13 November 2019
Supreme Court
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SHRIMANTH BALASAHEB PATIL Vs HONBLE SPEAKER KARNATAKA LEGISLATIVE ASSEMBLY

Bench: HON'BLE MR. JUSTICE N.V. RAMANA, HON'BLE MR. JUSTICE SANJIV KHANNA, HON'BLE MR. JUSTICE KRISHNA MURARI
Judgment by: HON'BLE MR. JUSTICE N.V. RAMANA
Case number: W.P.(C) No.-000992 / 2019
Diary number: 27353 / 2019
Advocates: DIKSHA RAI Vs


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IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

 WRIT PETITION (CIVIL) NO. 992 OF 2019  

 SHRIMANTH BALASAHEB PATIL    …PETITIONER  

VERSUS  

HON’BLE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY AND OTHERS   …RESPONDENTS    

WITH  

WRIT PETITION (CIVIL) NO. 997 OF 2019  

RAMESH L. JARKHIHOLI AND ANOTHER   …PETITIONERS  

VERSUS  

HON’BLE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY AND OTHERS    …RESPONDENTS      

AND  

WRIT PETITION (CIVIL) NO. 998 OF 2019  

PRATAP GOUDA PATIL AND OTHERS   …PETITIONERS  

VERSUS  

HON’BLE SPEAKER, KARNATAKA  LEGISLATIVE ASSEMBLY AND OTHERS   …RESPONDENTS  

 AND  

 WRIT PETITION (CIVIL) NO. 1000 OF 2019  

 DR. K. SUDHAKAR      …PETITIONER  

VERSUS  

REPORTABLE

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THE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY      …RESPONDENT  

 

AND  

WRIT PETITION (CIVIL) NO. 1001 OF 2019  

ANAND SINGH       …PETITIONER  

VERSUS  

THE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY      …RESPONDENT  

 

AND  

WRIT PETITION (CIVIL) NO. 1003 OF 2019  

R. SHANKAR       …PETITIONER  

VERSUS  

HON’BLE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY AND OTHERS   …RESPONDENTS  

 

AND  

WRIT PETITION (CIVIL) NO. 1005 OF 2019  

A. H. VISHWANATH AND OTHERS    …PETITIONERS  

VERSUS  

HON’BLE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY AND OTHERS   …RESPONDENTS  

 

AND

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WRIT PETITION (CIVIL) NO. 1006 OF 2019  

ROSHAN BAIG       …PETITIONER  

VERSUS  

HON’BLE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY AND OTHERS   …RESPONDENTS  

 

AND  

WRIT PETITION (CIVIL) NO. 1007 OF 2019  

N. NAGARAJU MTB      …PETITIONER  

VERSUS  

HON’BLE SPEAKER, KARNATAKA   LEGISLATIVE ASSEMBLY AND OTHERS   …RESPONDENTS  

 

JU D G M EN T   

 

TABLE OF CONTENTS    

Introduction A  

Contentions B  

Issues C  

Maintainability of Writ Petition D  

Rejection of Resignations E  

Disqualification Proceedings After Resignation F  

Validity of Disqualification order G  

Power of the Speaker to direct disqualification  till the expiry of the term  

H  

Reference to Constitution Bench I  

Individual Cases J  

Conclusions K  

  

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N.  V.  RAM AN A ,  J.     

A. INTRODUCTION  

 1. Reflecting on Indian parliamentary democracy, the words of  

André Béteille, Professor Emeritus of Sociology, need to be  

observed:  

“In a parliamentary democracy, the  obligations of constitutional morality are  expected to be equally binding on the  government and the opposition. In India, the  same political party treats these obligations  very differently when it is in office, and when  it is out of it. This has contributed greatly to  the popular perception of our political system  as being amoral…”1      

Although the framers of the Constitution entrusted ‘we the  

people’ with the responsibility to uphold the constitutional  

values having attained freedom, the question which begs herein  

to be answered is to what extent we have discharged our duty  

and sustained our democratic and constitutional obligations.   

 2. In this context, the questions arising in this batch of Writ  

Petitions concern the importance of party politics in a democracy  

and the requirement to have stability within the government to  

 1André Béteille, ‘Constitutional Morality’, Economic and Political Weekly, Volume 43 (40)(4th  

October 2008).

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facilitate good governance, as mandated under the Constitution.  

We need to keep in mind that the separating line between  

dissent and defection requires to be made apparent, so that  

democratic values are upheld in balance with other  

constitutional considerations. In an endeavor to maintain such  

balance, the role of the Speaker is critical in maintaining the  

balance between democratic values and constitutional  

considerations. In this regard, this Court’s role is only to  

ascertain whether the Speaker, as a neutral member, upheld the  

tradition of his office to uphold the Constitution.  

 3. 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.   

 4. Brief facts which are necessary for the disposal of the present  

petitions are that the results of the 15th Karnataka Legislative

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Assembly were declared on 15.05.2018. The contesting political  

parties secured the following seats:  

Party Seats Won  

Bahujan Samaj Party 1  

Bharatiya Janata Party [BJP] 104  

Indian National Congress [INC] 78  

Janata Dal (Secular) [JD(S)] 37  

Karnataka Pragnyavantha  

Janatha Party [KPJP]  1  

Independent 1  

Total 222  

 

5. The Petitioners herein were elected as members of 15th  

Karnataka Legislative Assembly, as per the details given below:  

 

W.P. (C)  

NO.   

PETITIONER(S) PARTY  CONSTITUENCY  

992/  

2019  

Shrimanth Balasaheb  

Patil  

INC Kagawad  

997/  

2019  

1. Ramesh Jarkhiholi  

2. Mahesh Kumathalli  

INC 1. Gokak  

2. Athani  

998/  

2019  

1. Pratap Gouda Patil  

2. B.C. Patil  

INC 1. Maski  

2. Hirekerur

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3. Arbail Shivaram  

Hebbar  

4. S.T. Somashekhar  

5. B.A. Basvaraja  

6. Munirathna  

3. Yellapur  

4. Yeshvanthapura  

5. KR Pura  

6. RR Nagar  

1000/  

2019  

Dr. K. Sudhakar INC Chikkaballapur  

1001/  

2019  

Anand Singh INC  Vijayanagara  

1003/  

2019  

R. Shankar KPJP  

Independent  

Ranebennur  

1005/  

2019  

1. A.H. Vishwanath  

2. K. Gopalaiah  

3. K.C. Narayanagowda  

JD(S)  

 

1. Hunsur  

2. Mahalakshmi  

Layout  

3. Krishanarajapet  

1006/  

2019  

Roshan Baig INC Shivajinagar  

1007/  

2019  

N. Nagaraju MTB INC Hosakote  

 

6. Though the BJP was the single largest party, its attempt to form  

the Government was not successful. A coalition government of  

INC and JD(S) was formed under the leadership of Mr.  

Kumaraswamy (one of the Respondents herein). This  

Government had a short life of about 14 months. The events  

leading up to the resignation of the Chief Minister, on losing the

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trust vote on 23.07.2019, after several days delay, form the  

backdrop to the case of the present Petitioners.   

 7. 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.   

 

8. 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.  

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9. 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 this Court by  

way of a Writ Petition, being Writ Petition (C) No. 872 of 2019.  

This 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 this  

Court. The relevant extract of the said order is as under:-  

 “....Having regard to the facts of the case, we  permit the petitioners, ten in number, to  appear before the Hon’ble Speaker of the  Karnataka Legislative Assembly at 6.00 p.m.  today. We request the Hon’ble Speaker to  grant an audience to the ten petitioners at  the said time. The petitioners, if they so  wish and are so inclined, shall intimate the  Hon’ble Speaker of the Assembly their  decision to resign, in which event, the  Hon’ble Speaker shall take a decision  forthwith and, in any case, in the course of  the remaining part of the day. Such decision  of the Hon’ble Speaker as may be taken in  terms of the present order, be laid before the  Court tomorrow (12.07.2019)...”  

   

10. 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,

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did not take any decision on the resignation in spite of the order  

of this 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.   

 11. Subsequently, when the aforesaid Writ Petition came up for  

hearing on 12.07.2019, this Court passed the order as under:  

 “Having regard to the weighty issues  that have arisen and the incomplete state of  facts, as indicated above, we are of the view  that the matter should be considered by the  Court further on 16th July, 2019.   

 In the meantime, the status quo as  on today, with regard to the ten  petitioners, be maintained, namely, that  neither the issue of resignation nor the  issue of disqualification will be decided  by the Hon’ble Speaker.   

 This order has been passed by this  Court only to enable the Court to decide the

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larger constitutional questions arising as  indicated above.”  

(emphasis supplied)    

12. Further, this Court on 17.07.2019, passed the following order:  

 “The issue arising in the case is  whether resignations submitted by Members  of the Legislative Assembly at a point of time  earlier than petitions for their  disqualification under the Tenth Schedule of  the Constitution should have priority in the  decision making process or whether both  sets of proceedings should be taken up  simultaneously or the disqualification  proceedings should have precedence over  the request(s) for resignation.       Arguments have been advanced by the  learned counsels for the parties on the  touchstone of Articles 164, 190, 191, 212  and 361B and the Tenth Schedule of the  Constitution. We have considered the same.  Constitutional principles should not receive  an exhaustive enumeration by the Court  unless such an exercise is inevitable and  unavoidable to resolve the issues that may  have arisen in any judicial proceeding.       In the present case, having regard to  the stage at which the above issues are  poised in the light of the facts and  circumstances surrounding the same, we  are of the view that the aforesaid questions  should receive an answer only at a later  stage of the proceedings. The imperative  necessity, at this stage, is to maintain  the constitutional balance and the  conflicting and competing rights that  have been canvassed before us. Such an  interim exercise has become prudent in

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view of certain time frame exercise(s)  that is in the offing in the Karnataka  Legislative Assembly, particularly, the no  trust motion against the present  Government, which we are told is due for  being taken up on 18th July, 2019. In  these circumstances, the competing  claims have to be balanced by an  appropriate interim order, which  according to us, should be to permit the  Hon’ble Speaker of the House to decide  on the request for resignations by the 15  Members of the House within such time  frame as the Hon’ble Speaker may  consider appropriate. We also take the  view that in the present case the discretion  of the Hon’ble Speaker while deciding the  above issue should not be fettered by any  direction or observation of this Court and  the Hon’ble Speaker should be left free to  decide the issue in accordance with  Article 190 read with Rule 202 of the  Rules of Procedure and Conduct of  Business in Karnataka Legislative  Assembly framed in exercise of the  powers under Article 208 of the  Constitution.      The order of the Hon’ble Speaker on  the resignation issue, as and when passed,  be placed before the Court.       We also make it clear that until further  orders the 15 Members of the Assembly,  ought not to be compelled to participate in  the proceedings of the ongoing session of the  House and an option should be given to  them that they can take part in the said  proceedings or to opt to remain out of the  same. We order accordingly.”  

(emphasis supplied)

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 13. 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  

Petitioners have alleged that the period given in the aforesaid  

notices was too short and in fact some of them had not even  

received notices within time to respond.  

 

14. While the aforesaid disqualification petitions/resignation letters  

were pending, the INC on 20.07.2019 had again issued a whip  

requiring their members of the Legislative Assembly to attend  

the proceedings of the House on 22.07.2019.  

   

15. The trust vote was finally taken up for consideration on  

23.07.2019. The 17 Petitioners did not attend the House. As a

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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.  

 

16. Further, as detailed above, 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   

 

17. Aggrieved, by the aforesaid disqualifications, all the Petitioners  

herein have approached this Court under Article 32 of the  

Constitution.  

B. CONTENTIONS  

LEARNED SENIOR COUNSEL MR. MUKUL ROHATGI ON BEHALF OF  

PETITIONERS IN W.P. (C) NOS.997, 998, 1006 AND 1007 OF 2019

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• Learned Senior Counsel Mr. Mukul Rohatgi, argued that the  

members of the house have an indefeasible right to resign but  

the speaker went beyond his constitutionally mandated duty  

and gave an opinion on the motive of the members and  

wrongfully rejected the resignations tendered by them. On the  

contrary, the speaker has to accept the resignation once it has  

been tendered in the correct format.  

