JUDGMENT :- (Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a writ or order or direction declaring the order of disqualification dated 10.10.2010 passed by the Respondent No.2 to be unconstitutional, illegal and violative of fundamental rights of the Petitioners under Articles 14, 16 and 19 of the Constitution of India and for being violative of Schedule 10 of the Constitution and Rules made under Karnataka Assembly, etc.) 1. Through the instant writ petitions, the petitioners have assailed an order dated 10.10.2010, passed by the Speaker of the Karnataka Legislative Assembly, whereby the petitioners have been disqualified from their membership to the Karnataka Legislative Assembly, on account of having arrived at the conclusion that the petitioners had defected from the Bharatiya Janata Party, on whose ticket they were elected to the Karnataka Legislative Assembly, in 2008. 2. Before dealing with the issues canvassed at the hands of the learned Counsel for the rival parties (on the basis whereof they either assailed or supported the order dated 10.10.2010, passed by the Speaker of the Karnataka Legislative Assembly), it is essential to delineate material facts leading to the passing of the impugned order. The relevant factual position is therefore being narrated hereinafter. 3. Interestingly, the process leading to the passing of the impugned order came to be initiated at the hands of the petitioners themselves. The petitioners addressed letters to the Governor of the State of Karnataka on 06.10.2010. The text of one of the communications addressed to the Governor is reproduced hereunder: Date 06.10.2010 His Excellency I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Shri. B.S. Yediyurappa. There have been widespread corruption, nepotism, favourtism abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri. B.S. Yediruppa and a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the constitution and Shri. Yediyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka I hereby express my lack of confidence in the government headed by Shri. B.S. Yediyurappa and as such I hereby withdraw my support to the Government headed by Shri. B.S. Yediurappa, Chief Minister, I request you to intervene and institute the constitutional process as constitutional head of the State”. (emphasis is mine) It would be relevant to mention, that all the petitioners addressed separate individual communications dated 06.10.2010, wherein the text of each of the aforesaid communications was identical. A perusal of the letters addressed by the petitioners to the Governor of the State of Karnataka on 06.10.2010 reveal, that the petitioners acknowledged therein, that they had been elected to the Karnataka Legislative Assembly on Bharatiya Janata Party tickets. According to the letter, they were disillusioned with the functioning of the Government under the leadership of Chief Minister Mr. B.S. Yeddyurappa. It was alleged, that the Government under the leadership of the Chief Minister was responsible for widespread corruption, nepotism, favoritism, abuse of power and misuse of Government machinery. It was, accordingly, asserted, that it was in the interest of the people of the State of Karnataka, for the petitioners to express their lack of confidence in the Government headed by Chief Minister Mr. B.S. Yeddyurappa. It is, therefore, that the petitioners, through the communications addressed to the Governor of the State of Karnataka, asserted, that they had withdrawn their support to the Government headed by Chief Minister Mr. B.S. Yeddyurappa. Having withdrawn support, the petitioners through the aforesaid communications also requested the Governor to intervene and institute a constitutional process, in his capacity as the constitutional head of the State of Karnataka. 4. Based on the 19 letters (including 11 letters received from the petitioners on 06.10.2010) the Governor of the State of Karnataka, addressed a letter on the same day, i.e., on 06.10.2010 itself, to Chief Minister Mr. B.S. Yeddyurappa. The aforesaid letter is being extracted hereunder: “RAJ BHAVAN BANGALORE No.GS 102 GSE 2010 6th Oct. 2010 Dear Chief Minister, Letters from 14 BJP MLAs and 5 independent MLAs have been submitted to me today, withdrawing their support to the Government. List of MLAs whose letters were submitted is enclosed. This includes 7 Ministers in the Government at the time of submitting the letter. 