TaxTMI 
TaxTMI 
2019 (11) TMI 1861
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..... Adv. Mr. Vikram Hegde, Adv. Mr. Shantanu Lakhotia, Adv. Mr. Kashi Vishweshwar, Adv. Mr. Pratibhanu Kharola, Adv. Ms. Raksha Agarwal, Adv. Ms. Hima Lawrence, AOR Mr. T. V. Ratnam, AOR Mr. Deverajegowda G., Adv. For the Respondent(s) : Mr.Tushar Mehta, SG Mr. Mishra Saurabh, AOR Mr. Kapil Sibal, Sr. Adv. Mr. Devadutt Kamat, Sr. Adv. Mr. Shashikiran Shetty, Sr. Adv. Mr. Sunil Fernandes, AOR Mr. Nizam Pasha, Adv. Mr. Rajesh Inamdar, Adv. Mr. Javedur Rehman, Adv. Ms. Priyansha Indra Sharma, Adv. Mr. Aditya, Adv. Mr. Ashwin G. Raj, Adv. Ms. Shreenidhi, Adv. Dr. Rajeev Dhavan, Sr. Adv. Mr. Sunil Fernandes, AOR Ms. Siddhi P., Adv. Ms. Priyansha Indra Sharma, Adv. Mr. Shashi Kiran Shetty, Sr. Adv. Mr. Mahesh Thakur, Adv. Ms. Sheffali Chaudhary, Adv. Ms. Anuparna Bordoloi, Adv. Mrs. Vipasha Singh, Adv. Mr. Vybhav Ramesh, Adv. Mr. Amit Sharma, AOR Mr. Dipesh Sinha, Adv. Ms. Pallavi Barua, Adv. Ms. Ayiala Imiti, Adv. Mr. Prateek Kumar, Adv. JUDGMENT N. V. RAMANA, 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 obligati....
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.... 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 15^th 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 3. Arbail Shivaram Hebbar 4. S.T. Somashekhar 5. B.A. Basvaraja 6. Munirathna INC 1. Maski 2. Hirekerur 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 th....
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....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, 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: "Hav....
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....e 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) 13. Disqualification Petition No. 7 of 2019 was filed against R. Shankar on 16.07.2019 and Disqualif....
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....squalification 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. œ 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. œ 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. œ Lastly, learned Senior C....
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....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 œ The case of the Petitioner can be distinguished factually from the case of most of the other Petitioners as he had not tendered his 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. œ 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 œ 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 t....
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....ve the right to resign. œ 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 œ 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. œ 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 comprehend the motive behind such resignation. He stated that motive has to be decided to determine the "genuineness" and "vol....
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....ith 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. œ 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. œ 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 ....
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....ing 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 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 œ 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. œ 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 œ The learned Senior Counsel submitte....
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....his 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 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 o....
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....s 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 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 ....
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.... 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. 32. In the present case, 15 of the 17 Petitioners had tendered their resignation from the House before the disqualification petitions 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 lim....
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....er 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: 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....
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....n 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. 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 Cons....
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....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 2019, had also directed the Speaker to look into the resignation of the members, but ....
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....nce 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 grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule." (emphasis....
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....y 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 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....
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..... 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 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, ....
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.... 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. 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 Le....
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.... (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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....) 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." 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 ....
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....o 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 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 i....
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....ha, (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 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 require....
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....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. 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 natu....
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.... 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 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 Commiss....
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....d 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 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 Consti....
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....es 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 that disqualification under the Tenth Schedule would operate as a bar for contesting re-elections. The language of clauses ....
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....73 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 ....
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....ctions, 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 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. circumstances in Yet there are 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 constit....
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....l 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 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 onl....
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....ear 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 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 ....
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....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: 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 fo....
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.... 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 Ra....
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....dering 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. 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 ....
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....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 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 Pet....
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....h 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 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 exp....
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.... 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 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 gi....
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.... 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 remunerati....