• Explaining the connection between resignation and  

disqualification under the Tenth Schedule of the Constitution,  

Mr. Rohatgi stressed that once resignation was validly tendered,  

there was no question of the Speaker exercising his jurisdiction  

to disqualify a member. Disqualification under the Tenth  

Schedule was only with respect to a person who was a member,  

and not otherwise.   

• The learned Senior Counsel challenging the legality of the  

disqualification order submitted that the same can be interfered  

with, if the Court finds that the order is perverse, results from  

non-application of mind, or is in violation of principles of natural  

justice. It was contended that in the present case, all three of the  

above infirmities are made out in the disqualification order of  

the Speaker.   

• The Speaker, in issuing “emergent” notice returnable in 3-4 days  

is in contravention of the requirement for 7 days’ notice under  

the Karnataka Legislative Assembly (Disqualification of Members  

on Ground of Defection) Rules, 1986. This makes the order of  

the Speaker bad for non-compliance of the principles of natural

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justice, particularly when the Petitioners had only sought time of  

4 weeks to produce documents.   

• Lastly, learned Senior Counsel vehemently submitted that even  

if disqualification is held to be valid in law, the same cannot take  

away the right of the Petitioners to contest in the upcoming  

elections, as there exists no bar on the right to contest elections  

under Tenth Schedule of the Constitution.   

LEARNED SENIOR COUNSEL CA SUNDARAM ON BEHALF OF PETITIONER  

IN W.P. (C) NO. 1000 OF 2019  

• The learned Senior Counsel submitted that the resignation  

tendered in the present case was resignation from the House  

and not from the party.   

• If resignation is tendered under Article 190, the Speaker’s role is  

limited to the extent of determining voluntariness and  

genuineness of the same. The inquiry of the Speaker as to the  

“voluntariness” is limited in its scope to the question of whether  

the member was coerced to resign or not. The enquiry as to  

“genuineness” only related to whether the resignation letter was  

forged, or not actually made by the member. Additionally, when  

a member hands over the letter of resignation to the Speaker  

personally and informs the Speaker that the same is voluntary  

and genuine, then the Speaker has to accept the resignation  

immediately.  

• The learned Senior Counsel also submitted that the motive  

behind the resignation is immaterial, as the proviso to Article

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190(3) of the Constitution restricts the scope of inquiry by the  

Speaker only to voluntariness and genuineness.  

LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF PETITIONER IN  

W.P.(C) NO. 1003 OF 2019  

• The learned Senior Counsel distinguished the case of the  

Petitioner on the basis that he had never tendered his  

resignation. In spite of that, a separate disqualification order  

was passed against him.  

• In the present case, the Petitioner belonged to KPJP. Although  

the party had decided to merge with the INC and had intimated  

the Speaker about the same, there was no formal order of  

merger. When the whip was issued by the INC, the Petitioner  

herein requested the Speaker to provide him with a separate  

seat with the opposition members. But the Speaker refused the  

same, recognizing the Petitioner to be affiliated with the INC.  

• The learned Senior Counsel for the Petitioner brought to the  

notice of the Court the letter of intimation issued by the  

Executive Committee of his party directing him to stay on the  

side of the opposition. Therefore, without any formal order of  

merger, the Petitioner was not bound by the whip issued by the  

INC.  

LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF PETITIONER IN W.P.  

(C) NO. 992 OF 2019  

• The case of the Petitioner can be distinguished factually from the  

case of most of the other Petitioners as he had not tendered his

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resignation. When the whip was issued, due to prevailing  

medical conditions, the Petitioner had to urgently travel to  

Mumbai, pursuant to which he failed to participate in the  

proceedings of the House.  

• Although these facts were intimated to the Speaker with  

supporting medical records, the Speaker passed the order of  

disqualification in haste without giving due notice to the  

Petitioner. The learned Senior Counsel submitted that such an  

ex parte order of disqualification, without considering relevant  

material on record and placing reliance upon extraneous  

circumstances, is untenable.  

LEARNED SENIOR COUNSEL A.K GANGULY ON BEHALF OF PETITIONERS  

IN W.P.(C) NO. 1005 OF 2019  

• This Court, vide its order dated 17.07.2019 in Writ Petition (C)  

No. 872 of 2019, granted liberty to the Petitioners herein to  

either participate or opt out of the proceedings of the ongoing  

session of the House. But the aforesaid order was ignored by the  

political party of the Petitioners herein by issuing the whip, and  

by the Speaker in relying upon the same to disqualify the  

Petitioners.  

• The learned Senior Counsel also submitted that the sanctity of  

the Petitioners’ resignation should be protected. The order of  

disqualification rendered by the Speaker is mala fide and is not  

supported by any cogent reasons.  

LEARNED SENIOR COUNSEL K.V. VISHWANATHAN ON BEHALF OF  

PETITIONERS IN W.P. (C) NO. 997 OF 2019

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• The learned senior counsel submitted that on 11.02.2019, a  

disqualification petition was filed against 4 MLAs including Dr.  

Umesh Yadav and the Petitioners herein. Subsequently, during  

the pendency of the said disqualification petition, Dr. Umesh  

Yadav submitted his resignation which was accepted by the  

Speaker. However, the Speaker, acting in a mala fide manner,  

kept the resignation letter submitted by the Petitioners herein  

pending until the disqualification petition was decided.  

• Despite the orders of this Court directing the Speaker to decide  

the resignation, the Speaker kept the matter pending till the  

decision on the disqualification petition. The learned Senior  

Counsel further contended that the Speaker wrongly took into  

consideration actions pursuant to the orders of this Court dated  

17.07.2019, wherein the Petitioners were granted the liberty not  

to participate in the ongoing proceedings of the house.  

LEARNED SENIOR COUNSEL SAJAN POOVAYYA ON BEHALF OF  

PETITIONER IN W.P. (C) NO. 1001 OF 2019  

• The Petitioner was a member of the INC who had resigned on  

01.07.2019 in protest against certain land dealing in his  

Constituency. However, he was put in the same group as the  

other disqualified Petitioners by the Speaker. The learned Senior  

Counsel contends that omnibus statements and allegations have  

been rendered in the disqualification order and the same was  

passed without taking into consideration the documents  

submitted by the Petitioner herein.  

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• The learned Senior Counsel reiterated the earlier contention that  

the actions of the Petitioner stood protected by virtue of the  

interim order dated 17.07.2019 passed by a Co-ordinate Bench  

of this Court in Writ Petition (C) No. 872 of 2019.  

LEARNED SOLICITOR GENERAL TUSHAR MEHTA ON BEHALF OF THE  

SPEAKER:  

• The learned Solicitor General submitted that members of the  

House have the right to resign.   

• The learned Solicitor General submitted that this was a fit case  

for the matter to be remanded to the Speaker for fresh hearing.  

LEARNED SENIOR COUNSEL KAPIL SIBAL ON BEHALF OF RESPONDENT  

NOS. 2 AND 3 IN W.P. (C) NOS. 992, 997, 998, 1000, 1001, 1003,  

1006 AND 1007 OF 2019  

• The learned Senior Counsel firstly stated that the impugned  

orders of disqualification can only be challenged under Article  

226 and not under Article 32 of the Constitution, as these are  

matters involving merely statutory rights. There is no alleged  

violation of fundamental rights which mandates the invocation  

of jurisdiction under Article 32 of the Constitution. Further, the  

Speaker is a quasi-judicial authority, the remedy against whose  

order lies only under Article 226 of the Constitution.  

• The learned Senior Counsel emphasized upon the conduct of the  

Petitioners to prove that their resignations were motivated. The  

counsel urged this Court to take a note of the conduct of the  

members both prior and subsequent to the act of resignation to

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comprehend the motive behind such resignation. He stated that  

motive has to be decided to determine the “genuineness” and  

“voluntariness” of the resignation, as it is the motive which acts  

as an umbilical cord between the issues of genuineness and  

voluntariness. In light of the same, learned Senior Counsel  

pointed out that the Petitioners, after tendering their  

resignation, never went to the Speaker; rather they approached  

the Governor and the Supreme Court. It ought to be noted that  

the letters of resignation were tendered collectively.   

• The power vested in the Speaker is a judicial exercise of power.  

The Court’s discretion in this arena is quite limited. Moreover,  

the Speaker, being the master of the House, can impose any  

restriction pursuant to the act of disqualification. It ought to be  

noted that the acts of disqualification took place within the  

House and therefore it is well within the inherent powers of the  

Speaker to impose any sanction consequent to the act of  

defection. Without such power of sanction, the position of the  

Speaker is equivalent to that of a toothless tiger.  

• Additionally, it was submitted that although the Petitioners have  

repeatedly contended that the rules of natural justice have been  

violated, it ought to be noted that rules of natural justice cannot  

be put in a straitjacket. Although, these principles are  

immutable, yet they are flexible, and are not confined to  

technical limits. The Petitioners herein have to show some real  

injury or patent perversity in the order of the Speaker.  

• Moreover, when the whip was issued with respect to a motion of  

confidence, the members are duty bound to accept the same.

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The Petitioners, by violating the whip, have voluntarily given up  

membership of the party. Even assuming that the liberty  

granted by this Court in the earlier writ proceedings was correct,  

with respect to non-compulsion of the members for attending  

the Assembly, there was legal necessity to attend the Assembly  

at such a determinative point. The learned Senior Counsel made  

a distinction between ordinary whips and those which are more  

essential, which were necessary for the survival of the  

Government- such as those pertaining to a trust vote, a no-

confidence motion, or even a whip relating to the budget. He  

submitted that such a whip must be followed per se, and that a  

member could not refuse to appear/vote with respect to the  

same.  

• The learned Senior Counsel proceeded to distinguish between  

consequences of resignation with that of disqualification. He  

stated that sole purpose of the Tenth Schedule is to check bulk  

defections. In light of the same, the Petitioners cannot be  

allowed to contest the by-elections, as allowing them to contest  

dilutes the effect of disqualification. There is a clear bar for  

acceptance of the nomination of disqualified candidates under  

Section 36 of The Representation of the People Act, 1951.  

Therefore, the disqualified members should not be allowed to  

contest fresh elections.  

• The learned Senior Counsel also contended that the Speaker has  

the power to disqualify under the Tenth Schedule, which also  

includes the power of the Speaker to command that the member

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disqualified would not be eligible to stand for re-election, on the  

seat falling vacant, till the end of the term of the House.   

• However, since the matter involves important questions in  

relation to the power of the Speaker to decide the parallel  

proceedings of resignation and disqualification, the power of the  

Speaker to conduct inquiry as to the “voluntariness” and  

“genuineness”, the interpretation of the terms “voluntary” and  

“genuine”, the relevant material to be considered during an  

inquiry under Article 190(3) of the Constitution, the relevant  

period of inquiry, etc., the same is required to be considered by a  

Constitution Bench.  

LEARNED SENIOR COUNSEL DR. RAJEEV DHAVAN ON BEHALF OF  

RESPONDENT NO. 2 IN W.P (C) NO. 1005 OF 2019  

• The learned Senior Counsel defended the order of  

disqualification by stating that the Speaker exercises wide range  

of power while acting in an adjudicatory capacity and the same  

should not be reduced to a mechanical exercise. Therefore, while  

deciding the issues regarding “genuineness” and “voluntariness”  

behind the act of resignation, the Speaker can look to the series  

of events leading to the resignation so as to decide the motive.  

Pursuant to the above submission, the counsel stated that  

taking into totality of facts into consideration there exist no  

ground to claim that the order of the Speaker suffers from  

perversity or that the same was passed mala fide.  

