Disqualification passed by the Speaker of the Karnataka Legislative Assembly- CONCLUSION 152. 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 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 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 vaporise 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 Kihoto Hollohan (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 108 substantial question of law exists in the present matter, which needs reference to a larger bench. 153. In view of the discussion above, we pass the following order: 1. 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. 2. 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.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 992 OF 2019
SHRIMANTH BALASAHEB PATIL …PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
WITH
WRIT PETITION (CIVIL) NO. 997 OF 2019
RAMESH L. JARKHIHOLI AND ANOTHER …PETITIONERS
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
AND
WRIT PETITION (CIVIL) NO. 998 OF 2019
PRATAP GOUDA PATIL AND OTHERS …PETITIONERS
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
AND
REPORTABLE
1
WRIT PETITION (CIVIL) NO. 1000 OF 2019
DR. K. SUDHAKAR …PETITIONER
VERSUS
THE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY …RESPONDENT
AND
WRIT PETITION (CIVIL) NO. 1001 OF 2019
ANAND SINGH …PETITIONER
VERSUS
THE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY …RESPONDENT
AND
WRIT PETITION (CIVIL) NO. 1003 OF 2019
R. SHANKAR …PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
AND
WRIT PETITION (CIVIL) NO. 1005 OF 2019
A. H. VISHWANATH AND OTHERS …PETITIONERS
2
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
AND
WRIT PETITION (CIVIL) NO. 1006 OF 2019
ROSHAN BAIG …PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
AND
WRIT PETITION (CIVIL) NO. 1007 OF 2019
N. NAGARAJU MTB …PETITIONER
VERSUS
HON’BLE SPEAKER, KARNATAKA
LEGISLATIVE ASSEMBLY AND OTHERS …RESPONDENTS
J U D G M E N T
TABLE OF CONTENTS
Introduction A
Contentions B
3
Issues C
Maintainability of Writ Petition D
Rejection of Resignations E
Disqualification Proceedings After Resignation F
Validity of Disqualification order G
Power of the Speaker to direct disqualification
till the expiry of the term
H
Reference to Constitution Bench I
Individual Cases J
Conclusions K
N . V . RA M A N A , 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
    obligations of constitutional morality are
    expected to be equally binding on the
    government and the opposition. In India, the
    same political party treats these obligations
    very differently when it is in office, and
    when it is out of it. This has contributed
    greatly to the popular perception of our
    political system as being amoral…”1
    Although the framers of the Constitution entrusted ‘we the
    people’ with the responsibility to uphold the constitutional
    1 André Béteille, ‘Constitutional Morality’, Economic and Political Weekly, Volume 43 (40)
    (4th October 2008).
    4
    values having attained freedom, the question which begs herein
    to be answered is to what extent we have discharged our duty
    and sustained our democratic and constitutional obligations.
  2. In this context, 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.
    We need to keep in mind that the separating line between
    dissent and defection requires to be made apparent, so that
    democratic values are upheld in balance with other
    constitutional considerations. In an endeavor to maintain such
    balance, the role of the Speaker is critical in maintaining the
    balance between democratic values and constitutional
    considerations. In this regard, this Court’s role is only to
    ascertain whether the Speaker, as a neutral member, upheld the
    tradition of his office to uphold the Constitution.
  3. These Writ Petitions are filed against five different orders passed
    by the Speaker of the Karnataka Legislative Assembly: two
    orders dated 25.07.2019 in Disqualification Petition No. 01 of
    2019 and Disqualification Petition No. 07 of 2019 respectively;
    two orders dated 28.07.2019 in Disqualification Petition No. 05
    5
    of 2019 and Disqualification Petition No. 08 of 2019 respectively;
    and a common order dated 28.07.2019 in Disqualification
    Petition Nos. 3 and 4 of 2019.
  4. Brief facts which are necessary for the disposal of the present
    petitions are that the results of the 15th Karnataka Legislative
    Assembly were declared on 15.05.2018. The contesting political
    parties secured the following seats:
    Party Seats Won
    Bahujan Samaj Party 1
    Bharatiya Janata Party [BJP] 104
    Indian National Congress [INC] 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 15th
    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
  6. Ramesh Jarkhiholi
  7. Mahesh Kumathalli
    INC 1. Gokak
  8. Athani
    998/ 1. Pratap Gouda Patil
  9. B.C. Patil
    INC 1. Maski
  10. Hirekerur
    6
    2019 3. Arbail Shivaram
    Hebbar
  11. S.T. Somashekhar
  12. B.A. Basvaraja
  13. Munirathna
  14. Yellapur
  15. Yeshvanthapura
  16. KR Pura
  17. RR Nagar
    1000/
    2019
    Dr. K. Sudhakar INC Chikkaballapur
    1001/
    2019
    Anand Singh INC Vijayanagara
    1003/
    2019
    R. Shankar KPJP
    Independent
    Ranebennur
    1005/
    2019
  18. A.H. Vishwanath
  19. K. Gopalaiah
  20. 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
  21. Though the 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 (one of the Respondents herein). 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.
    7
  22. On 11.02.2019 Disqualification Petition No. 1 of 2019 was
    instituted against Ramesh L. Jarkhiholi, Mahesh Iranagaud
    Kumathalli, 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 Iranagaud Kumathalli, are said to have submitted their
    resignations to the Speaker on 06.07.2019.
  23. Other Petitioners, including, Dr. K. Sudhakar, Pratap Gouda
    Patil, B. C. Patil, Arbail Shivaram Hebbar, S. T. Somashekar,
    B.A. Basvaraja, Munirathna, A.H. Vishwanath, K. Gopalaiah,
    K.C. Narayanagowda, Anand Singh, N. Nagaraju MTB and
    Roshan Baig submitted their resignations from the membership
    of the House between 01.07.2019 to 11.07.2019.
  24. 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
    8
    way of a Writ Petition, being Writ Petition (C) No. 872 of 2019.
    This Court, on 11.07.2019, in the aforesaid Writ Petition
    directed the Speaker to take a decision qua the resignations
    forthwith, and further directed the same to be laid before this
    Court. The relevant extract of the said order is as under:­
    “….Having regard to the facts of the case, we
    permit the petitioners, ten in number, to
    appear before the Hon’ble Speaker of the
    Karnataka Legislative Assembly at 6.00 p.m.
    today. We request the Hon’ble Speaker to
    grant an audience to the ten petitioners at
    the said time. The petitioners, if they so
    wish and are so inclined, shall intimate the
    Hon’ble Speaker of the Assembly their
    decision to resign, in which 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)…”
  25. 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
    9
    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.
  26. Subsequently, when the aforesaid Writ Petition came up for
    hearing on 12.07.2019, this Court passed the order as under:
    “Having regard to the weighty issues
    that have arisen and the incomplete state of
    facts, as indicated above, we are of the view
    that the matter should be considered by the
    Court further on 16th July, 2019.
    In the meantime, the status quo as
    on today, with regard to the ten
    petitioners, be maintained, namely, that
    neither the issue of resignation nor the
    issue of disqualification will be decided
    by the Hon’ble Speaker.
    This order has been passed by this
    Court only to enable the Court to decide the
    larger constitutional questions arising as
    indicated above.”
    (emphasis supplied)
  27. Further, this Court on 17.07.2019, passed the following order:
    “The issue arising in the case is
    whether resignations submitted by Members
    of the Legislative Assembly at a point of time
    10
    earlier than petitions for their
    disqualification under the Tenth Schedule of
    the Constitution should have priority in the
    decision making process or whether both
    sets of proceedings should be taken up
    simultaneously or the disqualification
    proceedings should have precedence over
    the request(s) for resignation.
    Arguments have been advanced by the
    learned counsels for the parties on the
    touchstone of Articles 164, 190, 191, 212
    and 361B and the Tenth Schedule of the
    Constitution. We have considered the same.
    Constitutional principles should not receive
    an exhaustive enumeration by the Court
    unless such an exercise is inevitable and
    unavoidable to resolve the issues that may
    have arisen in any judicial proceeding.
    In the present case, having regard to
    the stage at which the above issues are
    poised in the light of the facts and
    circumstances surrounding the same, we
    are of the view that the aforesaid questions
    should receive an answer only at a later
    stage of the proceedings. The imperative
    necessity, at this stage, is to maintain
    the constitutional balance and the
    conflicting and competing rights that
    have been canvassed before us. Such an
    interim exercise has become prudent in
    view of certain time frame exercise(s)
    that is in the offing in the Karnataka
    Legislative Assembly, particularly, the no
    trust motion against the present
    Government, which we are told is due for
    being taken up on 18th July, 2019. In
    these circumstances, the competing
    claims have to be balanced by an
    11
    appropriate interim order, which
    according to us, should be to permit the
    Hon’ble 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)
  28. Disqualification Petition No. 7 of 2019 was filed against R.
    Shankar on 16.07.2019 and Disqualification Petition No. 8 of
    2019 was filed against Shrimanth Balasaheb Patel on
    12
    20.07.2019. The Speaker thereupon issued emergent notices
    between 18.07.2019 to 20.07.2019 to all the Petitioners
    regarding the pending disqualification petitions to appear before
    him on the date of hearing fixed for 23.07.2019 and 24.07.2019.
