Shrimanth Balasaheb Patil Vs Karnataka Legislative Assembly (2020) 2 SCC 595

Dec 12, 2020 #landmark case
landmark judgement LAW INSIDER IN

CASE BRIEF

 

Decided On: 13.11.2019

Appellants: Shrimanth Balasaheb Patil and Ors.

Vs.

Respondent: Hon’ble Speaker, Karnataka Legislative Assembly and Ors.

Judges: N.V. Ramana, Sanjiv Khanna and Krishna Murari, JJ.

Statues referred : The Constitution of India, 1950 – Articles 32, 75(1B),164(1B) and 361B

Facts:

  • The Speaker passed the five impugned orders in Disqualification Petition. 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 the15thLegislative Assembly term.
  • Aggrieved, by the aforesaid disqualifications, all the Petitioners herein have approached this Court under Article 32of the Constitution. 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.
  • The Petitioners believed that the principles of natural justice were breached when the Speaker provided for a three-days’ notice, in derogation of Rule7 (3)(b) of the Karnataka Legislative Assembly(Disqualification of Members on Ground of Defection) Rules, 1986, wherein a seven-day period is prescribed, and also that the order of the Speaker was passed in violation of the constitutional mandate.

Issues :

  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?

Contentions :

  • Appellant’s arguments
    • 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 justice, particularly when the Petitioners had only sought time of 4 weeks to produce documents.
    • 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.
    • The learned Senior Counsel submitted that the resignation tendered in the present case was resignation from the House and not from the party.
    • The learned Senior Counsel also submitted that the motive behind the resignation is immaterial, as the proviso to Article 190(3) of the Constitution restricts the scope of inquiry by the Speaker only to voluntariness and genuineness.
    • 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.
    • 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 submitted that such an ex parte order of disqualification, without considering relevant material on record and placing reliance upon extraneous circumstances, is untenable.
    • 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.
    • 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.
    • 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.
    • 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.
    • The learned Senior Counsel reiterated the earlier contention that the actions of the Petitioner stood protected by virtue of the interim order dated17.07.2019 passed by a Co-ordinate Bench of this Court in Writ Petition (C)No. 872 of 2019.
  • Respondent’s arguments
    • 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.
    • 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. Also, 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.
    • 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. 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. The Petitioners, by violating the whip, have voluntarily given up membership of the party. The learned Senior Counsel submitted that 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.
    • 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 disqualified would not be eligible to stand for re-election, on the seat falling vacant, till the end of the term of the House.
    • 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.
    • The learned Senior Counsel also submitted that there exists no indefeasible right of resignation as these Petitioners are acting in 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.
    • 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 dated11.07.2019 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.
    • 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.
    • 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].
  • Contentions 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 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.

Judgement :

Held, while disposing of the petitions

  1. 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. 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.
  2. The satisfaction of the Speaker is subject to judicial review. Resignation and disqualification on account of defection under the Tenth Schedule, both result in vacancy of the seat held by the member in the legislature, but further consequences envisaged are different. 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.
  3. By the91st Constitutional Amendment, Articles 71 (1B), 164(1B) and 361B were enacted to ensure that a member disqualified by the Speaker on account of defection is not appointed as a Minister or holds any remunerative political post from the date of disqualification or till the date on which his term of office would expire or he/she is re-elected to the legislature, whichever is earlier.
  4. Orders passed by the Speaker in Disqualification Petitions are upheld to the extent of the disqualification of the Petitioners there in. 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.
  5. 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.
  6. 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.

Ratio Decidendi:

Speaker is not empowered to disqualify any member till the end of the term.

Conclusion :

The Apex court observed that the acts of the 17 MLAs of disqualification arose prior to their own submission of resignation letters. The bench further laid down principles to guide the speaker’s decision in future. This case posed an unprecedented dilemma before the apex court.

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