• The learned Senior Counsel also submitted that there exists no  

indefeasible right of resignation as these Petitioners are acting in

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their constitutional capacity as members of the Legislative  

Assembly. Moreover, the resignations rendered in the present  

case cannot be qualified as resignation simpliciter, rather they  

indicate resignation for the cause of defection and in such a  

situation, the Speaker could not have turned a blind eye to the  

activities of the Petitioners.  

LEARNED SENIOR COUNSEL DEVADUTT KAMAT ON BEHALF OF  

RESPONDENT NOS. 2 AND 3 IN W.P. (C) NOS. 992, 997, 998, 1000,  

1001, 1003, 1006 AND 1007 OF 2019  

• The learned Senior Counsel reiterated the views expressed above  

by the other learned Senior Counsel and defended the orders of  

the Speaker stating that he had duly complied with the orders of  

this Court by deciding the resignations submitted by the  

Petitioners under Article 190 of the Constitution. The learned  

Senior Counsel submitted that the orders dated 11.07.2019 and  

17.07.2019 passed by a Co-ordinate Bench of this Court in Writ  

Petition (C) No.872 of 2019 only requested the Speaker to take a  

decision on the resignations as per his discretion and within  

such time frame as he may consider appropriate. Acceptance or  

rejection of the resignations is dependent on the condition that  

the same are voluntary and genuine.  

• Further, the disqualification orders passed by the Speaker were  

based on a totality of circumstances prevailing in which the  

conduct of the Petitioners was questionable. The absence of the  

Petitioners from the proceedings of the House, when the trust  

motion of their Government was being discussed, clearly shows  

their intention to act against the party interest. The

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disqualification orders were based on cumulative facts including  

the absence of the Petitioners despite repeated notices to remain  

present, and their actions and conduct in colluding with the BJP  

to engineer the fall of the coalition government.  

LEARNED SENIOR COUNSEL K. SHASHIKIRAN SHETTY ON BEHALF OF  

RESPONDENT NOS. 2 AND 3 IN W.P. (C) NOS. 992, 997, 998, 1000,  

1001, 1003, 1006 AND 1007 OF 2019  

• Learned senior advocate supported the arguments advanced by  

the learned senior advocate, Mr. Kapil Sibal, and stated that the  

disqualification order could not be reviewed by this Court.   

• Further, the Tenth Schedule is clear on the aspect of merger,  

wherein he pointed out that there is no need to communicate  

the factum of merger to R. Shankar [Petitioner in Writ Petition  

(C) No. 1003 of 2019].  

LEARNED SENIOR COUNSEL RAKESH DWIVEDI ON BEHALF OF ELECTION  

COMMISSION OF INDIA  

• The learned Senior Counsel submitted that it has been a matter  

of consistent practice that members disqualified under the Tenth  

Schedule can participate in the next elections. Any bar for a  

particular period is not anticipated by law with respect to  

disqualification under the Tenth Schedule.  

• He further stated that the power of the Speaker is only limited to  

the adjudication of the disqualification petition. Any  

consequential action which flows from such disqualification is  

beyond his jurisdiction. The Speaker cannot, at will, provide any

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particular term of disqualification. Disqualification, and the  

consequences thereof, being punitive, have to be sanctioned by  

law.  

• When a member gets disqualified under the Tenth Schedule, a  

consequential vacancy arises thereby. However, it is  

impermissible for the Speaker to decide as to who can contest  

for the said vacancy.  

C. ISSUES  

18. In view of the arguments contended, following questions arise for  

our consideration herein:  

1. Whether the Writ Petition challenging the order of the  

Speaker under Article 32 is maintainable?  

2. Whether the order of the Speaker rejecting the resignation  

and disqualifying the Petitioners is in accordance with the  

Constitution?  

3. Even if the Speaker’s order of disqualification is valid, does  

the Speaker have the power to disqualify the members for  

the rest of the term?  

4. Whether the issues raised require a reference to the larger  

Bench?  

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D. MAINTAINABILITY OF THE WRIT PETITION  

19. At the outset, it must be noted that learned Senior Counsel, Mr.  

Kapil Sibal has contended that this Court does not have the  

jurisdiction under Article 32 of the Constitution of India to deal  

with this matter. Further, learned Senior Counsel, Dr. Rajeev  

Dhavan, has supported the aforesaid argument by stating that  

no fundamental right is violated, more so when the members of  

Parliament or Legislative Assembly cannot invoke the ‘right to  

freedom of trade and profession’ under Article 19 (1)(g) of the  

Constitution of India.   

 20. The contours of this Court’s writ jurisdiction has been long  

established in several decisions of this Court. Where the law  

provides for a hierarchy of appeals, the parties must exhaust the  

available remedies before resorting to writ jurisdiction of this  

Court [See U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005)  

8 SCC 264]. At the same time, this Court in a catena of  

decisions has held that this doctrine is not a rule of law, but  

essentially a rule of policy, convenience and discretion and thus  

not a compulsion and where there is failure of principles of  

natural justice or where the orders or proceedings are wholly  

without jurisdiction warrants, this Court may exercise its writ

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jurisdiction even if the parties had other adequate legal  

remedies. [State of Uttar Pradesh v. Mohammad Nooh, AIR  

1958 SC 86; Harbanslal Sahnia v. Indian Oil Corporation  

Ltd., (2003) 2 SCC 107]  

 21. The learned senior counsel on behalf of the Respondents have  

challenged the jurisdiction of this Court under Article 32 of the  

Constitution by placing reliance on the Kihoto  

Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, wherein this  

Court, while dealing with the scope of judicial review stated as  

under:  

“109. In the light of the decisions  referred to above and the nature of  function that is exercised by the  Speaker/Chairman under Paragraph 6,  the scope of judicial review under  Articles 136, and 226 and 227 of the  Constitution in respect of an order  passed by the Speaker/Chairman  under Paragraph 6 would be confined to  jurisdictional errors only viz., infirmities  based on violation of constitutional  mandate, mala fides, non-compliance  with rules of natural justice and  perversity.”  

(emphasis supplied)    

22. We may note that 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

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decision in the Kihoto Hollohan case (supra), 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 (supra),  

we do not find any explicit or implicit bar to adjudicate the issue  

under the writ jurisdiction of this Court.   

 23. The Petitioners are alleging violation of principles of natural  

justice and their right to a fair hearing. Principles of natural  

justice and right to fair hearing can be traceable to right to  

equality and rule of law enshrined under Article 14 of the  

Constitution, read with other fundamental rights [refer to  

Maneka Gandhi v. Union of India,(1978) 1 SCC 248].   

 

24. A seven Judge Bench of this Court in the case of Ujjam Bai v.  

State of Uttar Pradesh, AIR 1962 SC 1621, held that writ  

jurisdiction under Article 32 of the Constitution is available  

when principles of natural justice are violated. This view was  

affirmed by a nine Judge Bench of this Court in the case of  

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR  

1967 SC 1, in the following terms:

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“54. The scope of the jurisdiction of this Court  in dealing with writ petitions under Article 32  was examined by a Special Bench of this Court  in Ujjam Bai v. State of Uttar Pradesh [(1963) 1  SCR 778]. This decision would show that it  was common ground before the court that in  three classes of cases a question of the  enforcement of the fundamental rights may  arise; and if it does arise, an application under  Article 32 will lie. These cases are: (1) where  action is taken under a statute which is ultra  vires the Constitution; (2) where the statute is  intra vires but the action taken is without  jurisdiction; and (3) where the action taken  is procedurally ultra vires as where a quasi- judicial authority under an obligation to act  judicially passes an order in violation of the  principles of natural justice.”  

 (emphasis supplied)  

 

25. In the context of disqualification orders, this Court has exercised  

its writ jurisdiction under Article 32. A three Judge Bench of this  

Court in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1,  

has explicitly held that a challenge to an order of disqualification  

under the Tenth Schedule is available under the writ jurisdiction  

of this Court. This Court held as under:  

“11. The Speaker, while exercising power to  disqualify Members, acts as a Tribunal and  though validity of the orders thus passed  can be questioned in the writ jurisdiction  of this Court or High Courts, the scope of  judicial review is limited as laid down by the  Constitution Bench in Kihoto  Hollohan v. Zachillhu [1992 Supp (2) SCC

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651]. The orders can be challenged on the  ground of ultra vires or mala fides or having  been made in colourable exercise of power  based on extraneous and irrelevant  considerations. The order would be a nullity  if rules of natural justice are violated.”  

(emphasis supplied)  

26. Reliance can be placed on the constitutional provisions and  

debates thereupon which show that this Court can inquire into  

the legitimacy of the exercise of the power. Dr. B.R. Ambedkar  

has described Article 32 as the very soul of the Constitution -  

very heart of it - most important Article. Moreover, 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.  

 27. This Court, as the highest Constitutional Court, has to, and has  

always, functioned in accordance with the applicable judicially  

determined parameters while performing its constitutional duty  

to judicially review the acts of constitutional functionaries. It has  

examined questions of both fact and law, so long as it has been  

vested with the power to do so. The scrupulous discharge of

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duties by all guardians of the Constitution include the duty not  

to transgress the limitations of their own constitutionally  

circumscribed powers by trespassing into what is properly the  

domain of other constitutional organs.   

 28. In any case, we note that by challenging the order directly under  

Article 32, the Petitioners have leapfrogged the judicial hierarchy  

as envisaged under the Constitution [refer to Tamil Nadu  

Pollution Control Board v. Sterlite Industries (I) Ltd., 2019  

SCC Online SC 221].  

 29. We do not appreciate the manner in which the petitioners have  

knocked on the doors of this Court. Among other reasons, we  

proceeded to hear the present matter due to the peculiar facts  

presented before us, wherein certain interim orders were passed  

herein by another Co-ordinate Bench of this Court in Writ  

Petition (C) No. 872 of 2019 filed by some of the present  

petitioners. We 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 has passed in the  

meanwhile, and to ensure that the same exercise need not be

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repeated before the High Court, we are left with no option but to  

hear these cases on merits.   

 30. Despite the fact that this Court has sufficient jurisdiction to deal  

with disqualification cases under the writ jurisdiction, a party  

challenging a disqualification order is required to first approach  

the High Court as it would be appropriate, effective and  

expeditious remedy to deal with such issues. This Court would  

have the benefit of a considered judicial verdict from the High  

Court. If the parties are still aggrieved, then they may approach  

this Court.  

 

31. Having ascertained that this Court has the jurisdiction to deal  

with the subject matter of the present petitions, the question  

concerning the extent of judicial review can be taken up later,  

when we analyze and discuss the aspects concerning the validity  

of the orders passed by the Speaker, disqualifying the Petitioners  

and rejecting their resignations.  

 

E. REJECTION OF RESIGNATIONS   

32. In the present case, 15 of the 17 Petitioners had tendered their  

resignation from the House before the disqualification petitions

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were adjudicated. The Speaker vide orders dated 28.07.2019 in  

Disqualification Petition Nos. 3 and 4 of 2019 and  

Disqualification Petition No. 5 of 2019, and order dated  

25.07.2019 in Disqualification Petition No. 1 of 2019, rejected  

the resignation of the Petitioners therein, holding that they were  

not voluntary and genuine.  

 33. Mr. Kapil Sibal, learned Senior Counsel, has contended that  

rejection of the resignation by the Speaker was appropriate as  

the same was given only to frustrate the object of  

disqualification. He has submitted that the consideration before  

the Court is limited considering the fact that the bonafides and  

motive of the Petitioners to resign was appropriately dealt under  

Article 190(3)(b) of the Constitution. On the other hand, the  

Petitioners have strenuously contended that the inquiry required  

under Article 190(3)(b) of the Constitution is limited to  

“voluntariness” and “genuineness”, and not the motive or the  

reason for resignation.  

 34. The first question we need to consider concerns the scope of  

judicial review with respect to acceptance/rejection of the  

resignation by the Speaker. The Respondents have contended on

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this count that the Court cannot go into this aspect as the  

acceptance/rejection of resignation is based on the subjective  

satisfaction of the Speaker, which is immune from judicial  

review.  

