2019 Supreme(SC) 1254

SUPREME COURT OF INDIA
N.V. Ramana, Sanjiv Khanna, Krishna Murari, JJ.
SHRIMANTH BALASAHEB PATIL – PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
WRIT PETITION (CIVIL) NO. 992 OF 2019
WITH
RAMESH L. JARKHIHOLI AND ANOTHER – PETITIONERS
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
WRIT PETITION (CIVIL) NO. 997 OF 2019 AND
PRATAP GOUDA PATIL AND OTHERS – PETITIONERS
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
AND
DR. K. SUDHAKAR – PETITIONER
VERSUS
THE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY – RESPONDENT
WRIT PETITION (CIVIL) NO. 1000 OF 2019
AND
ANAND SINGH – PETITIONER
VERSUS
THE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY – RESPONDENT
WRIT PETITION (CIVIL) NO. 1001 OF 2019
R. SHANKAR – PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
WRIT PETITION (CIVIL) NO. 1003 OF 2019
AND
A. H. VISHWANATH AND OTHERS – PETITIONERS 2
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
WRIT PETITION (CIVIL) NO. 1005 OF 2019
ROSHAN BAIG – PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
WRIT PETITION (CIVIL) NO. 1006 OF 2019
AND
N. NAGARAJU MTB – PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENTS
WRIT PETITION (CIVIL) NO. 1007 OF 2019
Decided On : 13-11-2019

IMPORTANT POINTS
The Speaker, while adjudicating a disqualification petition, acts as a quasi­judicial authority and the validity of the orders thus passed can be questioned before Supreme Court under Article 32 of the Constitution. However, ordinarily, the party challenging the disqualification is required to first approach the High Court as the same would be appropriate, effective and expeditious.
The Speaker’s scope of inquiry with respect to acceptance or rejection of a resignation tendered by a member of the legislature is limited to examine whether such a resignation was tendered voluntarily or genuinely. The satisfaction of the Speaker is subject to judicial review.
Resignation and disqualification on account of defection under the Tenth Schedule, both result in vacancy of the seat held by the member in the legislature, but further consequences envisaged are different.
Disqualification relates back to the date when the act of defection takes place.
The Speaker is not empowered to disqualify any member till the end of the term.
The existence of a substantial question of law which may be required to be referred to Constitutional bench 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. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”.
Orders passed by the Speaker in Disqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019, upheld to the extent of the disqualification of the Petitioners therein.
The part of Speaker’s orders detailing the duration of disqualification set aside.

Headnote:

(a) Constitution of India - Article 32 - Jurisdiction of judicial review - Can also be invoked in case of failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction - Even without exhausting available remedies - Instantly petitioners, while challenging order of disqualification allege violation of natural justice. (Para 20, 24, 27)

(b) Constitution of India - Article 32 - Speaker exercises power to disqualify as a Tribunal - Validity of such orders are amenable to judicial review. (Para 20, 25, 27)

(c) Constitution of India - Article 32 - Petitioners rushing straight to Supreme Court challenging their disqualification - Ought to have approached High Court first - That would been appropriate, effective and expeditious remedy to deal with such issues - Thus Supreme Court would have benefit of a considered judicial verdict from the High Court - Parties, being still aggrieved, could approach Supreme Court - Manner of approaching Supreme Court under Article 32 disapproved - However, in peculiar facts of the matter, writ petitions entertained. (Para 29, 30)

(d) Constitution of India - Article 190(3)(b) - Discretionary power of Speaker to accept/reject resignation(s) of member(s) - Power not unqualified - Subject to satisfaction of Speaker about “voluntariness” and “genuineness” of resignations - Satisfaction, though subjective, has to be based on objective material - The inquiry must be in accordance with provisions of Constitution and applicable rules of the House - The Speaker’s satisfaction is subject to judicial review. (Para 35)

(e) Constitution of India - Article 190(3)(b) r/w the Chapter 22, Rule 202 (2), Rules of Procedure and Conduct of Business in Karnataka Legislative Assembly - “Voluntariness”, “genuineness” and motive - A member of the Legislature has a right to resign, for whatever reasons - His seat will become vacant only if the resignation is accepted by Speaker - Resignation may be rejected if “not voluntary or genuine” - Genuine relates to authenticity of letter of resignation - If a member personally hands over the letter, scope of inquiry by Speaker becomes very limited - Only to ascertain whether resignation is based on threat, force or coercion and not motive - Voluntary and genuine resignation has to be accepted. (Para 39, 40, 41, 42, 43, 45)