    The notices did not refer to the resignation letters which had
    been submitted by 15 Petitioners, who are parties to the Writ
    Petition (C) No. 872 of 2019 filed before this Court. The
    Petitioners have alleged that the period given in the aforesaid
    notices was too short and in fact some of them had not even
    received notices within time to respond.
  29. While the aforesaid disqualification petitions/resignation letters
    were pending, the INC on 20.07.2019 had again issued a whip
    requiring their members of the Legislative Assembly to attend
    the proceedings of the House on 22.07.2019.
  30. The trust vote was finally taken up for consideration on
    23.07.2019. The 17 Petitioners did not attend the House. As a
    result, the INC and JD(S) coalition Government, under the
    leadership of Mr. Kumaraswamy was in a minority, resulting in
    the resignation of Mr. Kumaraswamy as Chief Minister.
    13
  31. Further, as detailed above, on 25.07.2019 and 28.07.2019, the
    Speaker passed the five impugned orders in Disqualification
    Petition Nos. 1, 3, 4, 5, 7 and 8 of 2019. 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 the 15th
    Legislative Assembly term
  32. Aggrieved, by the aforesaid disqualifications, all the Petitioners
    herein have approached this Court under Article 32 of the
    Constitution.
    B. CONTENTIONS
    LEARNED SENIOR COUNSEL MR. MUKUL ROHATGI ON BEHALF OF
    PETITIONERS IN W.P. (C) NOS.997, 998, 1006 AND 1007 OF 2019
     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,
    14
    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
    non­application 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 3­4 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 non­compliance of the principles of natural
    justice, particularly when the Petitioners had only sought time of
    4 weeks to produce documents.
     Lastly, 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.
    LEARNED SENIOR COUNSEL CA SUNDARAM ON BEHALF OF
    PETITIONER IN W.P. (C) NO. 1000 OF 2019
     The learned Senior Counsel submitted that the resignation
    tendered in the present case was resignation from the House
    and not from the party.
    15
     If resignation is tendered under Article 190, the Speaker’s role is
    limited to the extent of determining voluntariness and
    genuineness of the same. The inquiry of the Speaker as to the
    “voluntariness” is limited in its scope to the question of whether
    the member was coerced to resign or not. The enquiry as to
    “genuineness” only related to whether the resignation letter was
    forged, or not actually made by the member. Additionally, when
    a member hands over the letter of resignation to the Speaker
    personally and informs the Speaker that the same is voluntary
    and genuine, then the Speaker has to accept the resignation
    immediately.
     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.
    LEARNED SENIOR COUNSEL V. GIRI ON BEHALF OF PETITIONER IN
    W.P.(C) NO. 1003 OF 2019
     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.
     In the present case, the Petitioner belonged to KPJP. Although
    the party had decided to merge with the INC and had intimated
    the Speaker about the same, there was no formal order of
    merger. 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.
    16
     The learned Senior Counsel for the Petitioner brought to the
    notice of the Court the letter of intimation issued by the
    Executive Committee of his party directing him to stay on the
    side of the opposition. Therefore, without any formal order of
    merger, 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
     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.
     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
     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
    17
    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.
    LEARNED SENIOR COUNSEL K.V. VISHWANATHAN ON BEHALF OF
    PETITIONERS IN W.P. (C) NO. 997 OF 2019
     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. However, the Speaker, acting in a mala fide manner,
    kept the resignation letter submitted by the Petitioners herein
    pending until the disqualification petition was decided.
     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.
    LEARNED SENIOR COUNSEL SAJAN POOVAYYA ON BEHALF OF
    PETITIONER IN W.P. (C) NO. 1001 OF 2019
     The Petitioner was a member of the INC who had resigned on
    01.07.2019 in protest against certain land dealing in his
    Constituency. However, he was put in the same group as the
    other disqualified Petitioners by the Speaker. The learned Senior
    18
    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 dated 17.07.2019 passed by a Co­ordinate Bench
    of this Court in Writ Petition (C) No. 872 of 2019.
    LEARNED SOLICITOR GENERAL TUSHAR MEHTA ON BEHALF OF THE
    SPEAKER:
     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.
    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
     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 quasi­judicial 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. 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
    19
    comprehend the motive behind such resignation. He stated that
    motive has to be decided to determine the “genuineness” and
    “voluntariness” of the resignation, as it is the motive which acts
    as an umbilical cord between the issues of genuineness and
    voluntariness. In light of the same, 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. 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.
     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. Although, these principles are
    immutable, yet they are flexible, and are not confined to
    technical limits. 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
    20
    membership of the party. Even assuming that the liberty
    granted by this Court in the earlier writ proceedings was correct,
    with respect to non­compulsion of the members for attending
    the Assembly, there was legal necessity to attend the Assembly
    at such a determinative point. 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 noconfidence motion, or even a whip relating to the budget. He
    submitted that such 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 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 36 of The Representation of the People Act, 1951.
    Therefore, the disqualified members should not be allowed to
    contest fresh elections.
     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 re­election, on the
    seat falling vacant, till the end of the term of the House.
    21
     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 Article 190(3) of the Constitution, the relevant
    period of inquiry, etc., the same is required to be considered by a
    Constitution Bench.
    LEARNED SENIOR COUNSEL DR. RAJEEV DHAVAN ON BEHALF OF
    RESPONDENT NO. 2 IN W.P (C) NO. 1005 OF 2019
     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. Therefore, while
    deciding the issues regarding “genuineness” and “voluntariness”
    behind the act of resignation, the Speaker can look to the series
    of events leading to the resignation so as to decide the motive.
    Pursuant to the above submission, the counsel stated that
    taking into totality of facts into consideration there exist no
    ground to claim that the order of the Speaker suffers from
    perversity or that the same was passed mala fide.
     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
    22
    situation, the Speaker could not have turned a blind eye to the
    activities of the Petitioners.
    LEARNED SENIOR COUNSEL DEVADUTT KAMAT ON BEHALF OF
    RESPONDENT NOS. 2 AND 3 IN W.P. (C) NOS. 992, 997, 998,
    1000, 1001, 1003, 1006 AND 1007 OF 2019
     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 dated 11.07.2019 and
    17.07.2019 passed by a Co­ordinate 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. Acceptance or
    rejection of the resignations is dependent on the condition that
    the same are voluntary and genuine.
     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. 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.
    23
    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
     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].
    LEARNED SENIOR COUNSEL RAKESH DWIVEDI ON BEHALF 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.
    24
    C. ISSUES
  33. In view of the arguments contended, following questions arise for
    our consideration herein:
  34. Whether the Writ Petition challenging the order of the
    Speaker under Article 32 is maintainable?
  35. Whether the order of the Speaker rejecting the resignation
    and disqualifying the Petitioners is in accordance with the
    Constitution?
  36. 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?
  37. Whether the issues raised require a reference to the larger
    Bench?
    D. MAINTAINABILITY OF THE WRIT PETITION
  38. At the outset, it must be noted that learned Senior Counsel, Mr.
    Kapil Sibal has contended that this Court does not have the
    jurisdiction under Article 32 of the Constitution of India to deal
    with this matter. Further, learned Senior Counsel, Dr. Rajeev
    Dhavan, has supported the aforesaid argument by stating that
    no fundamental right is violated, more so when the members of
    25
    Parliament or Legislative Assembly cannot invoke the ‘right to
    freedom of trade and profession’ under Article 19 (1)(g) of the
    Constitution of India.
  39. The contours of this Court’s writ jurisdiction has been long
    established in several decisions of this Court. Where the law
    provides for a hierarchy of appeals, the parties must exhaust the
    available remedies before resorting to writ jurisdiction of this
    Court [See U.P. State Spinning Co. Ltd. v. R.S. Pandey, (2005)
    8 SCC 264]. At the same time, this 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]
  40. The learned senior counsel on behalf of the Respondents have
    challenged the jurisdiction of this Court under Article 32 of the
    26
    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 only viz., infirmities
    based on violation of constitutional
    mandate, mala fides, non­compliance
    with rules of natural justice and
    perversity.”
    (emphasis supplied)
  41. We may note 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 Kihoto Hollohan case (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 Kihoto Hollohan case (supra),
    we do not find any explicit or implicit bar to adjudicate the issue
    under the writ jurisdiction of this Court.
    27
  42. The Petitioners are alleging violation of principles of natural
    justice and their right to a fair hearing. Principles of natural
    justice and right to fair hearing can be traceable to right to
    equality and rule of law enshrined under Article 14 of the
    Constitution, read with other fundamental rights [refer to
    Maneka Gandhi v. Union of India,(1978) 1 SCC 248].
  43. A seven Judge Bench of this Court in the case of Ujjam Bai v.
    State of Uttar Pradesh, AIR 1962 SC 1621, held that writ
    jurisdiction under Article 32 of the Constitution is available
    when principles of natural justice are violated. This view was
    affirmed by a nine Judge Bench of this Court in the case of
    Naresh Shridhar Mirajkar v. State of Maharashtra, AIR
    1967 SC 1, in the following terms:
    “54. The scope of the jurisdiction of this Court
    in dealing with writ petitions under Article 32
    was examined by a Special Bench of this Court
    in Ujjam Bai v. State of Uttar Pradesh [(1963) 1
    SCR 778]. This decision would show that it
    was common ground before the court that in
    three classes of cases a question of the
    enforcement of the fundamental rights may
    arise; and if it does arise, an application under
    Article 32 will lie. These cases are: (1) where
    action is taken under a statute which is ultra
    vires the Constitution; (2) where the statute is
    intra vires but the action taken is without
    jurisdiction; and (3) where the action taken
    28
    is procedurally ultra vires as where a quasijudicial authority under an obligation to act
    judicially passes an order in violation of the
    principles of natural justice.”