 

35. We are 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. 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

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of the House. This satisfaction of the Speaker is subject to  

judicial review.  

 36. The next logical question which arises for consideration  

concerns the ambit of the terms “voluntary” and “genuine” in  

Article 190(3)(b) of the Constitution. Prior to the 33rd  

Constitutional Amendment, Article 190(3)(b) read as follows:  

 “(3) If a member of a House of the  Legislature of a State—    

(a) …..  (b) resigns his seat by writing under his  hand addressed to the Speaker or the  Chairman, as the case may be.”  

 

37. The 33rd Constitutional Amendment amended Article 190(3)(b) of  

the Constitution and added a proviso. The revised clause reads  

as follows:  

 “(3) If a member of a House of the  Legislature of a State—    

(a) …..  (b) resigns his seat by writing under his  hand addressed to the Speaker or the  Chairman, as the case may be, and his  resignation is accepted by the Speaker or  the Chairman, as the case may be,     his seat shall thereupon become vacant:    

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Provided that in the case of any resignation  referred to in sub clause (b), if from  information received or otherwise and after  making such inquiry as he thinks fit, the  Speaker or the Chairman, as the case may  be, is satisfied that such resignation is not  voluntary or genuine, he shall not accept  such resignation.”  

 

38. 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. [refer to Union of India v. Gopal  

Chandra Misra, (1978) 2 SCC 301; Moti Ram v. Param Dev,  

(1993) 2 SCC 725]  

 39. 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

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Amendment does not change this position. On the contrary, it  

ensures that his resignation is on account of his free will.   

 40. 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.   

 41. Third, the Speaker can reject the resignation, if the Speaker is  

satisfied that resignation was “not voluntary or genuine”. Herein,  

our attention is drawn to the Chapter 22, Rule 202 (2) of the  

Rules of Procedure and Conduct of Business in Karnataka  

Legislative Assembly, which is extracted as under:  

“(2) If a member hands over the letter of  resignation to the Speaker personally and  informs him that the resignation is  voluntary and genuine and the Speaker has  no information or knowledge to the contrary,  and if he is satisfied, the Speaker may  accept resignation immediately.”  

(emphasis supplied)

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The rule states that the Speaker has to take a call on the  

resignation letter addressed to him immediately, having been  

satisfied of the voluntariness and genuineness. Reading the rule  

in consonance with Article 190(3)(b) of the Constitution and its  

proviso, it is clear that the Speaker’s satisfaction should be  

based on the information received and after making such inquiry  

as he thinks fit. The aforesaid aspects do not require roving  

inquiry and with the experience of a Speaker, who is the head of  

the House, he is expected to conduct such inquiry as is  

necessary and pass an order. If a member appears before him  

and gives a letter in writing, an inquiry may be a limited inquiry.  

But if he receives information that a member tendered his  

resignation under coercion, he may choose to commence a  

formal inquiry to ascertain if the resignation was voluntary and  

genuine.   

 42. 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.  

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40  

 43. 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. This is evident from the Statement of  

Objects and Reasons of the 33rd Constitutional Amendment  

which is extracted below:  

1. Articles 101 (3) (b), and 190 (3) (b) of the  Constitution permit a member of either  House of Parliament or a member of a  House of the Legislature of a State to resign  his seat by writing under his hand  addressed to the Speaker or the Chairman,  as the case may be. In the recent past,  there have been instances where coercive  measures have been resorted to for  compelling members of' a Legislative  Assembly to resign their membership, if  this is not checked, it might become  difficult for Legislatures to function in  accordance with the provisions of the  Constitution. It is therefore, proposed to  amend the above two articles to impose a  requirement as to acceptance of the  resignation by the Speaker or the Chairman  and to provide that the resignation shall not  be accepted by the Speaker or the Chairman  if he is satisfied after making such inquiry  as he thinks fit that the resignation is not  voluntary or genuine.  

(emphasis supplied)    

The Speaker therefore has a duty to reject the resignation if  

such resignation is based on coercion, threat or force.   

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44. Learned Senior Counsel, Mr. Kapil Sibal, has contended that a  

Speaker, as a part of his inquiry, can also go into the motive of  

the member and reject his resignation if it was done under  

political pressure. We are unable to accept this contention. 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”. Our view is also supported by the debates on the  

33rd Constitutional Amendment. It may be necessary to quote  

the debate dated 03.05.1974 on the 33rd Constitutional  

Amendment, which is extracted below:  

H.R. Gokhale: I do not want to reply  elaborately to all the points because I know I  will have to deal with these points when the  Bill comes up for consideration. In a way, I  am thankful to the Hon. Members. They  have given me notice of what they are going  to say. I will deal with some points raised.  Sir, the idea that the Bill prevents any  member from resigning is absolutely wrong.  On the contrary, the basis on which the Bill  proceeds is, the right of resignation is  protected and the idea of acceptance of a  resignation is also subject to a proviso that  the acceptance is in the normal course and  the resignation can take place only in the  event of a conclusion being reached that

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either it is not genuine or it is not voluntary.  Therefore, to proceed on the basis that the  right of a Member to resign is taken away, is  entirely wrong. This can be seen if the bill is  properly studied. The other thing they said  was, in the name of democracy, how do you  prevent people from resigning. Nobody is  prevented from resigning. On the contrary,  the basic idea is, the ordinary right of a  person to say ‘I do not want to continue to  be a Member of the House’ is maintained.  But, is it a democratic way, when a  Member does not want to resign, people  pressurise him to resign- not political  pressure but by threats of violence- as  had occurred in the recent past. The  person has no option but to resign. The  Speaker has no option but to accept the  resignation in the present set-up. This is  a matter which was true in Gujarat. It may  be true elsewhere. It was true in Gujarat. It  had happened. A large number of people,  about 200-300 people, went and indulged in  acts of violence, held out threats and under  duress, signatures were obtained. In some  cases, Members were carried physically from  their constituencies to the Speaker for giving  resignations.  

 (emphasis supplied)  

 

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

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2019, had also directed the Speaker to look into the resignation  

of the members, but the same was kept pending.  

 45. In view of our above discussion we hold that 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.   

 

46. We are of the opinion that the aforesaid observations clarify the  

scope of the Speaker’s duty under Article 190(3)(b) of the  

Constitution, and answer the contention raised by the learned  

senior counsel regarding the same. However, since we are  

deciding the question of disqualification, it might not be  

necessary to make any observations on the merits of the  

petitioners’ plea regarding the non-acceptance of their

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resignation letters, in view of our subsequent findings on  

disqualification.  

 

F. DISQUALIFICATION PROCEEDINGS AFTER RESIGNATION  

47. It was also contended by the Petitioners 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. This issue does not apply to the  

Petitioners in Writ Petition (C) No. 992 of 2019 and Writ Petition  

(C) No. 1003 of 2019 as they did not tender their resignation.   

 

48. Before we proceed to record our reasons, it is pertinent to reflect  

upon the statement of objects and reasons to the Constitution  

(Fifty-second Amendment) Act, 1985 which states that the issue  

of defection has preoccupied the national conscience from the  

1960s. The importance of the same stems from the fact that it  

has the potential to cause extensive damage to the democracy.  

In this regard, having experienced earlier Governments falling  

due to such practice, the legislature introduced the bill inserting  

the Tenth Schedule for discouraging such practice.   

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“The evil of political defections has been a  matter of national concern. If it is not  combated, it is likely to undermine the very  foundations of our democracy and the  principles which sustain it. With this object,  an assurance was given in the Address by the  President to Parliament that the government  intended to introduce in the current session of  Parliament an anti-defection Bill. This Bill is  meant for outlawing defection and fulfilling the  above assurance.”  

(emphasis supplied)    

 49. This court in the Kihoto Hollohan case (supra) has clearly  

enunciated the purpose behind the introduction of the Tenth  

Schedule, wherein it is stated that “the main purpose underlying  

the constitutional amendment and introduction of the Tenth  

Schedule is to curb the evil of defection which was causing  

immense mischief in our body politic.” The relevant extracts are  

presented below:  

 

 “9. This brings to the fore the object  underlying the provisions in the Tenth  Schedule. The object is to curb the evil of  political defections motivated by lure of  office or other similar considerations  which endanger the foundations of our  democracy. The remedy proposed is to  disqualify the Member of either House of  Parliament or of the State Legislature  who is found to have defected from  continuing as a Member of the House. The

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grounds of disqualification are specified in  Paragraph 2 of the Tenth Schedule.”  

(emphasis supplied)    

50. Therefore, it can be clearly concluded that 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 office would expire or if he  

is re-elected to the legislature, whichever is earlier.  

 51. The intent of the amendment is crystal clear. The constitutional  

amendment sought to create additional consequences resultant  

from the determination that a person was disqualified under the  

Tenth Schedule. If we hold 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

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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.   

 52. A five Judge Bench of this Court, in the case of Delhi Transport  

Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC  

600 ruled that an inhibition under the Constitution must be  

interpreted so as to give a wider interpretation to cure the  

existing evils. The relevant extract has been provided below:  

 118. Legislation, both statutory and  constitutional, is enacted, it is true, from  experience of evils. But its general  language should not, therefore,  necessarily be confined to the form that  that evil had taken. Time works changes,  brings into existence new conditions and  purposes and new awareness of  limitations. Therefore, a principle to be  valid must be capable of wider  application than the mischief which gave  it birth. This is particularly true of the  constitutional constructions. Constitutions  are not ephemeral enactments designed to  meet passing occasions. These are, to use  the words of Chief Justice Marshall,  “designed to approach immortality as nearly  as human institutions can approach it ….”.  In the application of a constitutional  limitation or inhibition, our interpretation  cannot be only of ‘what has been’ but of  ‘what may be’. See the observations of this

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Court in Sunil Batra v. Delhi Administration   [(1978) 4 SCC 494: 1979 SCC (Cri) 155].   

(emphasis supplied)  

 53. In the case of State (NCT of Delhi) v. Union of India, (2018) 8  

SCC 501, a five Judge Bench of this Court articulated the  

principles of constitutional interpretation, stating that Courts  

are obligated to take an interpretation which glorifies the  

democratic sprit of the Constitution:  

284.1. While interpreting the provisions of  the Constitution, the safe and most sound  approach for the constitutional courts to  adopt is to read the words of the  Constitution in the light of the spirit of  the Constitution so that the  quintessential democratic nature of our  Constitution and the paradigm of  representative participation by way of  citizenry engagement are not  annihilated. The courts must adopt such  an interpretation which glorifies the  democratic spirit of the Constitution.    284.5. The Constitution being the supreme  instrument envisages the concept of  constitutional governance which has, as its  twin limbs, the principles of fiduciary nature  of public power and the system of checks  and balances. Constitutional governance,  in turn, gives birth to the requisite  constitutional trust which must be  exhibited by all constitutional  functionaries while performing their  official duties.  

(emphasis supplied)   

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54. 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 power of the Speaker to  

decide upon a disqualification petition was dealt by a  

Constitution Bench of this Court in Rajendra Singh Rana v.  

Swami Prasad Maurya, (2007) 4 SCC 270. This Court, reading  

the provisions of paragraphs 2 and 6 of the Tenth Schedule, has  

clearly held that the Speaker has to decide the question of  

disqualification with reference to the date it was incurred. The  

Court held that:   

“34. As we see it, the act of disqualification  occurs on a member voluntarily giving up  his membership of a political party or at the  point of defiance of the whip issued to him.  Therefore, the act that constitutes  disqualification in terms of para 2 of the  Tenth Schedule is the act of giving up or  defiance of the whip. The fact that a  decision in that regard may be taken in  the case of voluntary giving up, by the  Speaker at a subsequent point of time  cannot and does not postpone the  incurring of disqualification by the act of  the legislator. Similarly, the fact that the  party could condone the defiance of a whip  within 15 days or that the Speaker takes the  decision only thereafter in those cases,  cannot also pitch the time of disqualification  as anything other than the point at which  the whip is defied. Therefore in the  background of the object sought to be  achieved by the Fifty-second Amendment of

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the Constitution and on a true  understanding of para 2 of the Tenth  Schedule, with reference to the other  paragraphs of the Tenth Schedule, the  position that emerges is that the Speaker  has to decide the question of  disqualification with reference to the  date on which the member voluntarily  gives up his membership or defies the  whip. It is really a decision ex post  facto...”  

