Back
High Court of Karnataka
MOHAN SHANTANAGOUDAR, S. ABDUL NAZEER & A.S. BOPANNA
D. Sudhakar & Others
Versus
D.N. Jeevaraju & Others
Writ Petition Nos.32674-32678 of 2010 (GM-RES) C/w. Writ Petition Nos.33998-34002 of 2010 (GM-RES)
Decided on : 14-02-2011
CONSTITUTION OF INDIA - Tenth Schedule, Paragraph 6(1) & 6(2) & [Karnataka Legislative Assembly (Disqualification of Members of Ground of Defection) Rules, 1986: [Mohan Shantanagoudar & S. Abdul Nazeer & A.S. Bopanna, JJ] Disqualification proceedings - Plea of Natural Justice - Judicial Review - Held, the question as to whether the requirements of Natural Justice have been complied with or not has to be considered in the context of facts and circumstances of a particular case. - The files relating to Disqualification Complaint Nos. 3 to 7/2010 are also perused. The proceedings sheet maintained by the Speaker in those complaints reveal that the said Complaints were presented by the voters of five constituencies on 9.10.2010 in person. The Speaker has ordered to issue notice to the Respondents forthwith and the matter was ordered to be posted on 10.10.2010. In the proceedings sheet thereafter, it is noted that notice came to be served on the Respondents therein i.e., the petitions herein, on 9.10.2010. Hence, it cannot be said that neither the notices not the Disqualification Complaints along with the documents were not served on the petitioners as contended by them. Further, In the matter on hand, the Speaker having found that the statement of objections filed by the petitioners is exhaustive, has proceeded to hear the matter on merits. Both the parties were represented by their respective advocates and they had consented for clubbing the cases and the cases and the statement of objections filed indicates that it is addressed to the Speaker and not restricted with any particular case number and as such, is common to the cases, filed by the BJP functionaries and the voters. It is brought to the notice of the Court during the course of arguments by Advocates appearing on behalf of the Respondents that the Speaker heard the arguments in detail for about three hours on each and every aspect of the matter and thereafter, the impugned order is passed. Such submission is not controverted by the petitioners’ advocates before the Court. On facts, held, The petitioners voluntarily appeared through their Advocate before the Speaker on 9.10.2010 though the time granted to them was to appear on 10.10.2010. They filed their reply on the very day They have consented for clubbing all the complaints. With consent, all the complaints were clubbed, heard and are decided together. Therefore, it cannot be said that the petitioners were put to prejudice in any manner. Hence, it cannot be said that the rules of natural justice are not complied with.
CONSTITUTION OF INDIA - Tenth Schedule, Paragraph 6(1) & 6(2) & [Karnataka Legislative Assembly (Disqualification of Members of Ground of Defection) Rules, 1986: [Mohan Shantanagoudar & S.Abdul Nazeer & A.S.Bopanna,JJ] Order passed by the Speaker disqualifying the petitioners from being the members of the Legislative Assembly -Legality of the impugned Order - Plea as to mala fides and perversity -Held, The petitioners being part of the Ministry are bound by the policies and programmes of BJP which would be implemented by the Government. These Ministers will have no independent say in the matter of policy decision, thereby they have lost their independent character as such. Thus, it cannot be said that after being part of the Ministry, they can still retain their independent character. Hence, it cannot be said that the petitioners have given outside support to the Government. Thus, the petitioners having pledged their support due to lure of office unconditionally, the act of joining the Ministry to carry forward the policies and programmes of BJP is the same as joining the BJP and continuing further by the subsequent acts as well. Here is a case where the Government is formed by a single largest Political Party to which the independent members have supported unconditionally and have joined the Ministry. In the present case Government is formed by a single largest Political Party and it is not a coalition Government. - A member of a Legislature party means a Member of the House belonging to a particular Political Party. Since the petitioners have attended and signed the Register relating to BJP Legislature Party Meetings, it can be inferred that they have treated themselves as members of the House belonging to BJP as a continuing act after joining the Ministry. - Further held, It is not in dispute that the petitioners have acted in accordance with the direction issued by the Chief Whip. If really the petitioners were not the members of the Legislature party of BJP, they would not have received the ’Whip’ sent by the Chief Whip of that party. There is no reason as to why the petitioners should receive such a direction issued by the Chief Whip of BJP if they had retained their independent character and identity, more particularly, when they were described as the members of ruling party. - The impugned order passed by the Speaker is not in violation of Constitutional mandate not is there any infirmity based on mala fides or perversity.
CONSTITUTION OF INDIA - Tenth Schedule: [Mohan Shantanagoudar & S. Abdul Nazeer & A.S.Boppanna, JJ] Object of the Provisions - Held, The provisions of Tenth Schedule are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections. - Further, The object of the Tenth Schedule is to curb the evil of political defections motivated by lure of office, monetary gain or other similar considerations, which endanger the foundations of our democracy and deny the citizens of being governed by a stable Government by laying emphasis on development. The object is also to preserve democratic structure of the Legislature and safeguard political morality in legislators. The object sought to be achieved by the Tenth Schedule is to ensure loyalty of the legislators to a Political Party which sponsored the candidature. It further prevents independent members from loosing their independent character as such and prohibits them from joining a Political Party. - The purpose of enacting the Constitution (Fifty-Second amendment) Act, 1985, i.e., incorporation of the Tenth Schedule and other Amendments has a long history which was of serious concern and not only to stabilize the legally elected Governments and to prevent the political immorality and corruption, but also to make them effective. - Constitution (Fifty Second Amendment) Act, 1985.