    (emphasis supplied)
  44. In the context of disqualification orders, this Court has 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)
  45. 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
    29
    has described Article 32 as the very soul of the Constitution ­
    very heart of it ­ most important Article. Moreover, the
    jurisdiction conferred on this Court by Article 32 is an important
    and integral part of the basic structure of the Constitution of
    India and no act of Parliament can abrogate it or take it away
    except by way of impermissible erosion of fundamental
    principles of the constitutional scheme are settled propositions
    of Indian jurisprudence.
  46. This Court, as the highest Constitutional Court, has to, and has
    always, functioned in accordance with the applicable judicially
    determined parameters while performing its constitutional duty
    to judicially review the acts of constitutional functionaries. It has
    examined questions of both fact and law, so long as it has been
    vested with the power to do so. The scrupulous discharge of
    duties by all guardians of the Constitution include the duty not
    to transgress the limitations of their own constitutionally
    circumscribed powers by trespassing into what is properly the
    domain of other constitutional organs.
  47. In any case, we note that by challenging the order directly under
    Article 32, the Petitioners have leapfrogged the judicial hierarchy
    as envisaged under the Constitution [refer to Tamil Nadu
    30
    Pollution Control Board v. Sterlite Industries (I) Ltd., 2019
    SCC Online SC 221].
  48. We do not appreciate the manner in which the petitioners have
    knocked on the doors of this Court. Among other reasons, we
    proceeded to hear the present matter due to the peculiar facts
    presented before us, wherein certain interim orders were passed
    herein by another Co­ordinate Bench of this Court in Writ
    Petition (C) No. 872 of 2019 filed by some of the present
    petitioners. We had heard the matter at some length on
    25.09.2019 and 26.09.2019, when with the consent of the
    counsel of all the parties, the matter was fixed for final hearing.
    Since a substantial amount of time has passed in the
    meanwhile, and to ensure that the same exercise need not be
    repeated before the High Court, we are left with no option but to
    hear these cases on merits.
  49. 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. This Court would
    have the benefit of a considered judicial verdict from the High
    31
    Court. If the parties are still aggrieved, then they may approach
    this Court.
  50. 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.
    E. REJECTION OF RESIGNATIONS
  51. 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.
  52. 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
    32
    disqualification. He has submitted that the consideration before
    the Court is limited considering the fact that the bonafides and
    motive of the Petitioners to resign was appropriately dealt under
    Article 190(3)(b) of the Constitution. On the other hand, the
    Petitioners have strenuously contended that the inquiry required
    under Article 190(3)(b) of the Constitution is limited to
    “voluntariness” and “genuineness”, and not the motive or the
    reason for resignation.
  53. The first question we need to consider concerns the scope of
    judicial review with respect to acceptance/rejection of the
    resignation by the Speaker. The Respondents have contended on
    this count that the Court cannot go into this aspect as the
    acceptance/rejection of resignation is based on the subjective
    satisfaction of the Speaker, which is immune from judicial
    review.
  54. We are unable to agree with this contention. 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
    33
    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.
  55. The next logical question which arises for consideration
    concerns the ambit of the terms “voluntary” and “genuine” in
    Article 190(3)(b) of the Constitution. Prior to the 33rd
    Constitutional Amendment, Article 190(3)(b) read as follows:
    “(3) If a member of a House of the
    Legislature of a State—
    (a) …..
    34
    (b) resigns his seat by writing under his
    hand addressed to the Speaker or the
    Chairman, as the case may be.”
  56. The 33rd Constitutional Amendment amended Article 190(3)(b) of
    the Constitution and added a proviso. The revised clause reads
    as follows:
    “(3) If a member 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.”
  57. 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
    35
    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]
  58. First, as a starting principle, it has to be accepted that a member
    of the Legislature has a right to resign. Nothing in the
    Constitution, or any statute, prevents him from resigning. A
    member may choose to resign for a variety of reasons and his
    reasons may be good or bad, but it is his sole prerogative to
    resign. An elected member cannot be compelled to continue his
    office if he chooses to resign. The 33rd Constitutional
    Amendment does not change this position. On the contrary, it
    ensures that his resignation is on account of his free will.
  59. Second, the 33rd Constitutional Amendment requires acceptance
    of resignation by the Speaker. Thus, merely addressing a
    resignation letter to the Speaker would not lead to the seat
    automatically falling vacant. The Speaker has to accept such
    resignation for the seat to become vacant. However, as discussed
    above, the Speaker has limited discretion for rejecting the
    resignation. If the resignation is voluntary or genuine, the
    36
    Speaker has to accept the resignation and communicate the
    same.
  60. Third, the Speaker can reject the resignation, if the Speaker is
    satisfied that resignation was “not voluntary or genuine”. Herein,
    our attention is drawn to the Chapter 22, Rule 202 (2) of the
    Rules of Procedure and Conduct of Business in Karnataka
    Legislative Assembly, which is extracted as under:
    “(2) If a member hands over the letter of
    resignation to the Speaker personally and
    informs him that the resignation is
    voluntary and genuine and the Speaker has
    no information or knowledge to the contrary,
    and if he is satisfied, the Speaker may
    accept resignation immediately.”
    (emphasis supplied)
    The rule states that the Speaker has to take a call on the
    resignation letter addressed to him immediately, having been
    satisfied of the voluntariness and genuineness. Reading the rule
    in consonance with Article 190(3)(b) of the Constitution and its
    proviso, it is clear that the Speaker’s satisfaction should be
    based on the information received and after making such inquiry
    as he thinks fit. The aforesaid aspects do not require roving
    inquiry and with the experience of a Speaker, who is the head of
    the House, he is expected to conduct such inquiry as is
    37
    necessary and pass an order. If a member appears before him
    and gives a letter in writing, an inquiry may be a limited inquiry.
    But if he receives information that a member tendered his
    resignation under coercion, he may choose to commence a
    formal inquiry to ascertain if the resignation was voluntary and
    genuine.
  61. 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.
  62. 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:
  63. 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
    38
    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
    Constitution. It is therefore, proposed to
    amend the above two articles to impose a
    requirement as to acceptance of the
    resignation by the Speaker or the Chairman
    and to provide that the resignation shall not
    be accepted by the Speaker or the Chairman
    if he is satisfied after making such inquiry
    as he thinks fit that the resignation is not
    voluntary or genuine.
    (emphasis supplied)
    The Speaker therefore has a duty to reject the resignation if
    such resignation is based on coercion, threat or force.
  64. Learned Senior Counsel, Mr. Kapil Sibal, has contended that a
    Speaker, as a part of his inquiry, can also go into the motive of
    the member and reject his resignation if it was done under
    political pressure. We are unable to accept this contention. The
    language of Article 190(3)(b) of the Constitution does not permit
    the Speaker to inquire into the motive of the resignation. When a
    member is resigning on political pressure, he is still voluntarily
    doing so. Once the member tenders his resignation it would be
    “voluntary” and if the writing can be attributed to him, it would
    39
    be “genuine”. Our view is also supported by the debates on the
    33rd Constitutional Amendment. It may be necessary to quote
    the debate dated 03.05.1974 on the 33rd Constitutional
    Amendment, which is extracted below:
    H.R. Gokhale: I do not want to reply
    elaborately to all the points because I know I
    will have to deal with these points when the
    Bill comes up for consideration. In a way, I
    am thankful to the Hon. Members. They
    have given me notice of what they are going
    to say. I will deal with some points raised.
    Sir, the idea that the Bill prevents any
    member from resigning is absolutely wrong.
    On the contrary, the basis on which the Bill
    proceeds is, the right of resignation is
    protected and the idea of acceptance of a
    resignation is also subject to a proviso that
    the acceptance is in the normal course and
    the resignation can take place only in the
    event of a conclusion being reached that
    either it is not genuine or it is not voluntary.
    Therefore, to proceed on the basis that the
    right of a Member to resign is taken away, is
    entirely wrong. This can be seen if the bill is
    properly studied. The other thing they said
    was, in the name of democracy, how do you
    prevent people from resigning. Nobody is
    prevented from resigning. On the contrary,
    the basic idea is, the ordinary right of a
    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
    40
    person has no option but to resign. The
    Speaker has no option but to accept the
    resignation in the present set­up. 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 200­300 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 re­affirmed 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 the same was kept pending.
  65. In view of our above discussion we hold that the Speaker can
    reject a resignation only if the inquiry demonstrates that it is not
    “voluntary” or “genuine”. The inquiry should be limited to
    ascertaining if the member intends to relinquish his
    membership out of his free will. Once it is demonstrated that a
    member is willing to resign out of his free will, the Speaker has
    41
    no option but to accept the resignation. It is constitutionally
    impermissible for the Speaker to take into account any other
    extraneous factors while considering the resignation. The
    satisfaction of the Speaker is subject to judicial review.
  66. We are of the opinion that the aforesaid observations clarify the
    scope of the Speaker’s duty under Article 190(3)(b) of the
    Constitution, and answer the contention raised by the learned
    senior counsel regarding the same. However, since we are
    deciding the question of disqualification, it might not be
    necessary to make any observations on the merits of the
    petitioners’ plea regarding the non­acceptance of their
    resignation letters, in view of our subsequent findings on
    disqualification.
