Date of Judgment: 13 November, 2019
Bench: N.V. Ramana, Sanjiv Khanna, Krishna Murari
WRIT PETITION (CIVIL) NO. 992 OF 2019
SHRIMANTH BALA SAHEB PATIL – PETITIONER
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS – RESPONDENT
Subject: 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 facilitate good governance, as mandated under the Constitution
Brief Facts of the Case
1) The results of the 15th Karnataka Legislative Assembly were declared on 15.05.2018. The contesting political parties secured the following seats:
No. of seats
2) Though 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. This Government had a short life of about 14 months. The events leading up to the resignation of the Chief Minister, on losing the trust vote on 23.07.2019, after several days delay, form the backdrop to the case of the present Petitioners.
3) On 11.02.2019 Disqualification Petition No. 1 of 2019 was instituted against Ramesh L. Jarkhiholi, Mahesh IranagaudKumathalli, 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 IranagaudKumathalli, are said to have submitted their resignations to the Speaker on 06.07.2019.
4) 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. The speaker was directed to take a decision on the resignations by the hon’ble court. Meanwhile, on 11.07.2019, members of the INC withdrew their disqualification complaint against B. Nagendra in Disqualification Petition No.1 of 2019. The Speaker, it appears, did not take any decision on the resignation in spite of the order of 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 do not agree.
5) Following contentions were raised by counsels:
a) 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. He also stated 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.
b) 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.
c) 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 membercould not refuse to appear/vote with respect to the same. And if he does so it is a voluntary giving up of membership of a party.
d) 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 byelections, 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 36of The Representation of the People Act, 1951. Therefore, the disqualified members should not be allowed to contest fresh elections.
e) 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.
ISSUES: The case had the following important issues:
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?
The Judges contemplated on the above issues and gave the following observations:
OBSERVATION ON ISSUE 1
It was noted 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 decision in the KihotoHollohancase (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 KihotoHollohan case (supra), we do not find any explicit or implicit bar to adjudicate the issue under the writ jurisdiction of this Court.”
Reliance was placed on the constitutional provisions and debates thereupon which show that this Court can inquire into the legitimacy of the exercise of the power. Although it was also added that 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.
OBSERVATION ON ISSUE 2
It is true that 33rd Constitutional Amendment changed the constitutional position by conferring discretion on the Speaker to reject the resignation. However, such discretion is not unqualified, as the resignation can only be rejected if the Speaker is “satisfied that such resignation is not voluntary or genuine”. Determination of whether the resignations were “voluntary” or “genuine” cannot be based on the ipse dixit of the Speaker, instead it has to be based on his “satisfaction”. Even though the satisfaction is subjective, it has to be based on objective material showing that resignation is not voluntary or genuine. When a member tenders his resignation in writing, the Speaker must immediately conduct an inquiry to ascertain if the member intends to relinquish his membership. The inquiry must be in accordance with the provisions of the Constitution and the applicable rules of the House. This satisfaction of the Speaker is subject to judicial review.
The statement of objects and reasons to the Constitution (Fiftysecond Amendment) Act, 1985 which states that the issue of defection has preoccupied the national conscience from the 1960s was also reflected upon as 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.
“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.”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 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.
OBSERVATIONS ON ISSUE 3
It was concluded 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.
“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 mandates.”
It was held that part of the impugned orders passed by the Speaker which specifies that the disqualification will last from the date of the order to the expiry of the term of the 15 the 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.
In the end it was noted 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.
OBSERVATION ON ISSUE 4
The judges were not persuaded for referring the present case to a larger bench as the mandate of the Article is that the 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.
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 quasijudicial 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 91 st Constitutional Amendment, Articles 71 (1B), 164(1B) and 361B were enacted to ensure that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or till the date on which his term of office would expire or he/she is reelected 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 vaporize 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 KihotoHollohan (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 reelected to the legislature, whichever is earlier.
i. There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked. j. The existence of a substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the “question of law” will have on the final determination. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”. In any case, no substantial question of law exists in the present matter, which needs reference to a larger bench.