(f) Constitution of India - Tenth Schedule and Articles 75(1B), 164(1B) and 361B - Resignation and disqualification - Resignation not a bar to disqualification - Otherwise, a member on verge of disqualification would resign and escape the consequences. (Para 51)

Constitutional interpretation - Interpretation which glorifies the democratic sprit of the Constitution should be adopted. (Para 53)

(g) Constitution of India - Tenth Schedule - Decision of Speaker disqualifying a member relates back to the date of the disqualifying action complained of - Tendering of resignation does not have a bearing on jurisdiction of Speaker in this regard. (Para 54, 55)

(h) Constitution of India - Tenth Schedule r/w Article 190(3)(b) - Resignation and disqualification are distinct mechanisms resulting in vacancy - Factum/manner of resignation may be a relevant consideration for disqualification but disqualification proceedings cannot be stopped on tendering resignation - Particularly when the act of disqualification arises prior to the resignation. (Para 56)

(i) Constitution of India - Articles 102(2), 191(2), 164 and 361B and Tenth Schedule - By disqualification a member becomes politically tainted - Disqualification results in two further restrictions as a means of punitive actions. (Para 66)

(j) Constitution of India - Tenth Schedule - Disqualification - Decision of Speaker on disqualification is final - However it is amenable to judicial review by Supreme Court. (Para 68, 69)

(k) Constitution of India - Tenth Schedule - Disqualification - Challenge on ground of non-compliance of natural justice as only three days notice was given - Number of days given to show cause in not important - Whether effective opportunity of hearing was provided is important. (Para 72, 74)

(l) Constitution of India - Tenth Schedule - Disqualification - Constitutional mandate - An unconstitutional act by Speaker would constitute violation of constitutional mandate - Instantly Speaker only erring in stipulating period of disqualification - However this error being severable and not going to the root of disqualification, entire order cannot be quashed. (Para 78)

(m) Administration of justice - Mala fide and perversity- Allegation of mala fides - Onus of proof regarding the same is on the one who challenges the said action and has a very heavy burden to discharge - Instantly, petitioners not making any specific allegation nor discharging the heavy burden to make out ground of mala fide - Petitioners also failing to show any illegality in impugned orders to show perversity. (Para 79, 81)

(n) Constitution of India - Tenth Schedule - Speaker concluding on the basis of material and evidence before him as regards members giving up membership of their party thereby accruing disqualification - Thses facts cannot be reviewed and evaluated by the Court - Impugned orders to the extent of disqualification upheld. (Para 83)

(o) Constitution of India - Tenth schedule r/w Articles 191(2) - Do not provide that the “disqualification” is to operate for a particular period or duration. (Para 91)

(p) Constitution of India - Tenth schedule r/w Articles 191(1) and (2), 164(1B) and 361B; and Section 36, Representation of the People Act, 1951 - Under Article 191(1) persons suffering disqualification cannot be chosen as or become a member of a House - Under article 191(2) a person who is no longer a member can contest subsequent election - Held, a disqualified person is not barred from contesting elections. (Para 92, 93, 94)

(q) Constitution of India - Tenth schedule - Speaker does not have any explicit power to specify the period of disqualification or bar a member from contesting elections after disqualification until the end of the term of the Legislative Assembly. (Para 98)

(r) Constitution of India - Tenth Schedule - Speaker does not have any inherent power to bar a disqualified member from contesting re­election. (Para 100)

(s) Interpretation and separation of powers - Court is mandated to mandated to expound the subject unsaid in the Constitution - However, such elaboration cannot be done in derogation of separation of powers and in a drastic or radical fashion - Constitutional silences cannot be used to introduce changes of such nature. (Para 107, 108)

(t) Interpretation - Constitution - Desirability of a particular rule or law should not be confused with the question of existence of the same - Constitutional morality should never be replaced by political morality. (Para 110)