    F. DISQUALIFICATION PROCEEDINGS AFTER
    RESIGNATION
  67. It was also contended by the Petitioners that the Speaker did not
    have the jurisdiction to deal with disqualification petitions, as
    the Petitioners having resigned were no longer members who
    could have been disqualified. This issue does not apply to the
    42
    Petitioners in Writ Petition (C) No. 992 of 2019 and Writ Petition
    (C) No. 1003 of 2019 as they did not tender their resignation.
  68. Before we proceed to record our reasons, it is pertinent to reflect
    upon 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. The importance of the same stems from the fact that 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 anti­defection Bill. This Bill is
    meant for outlawing defection and fulfilling the
    above assurance.”
    (emphasis supplied)
  69. This court in the Kihoto Hollohan case (supra) has clearly
    enunciated the purpose behind the introduction of the Tenth
    43
    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 supplied)
  70. Therefore, it can be clearly concluded that the Tenth Schedule
    was brought in to cure the evil of defection recognising the
    significant impact it has on the health of our democracy. The
    91st Constitutional Amendment also strengthens the aforesaid
    view that the law needed further strengthening in order to curb
    the evil of defection. The aforesaid amendment introduced
    44
    Articles 75(1B), 164(1B) and 361B in the Constitution. These
    provisions bar any person who is disqualified under the Tenth
    Schedule 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.
  71. The intent of the amendment is crystal clear. The constitutional
    amendment sought to create additional consequences resultant
    from the determination that a person was disqualified under the
    Tenth Schedule. 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.
  72. A five Judge Bench of this Court, in the case of Delhi
    Transport Corporation v. D.T.C. Mazdoor Congress, 1991
    Supp (1) SCC 600 ruled that an inhibition under the
    Constitution must be interpreted so as to give a wider
    45
    interpretation to cure the existing evils. The relevant extract has
    been provided below:
  73. Legislation, both statutory and
    constitutional, is enacted, it is true, from
    experience of evils. But its general
    language should not, therefore,
    necessarily be confined to the form that
    that evil had taken. Time works changes,
    brings into existence new conditions and
    purposes and new awareness of
    limitations. Therefore, a principle to be
    valid must be capable of wider
    application than the mischief which gave
    it birth. This is particularly true of the
    constitutional constructions. Constitutions
    are not ephemeral enactments designed to
    meet passing occasions. These are, to use
    the words of Chief Justice Marshall,
    “designed to approach immortality 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)
  74. 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:
    46
    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
    instrument envisages the concept of
    constitutional governance which has, as its
    twin limbs, the principles of fiduciary nature
    of public power and the system of checks
    and balances. Constitutional governance,
    in turn, gives birth to the requisite
    constitutional trust which must be
    exhibited by all constitutional
    functionaries while performing their
    official duties.
    (emphasis supplied)
  75. In addition to the above, the decision of the Speaker that a
    member is disqualified, relates back to the date of the
    disqualifying action complained of. The power of the Speaker to
    decide upon a disqualification petition was dealt by a
    Constitution Bench of this Court in Rajendra Singh Rana v.
    Swami Prasad Maurya, (2007) 4 SCC 270. This Court, reading
    47
    the provisions of paragraphs 2 and 6 of the Tenth Schedule, has
    clearly held that the Speaker has to decide the question of
    disqualification with reference to the date it was incurred. The
    Court held that:
    “34. As we see it, the act of disqualification
    occurs on a member voluntarily giving up
    his membership of a political party or at the
    point of defiance of the whip issued to him.
    Therefore, the act that constitutes
    disqualification in terms of para 2 of the
    Tenth Schedule is the act of giving up or
    defiance of the whip. The fact that a
    decision in that regard may be taken in
    the case of voluntary giving up, by the
    Speaker at a subsequent point of time
    cannot and does not postpone the
    incurring of disqualification by the act of
    the legislator. Similarly, the fact that the
    party could condone the defiance of a whip
    within 15 days or that the Speaker takes the
    decision only thereafter in those cases,
    cannot also pitch the time of disqualification
    as anything other than the point at which
    the whip is defied. Therefore in the
    background of the object sought to be
    achieved by the Fifty­second Amendment of
    the Constitution and on a true
    understanding of para 2 of the Tenth
    Schedule, with reference to the other
    paragraphs of the Tenth Schedule, the
    position that emerges is that the Speaker
    has to decide the question of
    disqualification with reference to the
    date on which the member voluntarily
    gives up his membership or defies the
    48
    whip. It is really a decision ex post
    facto…”
    (emphasis supplied)
  76. As such, there is no doubt that the disqualification relates to the
    date when such act of defection takes place. 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,
    wherein the taint of disqualification does not vaporise, on
    49
    resignation, provided the defection has happened prior to the
    date of resignation.
  77. In light of the above, resignation and disqualification are distinct
    mechanisms provided under the law which result in vacancy.
    Further, the factum/manner of resignation may be a relevant
    consideration while deciding the disqualification petition. We do
    not agree with the submission of the Petitioners that the
    disqualification proceedings cannot be continued if the
    resignations are tendered. Even if the resignation is tendered,
    the act resulting in disqualification arising prior to the
    resignation does not come to an end. The pending or impending
    disqualification action in the present case would not have been
    impacted by the submission of the resignation letter, considering
    the fact that the act of disqualification in this case have arisen
    prior to the members resigning from the Assembly.
    G. VALIDITY OF DISQUALIFICATION ORDER
  78. 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
    50
    have voluntarily given up membership of the party, through
    their undisputed conduct.
  79. To examine the above contention, we need to refer to the scheme
    of Tenth Schedule and other provisions of the Constitution.
    There is no dispute that in India, since the framing of the
    Constitution, there was a constant demand for formulating a law
    on defection. It may be noted that India was one of the first
    countries to legislate on an Anti­Defection Law. Following the
    example of India, many other countries including Israel, Canada
    etc. have followed suit.
  80. Relevant provisions of Paragraph 2 of the Tenth Schedule
    provide that:
    “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 authorised by it
    in this behalf, without obtaining, in either
    51
    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.”
    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.
  81. 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.
  82. 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 Legislative Council and Legislative Assembly
    52
    or where only one such Legislative House is there, then a
    Legislative Assembly. Under Article 172 of the Constitution every
    Legislative Assembly unless sooner dissolved shall continue for
    five years from the date appointed for its first meeting. In order
    to secure the membership of the State Legislature, such
    members must comply and conform to three distinct
    qualifications enlisted under Article 173.
  83. Article 190(3) of the Constitution provides that the seat
    belonging to a member of the Legislative Assembly becomes
    vacant if such a member becomes subject to any disqualification
    as mentioned in clause (1) or (2) of Article 191 of the
    Constitution, or he resigns his seat by writing under his hand
    addressed to the Speaker, and his resignation is accepted by the
    Speaker in terms of the proviso to Article 190(3) of the
    Constitution.
  84. Article 191 provides for disqualification of a membership which
    may be reduced as under:
    “191. Disqualifications for membership.—
    (1) A person shall be disqualified for being
    chosen as, and for being, a member of the
    Legislative Assembly or Legislative Council
    of a State—
    53
    (a) if he holds any office of profit under the
    Government of India or the Government of
    any State specified in the First Schedule,
    other than an office declared by the
    Legislature of the State by law not to
    disqualify its holder;
    (b) if he is of unsound mind and stands so
    declared by a competent court;
    (c) if he is an undischarged insolvent;
    (d) if he is not a citizen of India, or has
    voluntarily acquired the citizenship of a
    foreign State, or is under any
    acknowledgment of allegiance or adherence
    to a foreign State;
    (e) if he is so disqualified by or under any
    law made by Parliament.
    Explanation.—For the purposes of this
    clause, a person shall not be deemed to hold
    an office of profit under the Government of
    India or the Government of any State
    specified in the First Schedule by reason
    only that he is a Minister either for the
    Union or for such State.
    (2) A person shall be disqualified for being a
    member of the Legislative Assembly or
    Legislative Council of a State if he is so
    disqualified under the Tenth Schedule.”
  85. It is interesting to note that Article 191(1) of the Constitution
    provides for disqualification of a person (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
    54
    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.
  86. 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
    relatable to disqualification as provided under Articles 102(2)
    and 191(2) of the Constitution.
  87. At this point we need to observe Article 164 (1B) and 361B of the
    Constitution. Article 164(1B) of the Constitution reads as under:
    55
    “164. Other provisions as to Members

    (1B). A member of the Legislative Assembly
    of a State or either House of the Legislature
    of a State having Legislative Council
    belonging to any political party who is
    disqualified for being a member of that
    House under paragraph 2 of the Tenth
    Schedule shall also be disqualified to be
    appointed as a Minister under clause (1) for
    duration of the period commencing from the
    date of his disqualification till the date on
    which the term of his office as such
    member would expire or where he
    contests any election to the Legislative
    Assembly of a State or either House of
    the Legislature of a State having
    Legislative Council, as the case may be,
    before the expiry of such period, till the
    date on which he is declared elected,
    whichever is earlier.”
