2010 Supreme(Kar) 943

2010(6) Kar. L.J. 529
IN THE HIGH COURT OF KARNATAKA
THE HONOURABLE CHIEF JUSTICE MR. J.S. KHEHAR & THE HONOURABLE MR. JUSTICE N. KUMAR
Gopala Krishna Belur & Others
Versus
B.S. Yeddiyurappa & Another
WRIT PETITION Nos.32660-32670 OF 2010 (GM-RES)
Decided on : 18-10-2010

Headnote:CONSTITUTION OF INDIA - Tenth Schedule, Paragraph 2 (1) (a): [ J.S. Khehar, CJ & N. Kumar. J] Disqualification on ground of defection - Whether the actions of the petitioners can lead to the inference that they have voluntarily given up their membership to the Political party to which they are affiliated - Held, That the letter dated 06.10.2020 addressed by the petitioners to the Governor of the State of Karnataka was by itself sufficient to conclude, that the petitioners had suffered the disqualification envisaged under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. If the petitioners were dissatisfied with the manner of functioning of the Government headed by B.S. Yeddiyurappa, which according to them, had led to widespread corruption, nepotism, favouritism, abuse of power, and misuse of Government machinery, they ought to have resigned from their Ministerial berths, before taking recourse to any other action. It was their Ministerial position, which associated them with the Chief Minister, in respect of the allegations levelled by them. This was however not done by the petitioners, as some of the petitioners continued to be Ministers even when they met the Governor, and submitted the letters dated 06.10.2010 to him. If the object of the petitioners in meeting the Governor along with others who did not belong to the Bharatiya Janata Party was clear, i.e., they collectively desired to bring down the Bharatiya Janata Party led Government in the Karnataka Legislative Assembly. Further, the non-denial of the factual assertions recorded in the impugned order, through the pleadings in the writ petition, also discloses the hollowness of the petitioners contention. The decision of the petitioners not to support the Bharatiya Janata Party led Government in the Karnataka Legislative Asssembly, as long as it was headed by Chief Minister B.S. Yeddiyurappa was unequivocal and voluntary. The written assertions made by the petitioners leave no room for any doubt, that the petitioners would oppose the Bharatiya Janata Party led Government as along as it was led by Chief Minister B.S. Yuddiyurappa, even on the floor of the Karnataka Legislative Assembly. Thus viewed, the wisdom of the petitioners was sought to be asserted, over and above the collective wisdom of the Political Party, which had brought them into the legislature itself and as such, were even willing to bring down the Government led by their own Political Party itself, even though all the petitioners had been elected to the Karnataka Legislative Assembly on its tickets. This anti-party action of the petitioners, fully demonstrates that the petitioners had voluntarily given up their membership to Bharatiya Janata Party. Insofar as plea of mala fides is concerned, the pleadings of the Writ Petitions are vague and bereft of specific details, and as such, it is not possible to accept the same. Moreover, Respondent No. 2, i.e., the Speaker of the Karnataka Legislative Assembly, against whom the plea of mala fides have been levelled, and who was the author of the impugned order dated 10.10.2010 has not been impleaded as party Respondent by name - In the absence thereof, it is apparent that the petitioners have not invited the Speaker of the Karnataka State Legislative Assembly in his personal capacity, to respond to the allegations contained in the writ petitions. As such, it is not possible to accept the plea of mala fides to annul the entire action of disqualification, which eventually culminated in the passing of the impugned order dated 10.10.2010.

       CONSTITUTION OF INDIA - Tenth Schedule - Paragraph 2(1)(a) and 2(1)(b): [ J.S. Khehar, CJ & N. Kumar. J] Disqualification under - [Per J.S. Khehar, CJ] Expressing want of confidence in the leader of the Political Party which has formed the Government cannot be equated to such a Member giving up voluntarily the membership of the Political party. Such a conduct is outside the scope of paragraph 2 (1)(a). Such an act falls within the scope of paragraph 2(1)(b). If the act falls under paragraph 2(1)(a), his membership becomes void. However, in the case of disqualification being incurred under paragraph 2(1)(b), it is not void. It is voidable at the option of the Political Party. The Political Party has been given the discretion to condone such act, i.e., the act of voting of abstain from voting in the House contrary to any directions/whip issued by such party within 15 days from such act of disqualification. Only in the event of the Political Party not condoning such disqualification, the disqualification become effective. Further Held, remaining in the party, if a Member of the House expresses his no confidence in the leader of a Legislative Party and if votes against him in a confidence motion to be taken on the floor of the House, the disqualification is not automatic. Such a disqualification can be condoned by a Political Party. It underlines the basic premise of democracy, that right to dissent is to be accommodated even in respect of Tenth Schedule which is brought with the avowed object of preventing defection and crossing the floor. Paragraph 2(1)(a) deals with a Member who voluntarily walks out of the party. Clause 2(1)(b) deals with a person who remains in the party and acts contrary to the directions of the party.

