedule. The exclusion of the
phrase "for being chosen as" a member in Article 191(2) of the
Constitution suggests that the disqualification under the Tenth
Schedule is qualitatively and constitutionally different from the
other types of disqualification that are provided for under Article
191(1) of the Constitution. The phrase "for being chosen as" has
a specific connotation, meaning that a person cannot become a
member of the House, if suffering from a disqualification under
Article 191(1) of the Constitution. At the same time, the absence
of these words in Article 191(2) of the Constitution suggests that
a person who is no longer a member due to disqualification under
the Tenth Schedule of the Constitution does not suffer from the
additional infirmity of not being allowed to become a member
subsequently. Therefore, such a person is not barred from
contesting elections. This interpretation is further supported by
the language employed in Section 36(2) of the Representation
of the People Act, 1951. Articles 164(1B) and 361B of the
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Constitution, which were inserted by the 91st Constitutional
Amendment, also show that disqualification under the Tenth
Schedule does not bar a person from contesting elections. Both
the above constitutional provisions specifically indicate the outer
period for which the consequences indicated therein would
extend, which is, either till the end of the term or till the
disqualified member is elected, whichever is earlier. The fact
that the phrase "whichever is earlier" is used in both these
provisions, indicates that the Constitution contemplates a
situation where an election takes place prior to the end of the
term of the House. Further, the term "election" as used in the
above provisions has not been constrained by any other word,
which strengthens the view that a member who has been
disqualified under the Tenth Schedule is not barred from
contesting elections. Parliament by way of an enactment under
Article 191(1)(e) read with Entry 72 of the Union List in the
Seventh Schedule can make a law providing for disqualifications
of persons from contesting elections. It is in exercise of this
power that the Parliament enacted The Representation of the
People Act, 1951. The Preamble to the aforementioned Act
makes it evident that it was enacted for the purpose of
"providing qualifications and disqualifications for membership"
to the Houses of Legislature. Chapter II of Part II of the
Representation of the People Act, 1951 provides for the
qualification for membership of the State Legislature while
Chapter III vide Sections 7 to 11 provides for disqualification
for membership of the Legislature. These sections not only
provide for the event of disqualification, but also provide for the
specific periods for which such disqualification shall operate. For
instance, under Section 8 of the Representation of the People
Act, 1951, different periods of disqualification are provided
depending on the specific offence an individual is convicted
under. However, the provisions do not provide for and deal with
disqualification under the Tenth Schedule. Clearly, Section 36
of the Representation of the People Act, 1951 also does not
contemplate such disqualification. Therefore, neither under the
Constitution nor under the statutory scheme is it contemplated
that disqualification under the Tenth Schedule would operate as
a bar for contesting re-elections. The language of clauses (1) and
SHRIMANTH BALASAHEB PATIL v. HON'BLE SPEAKER,
KARNATAKA LEGISLATIVE ASSEMBLY
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(2) of Article 191, Articles 164(1B) and 361B are contrary to the
contention of the Respondents. The Speaker does not have any
explicit power to specify the period of disqualification under the
Tenth Schedule or bar a member from contesting elections after
disqualification until the end of the term of the Legislative
Assembly. When the express provisions of the Constitution
provide for a specific eventuality, it is not appropriate to read
an "inherent" power to confer additional penal consequences.
To do so, and accept the contention of the respondents, would
be against the express provisions of the Constitution. This
Court has repeatedly held that a person cannot be barred from
contesting elections if he is otherwise qualified to contest the
same. Nothing can be added to the grounds of disqualification
based on convenience, equity, logic or perceived political
intentions. It is clear that the power to prescribe qualifications
and disqualifications for membership to the State Legislature
must be specifically provided for under the Constitution or by
the Parliament by enacting a law. Since neither the Constitution
nor any Act provides for defection to another party as a bar from
contesting further elections, reading such a bar into the nebulous
concept of the inherent powers of the Speaker is impermissible
and invalid. [Paras 90-98, 100, 101, 103, 106] [949-B-H; 950A-G; 951-B-F; 952-A-C; 953-E-H; 954-A-B]
G. Narayanaswami v. G. Pannerselvam, (1972) 3 SCC
717 : [1973] 1 SCR 172 - referred to.
