Shrimanth Balasaheb Patil vs Hon’ble Speaker, Karnataka Legislative Assembly and Others

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 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. 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 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

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 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.

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 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 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 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 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.

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 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

(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 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] 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. 1005 of 2019 were members of the JD(S), against whom a separate Disqualification Petition No. 5 of 2019 was moved. The Speaker passed a separate impugned order dated 28.07.2019 against these Petitioners. Petitioners in Writ Petition (C) Nos. 998, 1000, 1001, 1006 and 1007 of 2019 were all members of the INC, against whom Disqualification Petition Nos. 3 and 4 of 2019 were moved. A common order dated 28.07.2019, disqualifying the 10 Petitioners, was passed by the Speaker. A notice of three days with an opportunity for hearing would have been sufficient in the facts and circumstances of this case, when viewed in light of the deci-sion in the Ravi S Naik case. In this regard, the attention of the Court was drawn to the fact that notices were sent to their emails, and their permanent addresses within their constituency. In view of the unique facts, it cannot be said that an opportunity was not provided to the Petitioners to appear before the Speaker. It is altogether a different mat-ter that the aforesaid Petitioners were in Mumbai even though they were aware of the notice, and some of them did not even bother to be represented before the Speaker. In this light, it cannot be said that effective opportunity was not granted to the Petitioners. Consequently, it cannot be said as well that there has been a violation of principles of natural justice as against the aforesaid Petitioners. [Para 139140-143] [964-F-G; 965-F-H]

Ravi S. Naik v. Union of India, (1994) Supp 2 SCC

641 : [1994] 1 SCR 754 - referred to.

5.5 W.P. (C) NO. 1003 OF 2019

No reason and good ground is found to hold that the findings in the impugned order are perverse and based on no evidence. Rather the stand and plea taken by the Petitioner is devoid of merit. Similarly, the plea predicated on the violation of principles of natural justice must fail in the light of the above facts. The findings on allegations of not granting specific time in all the above cases are based on the unique facts and circumstances of each case. It should not be understood to mean that the Speaker could cut short the hearing period. The Speaker should give sufficient opportunity to a member before deciding a disqualification proceeding and ordinarily follow the time limit prescribed in the Rules of the Legislature. [Paras 150, 151] [967-D-E]

6.1 In light of the discussion above, summary of law as held herein is as follows: (a) The Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed can be questioned before this 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. (b) 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. 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 extraneous factors while considering the resignation. The satisfaction of the Speaker is subject to judicial review. (c) 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. (d) Object and purpose of the Tenth Schedule is to curb the evil of political defection motivated by lure of office or rather similar considerations which endanger the foundation of our democracy. By the 91st Constitutional Amendment, Articles 71 (1B), 164(1B) and 361B were enacted to ensure that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or till the date on which his term of office would expire or he/she is re-elected to the legislature, whichever is earlier. (e) Disqualification relates back to the date when the act of defection takes place. Factum and taint of disqualification does not vaporise by tendering a resignation letter to the Speaker. A pending or impending disqualification action does not become infructuous by submission of the resignation letter, when act(s) of disqualification have arisen prior to the member’s resignation letter. (f) In the earlier Constitution Bench judgment of Kihoto Hollohan, the order of the Speaker under Tenth Schedule can be subject to judicial review on four grounds: mala fide, perversity, violation of the constitutional mandate and order passed in violation of natural justice. (g) Findings on allegations of not granting specific time in all the above cases are based on the unique facts and circumstances of the case. It should not be understood to mean that the Speaker could cut short the hearing period. The Speaker should give sufficient opportunity to a member before deciding a disqualification proceeding and ordinarily follow the time limit prescribed in the Rules of the Legislature. (h) In light of the existing Constitutional mandate, the 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 under Articles 75(1B), 164(1B) and 361B of Constitution, 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. (i) There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked. (j) The existence of a 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. 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”. In any case, no substantial question of law exists in the present matter, which needs reference to a larger bench. [Para 152] [967-F-H; 968-A-H; 969-A-H]

6.2 The following order is passed: Orders dated 25.07.2019 and 28.07.2019 passed by the Speaker in Disqualification Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019, are upheld to the extent of the disqualification of the Petitioners therein. However, the part of Speaker’s 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 accordingly set aside. [Paras 153] [970-A-C] Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 : [1963] SCR 778 ; Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 : [1966] SCR

744 – followed.

Jagjit Singh v. State of Haryana (2006) 11 SCC 1 ; D. Sanjeevayya v. Election Tribunal, Andhra Pradesh AIR 1967 SC 1211 : [1967] SCR 489 ; N.S. Vardachari v. G. Vasantha Pai, (1972) 2 SCC 594 : [1973] 1 SCR

886 – relied on.

U.P. State Spinning Co. Ltd. v. R.S. Pandey (2005) 8 SCC 264 : [2005] 3 Suppl. SCR 603 ; State of Uttar Pradesh v. Mohammad Nooh AIR 1958 SC 86 : [1958] SCR 595 ; Harbanslal Sahnia v. Indian Oil

Corporation Ltd. (2003) 2 SCC 107 ; Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR

621 ; Delhi Transport Corporation v. D.T.C. Mazdoor Congress (1991) Supp 1 SCC 600 : [1990] 1 Suppl. SCR 142 ; State (NCT of Delhi) v. Union of India (2018) 8 SCC 501 : [2018] 7 SCR 1 ; R.S. Dass v. Union of India, (1986) Supp SCC 617 : [1987] SCR

527 ; Balachandra L. Jarkhiholi v. B. S. Yeddyurappa, (2011) 7 SCC 1 : [2011] 10 SCR 877 ; Mayawati v. Markandeya Chand, (1998) 7 SCC 517 : [1998] 2 Suppl. SCR 204 ; Public Interest Foundation v. Union of India (2019) 3 SCC 224 : [2018] 10 SCR 14 – referred to.