        [Per N. Kumar, J] Held, From the scheme of the Tenth Schedule it is clear it applies only to a Member of the House. He may be a person elected from the ticket of any Political party or as an Independent. All Members of a Political party are not Members of the House or the Legislature Party. However, every Member of a Legislature Party/Member of House, also, need not be a Member of the Political party. But, a member of a Political party who is elected as a Member of the House would automatically become Member of the Legislature Party in the said House.

       CONSTITUTION OF INDIA - Tenth Schedule: [ J.S. Khehar, CJ & N. Kumar. J] Dislodging of the party and seeking for a new Leader of the party - Held, If within the Legislature Party of the party, members are unable to dislodge the leader who is well entrenched in the office, who is continuing in office by manipulations and who has become a despot, if they attempt to dislodge him from his seat, would it run counter to the object of the Tenth Schedule. The people give mandate to the party and not to a leader of the party. Therefore, a person who gets elected on a party ticket should be loyal to the party and loyal to the programme and policies of that party. Loyalty to the party is not synonymous with loyalty to the leader of the party. Further being loyal to the party, in the interest of the party and in implementing the policies and programs of the party on the basis of which the party has been given the mandate to form the Government, if the leader of the party is acting contrary to such mandate, they should have a right to dislodge such leader of the party and elect another leader. Dislodging a leader of the party and seeking for a new leader of the party is not what is sought to be prevented by the Tenth Schedule. It does not amount to defection, floor crossing or conspiracy. Recognising this important aspect of Parliamentary Democracy, that "dissent is the essence of Democracy, law recognizes that collective dissent is no disqualification under Para 4 of the Tenth Schedule, where not only the leader of the Political Party of which those members belong is dislodged, consequently the Government formed by such leader is thrown out of office, they are permitted to form a Government of their own, in coalition with the opposite groups of the House.

       CONSTITUTION OF INDIA - Tenth Schedule, Paragraph 2(1)(a): [ J.S. Khehar, CJ & N. Kumar. J] What constitutes a defections of a Member - Held, To constitute a defection a Member should voluntarily give up his membership of the party from which he is elected. Further, it must be with an intention to join another Political Party or form a new party with the lure of office or money. It is that act which is ought to be forbidden by enacting paragraph 2(1)(a). What is sought to be prevented is an unprincipled defection which is a political and social evil. The anti defection law seeks to recognise the practical need to place the properties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the times. However, if the act of a Member is within the parameters of the Constitution and the object to be achieved is legitimate, the means adopted to that end are appropriate, it is constitutional - Further Held, that an act of expressing no confidence in one of the leader of the political or in the leader of the legislative party do not amount to his voluntarily giving up his membership of the Political party. His act of expressing no confidence in the Government formed by the party with a particular leader as the Chief Minister would also not amount to a voluntary act of giving up the membership of the Political party. Describing the leader, deserting the Government, is not synonymous with deserting the party. If a Minister resigns from the ministry it does not amount to defection. What constitutes defection is deserting the party. Parliament in its wisdom, has consciously used the word "Political Party" in paragraph 2, after clearly defining the meaning of "Political Party". There is no ambiguity. Therefore, there is no scope for interpretation of the word "Political party" used in the paragraph - in order to attract disqualification under paragraph 2(1)(a), a Member of a House belonging to any Political Party has to voluntarily give up his membership of such Political party on his own volition join another Political party. It should be a conscious act. On facts held, therefore, either expressing want of confidence in the Chief Minister, or withdrawing their support which was earlier given to him or demanding change of leadership of the Legislative party or threatening to vote against him on the floor of the House or complaining to the Governor that the Government of the State cannot be carried on in accordance with the provisions of the Constitution or the Governor asking the Chief Minister to prove his majority on the floor of the House, do not amount to unconstitutional act and the person who triggered this action cannot be called a defector. These actions do not constitute an act of defection nor on that account a member of the House can be disqualified under paragraph 2 of the Tenth Schedule. These acts are strictly within the four corners of the Constitution and cannot constitute disqualification under Paragraph 2 of the Tenth Schedule.

       CONSTITUTION OF INDIA - Tenth Schedule: [J.S. Khekar CJ & N. Kumar, J] Position of Speaker - Held, the Speaker while exercising powers and discharging functions under the Tenth Schedule, act as a Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has its pivot the institution of the Speaker. The Speaker holds a high, important and ceremonial office. All questions of the well being of the House are matters of Speaker’s concern. The Speaker is said to be the very embodiment of propriety and impartiality. - The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Therefore, it is right that, that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality. Within the walls of the House his Authority is supreme. This Authority is based on the Speaker’s absolute and unvarying impartiality.