KARNATAKA LEGISLATIVE ASSEMBLY (DISQUALIFICATION OF MEMBERS OF GROUND OF DEFECTION) RULES, 1986 - Disqualification: [Mohan Shantanagoudar, S. Abdul Nazeer & A.S. Boppanna, JJ] Complaints filed by five voters in respect of five constituencies seeking disqualification of the five petitioners - Maintainability of the complaint - Role of a voter in the election process - Voter’s locus standi to file complaint - Discussed - Held, Tenth Schedule of the Constitution nowhere restricts filing of complaint seeking disqualification by a voter of that particular Constituency. - The provisions of the Tenth Schedule are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled, unethical political defections. In order to curb conducting of elections at irregular intervals and in order to protect and sustain the purity of electoral process, Tenth Schedule is brought in the Constitution of India. With this object in mind, the matter needs to be looked into. In case if none of the member of the House complains about the illegal defections, because of members’ unholy mutual understanding, there is no reason as to why the voters who cast their votes with a purpose should remain a mute spectator. Further, Each of the MLA is elected form a particular Assembly constituency. Majority of the voters of that constituency would have reposed confidence in the elected candidate and the political party to which he belongs, or otherwise, before electing. Thus it is the wish and will of the majority of the votes of that particular constituency which is a relevant and paramount consideration to be borne in mind. The voters of that constituency should not be placed in a helpless situation if none of the members of the House complains about the illegal defection. Therefore, every voter of the constituency should have an opportunity to oppose the illegal defection by bringing it to the notice of the Speaker. Since Tenth Schedule of the Constitution does no debar filing of the complaint seeking disqualification of a defected member every voter in the concerned constituency has got right to file application seeking disqualification since a Rule should not be permitted to bar the remedy which is not barred by the Constitution. If such a construction is not arrived at or is such a meaning is not given, then the intention and the object with which Tenth Schedule is brought into the Constitution will be frustrated. The Rules cannot be permitted to over ride the constitutional provisions.
Mohan Shantanagoudar, J.
The petitioners, who were Members of the 13th Karnataka Legislative Assembly, have questioned the order dated 10th October 2010 passed by the Speaker of the Karnataka Legislative Assembly, disqualifying them from being the members of the Legislative Assembly on the ground of violation of paragraph-2(2) of the Tenth Schedule of the Constitution of India, by filing these writ petitions. On such disqualification, the respective constituencies represented by the petitioners in the 13th Karnataka Legislative Assembly have fallen vacant. The total strength of the 13th Karnataka Legislative Assembly is 225 seats. The petitioners herein were elected as members of the Assembly otherwise than as candidates set up by any political party (hereinafter called as “independent members”).
2. Petitioner Nos.1 to 5 in W.P.Nos.32674-32678/2010 and W.P.Nos.33998-34002/2010 were elected from Kanakagiri, Hiriyur, Hosadurga, Pavagada and Malavalli Assembly constituencies respectively. After the election, the Bharatiya Janatha Party (hereinafter called ‘BJP’ for short) which was the single largest party, was invited to form the Government. Sri. B.S. Yeddyurappa, who was elected as Leader of BJP Legislative Party was sworn in as the Chief Minister. The petitioners who were elected as independent members declared their support to the BJP Legislature party leader for the formation of Government. They were also inducted into the Council of Ministers by administering the oath of office. They continued to be a part of the ruling dispensation till 6.10.2010, on which day they gave a representation to the Governor of Karnataka informing him that they have withdrawn the support to the Government headed by Sri. B.S. Yeddyurappa on certain grounds. On the same day i.e. 6.10.2010 Sri. D.N. Jeevaraj – Chief Whip, Bharathiya Janatha Party and Sri. C.T. Ravi, Member of the Karnataka Legislative Assembly and General Secretary of BJP, the first and third respondents in W.P.Nos.32674-32678/2010 (hereinafter called as ‘complainants’) filed a petition (hereinafter called as ‘complaint’ for clarity) with the Speaker of the Karnataka Vidhana Sabha requesting him to disqualify the petitioners on the ground of defection, which was numbered as Disqualification Complaint No.2/2010 (hereinafter called as ‘complaint’). The said complaint states that the petitioners herein joined BJP so as to enable the formation of the Government and were sworn in as Ministers. Pursuant to the said complaint seeking for disqualification of the petitioners, the Speaker issued notices to the petitioners on 8.10.2010 calling upon them to show cause before 5 p.m. on 10.10.2010 as to why they should not be disqualified in view of the allegations found in the complaint. The petitioners sent an interim reply to the show cause notice on 9.10.2010 and prayed for seven days time for filing detailed statement of objections. However on 10.10.2010 the Speaker passed the impugned order after hearing the learned advocates representing the petitioners and the complainants. As aforementioned, by the impugned order the petitioners were disqualified on the ground of defection as per paragraph-2(2) of the Tenth Schedule of the Constitution of India.
3. In the meanwhile i.e., on 9.10.2010 five voters, one each from five aforementioned assembly constituencies also filed complaints before the Speaker of the Karnataka Vidhana Sabha praying for disqualification of the petitioners on the ground of defection. Those complaints were numbered as Disqualification Complaint Nos.3 to 7/2010 (hereinafter called as ‘complainants/voters). Those five complaints filed by the voters and the complaints filed by the complainants were clubbed, heard the decided by a common order on 10.10.2010 as aforementioned.
4. Writ Petition Nos.32674-78/2010 are filed questioning the order passed by the Speaker of Karnataka Vidhana Sabha in Disqualification Complaint No.2/2010, whereas W.P.Nos.33998-34002/2010 are
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