(u) Constitution of India - Article 145(3) - Reference to Constitutional Bench - Requirements - A substantial question of law on the Constitutional interpretation - Not meaning that every case of constitutional interpretation should be compulsorily referred to a Constitutional Bench - Presently no substantial question of law existing - Question of constitutional interpretation would arise only if two or more possible constructions are sought to be placed on a provision - Instantly Kihoto Hollohan and Rajendra Singh Rana form the authoritative framework for understanding the Tenth Schedule - Reference not warranted. (Para 122, 124, 128, 129)

Facts of the case:

These Writ Petitions are filed against five different orders passed by the Speaker of the Karnataka Legislative Assembly: two orders dated 25.07.2019 in Disqualification Petition No. 01 of 2019 and Disqualification Petition No. 07 of 2019 respectively; two orders dated 28.07.2019 in Disqualification Petition No. 05 of 2019 and Disqualification Petition No. 08 of 2019 respectively; and a common order dated 28.07.2019 in Disqualification Petition Nos. 3 and 4 of 2019.

On 11.02.2019 Disqualification Petition No. 1 of 2019 was instituted against Ramesh L. Jarkhiholi, Mahesh Iranagaud Kumathalli, Umesh G. Jadhav and B. Nagendra. The main allegations against the aforesaid persons were that they did not participate in the meetings of the party and the proceedings of the Assembly session held from 06.02.2019 onwards, and the conduct of all the aforesaid members’ was in violation of the whip issued by the INC in this regard. Thereafter, Petitioners in Writ Petition (C) No. 997 of 2019, Ramesh L. Jarkhiholi and Mahesh Iranagaud Kumathalli, are said to have submitted their resignations to the Speaker on 06.07.2019.

Other Petitioners, including, Dr. K. Sudhakar, Pratap Gouda Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekar, B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C. Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baig submitted their resignations from the membership of the House between 01.07.2019 to 11.07.2019.

However, the Speaker did not take any call on the resignation of the above persons. Aggrieved by the fact that their resignations were not accepted, and with the impending trust vote being inevitable, most of the above persons approached the Supreme Court by way of a Writ Petition, being Writ Petition (C) No. 872 of 2019. The Court, on 11.07.2019, in the aforesaid Writ Petition directed the Speaker to take a decision qua the resignations forthwith, and further directed the same to be laid before the Court.

Meanwhile, on 11.07.2019, members of the INC withdrew their disqualification complaint against B. Nagendra in Disqualification Petition No.1 of 2019. The Speaker, it appears, did not take any decision on the resignation in spite of the order of the Court. Simultaneously, a whip was issued by the INC and the JD(S) on 12.07.2019 calling upon their members to attend proceedings, and cautioning the members of disqualification if they failed to attend the same. Further, Disqualification Petition Nos. 3, 4 and 5 were filed against Dr. K. Sudhakar, Pratap Gouda Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekhar, B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah, K.C. Narayanagowda, Anand Singh, N. Nagaraju MTB and Roshan Baig between 10.07.2019 to 12.07.2019.

Disqualification Petition No. 7 of 2019 was filed against R. Shankar on 16.07.2019 and Disqualification Petition No. 8 of 2019 was filed against Shrimanth Balasaheb Patel on 20.07.2019. The Speaker thereupon issued emergent notices between 18.07.2019 to 20.07.2019 to all the Petitioners regarding the pending disqualification petitions to appear before him on the date of hearing fixed for 23.07.2019 and 24.07.2019. The notices did not refer to the resignation letters which had been submitted by 15 Petitioners, who are parties to the Writ Petition (C) No. 872 of 2019 filed before this Court.

The trust vote was finally taken up for consideration on 23.07.2019. The 17 Petitioners did not attend the House. As a result, the INC and JD(S) coalition Government, under the leadership of Mr. Kumaraswamy was in a minority, resulting in the resignation of Mr. Kumaraswamy as Chief Minister.

Further on 25.07.2019 and 28.07.2019, the Speaker passed the five impugned orders in Disqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019. In these orders, the Speaker:

a. Rejected the resignation of the members asserting that they were not voluntary or genuine

b. Disqualified all the Petitioners, and

c. Disqualified the Petitioners till the end of the 15th Legislative Assembly term

Finding of the Court:

Part of the impugned orders specifying that the disqualification will last from the date of the order to the expiry of the term of the 15th Legislative Assembly of Karnataka held ultra vires.

Result: Writ petitions disposed of.