    Article 361B of the Constitution reads as under:
    “361B. Disqualification for appointment
    on remunerative political post.­
    A member of a house belonging to any
    political party who is disqualified for being a
    member of the House under paragraph 2 of
    the Tenth Schedule shall also be disqualified
    to hold any remunerative political post for
    duration of the period commencing from
    the date of his disqualification till the
    date on which the term of his office as
    such member would expire or till the date
    on which he contests an election to a
    56
    House and is declared elected, whichever
    is earlier.”
    (emphasis supplied)
    From a perusal of the above provisions, it is clear that the
    disqualification of a member, apart from the political taint,
    results in two further restrictions as a means of punitive actions
    against the members disqualified under the Tenth Schedule.
  88. Having understood the meaning and ambit of disqualification,
    we now need to concern ourselves with the extent of judicial
    review of the order of the Speaker passed under the Tenth
    Schedule.
  89. Paragraph 6 of the Tenth Schedule has an important bearing
    upon extent of the judicial review in case of disqualification, and
    the same is reproduced as under:
    “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
    57
    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 sub­paragraph (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 decision of the Speaker on
    disqualification under the Tenth Schedule is final.
  90. However, the finality which is attached to the order of Speaker
    cannot be meant to take away the power of this Court to review
    the same. In the Kihoto Hollohan case (supra) this Court
    recognized the Speaker’s role as a tribunal and allowed judicial
    review of the orders of the same on the grounds provided
    therein. The Speaker, being a constitutional functionary, is
    generally presumed to have adjudicated with highest traditions
    58
    of constitutionalism. In view of the same, a limited review was
    allowed for the courts to adjudicate upon the orders passed by
    the Speaker under the Tenth Schedule. Here, we need to
    appreciate the difference in the meaning of the terms ‘final’ and
    ‘conclusive’, in the context that the order of the Speaker is final
    but not conclusive and the same is amenable to judicial review.
  91. Now we come to the principles that have been evolved by Courts
    in deciding a challenge to the order passed by Speaker in
    exercise of his powers under the Tenth Schedule of the
    Constitution. In the Kihoto Hollohan case (supra) this Court,
    while upholding the constitutionality of the Tenth Schedule of
    the Constitution, held that the finality clause under paragraph
    6(2) of the Tenth Schedule limits the scope of judicial review
    available to an aggrieved person to certain limited grounds. This
    Court, in this context, held that:
    “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
    only viz., infirmities based on violation
    of constitutional mandate, mala fides,
    59
    non­compliance with rules of natural
    justice and perversity.”
    (emphasis supplied)
  92. The Petitioners contend that the principles of natural justice
    were breached when the Speaker provided for a three­days’
    notice, in derogation of Rule 7(3)(b) of the Karnataka Legislative
    Assembly (Disqualification of Members on Ground of Defection)
    Rules, 1986, wherein a seven­day period is prescribed. On the
    contrary, the Respondents have emphatically stressed on the
    fact that there was adequate opportunity given to the
    disqualified members to make out their case before the Speaker.
  93. 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….”
    60
    (emphasis supplied)
  94. 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 quasi­judicial functions passed
    in violation of the principles of natural
    justice is procedurally ultra vires and,
    therefore, suffers from a jurisdictional
    error. That is the reason why in spite of the
    finality imparted to the decision of the
    Speakers/Chairmen by paragraph 6(1) of
    the Tenth Schedule such a decision is
    subject to judicial review on the ground of
    non­compliance with rules of natural
    justice. But while applying the principles
    of natural justice, it must be borne in
    mind that “they are not immutable but
    flexible” and they are not cast in a rigid
    mould and they cannot be put in a legal
    straitjacket. Whether the requirements of
    natural justice have been complied with
    or not has to be considered in the
    context of the facts and circumstances of
    a particular case.”
    (emphasis supplied)
    61
  95. At this point, the Petitioners have placed reliance on the case of
    Balachandra L. Jarkhiholi v. B. S. Yeddyurappa, (2011) 7
    SCC 1 and argued that in that case, this Court had struck down
    the disqualification order solely on the basis of the fact that only
    three days’ notice was given to the members. However, it is
    relevant to point out here, that in the Ravi S. Naik case (supra),
    a disqualification order wherein the Speaker had granted two
    days’ notice to the members was upheld. The question,
    therefore, is not the number of days that were given by the
    Speaker for answering the show­cause notice, rather to see
    whether an effective opportunity of hearing was provided. This
    brings us back to the point already reiterated that the principle
    of natural justice is not a straitjacket formula.
  96. In this context, this aspect needs to be adjudicated in the
    individual facts and circumstances having regard to the fact as
    to whether the members received notice of hearing, the reason
    for their absence and their representation before the Speaker.
    Therefore, we will deal with the individual cases later, having
    regard to the law laid down. [Refer to Chapter J]
    62
  97. The second contention raised by some of the Petitioners is that
    the order of the Speaker was passed in violation of the
    constitutional mandate. We are of the considered view that such
    contention cannot be sustained.
  98. The phrase “violation of constitutional mandate” speaks for itself
    and does not need much elaboration. A “constitutional mandate”
    can be understood as what is required under, or by, the
    Constitution. For instance, in the Raja Ram Pal v. Hon’ble
    Speaker, Lok Sabha, (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 vis­à­vis 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
    63
    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 required of the Speaker. A “violation of
    constitutional mandate” is merely an unconstitutional act of the
    Speaker, one that cannot be defended on the touchstone of the
    Tenth Schedule and the powers or duties of the Speaker therein
    and is in contravention or violation of the same.
  99. On the point of violation of constitutional mandate, although we
    are of the opinion that there was an error committed by the
    Speaker in deciding the disqualification petitions, the same does
    not rise to a level which requires us to quash the disqualification
    orders in their entirety. The specific error which we have
    identified relates to the period of disqualification imposed by the
    Speaker in the impugned orders. However, this error is
    severable, and does not go to the root of the disqualification, and
    thus does not require us to quash the disqualification orders in
    toto. Our findings on this issue highlighted above are dealt with
    in separate section of this judgment, for the sake of clarity.
    64
  100. The third contention of the Petitioners is that the orders of the
    Speaker were passed with malafides, and therefore, the same
    needs to be quashed. While there is no gainsaying that the
    ground of malafides is available to an individual challenging the
    order of the Speaker, the onus of proof regarding the same is on
    the one who challenges the said action and has a very heavy
    burden to discharge. [See E. P. Royappa v. State of Tamil
    Nadu, (1974) 4 SCC 3; Raja Ram Pal case (supra); SubCommittee on Judicial Accountability v. Union of India,
    (1991) 4 SCC 699]. In the present case, although the Petitioners
    claimed that the Speaker acted malafide, they have neither
    made any specific allegation, nor can it be said that they have
    discharged the heavy burden that is required to prove that the
    ground of malafide is made out.
  101. The Petitioners have contended that the order of the Speaker is
    perverse; however, they are not able to specifically point out any
    such instance. “Perversity” has been understood by this Court in
    a catena of judgments as relating to a situation where the
    findings assailed before it have been arrived at on the basis of no
    65
    evidence, or thoroughly unreliable evidence, and no reasonable
    person would act upon it.
  102. Although, the learned Senior Counsel Dr. Rajeev Dhavan
    contended that the “some material” test needs to be applied to
    determine perversity. However, we are not expressing any
    opinion on this issue as in the earlier case of Mayawati v.
    Markandeya Chand, (1998) 7 SCC 517, a three­Judge 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.
    66
  103. 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 natural for Members to
    accept the opinion of their Leaders and
    Spokesmen on the wide variety of
    matters on which those Members have no
    specialist knowledge. Generally Members
    will accept majority decisions in the party
    even when they disagree. It is
    understandable therefore that a Member
    who rejects the party whip even on a single
    occasion will attract attention and more
    criticism than sympathy. To abstain from
    voting when required by party to vote is
    to suggest a degree of unreliability. To
    vote against party is disloyalty. To join
    with others in abstention or voting with
    the other side of conspiracy.”
    (emphasis supplied)
  104. There is no gainsaying that the scope of judicial review is limited
    to only grounds elaborated under the Kihoto Hollohan case
    (supra). In this regard, the Petitioners have not been able to
    establish any illegality in the orders passed by the Speaker. The
    Speaker, in our view, had concluded based on material and
    evidence that the members have voluntarily given up their
    67
    membership of the party, thereby accruing disqualification in
    terms of the Tenth Schedule, which facts cannot be reviewed
    and evaluated by this Court in these writ petitions. So, we have
    to accept the orders of the Speaker to the extent of
    disqualification.
    H.POWER OF THE SPEAKER TO DIRECT
    DISQUALIFICATION TILL THE EXPIRY OF THE TERM
  105. The Petitioners have submitted that the Speaker, through the
    disqualification orders, has prohibited them from contesting
    elections and becoming members of the House for the remaining
    duration of the 15th Legislative Assembly of Karnataka.
  106. The impugned disqualification orders not only disqualify the
    Petitioners, but also indicated the time period for which they
    would be disqualified, viz., from the date of the order till the
    expiry of the term of the 15th Legislative Assembly of Karnataka.
  107. Learned counsel for the Petitioners have specifically challenged
    this finding by asserting that the Speaker did not have the
    jurisdiction. They contended that the Speaker’s orders have the
    effect of disqualifying them from contesting elections and “being
    68
    chosen” as members. Learned Senior Counsel asserted that the
    Constitutional provisions, particularly Articles 361B and
    164(1B) of the Constitution, clarify that the disqualification of a
    member under the Tenth Schedule does not bar him from
    contesting elections, and on a member being re­elected the bar
    under the two Articles comes to an end.
