10 SCR BALCHANDRA L. JARKIHOLI & ORS. V . BS YEDDYURAPPA

[2011] 10 S.C.R. 877 878 SUPREME COURT REPORTS [2011] 10 S.C.R. BALCHANDRA L. JARKIHOLI & ORS. A A Disqualification application – No presumption could be drawn v . from the action of the appellants that they had voluntarily given B.S. YEDDYURAPPA & ORS. up their membership of the BJP – All along the appellants (Civil Appeal Nos.4444-4476 of 2011) emphasized their position that they not only continued to be members of the BJP, but were also willing to support any MAY 13, 2011 B B Government formed by the BJP headed by any leader, other [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.] than Respondent no.1, as the Chief Minister of the State – The Speaker acted in hot haste in disposing of the Constitution of India, 1950 – Tenth Schedule, Paragraph Disqualification application filed by Respondent no.1 – No 2(1)(a) – Disqualification application against MLA on ground convincing explanation was given as to why notices to show of defection – Manner of disposal by the Speaker – Challenge C C cause had been issued to the appellants under Rule 7 of the to – Tests of natural justice and fair play – Respondent no.1 Disqualification Rules, giving the Appellants only three days’ was the Legislature Party Leader of BJP in the Karnataka time to respond to the same, despite the stipulated time of Legislative Assembly, and also the Chief Minister of the State seven days or more – The proceedings conducted by the of Karnataka – 13 BJP MLAs including the appellants and Speaker did not meet the twin tests of natural justice and fair two others-‘MPR’ and ‘NN’ wrote to the Governor of the State D D play – Procedure adopted by the Speaker seems to indicate that they were withdrawing support to the Government led by that he was trying to ensure that the appellants stood Respondent no.1 – Governor asked Respondent no.1 to seek disqualified prior to the date on which the Floor Test was to vote of confidence on the floor of the House, and also be held, so that they could not participate and, in their intimated the Speaker accordingly – Respondent no.1, as absence Respondent no.1 was able to prove his majority in the House – Also, although the same allegations, as were leader of the BJP Legislature Party in the Legislative E E Assembly, filed Disqualification application before the made against the Appellants by Respondent no.1, were also Speaker against all the said 13 MLAs – Speaker issued Show- made against ‘MPR’ and ‘NN’, their retraction was accepted Cause notices to all the said MLAs – Meanwhile ‘MPR’ and by the Speaker and they were, accordingly, permitted to ‘NN’ retracted their stand, stating that they continued to participate in the Confidence Vote – The Speaker proceeded in the matter as if he was required to meet the deadline set support the Government led by Respondent no.1 – Also, F F ‘KSE’, State President of the BJP filed affidavit along with by the Governor, irrespective of whether, in the process, he supporting documents, adverse to the interests of the was ignoring the constitutional norms set out in the Tenth appellants – Speaker disqualified the appellants reasoning Schedule to the Constitution and the Disqualification Rules, that they had voluntarily given up their membership of the BJP and in contravention of the basic principles that go hand-in- by their acts and conduct, but did not disqualify ‘MPR’ and hand with the concept of a fair hearing – Even if the G G ‘NN’ taking note of the retraction made by them – Justification Disqualification Rules were only directory in nature, sufficient – Held: Except for the affidavit filed by ‘KSE’, State President opportunity should have been given to the Appellants to meet of the B.J.P., and the statements of ‘MPR’ and ‘NN’, there was the allegations levelled against them – Affidavits, affirmed by nothing on record in support of the allegations made in the ‘KSE’, ‘MPR’ and ‘NN’, were served on the Advocates appearing for the Appellants only on the date of hearing before 877 H H BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 879 880 SUPREME COURT REPORTS [2011] 10 S.C.R. YEDDYURAPPA & ORS. the Speaker and that too just before the hearing was to A A Respondent no.1 to seek vote of confidence on the floor commence – Extraneous considerations writ large on the face of the House on or before 12th October, 2010 by 5 p.m. of the order of the Speaker and therefore the same has to be The Speaker was also requested accordingly. set aside – Disqualification application filed by Respondent no.1 accordingly dismissed – Karnataka Legislative Assembly On the very same day, Respondent no.1, as the (Disqualification of Members on Ground of Defection) Rules, B B leader of the BJP Legislature Party in the Karnataka 1986 – Rules 6 and 7. Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Constitution of India, 1950 – Tenth Schedule, Assembly (Disqualification of Members on Ground of Paragraphs 2(1)(a) and 6 – Power of the superior Courts to Defection) Rules, 1986, praying to declare that all the said judicially review order passed by Speaker under paragraph 13 MLAs elected on BJP tickets had incurred C C 2(1)(a) of the Tenth Schedule – Held: Under paragraph 2(1)(a) disqualification from the Legislative Assembly in view of of the Tenth Schedule, the Speaker functions in a quasi- the Tenth Schedule to the Constitution. judicial capacity, which makes an order passed by him in such capacity, subject to judicial review – Judicial Review. The Speaker issued Show-Cause notices to all the aforesaid 13 MLAs on 7th October, 2010, informing them Constitution of India, 1950 – Tenth Schedule, Paragraph D D of the Disqualification Application filed by Respondent 5 – Object of – Held: The object behind the paragraph 5 is to no.1, but the appellants were not served with the notices ensure that the Speaker, while holding office, acts absolutely directly. Instead the notices were pasted on the outer impartially, without any leaning towards any party, including doors of their quarters in the MLA complex. Time was the party from which he was elected to the House. given to them till 5 p.m. on 10th October, 2010 (i.e. within E E 3 days), to submit their objections, if any, to the Respondent no.1 was the Legislature Party Leader application. of the Bharatiya Janata Party (BJP) in the Karnataka Legislative Assembly, and also the Chief Minister of the The appellants made objections stating that the State of Karnataka. notice was in clear violation of the Disqualification Rules, 1986, especially Rules 6 and 7 thereof; that copies of the F F On 6th October, 2010, 13 BJP MLAs of the Karnataka disqualification petition and annexures thereto were not Legislative Assembly including the appellants and two forwarded with the Show-cause notice as required under others- MPR’ and ‘NN’, wrote identical letters to the the Rules; that the appellants ought to have been given Governor of the State stating that they were withdrawing a minimum notice period of 7 days’ to reply and the their support to the Government led by Respondent no.1. Speaker could only extend the period of 7 days, but could Five independent MLAs also withdrew support to the said G G not curtail the time from 7 days to 3 days. In addition, the Government. The same day, the Governor addressed appellants also sought to explain that they had chosen letter to Respondent no.1 informing him of the to withdraw their support only to the Government headed developments regarding the withdrawal of support by 13 by Respondent no.1 as Chief Minister, as he was corrupt BJP MLAs and 5 independent MLAs and requesting and encouraged corruption, and not to the BJP itself, H H which could form another Government which could be BALCHANDRA L. JARKIHOLI & ORS. v. B.S. 881 882 SUPREME COURT REPORTS [2011] 10 S.C.R. YEDDYURAPPA & ORS. led by any other person, other than Respondent no.1, to A A difference of opinion between the Hon’ble Chief Justice whom the Appellants would extend support. Accordingly, and his companion Judge, the matter was referred to a the appellants prayed for withdrawal of the Show-Cause third Judge who concurred with the decision rendered notices and for dismissal of the petition dated 6th by the Chief Justice and as a result, per majority, the October, 2010 moved by Respondent no.1, alleging that order passed by the Speaker was upheld by the High the same was made with mala fide intention and the B B Court. oblique motive of seeking their disqualification and thereby preventing them from voting on the confidence In the instant appeals, the questions which arose for motion. consideration were:(a) Did the Appellants voluntarily give up their membership of the BJP; (b) Since only three Meanwhile both ‘MPR’ and ‘NN’ retracted their stand, days’ time was given to the Appellants to reply to the C C stating that they continued to support the Government Show-Cause notices, as against the period of 7 days or led by Respondent no.1 and had no intention of more, prescribed in Rule 7(3) of the Disqualification withdrawing such support and accordingly prayed for Rules, were the said notices vitiated; (c) Did the Speaker withdrawal of any action proposed against them. Also, act in hot haste in disposing of the Disqualification ‘KSE’, State President of the BJP filed affidavit along with Application filed by Respondent no.1 introducing a whiff supporting documents, which were adverse to the D D of bias as to the procedure adopted and (d) What is the Appellants’ interests.

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