(emphasis supplied)    

55. As such, there is no doubt that 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. At this point we may allude to the case of  

D. Sanjeevayya v. Election Tribunal, Andhra Pradesh, AIR  

1967 SC 1211, wherein this Court has held that:  

“5.It is, therefore, not permissible, in the  present case, to interpret Section 150 of the  Act in isolation without reference to Part III  of the Act which prescribes the machinery  for calling in question the election of a  returned candidate. When an election  petition has been referred to a Tribunal by  the Election Commission and the former is  seized of the matter, the petition has to be  disposed of according to law. The Tribunal  has to adjudge at the conclusion of the  proceeding whether the returned candidate  has or has not committed any corrupt  practice at the election and secondly, it has  to decide whether the second respondent  should or should not be declared to have  been duly elected. A returned candidate

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cannot get rid of an election petition filed  against him by resigning his seat in the  Legislature, whatever the reason for his  resignation may be…”  

 Therefore, the aforesaid principle may be adopted accordingly,  

wherein the taint of disqualification does not vaporise, on  

resignation, provided the defection has happened prior to the  

date of resignation.   

 56. In light of the above, 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 disqualification petition. We do  

not agree with the submission of the Petitioners that the  

disqualification proceedings cannot be continued if the  

resignations are tendered. Even if the resignation is tendered,  

the act resulting in disqualification arising prior to the  

resignation 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.  

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G. VALIDITY OF DISQUALIFICATION ORDER  

57. The Petitioners have challenged the orders passed by the  

Speaker disqualifying them. The Speaker has, after a detailed  

analysis, categorically concluded that the present Petitioners  

have voluntarily given up membership of the party, through  

their undisputed conduct.  

 58. To examine the above contention, we need to refer to the scheme  

of Tenth Schedule and other provisions of the Constitution.  

There is no dispute that in India, since the framing of the  

Constitution, there was a constant demand for formulating a law  

on defection. It may be noted that India was one of the first  

countries to legislate on an Anti-Defection Law. Following the  

example of India, many other countries including Israel, Canada  

etc. have followed suit.  

 59. Relevant provisions of Paragraph 2 of the Tenth Schedule  

provide that:  

“2.Disqualification on ground of  defection.—  

(1) Subject to the provisions of paragraphs 4  and 5, a member of a House belonging to  any political party shall be disqualified for  being a member of the House—  

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(a) if he has voluntarily given up his  membership of such political party; or   

(b) if he votes or abstains from voting in  such House contrary to any direction issued  by the political party to which he belongs or  by any person or authority authorised by it  in this behalf, without obtaining, in either  case, the prior permission of such political  party, person or authority and such voting  or abstention has not been condoned by  such political party, person or authority  within fifteen days from the date of such  voting or abstention.”  

 That the Speaker can disqualify a member belonging to any  

political party if he has voluntarily given up his membership of  

such political party or if he votes against the wishes of his party.  

It is in this regard that an appropriate meaning needs to be  

given to the term disqualification.  

 60. 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.   

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61. In order to analyze the case at hand, we need to briefly refer to  

and understand the scheme of the Constitution with respect to  

State Legislatures. Article 168 of the Constitution provides that  

for every State there shall be a Governor and two Houses of  

Legislature namely Legislative Council and Legislative Assembly  

or where only one such Legislative House is there, then a  

Legislative Assembly. Under Article 172 of the Constitution every  

Legislative Assembly unless sooner dissolved shall continue for  

five years from the date appointed for its first meeting. In order  

to secure the membership of the State Legislature, such  

members must comply and conform to three distinct  

qualifications enlisted under Article 173.  

 62. Article 190(3) of the Constitution provides that the seat  

belonging to a member of the Legislative Assembly becomes  

vacant if such a member becomes subject to any disqualification  

as mentioned in clause (1) or (2) of Article 191 of the  

Constitution, or he resigns his seat by writing under his hand  

addressed to the Speaker, and his resignation is accepted by the  

Speaker in terms of the proviso to Article 190(3) of the  

Constitution.  

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63. Article 191 provides for disqualification of a membership which  

may be reduced as under:  

 

“191. Disqualifications for membership.—  

(1) A person shall be disqualified for being  chosen as, and for being, a member of the  Legislative Assembly or Legislative Council  of a State—  

(a) if he holds any office of profit under the  Government of India or the Government of  any State specified in the First Schedule,  other than an office declared by the  Legislature of the State by law not to  disqualify its holder;  

(b) if he is of unsound mind and stands so  declared by a competent court;  

(c) if he is an undischarged insolvent;  

(d) if he is not a citizen of India, or has  voluntarily acquired the citizenship of a  foreign State, or is under any  acknowledgment of allegiance or adherence  to a foreign State;  

(e) if he is so disqualified by or under any  law made by Parliament.  

Explanation.—For the purposes of this  clause, a person shall not be deemed to hold  an office of profit under the Government of  India or the Government of any State  specified in the First Schedule by reason  only that he is a Minister either for the  Union or for such State.  

(2) A person shall be disqualified for being a  member of the Legislative Assembly or  Legislative Council of a State if he is so  disqualified under the Tenth Schedule.”  

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64. It is interesting to note that 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. We can therefore easily infer from the usage of  

language under Article 191(1) that 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. This difference in phraseology would be  

explained later when we consider the part of the order of the  

Speaker which disqualified the present Petitioners for the rest of  

the legislative term.  

 65. 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

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relatable to disqualification as provided under Articles 102(2)  

and 191(2) of the Constitution.   

 66. At this point we need to observe Article 164 (1B) and 361B of the  

Constitution. Article 164(1B) of the Constitution reads as under:  

 “164. Other provisions as to Members    ...    (1B). A member of the Legislative Assembly  of a State or either House of the Legislature  of a State having Legislative Council  belonging to any political party who is  disqualified for being a member of that  House under paragraph 2 of the Tenth  Schedule shall also be disqualified to be  appointed as a Minister under clause (1) for  duration of the period commencing from the  date of his disqualification till the date on  which the term of his office as such  member would expire or where he  contests any election to the Legislative  Assembly of a State or either House of  the Legislature of a State having  Legislative Council, as the case may be,  before the expiry of such period, till the  date on which he is declared elected,  whichever is earlier.”    

Article 361B of the Constitution reads as under:    “361B. Disqualification for appointment  on remunerative political post.-    A member of a house belonging to any  political party who is disqualified for being a  member of the House under paragraph 2 of

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the Tenth Schedule shall also be disqualified  to hold any remunerative political post for  duration of the period commencing from  the date of his disqualification till the  date on which the term of his office as  such member would expire or till the date  on which he contests an election to a  House and is declared elected, whichever  is earlier.”  

 (emphasis supplied)  

 From a perusal of the above provisions, it is clear that 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.  

 67. Having understood the meaning and ambit of disqualification,  

we now need to concern ourselves with the extent of judicial  

review of the order of the Speaker passed under the Tenth  

Schedule.  

 68. Paragraph 6 of the Tenth Schedule has an important bearing  

upon extent of the judicial review in case of disqualification, and  

the same is reproduced as under:  

“6. Decision on questions as to  disqualification on ground of defection.—  

(1) If any question arises as to whether a  member of a House has become subject to

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disqualification under this Schedule, the  question shall be referred for the decision of  the Chairman or, as the case may be, the  Speaker of such House and his decision  shall be final:  

Provided that where the question  which has arisen is as to whether the  Chairman or the Speaker of a House has  become subject to such disqualification, the  question shall be referred for the decision of  such member of the House as the House  may elect in this behalf and his decision  shall be final.  

(2) All proceedings under sub-paragraph (1)  of this paragraph in relation to any question  as to disqualification of a member of a  House under this Schedule shall be deemed  to be proceedings in Parliament within the  meaning of Article 122 or, as the case may  be, proceedings in the Legislature of a State  within the meaning of Article 212.”  

 

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.  

 69. 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 (supra) this Court

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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, we need to  

appreciate the difference in the meaning of the terms ‘final’ and  

‘conclusive’, in the context that the order of the Speaker is final  

but not conclusive and the same is amenable to judicial review.   

 70. Now we come to the principles that have been evolved by Courts  

in deciding a challenge to the order passed by Speaker in  

exercise of his powers under the Tenth Schedule of the  

Constitution. In the Kihoto Hollohan case (supra) this Court,  

while upholding the constitutionality of the Tenth Schedule of  

the Constitution, held that the finality clause under paragraph  

6(2) of the Tenth Schedule limits the scope of judicial review  

available to an aggrieved person to certain limited grounds. This  

Court, in this context, held that:  

“109. In the light of the decisions referred  to above and the nature of function that is  exercised by the Speaker/Chairman under

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Paragraph 6, the scope of judicial review  under Articles 136, and 226 and 227 of the  Constitution in respect of an order passed  by the Speaker/Chairman under Paragraph  6 would be confined to jurisdictional errors  only viz., infirmities based on violation  of constitutional mandate, mala fides,  non-compliance with rules of natural  justice and perversity.”  

(emphasis supplied)  

 71. The Petitioners contend that the principles of natural justice  

were breached when the Speaker provided for a three-days’  

notice, in derogation of Rule 7(3)(b) of the Karnataka Legislative  

Assembly (Disqualification of Members on Ground of Defection)  

Rules, 1986, wherein a seven-day period is prescribed. On the  

contrary, the Respondents have emphatically stressed on the  

fact that there was adequate opportunity given to the  

disqualified members to make out their case before the Speaker.  

 72. 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. In  

the case of R.S. Dass v. Union of India, (1986) Supp SCC 617,  

this Court made following observations:  

“25. It is well established that rules of  natural justice are not rigid rules, they  are flexible and their application depends

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upon the setting and the background of  statutory provision, nature of the right  which may be affected and the  consequences which may entail, its  application depends upon the facts and  circumstances of each case....”  

 (emphasis supplied)  

  

73. This Court in the case of Kihoto Hollohan case (supra) held  

that the Speaker decides the question as to the disqualification  

in an adjudicatory disposition. This view received further  

elaboration by this court in the case of Ravi S. Naik v. Union of  

India, 1994 Supp (2) SCC 641 at page 653:  

“20...An order of an authority exercising  judicial or quasi-judicial functions passed  in violation of the principles of natural  justice is procedurally ultra vires and,  therefore, suffers from a jurisdictional  error. That is the reason why in spite of the  finality imparted to the decision of the  Speakers/Chairmen by paragraph 6(1) of  the Tenth Schedule such a decision is  subject to judicial review on the ground of  non-compliance with rules of natural  justice. But while applying the principles  of natural justice, it must be borne in  mind that “they are not immutable but  flexible” and they are not cast in a rigid  mould and they cannot be put in a legal  straitjacket. Whether the requirements of  natural justice have been complied with  or not has to be considered in the  context of the facts and circumstances of  a particular case.”  

(emphasis supplied)

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74. At this point, the Petitioners have placed reliance on the case of  

Balachandra L. Jarkhiholi v. B. S. Yeddyurappa, (2011) 7  

SCC 1 and argued that in that case, this Court had struck down  

the disqualification order solely on the basis of the fact that only  

three days’ notice was given to the members. However, it is  

relevant to point out here, that in the Ravi S. Naik case (supra),  

a disqualification order wherein the Speaker had granted two  

days’ notice to the members was upheld. The question,  

therefore, is not the number of days that were given by the  

Speaker for answering the show-cause notice, rather to see  

whether an effective opportunity of hearing was provided. This  

brings us back to the point already reiterated that the principle  

of natural justice is not a straitjacket formula.  

