CRITICAL APPRAISAL- BALCHANDRA L. JARKIHOLI AND ORS. V. B.S. YEDDYURAPPA AND ORS
Our Indian Bureaucratic and Legislative system is running through our politicians,politicians comes from the word “Politics.” The word politics comes from the Greek word “Politika” which means “of, for, or relating to citizens,” but our Indian Politics according to a layman is a bog where a person once enters never comes out. Politicians make promises but never fulfill those promises; they work on filling their pockets and making life of people miserable. Earlier after the Independence, it was very easy for a legislative elected member to hop around from one party to another to fulfill their ambitions, but this led to many Governments toppling around, keeping in mind all this our legislatures made an amendment in the year 1985 which was our 52nd Amendment Act and passed a law called “Anti-defection law” which added a new schedule to our Constitution, i.e., X Schedule.
Anti-defection law, its main intent is to combat ‘the evil of political defections.’ This law was passed soon after Lt. Shri. Rajiv Gandhi became the Prime Minister of the country with a massive mandate. This law would not have been passed if there had been no Rajiv Gandhi and his government with an unparalleled massive majority. This law was passed so that it curbs the political deflections but the ever increasing hunger of our legislatures and with our excellent legal fraternity it was not a difficult task to find some loopholes in this law and they used it to their interest.
Schedule X of our Constitution provides for Anti-defection law, it is as follows:-
1. Interpretation.—In this Schedule, unless the context otherwise requires,—
(a) " House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;
(b) "Legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;
(c)"original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2;
(d)"paragraph" means a paragraph of this Schedule.
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—
(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 authorized 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.
Explanation.—for the purposes of this sub-paragraph,—
(a) An elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;
(b) a nominated member of a House shall,—
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election
(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after Complying with the requirements of article 99 or, as the case may be, article 188.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,—
(i) Where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.
4. Disqualification on ground of defection not to apply in case of merger.—
(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
5. Exemption,—Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule, —
(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.
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 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.
7. Bar of jurisdiction of courts.—notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for—
(a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong;
(b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished;
(c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such report shall be furnished; and
(d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question .
(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of Article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any willful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.
2. BALCHANDRA L. JARKIHOLI AND ORS. V. B.S. YEDDYURAPPA AND ORS:
These Civil Appeals were filed in Hon’ble Supreme Court against the judgment passed by Karnataka High Court on 15.11.2010 in at Bangalore in Writ Petition Nos. 32660-32670 of 2010 and is being decided by a bench of “JUSTICE ALTAMAS KABIR and CYRIAC JOSEPH” on 13th May, 2011.
The present Appeals are related to the issue relating to the Constitutionality of X Schedule of the Indian Constitution which provides for the provisions relating to the Anti-Defection Law in India.
3. BRIEF FACTS OF THE CASE:
On 6th October,2010,13 members of the Karnataka Legislative Assembly belonging to the Bharatiya Janata Party, hereinafter referred to as the "MLAs", wrote identical letters to the Governor of the State indicating that they had been elected as MLAs on Bharatiya Janata Party tickets, but had become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa and were convinced that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people as the Chief Minister of the State. Accordingly, in the interest of the State and the people of Karnataka, the legislators expressed their lack of confidence in the Government headed by Shri B.S. Yeddyurappa and withdrew their support to the said Government. The contents of one of the aforesaid letters dated 6th October, 2010, are reproduced herein below:
I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa. There have been widepread corruption, nepotism, favoritism, abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri B.S. Yeddyurappa and a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Constitution and Shri Yeddyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka I hereby express my lack of confidence in the government headed by Shri B.S. Yeddyurappa and as such I withdraw my support to the Government headed by Shri B.S. Yeddyurappa the Chief Minister. I request you to intervene and institute the constitutional process as constitutional head of the State.
Shri H.R. Bharadwaj,
His Excellency Governor of Karnataka,
Raj Bhavan, Bangalore.
Five independent MLAs also expressed lack of confidence and withdrew support to the Government led by Shri B.S. Yeddyurappa.