  108. 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 anti­party 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 anti­defection
    69
    law would be a toothless law and that constitutional morality
    requires such interpretation.
  109. Mr. Rakesh Dwivedi, learned Senior Counsel appearing for the
    Election Commission of India submitted that as a matter of
    practice, the Election Commission has always allowed a person
    disqualified under the Tenth Schedule to participate in the next
    election. The learned Senior Counsel substantiated his position
    by indicating from the provisions of the Tenth Schedule of the
    Constitution that the Speaker has only been given a limited
    jurisdiction therein, that is, to decide on the question of
    disqualification. The consequences of the same, however, are
    separately provided for under the Constitution, and the Speaker
    does not have the power to decide the same. The learned Senior
    Counsel also took us through the phrasing of Article 191 of the
    Constitution, which provides for disqualification, and Section 36
    of the Representation of the People Act, 1951 to indicate that
    disqualification under the Tenth Schedule is not included in the
    Representation of the People Act, 1951 as a ground for rejecting
    the nomination of a candidate. Finally, the learned Senior
    Counsel submitted that barring someone from contesting
    elections is a very serious penal power which cannot be resorted
    70
    to by the Speaker in absence of an express and specific
    provision of law.
  110. The crucial question which arises is whether the power of the
    Speaker extends to specifically disqualifying the members till the
    end of the term?
  111. The Tenth Schedule of the Constitution while dealing with
    disqualification on account of defection, does not specify the
    consequences or period of such disqualification. In fact, the
    vacancy which results from the disqualification is provided
    under Article 190(3) of the Constitution. The scope of the
    Speaker’s powers on disqualification requires us to examine the
    other provisions of the Constitution and relevant statutory
    provisions.
  112. Article 191 of the Constitution provides for disqualification from
    the membership of the Legislative Assembly or Legislative
    Council of a State generally. Article 191(1) of the Constitution is
    a general provision providing for the disqualification from the
    membership of the Legislative Assembly or the Legislative
    Council of a State on the grounds mentioned therein. Article
    191(2) of the Constitution specifically provides that a person
    disqualified under the Tenth Schedule is disqualified for being a
    71
    member. It is relevant to note that Article 191(2) of the
    Constitution, like the Tenth Schedule, does not provide that the
    “disqualification” is to operate for a particular period or
    duration.
  113. 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
    72
    a person who is no longer a member due to disqualification
    under the Tenth Schedule of the Constitution does not suffer
    from the additional infirmity of not being allowed to become a
    member subsequently. Therefore, such a person is not barred
    from contesting elections.
  114. This interpretation is further supported by the language
    employed in Section 36(2) of the Representation of the People
    Act, 1951, which provides for when a returning officer may reject
    the nomination of a candidate. Section 36(2)(a), of the
    Representation of the People Act, 1951 states that the
    nomination may be rejected if a candidate is disqualified “for
    being chosen” to fill the seat under Article 191 of the
    Constitution, echoing the language employed in Article 191(1),
    and not Article 191(2) of the Constitution.
  115. Apart from the above, Articles 164(1B) and 361B of the
    Constitution, which were inserted by the 91st Constitutional
    Amendment, also show that disqualification under the Tenth
    Schedule does not bar a person from contesting elections. Both
    the above constitutional provisions specifically indicate the outer
    period for which the consequences indicated therein would
    extend, which is, either till the end of the term or till the
    73
    disqualified member is elected, whichever is earlier. The fact that
    the phrase “whichever is earlier” is used in both these
    provisions, indicates that the Constitution contemplates a
    situation where an election takes place prior to the end of the
    term of the House. Further, the term “election” as used in the
    above provisions has not been constrained by any other word,
    which strengthens the view that a member who has been
    disqualified under the Tenth Schedule is not barred from
    contesting elections.
  116. Parliament by way of an enactment under Article 191(1)(e) read
    with Entry 72 of the Union List in the Seventh Schedule can
    make a law providing for disqualifications of persons from
    contesting elections. It is in exercise of this power that the
    Parliament enacted The Representation of the People Act, 1951.
    The Preamble to the aforementioned Act makes it evident that it
    was enacted for the purpose of “providing qualifications and
    disqualifications for membership” to the Houses of Legislature.
    “An Act to provide for the conduct of
    elections to the Houses of Parliament and to
    the House or Houses of the Legislature of
    each State, the qualifications and
    disqualifications for membership of
    those Houses, the corrupt practices and
    other offences at or in connection with such
    74
    elections and the decision of doubts and
    disputes arising out of or in connection with
    such elections.”
    (emphasis supplied)
  117. 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.
  118. 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 re­elections. The language of clauses (1) and
    75
    (2) of Article 191, Articles 164(1B) and 361B are contrary to the
    contention of the Respondents.
  119. Given this position, we conclude 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.
  120. It is necessary for us to look at the submission of the learned
    Senior Counsel, Mr. Kapil Sibal, that the Speaker can still be
    said to have inherent powers which allows him to pass
    restrictions like the one impugned herein. On this point, the
    counsel for the Petitioners argued that such a broad inherent
    power does not exist with the Speaker. He contended that even
    for granting leave of absence, the Speaker is required to present
    the same before the Legislative Assembly, which needs to accept
    the leave application before leave of absence is actually granted.
  121. We are unable to agree with the contention of the learned Senior
    Counsel, Mr. Kapil Sibal, that the power of the Speaker to bar a
    disqualified member from contesting re­election is inherent to
    his role and is required to be read into the Constitution to
    prevent the Speaker from becoming toothless. When the express
    76
    provisions of the Constitution provide for a specific eventuality,
    it is not appropriate to read an “inherent” power to confer
    additional penal consequences. To do so, and accept the
    contention of the respondents, would be against the express
    provisions of the Constitution.
  122. This Court has repeatedly held that a person cannot be barred
    from contesting elections if he is otherwise qualified to contest
    the same. This legal position is vividly illustrated by the
    Constitution Bench ruling in G. Narayanaswami v. G.
    Pannerselvam, (1972) 3 SCC 717. In dealing with the question
    as to whether a non­graduate was qualified to be a candidate for
    the graduate constituency for the Legislative Council, when such
    a requirement was not prescribed either by the Constitution or
    the Parliament, this Court reversed the judgment of the Madras
    High Court which required the candidate to be a graduate. This
    Court held that when the law does not require such a
    qualification, it cannot be imposed by the Courts, and observed
    that:
    “20. We think that the language as well as
    the legislative history of Articles 171 and
    173 of the Constitution and Section 6 of the
    Representation of People Act, 1951, enable
    77
    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
    Constitution­makers, 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)
  123. Similarly in the case of N.S. Vardachari v. G. Vasantha Pai,
    (1972) 2 SCC 594, a three­judge bench of this Court reiterated
    the above position, and held that once a candidate possesses the
    qualifications and is not subject to any of the disqualifications
    specified in the law, he is qualified to be a candidate and any
    other consideration becomes irrelevant. The Court held that:
    “18. The Representation of the People Act,
    1950 prescribes qualifications for being
    enrolled as an elector. Sections 8 to 10­A of
    78
    the Act set out the grounds which disqualify a
    person from being a candidate. If a person
    possesses all the qualifications prescribed in
    the Constitution as well as in the Act and has
    not incurred any of the disqualifications
    mentioned therein then he is qualified to be a
    candidate. It may look anomalous that a nongraduate should be a candidate in a
    Graduates’ constituency. But if a candidate
    possesses the qualifications prescribed and
    has not incurred any of the
    disqualifications mentioned in the
    Constitution or in the Act other
    consideration becomes irrelevant. That is
    the ratio of the decision of this Court
    in Narayanaswamy case.”
    (emphasis supplied)
  124. It is clear that nothing can be added to the grounds of
    disqualification based on convenience, equity, logic or perceived
    political intentions.
  125. It is the contention of the Respondents that the Court should
    consider desirability of having a stricter model of disqualification
    wherein a person who has jumped the party lines should not be
    encouraged and should be punished with severe penal
    consequences for attempting to do so. Further, learned Senior
    Counsel, Mr. Kapil Sibal, has termed the actions of the
    Petitioners as a constitutional sin.
    79
  126. We do not subscribe to such an extreme stand taken by the
    learned Senior Counsel, considering the fact that such extreme
    stand could have a chilling effect on legitimate dissent. In any
    case, such a change in the policy cannot be looked into by this
    Court, as the same squarely falls within the legislative forte. Any
    attempt to interfere is better termed as reconstruction, which
    falls beyond the scope of legal interpretation by the Courts. [refer
    to G. Narayanaswami case (supra)]
  127. It is clear that the power to prescribe qualifications and
    disqualifications for membership to the State Legislature must
    be specifically provided for under the Constitution or by the
    Parliament by enacting a law. Since neither the Constitution nor
    any Act provides for defection to another party as a bar from
    contesting further elections, 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
    80
    case of expulsion, the expelled candidate is not barred from
    contesting re­election.
  128. 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 Swiss­French
    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. Yet there are
    circumstances in 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 constituted powers in
    the improvement of what is done and the
    completion of what is still to be done.”