 75. In this context, this aspect needs to be adjudicated in the  

individual facts and circumstances having regard to the fact as  

to whether the members received notice of hearing, the reason  

for their absence and their representation before the Speaker.  

Therefore, we will deal with the individual cases later, having  

regard to the law laid down. [Refer to Chapter J]   

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76. The second contention raised by some of the Petitioners is that  

the order of the Speaker was passed in violation of the  

constitutional mandate. We are of the considered view that such  

contention cannot be sustained.  

 77. 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. For instance, in the Raja Ram Pal v. Hon’ble  

Speaker, Lok Sabha, (2007) 3 SCC 184, the phrase  

“constitutional mandate” is used in this sense:  

“360...On a plain reading, Article 122(1)  prohibits "the validity of any proceedings in  Parliament" from being "called in question"  in a court merely on the ground of  "irregularity of procedure". In other words,  the procedural irregularities cannot be used  by the court to undo or vitiate what  happens within the four walls of the  legislature. But then, 'procedural  irregularity' stands in stark contrast to  'substantive illegality' which cannot be  found included in the former. We are of the  considered view that this specific provision  with regard to check on the role of the  judicial organ vis-à-vis proceedings in  Parliament uses language which is neither  vague nor ambiguous and, therefore, must  be treated as the constitutional mandate  on the subject, rendering unnecessary  search for an answer elsewhere or

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invocation of principles of harmonious  construction.”  

(emphasis supplied)    

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.  

 78. On the point of violation of constitutional mandate, although we  

are 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 us to quash the disqualification  

orders in their entirety. The specific error which we have  

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 us to quash the disqualification orders in

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toto. Our findings on this issue highlighted above are dealt with  

in separate section of this judgment, for the sake of clarity.   

 79. The third contention of the Petitioners is that the orders of the  

Speaker were passed with malafides, and therefore, the same  

needs to be quashed. While there is no gainsaying that 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. [See E. P. Royappa v. State of Tamil  

Nadu, (1974) 4 SCC 3; Raja Ram Pal case (supra); Sub-

Committee on Judicial Accountability v. Union of India,  

(1991) 4 SCC 699]. 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.  

 80. The Petitioners have contended that the order of the Speaker is  

perverse; however, 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

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findings assailed before it have been arrived at on the basis of no  

evidence, or thoroughly unreliable evidence, and no reasonable  

person would act upon it.   

 81. Although, the learned Senior Counsel Dr. Rajeev Dhavan  

contended that the “some material” test needs to be applied to  

determine perversity. However, we are not expressing any  

opinion on this issue as in the earlier case of Mayawati v.  

Markandeya Chand, (1998) 7 SCC 517, a three-Judge Bench of  

this Court expressed different views on the same. In our opinion,  

the impugned orders of the Speaker can be sustained from the  

challenge made on the ground of perversity 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 before us, 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. Additionally, it may be  

noticed that the counsel for the Petitioners did not even  

controvert before us, 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.

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82. Before we conclude we need to refer to Griffith and Ryle  

on Parliament Functions, Practice and Procedure (1989  

edn., p. 119) say:  

“Loyalty to party is the norm, being  based on shared beliefs. A divided party  is looked on with suspicion by the  electorate. It is natural for Members to  accept the opinion of their Leaders and  Spokesmen on the wide variety of  matters on which those Members have no  specialist knowledge. Generally Members  will accept majority decisions in the party  even when they disagree. It is  understandable therefore that a Member  who rejects the party whip even on a single  occasion will attract attention and more  criticism than sympathy. To abstain from  voting when required by party to vote is  to suggest a degree of unreliability. To  vote against party is disloyalty. To join  with others in abstention or voting with  the other side of conspiracy.”  

(emphasis supplied)  

 83. There is no gainsaying that the scope of judicial review is limited  

to only grounds elaborated under the Kihoto Hollohan case  

(supra). In this regard, the Petitioners have not been able to  

establish any illegality in the orders passed by the Speaker. The  

Speaker, in our view, had concluded based on material and  

evidence that the members have voluntarily given up their

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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 petitions. So, we have  

to accept the orders of the Speaker to the extent of  

disqualification.   

 

H. POWER OF THE SPEAKER TO DIRECT DISQUALIFICATION  

TILL THE EXPIRY OF THE TERM  

 

84. 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.  

 85. The impugned disqualification orders not only disqualify the  

Petitioners, but also indicated the time period for which they  

would be disqualified, viz., from the date of the order till the  

expiry of the term of the 15th Legislative Assembly of Karnataka.  

 86. Learned counsel for the Petitioners have specifically challenged  

this finding by asserting that the Speaker did not have the  

jurisdiction. They contended that the Speaker’s orders have the

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effect of disqualifying them from contesting elections and “being  

chosen” as members. Learned Senior Counsel asserted that the  

Constitutional provisions, particularly Articles 361B and  

164(1B) of the Constitution, clarify that the disqualification of a  

member under the Tenth Schedule does not bar him from  

contesting elections, and on a member being re-elected the bar  

under the two Articles comes to an end.  

 87. Learned Senior Counsel, Mr. Kapil Sibal, defended the orders of  

the Speaker barring the disqualified members till the end of the  

term of the Legislative Assembly. He contended that the Speaker  

was within his jurisdiction, as the master of the House, to  

punish the members for having indulged in anti-party activities.  

While the learned Senior Counsel was unable to point to any  

specific provision in the Constitution allowing the same, he  

submitted that the Speaker has the inherent power to maintain  

the integrity and decorum of the House. The learned Senior  

Counsel gave the example of the power of the Speaker to take  

action against a member who commits a crime in the well of the  

House, despite the absence of any specific provision allowing  

him to do the same. The learned Senior Counsel lastly submitted  

that unless the Speaker had such a power, the anti-defection

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law would be a toothless law and that constitutional morality  

requires such interpretation.   

 88. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the  

Election Commission of India submitted that as a matter of  

practice, the Election Commission has always allowed a person  

disqualified under the Tenth Schedule to participate in the next  

election. The learned Senior Counsel substantiated his position  

by indicating from the provisions of the Tenth Schedule of the  

Constitution that the Speaker has only been given a limited  

jurisdiction therein, that is, to decide on the question of  

disqualification. The consequences of the same, however, are  

separately provided for under the Constitution, and the Speaker  

does not have the power to decide the same. The learned Senior  

Counsel also took us through the phrasing of Article 191 of the  

Constitution, which provides for disqualification, and Section 36  

of the Representation of the People Act, 1951 to indicate that  

disqualification under the Tenth Schedule is not included in the  

Representation of the People Act, 1951 as a ground for rejecting  

the nomination of a candidate. Finally, the learned Senior  

Counsel submitted that barring someone from contesting  

elections is a very serious penal power which cannot be resorted

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to by the Speaker in absence of an express and specific provision  

of law.   

 89. The crucial question which arises is whether the power of the  

Speaker extends to specifically disqualifying the members till the  

end of the term?  

 90. 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. The scope of the  

Speaker’s powers on disqualification requires us to examine the  

other provisions of the Constitution and relevant statutory  

provisions.  

 91. 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

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disqualified under the Tenth Schedule is disqualified for being a  

member. It is relevant to note that 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.   

 92. The contrast in phraseology between Article 191(1) and Article  

191(2) of the Constitution is crucial for deciding the present  

controversy. 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

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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.  

 93. This interpretation is further supported by the language  

employed in Section 36(2) of the Representation of the People  

Act, 1951, which provides for when a returning officer may reject  

the nomination of a candidate. Section 36(2)(a), of the  

Representation of the People Act, 1951 states that the  

nomination may be rejected if a candidate is disqualified “for  

being chosen” to fill the seat under Article 191 of the  

Constitution, echoing the language employed in Article 191(1),  

and not Article 191(2) of the Constitution.   

 94. Apart from the above, 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

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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.   

 95. 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.   

“An Act to provide for the conduct of  elections to the Houses of Parliament and to  the House or Houses of the Legislature of

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each State, the qualifications and  disqualifications for membership of  those Houses, the corrupt practices and  other offences at or in connection with such  elections and the decision of doubts and  disputes arising out of or in connection with  such elections.”   

 (emphasis supplied)  

 96. 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.   

 97. 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

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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.  

 98. Given this position, we conclude that 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.  

 99. It is necessary for us to look at the submission of the learned  

Senior Counsel, Mr. Kapil Sibal, that the Speaker can still be  

said to have inherent powers which allows him to pass  

restrictions like the one impugned herein. On this point, the  

counsel for the Petitioners argued that such a broad inherent  

power does not exist with the Speaker. He contended that even  

for granting leave of absence, the Speaker is required to present  

the same before the Legislative Assembly, which needs to accept  

the leave application before leave of absence is actually granted.   

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100. We are unable to agree with the contention of the learned Senior  

Counsel, Mr. Kapil Sibal, that the power of the Speaker to bar a  

disqualified member from contesting re-election is inherent to  

his role and is required to be read into the Constitution to  

prevent the Speaker from becoming toothless. 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.   

 101. This Court has repeatedly held that a person cannot be barred  

from contesting elections if he is otherwise qualified to contest  

the same. This legal position is vividly illustrated by the  

Constitution Bench ruling in G. Narayanaswami v. G.  

Pannerselvam, (1972) 3 SCC 717. In dealing with the question  

as to whether a non-graduate was qualified to be a candidate for  

the graduate constituency for the Legislative Council, when such  

a requirement was not prescribed either by the Constitution or  

the Parliament, this Court reversed the judgment of the Madras  

High Court which required the candidate to be a graduate. This  

Court held that when the law does not require such a

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qualification, it cannot be imposed by the Courts, and observed  

that:  

“20. We think that the language as well as  the legislative history of Articles 171 and  173 of the Constitution and Section 6 of the  Representation of People Act, 1951, enable  us to presume a deliberate omission of the  qualification that the representative of the  graduates should also be a graduate. In our  opinion, no absurdity results if we presume  such an intention. We cannot infer as the  learned Judge of the Madras High Court  had done, from the mere fact of such an  omission and opinions about a supposed  scheme of “functional representation”  underlying Article 171 of our Constitution,  that the omission was either unintentional  or that it led to absurd results. We think  that, by adding a condition to be  necessary or implied qualifications of a  representative of the graduates which the  Constitution-makers, or, in any event the  Parliament, could have easily imposed,  the learned Judge had really invaded the  legislative sphere. The defect, if any, in  the law could be removed only by law  made by Parliament.  

(emphasis supplied)  

 

102. Similarly in the case of N.S. Vardachari v. G. Vasantha Pai,  

(1972) 2 SCC 594, a three-judge bench of this Court reiterated  

the above position, and held that once a candidate possesses the  

qualifications and is not subject to any of the disqualifications

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specified in the law, he is qualified to be a candidate and any  

other consideration becomes irrelevant. The Court held that:  

“18. The Representation of the People Act,  1950 prescribes qualifications for being  enrolled as an elector. Sections 8 to 10-A of  the Act set out the grounds which disqualify a  person from being a candidate. If a person  possesses all the qualifications prescribed in  the Constitution as well as in the Act and has  not incurred any of the disqualifications  mentioned therein then he is qualified to be a  candidate. It may look anomalous that a non- graduate should be a candidate in a  Graduates' constituency. But if a candidate  possesses the qualifications prescribed and  has not incurred any of the  disqualifications mentioned in the  Constitution or in the Act other  consideration becomes irrelevant. That is  the ratio of the decision of this Court  in Narayanaswamy case.”  

 (emphasis supplied)   

 103. It is clear that nothing can be added to the grounds of  

disqualification based on convenience, equity, logic or perceived  

political intentions.   

 104. It is the contention of the Respondents that the Court should  

consider desirability of having a stricter model of disqualification  

wherein a person who has jumped the party lines should not be  

encouraged and should be punished with severe penal

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consequences for attempting to do so. Further, learned Senior  

Counsel, Mr. Kapil Sibal, has termed the actions of the  

Petitioners as a constitutional sin.   