       CONSTITUTION OF INDIA - Tenth Schedule - [ J.S. Khehar, CJ & N. Kumar, J] Abuse of Tenth Schedule by the persons in power - Held, Abuse of the Tenth Schedule by the persons in power of stifle the honest dissent cannot be countenanced. These Petitioners knowingly or unknowingly have touched the right chord and they could be the ’whistle blowers’ in the present context, in fight against unethical, unprincipled behaviour of politicians wielding power - A whistle-blower is a person who raises a concern about wrongdoing occurring in an organisations or body of people. Usually this person would be from that same organisation. The revealed misconduct may be classified in many ways; for example, a violation of law, rule, regulation and / or direct thereat to public interest, such as fraud, health safety violations and corruption. Whistle - blowers may make their allegations internally or externally. Most whistle - blowers are internal whistle - blowers, who report misconduct on a fellow employee or superior within their company. A person like the Respondent can appropriately be described as a whistle-blower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Article 129 or 215 of the Constitution or the provisions of the Act. - On facts, held, it is seen in that background three among 11 petitioners before High Court were Ministers in the Cabinet. They are insiders. After their efforts to fight against corruption, nepotism and other evils, in the party forum did not yield results, they have approached the Governor withdrawing their support to the Government, expressing no confidence in their leader who is heading the Government. From what they have stated in the letter, they want to fight against the social evil and want a clean administration. "Can their voice be stifled by pressing into operation the provisions contained in the Tenth Schedule of the Constitution, which was enacted the curb the evil of political defection motivated by lure of office or other similar conditions. Is it the purpose of the Tenth Schedule?"

       KARNATAKA LEGISLATIVE ASSEMBLY (DISQUALIFICATION OF MEMBERS OF GROUND OF DEFECTION) RULES, 1986 - Rule 6: [J.S. Khehar, CJ & N. Kumar, J] Petition under - Enquiry by the Speaker - Challenge as to Order passed by the Speaker of the Legislative Assembly disqualifying the petitioners from their membership to the Karnataka Legislative Assembly - Plea that there was violation provisions of Defection Rules and rules of natural justice - Held, The Defection Rules are directory in nature. Merely on account of violation of the procedure envisaged under the rules, impugned Order cannot be set aside unless the violation of the procedure is shown to have resulted in prejudice to the petitioners - Further, There is no denial that a show cause notice dated 07.10.2010 was issued to the petitioners by the Speaker to the Karnataka Legislative Assembly. The petitioners submitted identical and detailed written replies on facts, and took all the legal objections available to them, on 90.10.2010. There is also no denial of the fact, that even an opportunity of hearing was afforded to the petitioners at 3.00 P.M on 10.10.2010. That the hearing had continued before the Speaker of the Karnataka Legislative Assembly, for several hours. Since the procedure required to be followed under the rules of natural justice was admittedly followed and procedure adopted has not resulted to any prejudice to the petitioners. That the petitioners have not been adversely affected by the procedure adopted by the Speaker - The Speaker is the "only" authority competent to decide whether a legislature had incurred the disqualification envisaged under the Tenth Schedule of the Constitution of India. The proceedings are to be held by the Speaker alone and by none else. If due procedure has been followed, based on a correct analysis of facts, the order passed by the Speaker can not be assailed.

       KARNATAKA LEGISLATIVE ASSEMBLY (DISQUALIFICATION OF MEMBERS OF GROUND OF DEFECTION) RULES, 1986 - Rules 6(5) & 7(2): [ J.S. Khehar CJ & N. Kumar, J] Held, Rule 6(5) of the Karnataka Legislative Assembly (Disqualification of Members on ground of Defection) Rules 1986, clearly provides that every petition shall contain a concise statement of the material facts on which the petitioner relies and it should accompanied by the copies of the documentary evidence if any, on which the petitioner relies. If the petition does not comply with the requirement of Rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly as contemplated under Rule 7(2). When the petition did not even aver that the petitioners have voluntarily given up the membership of the Bharatiya Janata Party, the petition could not have entertained by the Speaker. On Facts, held, in the complaint, or the other material placed before the Speaker, it is not the case of the applicant that these petitioners have joined any other Political Party in the State. It is not his case that they have accepted any leader of such other Political party as their leader nor is it his case that by such joining hands with any other Political party or leader of such other Political party, they are attempting to form an alternate Government. There is no plea of floor crossing. Therefore, it is clear that in the absence of material facts constituting a case of defection under paragraph 2(1)(a) of the Tenth Schedule, the Speaker ought not to have entertained the petition at all.