2010 Dear Chief Minister, Letters from 14 BJP MLAs and 5 independent MLAs have been submitted to me today, withdrawing their support to the Government. List of MLAs whose letters were submitted is enclosed. This includes 7 Ministers in the Government at the time of submitting the letter. Considering the relative strengths of different groups in Karnataka Legislative Assembly with the withdrawal of support of 19 members, a reasonable doubt has arisen about the support your Government enjoys in the Legislative Assembly. In view of this, I request you to prove that you still continue to command the support of the majority of the Members of the Legislative Assembly by introducing and getting passed a suitable motion expressing confidence in your Government, in the Legislative Assembly on or before 12.10.2010 by 5.00 p.m. I have also requested the Hon’ble Speaker accordingly. With warm regards, Yours sincerely, Sd/- (H.R.BHARDWAJ) Governor of Karnataka”. A perusal of the letter of the Governor of Karnataka reveals, that the 11 petitioners herein belonging to the Bharatiya Janata Party, besides some other legislations belong to the Bharatiya Janata Party, and 5 independent members of the Karnataka Legislative Assembly, had withdrawn support to the Government. Out of the members of the Legislative Assembly, who had withdrawn support to the Government, there were seven Ministers in the Cabinet of Chief Minister Mr. B.S. Yeddyurappa. Along with the letter of the Governor of Karnataka, a list of all the 19 members who had submitted letters withdrawing support, had also been appended. The list depicts, which amongst them were Ministers. The names of seven Ministers, mentioned in the list are being reproduced hereunder: 1. 1. Mr. Renukacharya 2. 2. Mr. Anand Asnotikar 3. 3. Mr. Balachandra Jarkiholi 4. 4. Mr. Shivaraj S. Tangadagi 5. 5. Mr. D. Sudhaker 6. 6. Mr. P.M. Narendra Swamy 7. 7. Mr. Venktaramanappa. The first three of the aforesaid Ministers, admittedly, belong to the Bharatiya Janata Party, whereas, the remaining 4 Ministers were elected to the Karnataka Legislative Assembly as independent candidates. Having noticed the relative strength of different groups in the Karnataka Legislative Assembly, and having, taken into consideration the withdrawal of support to the Government, by 19 members of the Karnataka Legislative Assembly, the Governor came to entertain a doubt, whether Chief Minister Mr. B.S. Yeddyurappa still continued to command support, of the majority of the members of the Karnataka Legislative Assembly. B.S. Yeddyurappa still continued to command support, of the majority of the members of the Karnataka Legislative Assembly. He, accordingly, requested the Chief Minister to introduce, and get passed, a suitable motion expressing confidence in his Government, on or before 12.10.2010. 5. Based on the communications dated 06.10.2010, addressed by the petitioners as well as other members of the Karnataka Legislative Assembly to the Governor of the State of Karnataka, as also, the consequential communication addressed by the Governor of Karnataka to the Chief Minister, he (Chief Minister Mr. B.S. Yeddyurappa) filed a petition on 06.10.2010 under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (hereinafter referred to as the ‘Defection Rules’), with a prayer, that 13 members of the Karnataka Legislative Assembly, including the 11 petitioners, who were elected to the Karnataka Legislative Assembly, on Bharatiya Janata Party tickets, should be disqualified from the membership to the Karnataka Legislative Assembly. A copy of the aforesaid petition was handed over to us in Court. The same has been taken on record and marked as Annexure-I. Since reference to the petition filed by Chief Minister Mr. B.S. Yeddyurappa has been made repeatedly by the learned Counsel for the rival parties, relevant text thereof, is also being extracted hereunder: “Subject: Disqualification of Membership of the conduct of the following Members of the Legislative Assembly. 1. The following members have contested the 2008 election as BJP candidates and have been elected as Member of B J P Party. 2. The BJP Legislature Party has unanimously elected me as the Leaders of Legislature Party & on the strength of that position I have formed the government & carrying out administration as Chief Minister of the State. 3. The following Members of the B J P Legislature Party on 6/10/2010 have submitted letter to the honorable Governor stating that they have withdrawn support to the government headed by me. 3. The following Members of the B J P Legislature Party on 6/10/2010 have submitted letter to the honorable Governor stating that they have withdrawn support to the government headed by me. This matter has been communicated to me by the governor vide his letter dated 6.10.2010 enclosed under annexure 1 & further by intimating the honorable Governor that support has been withdrawn to the Government in the absence of any resolutions of the legislature party & any decision of the party they have clearly violated Schedule 10 of Constitution of India & because of this they are eligible for disqualification of the membership hence hereby humbly pray to disqualify with immediate effect their membership & issue suitable orders. 4. I would like to bring to your notice examples under similar circumstances action taken in the Cases of Shri. Avatar Singh Bhadana V/s Khuldep Singh & Shri Rajesh Verma V/s. Shri. Mohammed Shahid Akhalak, BSP where in actions have been taken merely on press reports. 