4.2 The Speaker, in exercise of his powers under the Tenth
Schedule, does not have the power to either indicate the period
for which a person is disqualified, nor to bar someone from
contesting elections. The desirability of a particular rule or law,
should not in any event be confused with the question of
existence of the same, and constitutional morality should never
be replaced by political morality, in deciding what the
Constitution mandates. [refer to Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217]. It is, therefore, held that part of the
impugned orders passed by the Speaker which specifies that the
disqualification will last from the date of the order to the expiry
of the term of the 15th Legislative Assembly of Karnataka to
be ultra vires the constitutional mandate, and strike down this
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portion of the disqualification orders. However, this does not go
to the root of the order, and as such, does not affect the aspect
of legality of the disqualification orders. [Paras 110, 111] [955F-G; 956-A-B]
Indra Sawhney v. Union of India, (1992) Supp 3 SCC
217 : [1992] 2 Suppl. SCR 454 - referred to.
5.1 The two important phrases occurring in Article 145(3)
of the Constitution are 'substantial question of law' and
'interpretation of the Constitution'. By reading the aforesaid
provision, two conditions can be culled out before a reference
is made: (i) The Court is satisfied that the case involves a
substantial question of law as to the interpretation of this
Constitution; (ii) The determination of which is necessary for the
disposal of the case. It may be stated that the Court is not
persuaded for referring the present case to a larger bench as
the mandate of the aforesaid Article is that this Court needs to
be satisfied as to the existence of a substantial question of law
on the Constitutional interpretation. However, this does not
mean that every case of constitutional interpretation should be
compulsorily referred to a Constitutional Bench. Question of
constitutional interpretation would arise only if two or more
possible constructions are sought to be placed on a provision.
The ambit of this Court's jurisdiction under Article 32 of the
Constitution is well settled, which does not merit any further
reference in this regard. The case mostly turns on the fact that
there is ample evidence to portray that the defection of these
Petitioners had occurred even before they resigned. In the
impugned orders, the Speaker has made out a case that the acts
of the Petitioners indicated "voluntary giving up of membership".
Therefore, the question as to the jurisdiction of the Speaker to
deal with disqualification after the members have tendered the
resignation does not arise, stricto sensu. In view of the aforesaid
factual scenario, there is no requirement to deal with the
questions of law raised by the Respondents. In view of the
aforesaid discussion, the Court declines to refer the case to a
larger bench considering that there is no substantial question
of constitutional interpretation that arises in this case. [Paras
120, 121, 124-126 and 129] [959-B-E; 960-G; 961-B-D-H]
SHRIMANTH BALASAHEB PATIL v. HON'BLE SPEAKER,
KARNATAKA LEGISLATIVE ASSEMBLY
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Abdul Rahim Ismail C. Rahimtoola v. State of Bombay,
AIR 1959 SC 1315 : [1960] SCR 285 ; Bhagwan
Swarup Lal Bishan Lal v. State of Maharashtra, AIR
1965 SC 682 : [1964] SCR 378 ; People's Union for
Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC
399 : [2003] 2 SCR 1136 - referred to.
5.2 W.P. (C) NO. 992 OF 2019
The order of the Speaker does not suffer from perversity.
Even the petitioner has not submitted material to controvert the
findings recorded by the Speaker in the impugned order. With
regard to the assertion that there was violation of principles of
natural justice would not also stand in view of the fact that the
Speaker has taken a holistic view and gave sound reasons to
disqualify the petitioner after providing him sufficient opportunity
to defend himself. Alleged violation of principles of natural justice
also do not carry any weight in view of the factual background
of the case read in light of the fact that trust vote had to be voted
upon. [Para 134] [963-B-C]
5.3 W. P. (C) NO. 997 OF 2019
 The Speaker in the impugned order has taken note of the
surrounding circumstances, including the conduct of the
Petitioners from February 2019 onwards. The Speaker had
sufficient material before him to pass the order of disqualification.
There exist no infirmities in the order, which calls for our
indulgence and interference. [Paras 136-138] [963-H; 964-A-E]
5.4 W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007
OF 2019
The three Petitioners in Writ Petition (C) No.