2012 Supreme(SC) 70

Supreme Court of India
ALTAMAS KABIR, CYRIAC JOSEPH
D. Sudhakar & Others
Versus
D.N. Jeevaraju & Others
CIVIL APPEAL NOS.4510-4514 OF 2011 WITH CIVIL APPEAL NOS.4517-4521 OF 2011
Decided on : 25-01-2012

IMPORTANT POINT
Speaker discharges quasi-judicial function while adjudicating question of disqualification of a Member. Such decision is amenable to judicial review.

Headnote:(a) Constitution of India – Tenth Schedule, Paragraph 2(2) – Joining a political party – written communication not always necessary – Depends upon facts of the case – Appellants contesting election and becoming MLAs as independent – Nothing to show appellants joining BJP – Extending support does not mean joining the party – Always treated as separate group by the party concerned – Even in party meetings they were given separate seats – Issuance of whip – Not proof of appellants as having joined BJP – Further, receipt of whip denied by appellants – Appellants’ independent status maintained in Assembly registers – Appellants cannot be held to have sacrificed their independent status – They never became members of BJP – Could not be disqualified under Tenth Schedule. (Para 45, 46, 47, 48)

       (2007) 4 SCC 270; (2004) 8 SCC 747; (2006) 11 SCC 1; (1996) 3 SCC 353; (1992) Supp.2 SCC 651; (1994) Suppl.2 SCC 641; (1998) 7 SCC 517 – Referred

       (b) Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 – Rules 6 and 7 – Appellants not given 7 days time to reply to show cause notice – Copy of the relevant affidavit filed by a Member to the Speaker not served on appellants – Speaker acting in hot haste – Even if Rules 6 & 7 are only directory and not mandatory, violation of Rules 6 & 7 resulting in violation of the rules of natural justice – Order of the Speaker vitiated liable to be set aside. (Para 50)

       (c) Administration of Justice – Judicial Review – Mala fides – Members withdrawing support to Chief Minister – Governor fixing date for trial of strength – Speaker acting in great haste to meet the time line given by Governor for trial of strength – Disqualifying Members with immediate effect under paragraph 2(1)(a) of the Tenth Schedule to the Constitution without giving proper time for reply and without making available copy of affidavit relied upon for such disqualification – At the same time accepting retraction of withdrawal of support by two Members – Order of disqualification vitiated by mala fodes. (Para 54)

       (2005) 11 SCC 314; (1974) 4 SCC 3 – Referred

       (d) Constitution of India – Article 32, 226, 136 and Paragraph 2 of the Tenth Schedule – Speaker discharging quasi-judicial function – Amenable to judicial review. (Para 56)

       Facts of the case:

       The Appellants were elected to the Karnataka Legislative Assembly as independent candidates and were sworn in as Ministers on 30th May, 2008.

       On 6th October, 2010, the Appellants submitted separate letters to the Governor of Karnataka stating that they were withdrawing support to the Government. The Governor of Karnataka asked the Chief Minister to prove his majority on the Floor of the House by 12th October, 2010.

       On 7th October, 2010, the Respondent Nos.1 and 3, namely, Shri D.N. Jeevaraju and Shri C.T. Ravi, filed Complaint No.2 of 2010 dated 6th October, 2010 with the Speaker of the Karnataka Legislative Assembly under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 to declare that the Appellants had incurred disqualification on the ground of defection as contained in the Tenth Schedule to the Constitution.

       On the basis of the said Disqualification Application, on 8th October, 2010 the Speaker issued Show-Cause Notices to the Appellants informing them of the Disqualification Application. The Appellants were given time till 5.00 p.m. on 10th October, 2010, to submit their objections, if any, to the Disqualification Application either in writing or presenting themselves in person, failing which it would be presumed that they had no explanation to offer and further action would thereafter be taken ex-parte in accordance with law.

       The Appellants through an Advocate submitted a letter to the Speaker on 9th October, 2010, stating that the procedural requirements of Rule 7 of the Disqualification Rules had not been complied with.

       13 MLAs, belonging to the Bharatiya Janata Party, had also withdrawn their support to the Government led by Shri B.S. Yeddyurappa and had made the same request to the Governor, as had been made by the Appellants herein, for initiating the constitutional process in the wake of their withdrawal of support to the Government led by Shri B.S. Yeddyurappa. This had resulted in the filing of Disqualification 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 Supreme Court and judgment has been reserved.

       The appellants were disqualified and decision of tye Speaker was upheld by a Full Bench of the High Court.

       Finding of the Court:

       Impugned judgment cannot be sustained.

       Result: Appeals allowed.