On the basis of the aforesaid letters addressed to him, the Governor addressed a letter to the Chief Minister, Shri B.S. Yeddyurappa, on the same day (6.10.2010) informing him that letters had been received from 13 BJP MLAs and 5 independent MLAs, withdrawing their support to the Government. A doubt having arisen about the majority support enjoyed by the Government in the Legislative Assembly, the Governor requested Shri Yeddyurappa to prove that he still continued to command the support of the majority of the Members of the House by introducing and getting passed a suitable motion expressing confidence in his Government in the Legislative Assembly on or before 12th October, 2010 by 5 p.m. In his letter he indicated that the Speaker had also been requested accordingly. On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No. 1 of 2010, praying to declare that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution.
Show-Cause notices were thereafter issued to all the 13 MLAs on 7th October, 2010, informing them of the Disqualification Application filed by Shri Yeddyurappa stating that having been elected to the Assembly as Members of the BJP, they had unilaterally submitted a letter on 6th October, 2010 to the Governor against his Government withdrawing the support given to the Government under his leadership. The Appellants were informed that their act was in violation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India and it disqualified them from continuing as Members of the Legislature. Time was given to the Appellants till 5 p.m. on 10th October, 2010, to submit their objections, if any, to the application. They were also directed to appear in person and submit their objections orally or in writing to the Speaker, failing which it would be presumed that they had no explanation to offer and further action would thereafter be taken ex-parte, in accordance with law.
That replies were submitted by the Appellants to the Speaker on 9th October, 2010 indicating that having come to learn from the media that a Show-Cause notice had been issued as per the orders of the Speaker and had been pasted on the doors of the MLA quarters in the MLA hostels at Bangalore, which were locked and used by the legislators only when the House was in session, they had the contents of the notices read out to them on the basis whereof interim replies to the Show-Cause notices were being submitted. In the interim replies filed by the Appellants on 9th October, 2010, it was categorically indicated that the interim reply was being submitted, without prejudice and by way of abundant caution, as none of the documents seeking disqualification had either been pasted on the doors of the MLA quarters or forwarded to the Appellants along with the Show-Cause notice. Similarly, a copy of the Governor's letter, which was made an enclosure to the Show-Cause notice, was also not pasted on the doors of the residential quarters of the Appellants or otherwise served on them personally. A categorical request was made to the Speaker to supply the said documents and the Appellants reserved their right to give exhaustive replies after going through the aforesaid enclosures to the Show-Cause notice as and when supplied.
When the hearing to this particular issue was held the speaker held that the MLAs have voluntarily given up their membership and thus liable to be disqualified from the Membership of State Assembly via provisions mentioned in Paragraph 2(1)(a) of the X Schedule of the Indian Constitution. A Writ Petition was filed by the Appellants in Karnataka High Court at Bangalore which was dismissed by Divisional Bench vide Judgment dated 15.11.2010 against which the present Civil Appeal lies.
4. ISSUES INVOLVED:
Six issues had arisen in the appeals and they are reproduced herein below:
(i) The extent and scope of Judicial Review available against the order of the Speaker passed in exercise of powers under the Tenth Schedule to the Constitution.
(ii) Whether the Karnataka Disqualification Rules framed in exercise of powers under paragraph 8 of the Tenth Schedule are directory and procedural in nature and whether judicial review is available against an alleged breach of the said Rules?
(iii) Whether the Speaker's order impugned herein is mala fide?
(iv) Whether Speaker's order can be said to be vitiated on account of noncompliance with the principles of natural justice?
(v) The scope of paragraph 2(1)(a) of the Tenth schedule; and
(vi) Whether the Speaker's inference from the conduct of the MLA's in the present case that they have given up the membership of the political party to which they belong, can be said to be 'perverse'?