 105. We do not subscribe to such an extreme stand taken by the  

learned Senior Counsel, considering the fact that such extreme  

stand could have a chilling effect on legitimate dissent. In any  

case, such a change in the policy cannot be looked into by this  

Court, as the same squarely falls within the legislative forte. Any  

attempt to interfere is better termed as reconstruction, which  

falls beyond the scope of legal interpretation by the Courts. [refer  

to G. Narayanaswami case (supra)]  

 106. 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. Without commenting on whether the  

Speaker has inherent powers or not, a Constitution Bench of

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this Court in the Raja Ram Pal case (supra), while holding that  

certain unwritten powers inure with the Parliament under  

Article 105(3) of the Constitution, went on to observe even in  

case of expulsion, the expelled candidate is not barred from  

contesting re-election.   

 107. Viewed from a different angle, although the Constitution may  

not say everything, this Court is mandated to expound the  

unsaid. However, such elaboration cannot be done in derogation  

of separation of powers and in a drastic or radical fashion. In  

this context, Benjamin Constant, a prominent Swiss-French  

political writer, wrote in 1814 that:  

“Constitutions are seldom made by the will  of men. Time makes them. They are  introduced gradually and in an almost  imperceptible way. Yet there are  circumstances in which it is  indispensable to make a constitution.  But then do only what is indispensable.  Leave room for time and experience, so  that these two reforming powers may  direct your already constituted powers in  the improvement of what is done and the  completion of what is still to be done.”  

(emphasis supplied)     

108. The contention of the Respondents that the political exigencies  

required such measures to be taken needs to be rejected. The

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Constitutional silences cannot be used to introduce changes of  

such nature.   

 109. In Kihoto Hollohan (supra), this Court observed:  

48. The learned author, referring to cases in  which an elected Member is seriously  unrepresentative of the general constituency  opinion, or whose personal behaviour falls  below standards acceptable to his constituents  commends that what is needed is some  additional device to ensure that a Member  pays heed to constituents' views. Brazier  speaks of the efficacy of the device where the  constituency can recall its representative.  Brazier says: [Ibid. at 52, 53]  

“What sort of conduct might attract the  operation of the recall power? First, a  Member might have misused his  Membership of the House, for example  to further his personal financial  interests in a manner offensive to his  constituents. They might consider  that the action taken against him by  the House (or, indeed, lack of action)  was inadequate …. Thirdly, the use  of a recall power might be  particularly apt when a Member  changed his party but declined to  resign his seat and fight an  immediate by-election. It is not  unreasonable to expect a Member  who crosses the floor of the House,  or who joins a new party, to  resubmit himself quickly to the  electors who had returned him in  different colours. Of course, in all  those three areas of controversial  conduct the ordinary process of  reselection might well result in the

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Member being dropped as his party's  candidate (and obviously would  definitely have that result in the third  case). But that could only occur when  the time for reselection came; and in  any event the constituency would still  have the Member representing them  until the next general election. A  cleaner and more timely parting of  the ways would be preferable.  Sometimes a suspended sentence  does not meet the case.”  

49. Indeed, in a sense an anti-defection law  is a statutory variant of its moral principle  and justification underlying the power of  recall. What might justify a provision for  recall would justify a provision for  disqualification for defection. Unprincipled  defection is a political and social evil...  

 (emphasis supplied)  

 

110. From the above, it is clear that 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. We must be careful to  

remember that 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

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mandates. [refer to Indra Sawhney v. Union of India, 1992  

Supp (3) SCC 217]  

 111. We, therefore, hold 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.   

 112. Before parting, having ascertained the ambit of the Speaker’s  

power, the only regret this bench has, is with respect to the  

conduct and the manner in which all the constitutional  

functionaries have acted in the current scenario. Being a  

constitutional functionary, the Constitution requires them and  

their actions to uphold constitutionalism and constitutional  

morality. In this regard, a functionary is expected to not be  

vacillated by the prevailing political morality and pressures. In  

order to uphold the Constitution, we need to have men and

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women who will make a good Constitution such as ours, better.  

In this regard, Dr. Ambedkar on 25.11.1949 stated that:  

 … ‘As much defence as could be offered to  the Constitution has been offered by my  friends Sir Alladi Krishnaswami Ayyar and  Mr T.T. Krishnamachari. I shall not  therefore enter into the merits of the  Constitution. Because I feel, however good  a Constitution may be, it is sure to turn  out bad because those who are called to  work it, happen to be a bad lot. However  bad a Constitution may be, it may turn  out to be good if those who are called to  work it, happen to be a good lot. The  working of a Constitution does not depend  wholly upon the nature of the Constitution.  The Constitution can provide only the  organs of State such as the Legislature, the  Executive and the Judiciary. The factors  on which the working of those organs of  the State depend are the people and the  political parties they will set up as their  instruments to carry out their wishes and  their politics. Who can say how the people  of India and their parties will behave? Will  they uphold constitutional methods of  achieving their purposes or will they prefer  revolutionary methods of achieving them? If  they adopt the revolutionary methods,  however good the Constitution may be, it  requires no prophet to say that it will fail. It  is, therefore, futile to pass any judgment  upon the Constitution without reference to  the part which the people and their parties  are likely to play.’  

(emphasis supplied)   

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113. Dr. Rajendra Prasad reiterated the same on 26.11.1949, in the  

following words:  

… ‘Whatever the Constitution may or  may not provide, the welfare of the  country will depend upon the way in  which the country is administered. That  will depend upon the men who  administer it. It is a trite saying that a  country can have only the Government it  deserves. Our Constitution has provisions  in it which appear to some to be  objectionable from one point or another. We  must admit that the defects are inherent in  the situation in the country and the people  at large. If the people who are elected are  capable and men of character and  integrity, they would be able to make the  best even of a defective Constitution. If  they are lacking in these, the  Constitution cannot help the country.  After all, a Constitution like a machine is a  lifeless thing. It acquires life because of the  men who control it and operate it, and India  needs today nothing more than a set of  honest men who will have the interest of the  country before them.’   

(emphasis supplied)    

 114. In view of the same, we can only point out that merely taking the  

oath to protect and uphold the Constitution may not be  

sufficient, rather imbibing the Constitutional values in everyday  

functioning is required and expected by the glorious document  

that is our Constitution. Having come to conclusion that the  

Speaker has no power under the Constitution to disqualify the

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members till the end of the term, we are constrained to make  

certain observations.   

 115. In the end we need to note that the Speaker, being a neutral  

person, is expected to act independently while conducting the  

proceedings of the house or adjudication of any petitions. The  

constitutional responsibility endowed upon him has to be  

scrupulously followed. His political affiliations cannot come in  

the way of adjudication. If Speaker is not able to disassociate  

from his political party and behaves contrary to the spirit of the  

neutrality and independence, such person does not deserve to  

be reposed with public trust and confidence.  

 116. In any case, there is a growing trend of Speakers acting against  

the constitutional duty of being neutral. Additionally, political  

parties are indulging in horse trading and corrupt practices, due  

to which the citizens are denied of stable governments. In these  

circumstances, the Parliament is required to re-consider  

strengthening certain aspects of the Tenth Schedule, so that  

such undemocratic practices are discouraged.  

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I. REFERENCE TO CONSTITUTION BENCH  

117. Mr. Kapil Sibal, learned Senior Counsel, has contended that the  

matters herein involve substantial questions of law, which  

require a reference to a larger bench. To support his argument,  

he has referred to Article 145 (3) of the Constitution to state that  

this Court is mandated under law to refer the matters to a larger  

bench since a substantial question of law concerning the  

interpretation of the Constitution has arisen in the instant case.  

 118. At this juncture, it may be beneficial to quote Article 145(3) of  

the Constitution:  

“145. Rules of Court, etc.-  

...  

(3)The minimum number of Judges who are  to sit for the purpose of deciding any case  involving a substantial question of law as to  the interpretation of this Constitution or for  the purpose of hearing any reference under  Article 143 shall be five:  

Provided that, where the Court hearing an  appeal under any of the provisions of this  Chapter other than Article 132 consists of  less than five Judges and in the course of  the hearing of the appeal the Court is  satisfied that the appeal involves a  substantial question of law as to the  interpretation of this Constitution the  determination of which is necessary for the  disposal of the appeal, such Court shall  refer the question for opinion to a Court

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constituted as required by this clause for  the purpose of deciding any case involving  such a question and shall on receipt of the  opinion dispose of the appeal in conformity  with such opinion.”  

 

119. There is no doubt that the requirements under Article 145(3) of  

the Constitution have never been dealt with extensively and,  

more often than not, have received mere lip service, wherein this  

Court has found existence of case laws which have already dealt  

with the proposition involved, and have rejected such references.  

Normatively, this trend requires consideration in appropriate  

cases, to ensure that unmeritorious references do not  

unnecessarily consume precious judicial time in the Supreme  

Court.   

 120. In any case, we feel that there is a requirement to provide a  

preliminary analysis with respect to the interpretation of this  

provision. In this context, we need to keep in mind two  

important phrases occurring in Article 145(3) of the  

Constitution, which 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:

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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.   

 

 121. We may state that we are 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.  

 122. 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.  

The 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. If the  

questions having a determining effect on the final outcome have  

already been decided by a conclusive authority, then such

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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. The cardinal  

need is to achieve a judicial balance between the crucial  

obligation to render justice and the compelling necessity of  

avoiding prolongation of any lis.  

 123. Similar questions for reference to a larger bench had arisen in  

the case of Abdul Rahim Ismail C. Rahimtoola v. State of  

Bombay, AIR 1959 SC 1315, wherein this Court rejected the  

reference as the questions sought to be referred were already  

settled by an earlier five judge bench. Likewise, this Court in the  

case of Bhagwan Swarup Lal Bishan Lal v. State of  

Maharashtra, AIR 1965 SC 682, held that a substantial  

question of interpretation of a provision of the Constitution  

cannot arise when the law on the subject has been finally and  

effectively decided by this Court. The same is provided  

hereunder:  

“11... Learned counsel suggests that the  question raised involves the interpretation  of a provision of the Constitution and  therefore the appeal of this accused will  have to be referred to a Bench consisting of  not less than 5 Judges. Under Article 145(3)  of the Constitution only a case involving a

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substantial question of law as to the  interpretation of the Constitution shall be  heard by a bench comprising not less than  5 Judges. This Court held in State of Jammu  and Kashmir v. Thakur Ganga Singh, AIR  1960 SC 356 that a substantial question  of interpretation of a provision of the  Constitution cannot arise when the law  on the subject has been finally and  effectively decided by this Court…..As the  question raised has already been decided by  this Court, what remains is only the  application of the principle laid down to the  facts of the present case. We cannot,  therefore, hold that the question raised  involves a substantial question of law as to  the interpretation of the Constitution within  the meaning Article 145(3) of the  Constitution.”  

(emphasis supplied)  

 

This Court sitting in a three Judge Bench in People's Union for  

Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399, has  

reiterated the above principle.  

 124. In light of the above pronouncements, we observe that question  

of constitutional interpretation would arise only if two or more  

possible constructions are sought to be placed on a provision. In  

spite of the assertive arguments made by the learned Senior  

Counsel, Mr. Kapil Sibal, we are guided by the decisions  

rendered by two Constitutional Bench decisions of this Court in  

the Kihoto Hollohan case (supra) and Rajendra Singh Rana

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case (supra). These decisions form the authoritative framework  

for understanding the Tenth Schedule and have been followed in  

a number of subsequent judgments and do not require  

reconsideration.  

 125. At the cost of repetition, we may note that 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 Respondents have contended that the  

disqualification issue cannot be dealt under the writ jurisdiction,  

however, we have already pointed out that there is no bar for  

this Court to deal with the same as portrayed by various  

precedents cited above.  