    (emphasis supplied)
  129. The contention of the Respondents that the political exigencies
    required such measures to be taken needs to be rejected. The
    Constitutional silences cannot be used to introduce changes of
    such nature.
  130. In Kihoto Hollohan (supra), this Court observed:
    81
  131. The learned author, referring to cases in
    which an elected Member is seriously
    unrepresentative of the general constituency
    opinion, or whose personal behaviour falls
    below standards acceptable to his constituents
    commends that what is needed is some
    additional device to ensure that a Member
    pays heed to constituents’ views. Brazier
    speaks of the efficacy of the device where the
    constituency can recall its representative.
    Brazier says: [Ibid. at 52, 53]
    “What sort of conduct might attract the
    operation of the recall power? First, a
    Member might have misused his
    Membership of the House, for example
    to further his personal financial
    interests in a manner offensive to his
    constituents. They might consider
    that the action taken against him by
    the House (or, indeed, lack of action)
    was inadequate …. Thirdly, the use
    of a recall power might be
    particularly apt when a Member
    changed his party but declined to
    resign his seat and fight an
    immediate by­election. It is not
    unreasonable to expect a Member
    who crosses the floor of the House,
    or who joins a new party, to
    resubmit himself quickly to the
    electors who had returned him in
    different colours. Of course, in all
    those three areas of controversial
    conduct the ordinary process of
    reselection might well result in the
    Member being dropped as his party’s
    candidate (and obviously would
    definitely have that result in the third
    case). But that could only occur when
    82
    the time for reselection came; and in
    any event the constituency would still
    have the Member representing them
    until the next general election. A
    cleaner and more timely parting of
    the ways would be preferable.
    Sometimes a suspended sentence
    does not meet the case.”
  132. Indeed, in a sense an anti­defection law
    is a statutory variant of its moral principle
    and justification underlying the power of
    recall. What might justify a provision for
    recall would justify a provision for
    disqualification for defection. Unprincipled
    defection is a political and social evil…
    (emphasis supplied)
  133. 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]
    83
  134. 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.
  135. Before parting, having ascertained the ambit of the Speaker’s
    power, the only regret this bench has, is with respect to the
    conduct and the manner in which all the constitutional
    functionaries have acted in the current scenario. Being a
    constitutional functionary, the Constitution requires them and
    their actions to uphold constitutionalism and constitutional
    morality. In this regard, a functionary is expected to not be
    vacillated by the prevailing political morality and pressures. In
    order to uphold the Constitution, we need to have men and
    women who will make a good Constitution such as ours, better.
    In this regard, Dr. Ambedkar on 25.11.1949 stated that:
    … ‘As much defence as could be offered to
    the Constitution has been offered by my
    friends Sir Alladi Krishnaswami Ayyar and
    84
    Mr T.T. Krishnamachari. I shall not
    therefore enter into the merits of the
    Constitution. Because I feel, however good
    a Constitution may be, it is sure to turn
    out bad because those who are called to
    work it, happen to be a bad lot. However
    bad a Constitution may be, it may turn
    out to be good if those who are called to
    work it, happen to be a good lot. The
    working of a Constitution does not depend
    wholly upon the nature of the Constitution.
    The Constitution can provide only the
    organs of State such as the Legislature, the
    Executive and the Judiciary. The factors
    on which the working of those organs of
    the State depend are the people and the
    political parties they will set up as their
    instruments to carry out their wishes and
    their politics. Who can say how the people
    of India and their parties will behave? Will
    they uphold constitutional methods of
    achieving their purposes or will they prefer
    revolutionary methods of achieving them? If
    they adopt the revolutionary methods,
    however good the Constitution may be, it
    requires no prophet to say that it will fail. It
    is, therefore, futile to pass any judgment
    upon the Constitution without reference to
    the part which the people and their parties
    are likely to play.’
    (emphasis supplied)
  136. Dr. Rajendra Prasad reiterated the same on 26.11.1949, in the
    following words:
    … ‘Whatever the Constitution may or
    may not provide, the welfare of the
    country will depend upon the way in
    85
    which the country is administered. That
    will depend upon the men who
    administer it. It is a trite saying that a
    country can have only the Government it
    deserves. Our Constitution has provisions
    in it which appear 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)
  137. 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.
    86
  138. In the end we need to note 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.
  139. In any case, there is a growing trend of Speakers acting against
    the constitutional duty of being neutral. Additionally, political
    parties are indulging in horse trading and corrupt practices, due
    to which the citizens are denied of stable governments. In these
    circumstances, the Parliament is required to re­consider
    strengthening certain aspects of the Tenth Schedule, so that
    such undemocratic practices are discouraged.
    I. REFERENCE TO CONSTITUTION BENCH
  140. Mr. Kapil Sibal, learned Senior Counsel, has contended that the
    matters herein involve substantial questions of law, which
    require a reference to a larger bench. To support his argument,
    87
    he has referred to Article 145 (3) of the Constitution to state that
    this Court is mandated under law to refer the matters to a larger
    bench since a substantial question of law concerning the
    interpretation of the Constitution has arisen in the instant case.
  141. At this juncture, it may be beneficial to quote Article 145(3) of
    the Constitution:
    “145. Rules of Court, etc.­

    (3)The minimum number of Judges who are
    to sit for the purpose of deciding any case
    involving a substantial question of law as to
    the interpretation of this Constitution or for
    the purpose of hearing any reference under
    Article 143 shall be five:
    Provided that, where the Court hearing an
    appeal under any of the provisions of this
    Chapter other than Article 132 consists of
    less than five Judges and in the course of
    the hearing of the appeal the Court is
    satisfied that the appeal involves a
    substantial question of law as to the
    interpretation of this Constitution the
    determination of which is necessary for the
    disposal of the appeal, such Court shall
    refer the question for opinion to a Court
    constituted as required by this clause for
    the purpose of deciding any case involving
    such a question and shall on receipt of the
    opinion dispose of the appeal in conformity
    with such opinion.”
    88
  142. 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.
  143. 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 for the disposal
    of the case.
    89
  144. We may state that we are not persuaded for referring the present
    case to a larger bench as the mandate of the aforesaid Article is
    that this 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.
  145. Any question of law of general importance arising incidentally, or
    any ancillary question of law having no significance to the final
    outcome, cannot be considered as a substantial question of law.
    The existence of 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. The cardinal
    need is to achieve a judicial balance between the crucial
    90
    obligation to render justice and the compelling necessity of
    avoiding prolongation of any lis.
  146. Similar questions for reference to a larger bench had arisen in
    the case of Abdul Rahim Ismail C. Rahimtoola v. State of
    Bombay, AIR 1959 SC 1315, wherein this Court rejected the
    reference as the questions sought to be referred were already
    settled by an earlier five judge bench. Likewise, this Court in the
    case of Bhagwan Swarup Lal Bishan Lal v. State of
    Maharashtra, AIR 1965 SC 682, held 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. The same is provided
    hereunder:
    “11… Learned counsel suggests that the
    question raised involves the interpretation
    of a provision of the Constitution and
    therefore the appeal of this accused will
    have to be referred to a Bench consisting of
    not less than 5 Judges. Under Article 145(3)
    of the Constitution only a case involving a
    substantial question of law as to the
    interpretation of the Constitution shall be
    heard by a bench comprising not less than
    5 Judges. This Court held in State of
    Jammu and Kashmir v. Thakur Ganga
    Singh, AIR 1960 SC 356 that a substantial
    question of interpretation of a provision
    91
    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.
  147. 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 Rana
    case (supra). These decisions form the authoritative framework
    for understanding the Tenth Schedule and have been followed in
    92
    a number of subsequent judgments and do not require
    reconsideration.
  148. At the cost of repetition, we may note that the ambit of this
    Court’s jurisdiction under Article 32 of the Constitution is well
    settled, which does not merit any further reference in this
    regard. The Respondents have contended that the
    disqualification issue cannot be dealt under the writ jurisdiction,
    however, we have already pointed out that there is no bar for
    this Court to deal with the same as portrayed by various
    precedents cited above.
  149. The case mostly turns on the fact that there is ample evidence to
    portray that the defection of these Petitioners had occurred even
    before they resigned. In the impugned orders, the Speaker has
    made out a case that the acts of the Petitioners indicated
    “voluntary giving up of membership”. Therefore, the question as
    to the jurisdiction of the Speaker to deal with disqualification
    after the members have tendered the resignation does not arise,
    stricto sensu. In view of the aforesaid factual scenario, there is
    no requirement to deal with the questions of law raised by the
    Respondents.
    93
  150. Further, the power of the Speaker to disqualify has been
    interpreted in a number of cases, and the present case does not
    require any broad­based reference which would only prolong the
    inevitable. Such casual and cavalier references should not be
    undertaken by this Court in view of conditions prescribed under
    Article 145(3) of the Constitution, which mandates a
    responsibility upon this Court not to indulge in excessive
    academic endeavors and preserve precious judicial time, and
    effectively dispense justice in a timely fashion.
  151. The last aspect, which relates to the power of the Speaker to
    disqualify the members till the end of the term, has already been
    dealt with extensively. At the cost of repetition, we may only
    point out that the Respondents’ contention that a bar exists on
    the members till the end of the term, falls within the domain of
    the legislature. Therefore, we do not see any merit in referring
    the aforesaid case to a larger bench. [Refer to Public Interest
    Foundation v. Union of India, (2019) 3 SCC 224]
  152. In view of the aforesaid discussion, we decline to refer the case
    to a larger bench considering that there is no substantial
    question of constitutional interpretation that arises in this case.