5. CASES REFERRED:
KIHOTA HOLLOHON VS. ZACHILHU AND OTHERS, AIR 1993 SC 412
RAVI S. NAIK AND SANJAY BANDEKAR VS. UNION OF INDIA, AIR 1994 SC 1558
JAGJIT SINGH V. STATE OF HARYANA, (2006) 11 SCC 1
G. VISWANATHAN V. HON'BLE SPEAKER TAMIL NADU LEGISLATIVE ASSEMBLY, MADRAS and ANR., (1996) 2 SCC 353
Dr. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL and ORS. (2004) 8 SCC 747
RAJENDRA SINGH RANA and ORS. v. SWAMI PRASAD MAURYA and ORS. (2007) 4 SCC 270
S. PARTAP SINGH v. STATE OF PUNJAB (1964) 4 SCR 733
STATE OF M.P. v. RAM SINGH (2000) 5 SCC 88
B.R. KAPUR v. STATE OF T.N. (2001) 7 SCC 231
NAZIR AHMAD v. KING EMPEROR 63 INDIAN APPEALS 372
STATE OF U.P. v. SINGHARA SINGH (1964) 4 SCR 485
UNION OF INDIA v. TULSIRAM PATEL (1985) 3 SCC 398
MAYAWATI v. MARKANDEYA CHAND (1998) 7 SCC 517
SANGRAMSINH P. GAEKWAD v. SHANTADEVI P. GAEKWAD (2005) 11 SCC 314
E.P. ROYAPPA v. STATE OF TAMIL NADU (1974) 4 SCC 3
It was held, Speaker did not take into consideration rule of evidence that person making an allegation has to prove same with supporting evidence. Mere fact that allegation was not denied, did not amount to same having been proved on account of silence of person against whom such allegations were made. There was nothing on record in support of said allegations Speakers action amounted to denial of principles of natural justice to Appellants. It also revealed partisan trait in Speakers approach in disposing of Disqualification Application. There was no compulsion on Speaker to decide Disqualification Application in a great hurry within time specified by Governor to Speaker to conduct Vote of Confidence in Government. Such course of action was adopted by Speaker; since the Vote of Confidence on floor of the House was slated Element of hot haste was also evident in the action of the speaker.
It was further held, under Paragraph 2(1)(a) of the 10th Schedule, Speaker functions in quasi-judicial capacity, which makes order passed by him in such capacity, subject to judicial review. Paragraph 2(1)(a) of the 10th Schedule enables Speaker in quasi-judicial capacity to declare that Member of House stands disqualified for reasons mentioned in Paragraph 2(1)(a) of the 10th Schedule to the Constitution Proceedings conducted by Speaker on Disqualification. Application did not meet twin tests of natural justice and fair play. Speaker, proceeded in matter as if he was required to meet deadline set by Governor, irrespective of whether, in process, he was ignoring constitutional norms set out in 10th Schedule to Constitution and Disqualification Rules, 1986, and in contravention of concept of fair hearing Show Cause Notices were issued within time fixed by Governor for holding the Trust Vote. Court set aside impugned order of Speaker disqualifying Appellant and the Appeal filed by the appellant was allowed.
7. RATIO DECIDENDI:
Under paragraph 2(1) (a) of the X Schedule, Speaker functions in quasi-judicial capacity, which makes order passed by him in such capacity, subject to judicial review.
Anti-defection law when it was passed, it aimed at bringing down the political defect but due to ever increasing political dishonesty and corruption this law never evolved properly and now a question have arose that ‘whether achieving the goals of this law a reality or a myth?’ Politicians found loopholes in this law and used it for their own benefit.
It is high time that a watchdog should be provided to our Parliament and there is a need for our constitutional pundits to revisit the issue to combat the menace of corruption and defection which has eroded the values of democracy.
Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their best with the help of citizens and using the method of ‘non-violence’ and ‘satyagrah’ which were adopted by the father of the nation ‘Mahatma Gandhi’ to eradicate Britishers from the country and doing their best to make sure that our sleeping government should wake up and start taking steps towards eradicating political corruption and only this will help in achieving the goal which was set while passing this law. This law can also work if certain recommendations mentioned above are taken into consideration and an amendment be made in this law.
In the end I would like to quote that “a government, for protecting business only, is about a carcass, and soon falls by its own corruption and decay,” so the government has a duty to stand and deliver now and not let this law turn into a myth.
 M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2292
 M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2053
 M.P. Jain, 5th Edition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2082