 126. 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

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no requirement to deal with the questions of law raised by the  

Respondents.  

 127. Further, the power of the Speaker to disqualify has been  

interpreted in a number of cases, and the present case does not  

require any broad-based reference which would only prolong the  

inevitable. Such casual and cavalier references should not be  

undertaken by this Court in view of conditions prescribed under  

Article 145(3) of the Constitution, which mandates a  

responsibility upon this Court not to indulge in excessive  

academic endeavors and preserve precious judicial time, and  

effectively dispense justice in a timely fashion.  

 128. The last aspect, which relates to the power of the Speaker to  

disqualify the members till the end of the term, has already been  

dealt with extensively. At the cost of repetition, we may only  

point out that the Respondents’ contention that a bar exists on  

the members till the end of the term, falls within the domain of  

the legislature. Therefore, we do not see any merit in referring  

the aforesaid case to a larger bench. [Refer to Public Interest  

Foundation v. Union of India, (2019) 3 SCC 224]  

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129. In view of the aforesaid discussion, we decline to refer the case  

to a larger bench considering that there is no substantial  

question of constitutional interpretation that arises in this case.  

 

J. INDIVIDUAL CASES  

W.P. (C) NO. 992 OF 2019    

130. The Petitioner (Shrimanth Balasaheb Patil) accepts that he was  

elected on the ticket of INC and claims that he proceeded to  

Chennai for personal reasons without abstaining from his  

presence in the ongoing Assembly Session. Admittedly, the  

Petitioner had abstained from attending the proceedings in the  

Assembly on 18.07.2019 and 19.07.2019. Pursuant to the same,  

the disqualification petition was filed against him on 20.07.2019  

and he was further directed to appear for hearing on  

24.07.2019. Subsequently, the Petitioner had written a letter  

dated 23.07.2019 addressing the Speaker and seeking four  

weeks’ time to file appropriate reply to the contents of the  

petition. Nevertheless, the Hon’ble Speaker proceeded and  

passed the disqualification order on 28.07.2019 which has been  

impugned in the instant petition.   

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131. It ought to be noted that the impugned order passed by the  

Hon’ble Speaker, refers to the communication/letters addressed  

by the petitioner of having gone to Chennai, but due to  

discomfort and health reasons had contacted his doctor friend  

and accordingly proceeded to Mumbai where he was admitted. It  

also records that the petitioner had attended the Assembly  

sessions on 12.07.2019 and 15.07.2019 but thereafter had  

abstained from attending the session on 22.07.2019 for which  

whip had been issued on 20.07.2019. It was also admitted that  

no formal leave was granted to the Petitioner. The Speaker had  

earlier rejected the leave of absence tendered by the Petitioner as  

the documents issued by the private hospital did not inspire  

confidence. Pertinently, the petitioner’s letter dated 19.07.2019  

written to the Speaker was not countersigned by any doctors of  

the Hospital.  

 132. It is further recorded that the petitioner had not attended the  

Assembly sessions on 18.07.2019, 19.07.2019, 22.07.2019 and  

23.07.2019. So, the petitioner was aware that the motion  

seeking the vote of confidence was on the floor of the Karnataka  

Legislative Assembly. The petitioner accepts that he had sent  

letter dated 23.07.2019, which refers to the disqualification

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petition. The petitioner herein was clearly aware of the  

disqualification proceedings.  

 133. The objections filed to the writ petition also refer to the fact that  

the INC, to test the loyalty of its Members, in view of the pending  

trust vote, had categorically informed the party members not to  

absent themselves from the proceedings of the Assembly, failing  

which action under the Tenth Schedule would be taken.  

 134. We do not think that the order of the Speaker suffers 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.  

 

    

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W. P. (C) NO. 997 OF 2019  

 135. The Petitioners were elected to the 15th Karnataka Legislative  

Assembly on the INC ticket. On 19.01.2019, show-cause notices  

were issued to the Petitioners by INC for having failed to attend  

the party meeting on 18.01.2019, to which explanation was  

submitted by the Petitioners claiming that due to personal  

exigencies and medical reasons they could not attend the  

meeting. However, the Petitioners again failed to attend the  

meeting held on 08.02.2019. The Petitioners also did not attend  

the Budget session. On 08.02.2019, the Petitioner No.1 (Ramesh  

Jarkhiholi) sought leave of absence in a letter addressed to the  

Speaker, due to his daughter’s wedding fixed for 24.02.2019.  

Similarly, the Petitioner No. 2 (Mahesh Kumathalli) had also  

addressed a letter seeking leave of absence due to ill-health.  

disqualification petition was filed against the two Petitioners on  

11.02.2019 on the ground that the Petitioners had voluntarily  

given up membership of the political party, i.e. INC and incurred  

disqualification under paragraph 2(1)(a) of the Tenth Schedule.  

Thereupon, notices were issued to the Petitioners on  

14.02.2019, who duly filed their response disputing the contents  

of the disqualification petition on 20.02.2019. While the

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disqualification petition was pending, the two Petitioners  

submitted their resignation to the Speaker along with ten other  

MLAs belonging to INC/JD(S) on 06.07.2019. The Petitioners  

were thereupon given notice to appear before the Speaker on  

11.07.2019 in connection with the disqualification petition.  

 136. The Speaker in the impugned order has taken note of the  

surrounding circumstances, including the conduct of the  

Petitioners from February 2019 onwards. It ought to be noted  

that sufficient opportunity of hearing was accorded to the  

Petitioners herein who had also filed their responses. It ought to  

be noted that, vide notice dated 16.01.2019, a meeting of the  

INC legislative party was called for 18.01.2019. The notice stated  

that the members must compulsorily attend the meeting  

otherwise action would be taken against them under the Tenth  

Schedule. The Petitioners did not attend the party meeting on  

18.01.2019. Admittedly, the Petitioners also refrained from  

attending the subsequent general body meeting dated  

06.02.2019 as well as Assembly Sessions from 06.02.2019. The  

resignations were submitted by the Petitioners nearly four  

months after the Disqualification Petition had already been filed.  

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137. One of the contentions raised by the Petitioners is predicated on  

the order of the Speaker in the case of Dr. Umesh Yadav who  

was also named and served with the disqualification petition  

filed on 11.02.2019. Dr. Umesh Yadav had tendered his  

resignation on 04.03.2019, which was accepted by the Speaker  

on 01.04.2019. Therefore, the Petitioners claim parity and equal  

treatment. The contention deserves to be rejected as the Speaker  

has given detailed reasons to why he was not bound by the case  

of Dr. Umesh Yadav’s resignation.  

 138. As observed earlier, 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.  

 W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007 OF  

2019  

139. 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.  

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 140. 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.   

 141. Both the above orders are being dealt with together as there are  

certain commonalities in the facts and circumstances which  

need to be noted and highlighted, which led to the decision of  

the Speaker. Between 01.07.2019 and 11.07.2019, the  

Petitioners resigned from their posts as members of the  

Legislative Assembly. However, the Speaker did not adjudicate  

upon their resignation. Aggrieved by the fact that the Speaker  

was not taking a decision, ten Petitioners approached this Court  

in WP (C) No. 872 of 2019, wherein this Court on 11.07.2019,  

passed an order directing the Speaker to take the decision  

forthwith. The Speaker, on the other hand, did not take the  

decision. The other five Petitioners impleaded themselves in the  

pending Writ Petition (C) No. 872 of 2019 and again, on  

17.07.2019, this Court granted protection to the Petitioners with  

respect to being compelled to participate in the proceedings of

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the House. As the Speaker, did not conduct the floor test, R.  

Shankar [Petitioner in Writ Petition (C) No. 1003 of 2019]  

approached this Court in Writ Petition (C) No. 929 of 2019,  

wherein this Court passed following order on 23.07.2019:  

“It has been stated that the Speaker expects  and is optimistic that the Trust Vote would  be taken up by the House in the Course of  the day, perhaps later in the evening. We,  therefore, adjourn the matter till tomorrow.    

 

142. In this regard, it was imperative for the Speaker to pass orders  

in view of the urgency indicated by this Court. In these facts and  

circumstances, the reasonable opportunity of hearing needs to  

be assessed.   

 143. 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 decision in the Ravi S Naik case  

(supra). In this regard, our attention 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.   

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144. It is altogether a different matter 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, we cannot say 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.  

 

W.P. (C) NO. 1003 OF 2019  

145. The Petitioner (R. Shankar) claims that he is the sole elected  

member of the House belonging to KPJP. As per the Petitioner,  

KPJP had not merged with INC and consequently whip issued by  

the INC on 11.07.2019 was not binding on the Petitioner. As a  

result, the Petitioner had not incurred any disqualification under  

the Tenth Schedule of the Constitution.  

 146. The Petitioner, however, accepts that he had addressed a letter  

dated 14.06.2019 to the Speaker that he was the only legislator  

elected under the KPJP ticket and he had agreed to merge his  

party with the INC. The Petitioner had relied upon paragraph  

4(2) of the Tenth Schedule stating that since he is the sole

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elected member of his party there is a deemed merger under the  

Tenth Schedule.  

 147. The Petitioner, however, claims that the said letter dated  

14.06.2019 was not accepted by the Speaker and, therefore,  

would be inconsequential. He relied upon the letter dated  

17.06.2019 written by the Speaker requiring him to file on  

record resolution of merger passed by KPJP, and to furnish  

documents as per legal requirements. It was further stated that  

is stated that no such document was filed.  

 148. The impugned order passed by the Speaker, on the other hand,  

refers to the letter of the Speaker dated 25.06.2019 stating that  

in terms of paragraph 4(2) of the Tenth Schedule, if two thirds of  

the members of the party decides to merge with another party,  

that decision would not attract provisions of the Tenth Schedule.  

As the Petitioner had represented that he was the lone elected  

member of the KPJP and had decided to merge with INC,  

appropriate steps had been initiated. In this background, with  

effect from 25.06.2019, the Petitioner would be considered as a  

member of the INC legislative party. The Petitioner has disputed  

this letter and has stated that this letter was not addressed to

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him but was addressed to the Leader of the Congress Legislature  

Party and the President of the Karnataka Pradesh Congress  

Party. The letter dated 25.06.2019 is available on the file of the  

Speaker.  

 149. The contention of the Petitioner may have carried weight in other  

circumstances, but we find that it is an accepted and admitted  

position that the Petitioner, after giving letter dated 14.06.2019,  

had even become a Minister in the Government then in power.  

Pertinently, the Petitioner does not deny the letter dated  

14.06.2019 and the fact that he had become a Minister. The  

impugned order passed by the Speaker further records that on  

25.06.2019 a direction had been issued by the Speaker to the  

Secretary, Karnataka Legislative Assembly, to treat the Petitioner  

as a member of the INC and allot him a seat in the forthcoming  

session. Further, on 08.07.2019, the Petitioner had addressed a  

letter to the then Chief Minister tendering his resignation from  

the Council of Ministers of which he was a part, with a request  

that his resignation be accepted. This resignation was also  

personally given to the Governor. On 12.07.2019, the Petitioner  

had addressed a letter to the Speaker about withdrawing  

support to the Government and had requested that he be

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allotted a seat on the floor in the opposite benches. These  

aspects have been highlighted in the impugned order, which  

show that the contention of the Petitioner that the Speaker did  

not apply his mind on the aspect of merger, is wrong and  

incorrect.  

 150. We do not find any reason and good ground 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.   

 151. Our 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.  

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K. CONCLUSION  

 

152. 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

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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 (supra), 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. Our 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.

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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.  

 153. In view of the discussion above, we pass the following order:  

1. 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.  

2. 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.

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154. The Writ Petitions are disposed of in the afore-stated terms. All  

pending applications are also accordingly disposed of.  

 

      ..........................J.  

        (N.V. Ramana)      

       

 ...........................J.    (Sanjiv Khanna)  

     

...........................J.     (Krishna Murari)  

 NEW DELHI;  November 13, 2019.