    94
    J. INDIVIDUAL CASES
    W.P. (C) NO. 992 OF 2019
  153. 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.
  154. 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 reasons had contacted his doctor friend
    95
    and accordingly proceeded to Mumbai where he was admitted. It
    also records that the petitioner had attended the Assembly
    sessions on 12.07.2019 and 15.07.2019 but thereafter had
    abstained from attending the session on 22.07.2019 for which
    whip had been issued on 20.07.2019. It was also admitted that
    no formal leave was granted to the Petitioner. The Speaker had
    earlier rejected the leave of absence tendered by the Petitioner as
    the documents issued by the private hospital did not inspire
    confidence. Pertinently, the petitioner’s letter dated 19.07.2019
    written to the Speaker was not countersigned by any doctors of
    the Hospital.
  155. It is further recorded that the petitioner had not attended the
    Assembly sessions on 18.07.2019, 19.07.2019, 22.07.2019 and
    23.07.2019. So, the petitioner was aware that the motion
    seeking the vote of confidence was on the floor of the Karnataka
    Legislative Assembly. The petitioner accepts that he had sent
    letter dated 23.07.2019, which refers to the disqualification
    petition. The petitioner herein was clearly aware of the
    disqualification proceedings.
  156. The objections filed to the writ petition also refer to the fact that
    the INC, to test the loyalty of its Members, in view of the pending
    96
    trust vote, had categorically informed the party members not to
    absent themselves from the proceedings of the Assembly, failing
    which action under the Tenth Schedule would be taken.
  157. We do not think that the order of the Speaker suffers from
    perversity. Even the petitioner has not submitted material to
    controvert the findings recorded by the Speaker in the impugned
    order. With regard to the assertion that there was violation of
    principles of natural justice would not also stand in view of the
    fact that the Speaker has taken a holistic view and gave sound
    reasons to disqualify the petitioner after providing him sufficient
    opportunity to defend himself. Alleged violation of principles of
    natural justice also do not carry any weight in view of the factual
    background of the case read in light of the fact that trust vote
    had to be voted upon.
    W. P. (C) NO. 997 OF 2019
  158. The Petitioners were elected to the 15th Karnataka Legislative
    Assembly on the INC ticket. On 19.01.2019, show­cause notices
    were issued to the Petitioners by INC for having failed to attend
    the party meeting on 18.01.2019, to which explanation was
    97
    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 ill­health.
    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 Petitioners
    were thereupon given notice to appear before the Speaker on
    11.07.2019 in connection with the disqualification petition.
    98
  159. The Speaker in the impugned order has taken note of the
    surrounding circumstances, including the conduct of the
    Petitioners from February 2019 onwards. It ought to be noted
    that sufficient opportunity of hearing was accorded to the
    Petitioners herein who had also filed their responses. It ought to
    be noted that, vide notice dated 16.01.2019, a meeting of the
    INC legislative party was called for 18.01.2019. The notice stated
    that the members must compulsorily attend the meeting
    otherwise action would be taken against them under the Tenth
    Schedule. The Petitioners did not attend the party meeting on
    18.01.2019. Admittedly, the Petitioners also refrained from
    attending the subsequent general body meeting dated
    06.02.2019 as well as Assembly Sessions from 06.02.2019. The
    resignations were submitted by the Petitioners nearly four
    months after the Disqualification Petition had already been filed.
  160. One of the contentions raised by the Petitioners is predicated on
    the order of the Speaker in the case of Dr. Umesh Yadav who
    was also named and served with the disqualification petition
    filed on 11.02.2019. Dr. Umesh Yadav had tendered his
    resignation on 04.03.2019, which was accepted by the Speaker
    99
    on 01.04.2019. Therefore, the Petitioners claim parity and equal
    treatment. The contention deserves to be rejected as the Speaker
    has given detailed reasons to why he was not bound by the case
    of Dr. Umesh Yadav’s resignation.
  161. As observed earlier, the Speaker had sufficient material before
    him to pass the order of disqualification. There exist no
    infirmities in the order, which calls for our indulgence and
    interference.
    W.P. (C) NOS. 998, 1000, 1001, 1005, 1006 AND 1007 OF
    2019
  162. The three Petitioners in Writ Petition (C) No. 1005 of 2019 were
    members of the JD(S), against whom a separate Disqualification
    Petition No. 5 of 2019 was moved. The Speaker passed a
    separate impugned order dated 28.07.2019 against these
    Petitioners.
  163. Petitioners in Writ Petition (C) Nos. 998, 1000, 1001, 1006 and
    1007 of 2019 were all members of the INC, against whom
    Disqualification Petition Nos. 3 and 4 of 2019 were moved. A
    common order dated 28.07.2019, disqualifying the 10
    Petitioners, was passed by the Speaker.
    100
  164. Both 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 expects
    and is optimistic that the Trust Vote would
    101
    be taken up by the House in the Course of
    the day, perhaps later in the evening. We,
    therefore, adjourn the matter till tomorrow.
  165. In this regard, it was imperative for the Speaker to pass orders
    in view of the urgency indicated by this Court. In these facts and
    circumstances, the reasonable opportunity of hearing needs to
    be assessed.
  166. A notice of three days with an opportunity for hearing would
    have been sufficient in the facts and circumstances of this case,
    when viewed in light of the decision in the Ravi S Naik case
    (supra). In this regard, our attention was drawn to the fact that
    notices were sent to their emails, and their permanent addresses
    within their constituency. In view of the unique facts, it cannot
    be said that an opportunity was not provided to the Petitioners
    to appear before the Speaker.
  167. It is altogether a different matter that the aforesaid Petitioners
    were in Mumbai even though they were aware of the notice, and
    some of them did not even bother to be represented before the
    Speaker. In this light, we cannot say that effective opportunity
    was not granted to the Petitioners. Consequently, it cannot be
    102
    said as well that there has been a violation of principles of
    natural justice as against the aforesaid Petitioners.
    W.P. (C) NO. 1003 OF 2019
  168. The Petitioner (R. Shankar) claims that he is the sole elected
    member of the House belonging to KPJP. As per the Petitioner,
    KPJP had not merged with INC and consequently whip issued by
    the INC on 11.07.2019 was not binding on the Petitioner. As a
    result, the Petitioner had not incurred any disqualification under
    the Tenth Schedule of the Constitution.
  169. The Petitioner, however, accepts that he had addressed a letter
    dated 14.06.2019 to the Speaker that he was the only legislator
    elected under the KPJP ticket and he had agreed to merge his
    party with the INC. The Petitioner had relied upon paragraph
    4(2) of the Tenth Schedule stating that since he is the sole
    elected member of his party there is a deemed merger under the
    Tenth Schedule.
  170. The Petitioner, however, claims that the said letter dated
    14.06.2019 was not accepted by the Speaker and, therefore,
    would be inconsequential. He relied upon the letter dated
    17.06.2019 written by the Speaker requiring him to file on
    record resolution of merger passed by KPJP, and to furnish
    103
    documents as per legal requirements. It was further stated that
    is stated that no such document was filed.
  171. 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.
  172. 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 giving letter dated 14.06.2019,
    had even become a Minister in the Government then in power.
    104
    Pertinently, the Petitioner does not deny the letter dated
    14.06.2019 and the fact that he had become a Minister. The
    impugned order passed by the Speaker further records that on
    25.06.2019 a direction had been issued by the Speaker to the
    Secretary, Karnataka Legislative Assembly, to treat the
    Petitioner as a member of the INC and allot him a seat in the
    forthcoming session. Further, on 08.07.2019, the Petitioner had
    addressed a letter to the then Chief Minister tendering his
    resignation from the Council of Ministers of which he was a part,
    with a request that his resignation be accepted. This resignation
    was also personally given to the Governor. On 12.07.2019, the
    Petitioner had addressed a letter to the Speaker about
    withdrawing support to the Government and had requested that
    he be allotted a seat on the floor in the opposite benches. These
    aspects have been highlighted in the impugned order, which
    show that the contention of the Petitioner that the Speaker did
    not apply his mind on the aspect of merger, is wrong and
    incorrect.
  173. We do not find any reason and good ground to hold that the
    findings in the impugned order are perverse and based on no
    evidence. Rather the stand and plea taken by the Petitioner is
    105
    devoid of merit. Similarly, the plea predicated on the violation of
    principles of natural justice must fail in the light of the above
    facts.
  174. Our findings on allegations of not granting specific time in all
    the above cases are based on the unique facts and
    circumstances of each 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.
    K.CONCLUSION
  175. 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
    106
    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 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 vaporise 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 Kihoto
    Hollohan (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.
    107
    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
    108
    substantial question of law exists in the present matter,
    which needs reference to a larger bench.
  176. In view of the discussion above, we pass the following order:
  177. 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.
  178. 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.
  179. The Writ Petitions are disposed of in the afore­stated terms. All
    pending applications are also accordingly disposed of.
    ……………………..J.
    (N.V. Ramana)
    ………………………J.
    (Sanjiv Khanna)
    ………………………J.
    (Krishna Murari)
    NEW DELHI;
    November 13, 2019.
    109