5. Due to the Statements made by Respondents before press & electronic media & as per the gist of the letter sent by Honorable Governor it proves the violation of Schedule 10 of the Constitution. 6. In view of that: 1. Shri. M.P. Renukacharua, MLA, Honnali Constituency 2. Shri. Gopalakrishna Belur, MLA Sager Constituency 3. Shri. Anand Asnotiker, MLA Karvara Constituency 4. Shri. Balachandra Jarakiholi, MLA Arabhavi Constituency 5. Dr. Bagali Sarvabowma N. MLA Indi Constituency 6. Shri. Bharamagowda H. Kage, MLA Kagawada Constituency 7. Shri. Y. Sampangi MLA, KGF Constituency 8. G.N. Nanjunda Swamy, MLA Kolegala Constituency 9. Sri. M.V. Nagaraj, MLA, Nelamangala Constituency 10. Belubbi Sangappa Kalapa, MLA, Basavana Bagevadi Constituency 11. Shivana Gowda Nayak, MLA Devadurga Constituency 12. Narasimha Nayak (Raju Gowda), MLA Surapura Constituency 13. H.S. Shankaralingegowda, MLA, Chamaraj Constituency 7. The above members have become ineligible to continue as legislations as per Schedule 10 of the Constitution of India 8. Hence I humbly pray to disqualify from membership with immediate effect the above Members & Issue Suitable Orders.”. Shivana Gowda Nayak, MLA Devadurga Constituency 12. Narasimha Nayak (Raju Gowda), MLA Surapura Constituency 13. H.S. Shankaralingegowda, MLA, Chamaraj Constituency 7. The above members have become ineligible to continue as legislations as per Schedule 10 of the Constitution of India 8. Hence I humbly pray to disqualify from membership with immediate effect the above Members & Issue Suitable Orders.”. A perusal of the petition filed by the Chief Minister reveals, that all the 13 respondents impleaded in the disqualification petition (including the 11 petitioners herein), were liable to be disqualified on the basis of the letters dated 06.10.2010 addressed by them to the Governor of the State of Karnataka, as also, on account of the consequential letter dated 06.10.2010 written by the Governor of the State of Karnataka to him (the Chief Minister). In the disqualification petition reference was also made to reports in the press and electronic media, to show, that the petitioners had violated the provisions contained in the Tenth Schedule of the Constitution of India. 6. On receipt of the disqualification petition, filed under Rule 6 of the Defection Rules, the Speaker of the Karnataka Legislative Assembly addressed show cause notices to the petitioners on 07.10.2010, calling upon them to respond to the allegations leveled against them, by the Chief Minister of Karnataka. The contents of the aforesaid show cause notice dated 07.10.2010 have been extracted in paragraph 2 of the writ petition. Accordingly, the contents of the show cause notice (as have been extracted in the writ petition) are being reproduced hereunder: “Shri. B.S. Yeddiyurappa, the Leader of the Legislative Party of Bhartiya Janata Party and also Chief Minister has submitted a letter on 6.10.2010 under Rule-6 of Karnataka Legislative Party Disqualification Rules 1986 and has stated in his petition that you being a Member of Legislative Assembly elected on Bharatiya Janata Party without any resolution or order from the party have submitted a letter to His Excellency Governor on 5.10.2010 withdrawing support to the Government headed by him. This is in violation of para 2(1) (a) of the 10th Schedule of the Constitution of India. Hence, he has submitted a petition to disqualify you from the Membership of the Legislature”. “Therefore, you have been given time till 5.00 p.m. of 10th Oct. 2010 to reply if you have anything to say on the petition. This is in violation of para 2(1) (a) of the 10th Schedule of the Constitution of India. Hence, he has submitted a petition to disqualify you from the Membership of the Legislature”. “Therefore, you have been given time till 5.00 p.m. of 10th Oct. 2010 to reply if you have anything to say on the petition. In this regard, you are hereby informed to appear in person and make your statement either orally or in writing before the Speaker. In case, if you fail, it will be construed that you have nothing to say and future legal steps will be taken ex parte”. A perusal of the aforesaid show cause notice reveals, that the petitioners were called upon to file their reply by 5.00 p.m. on 10.10.2010. All the petitioners were also invited to appear in person before the Speaker, so as to make their statement(s) either orally or in writing. All the petitioners were further informed, that if they failed to respond to the show cause notice, it would be presumed that they had nothing to say, whereupon, further steps would be taken ex parte. It is the common case of the rival parties, that although the Speaker of the Karnataka Legislative Assembly had invited the petitioners for an oral hearing at 5.00 p.m. on 10.10.2010, yet the aforesaid hearing was subsequently preponed to 3.00 p.m. on the same day. 7. All the petitioners filed separate replies to the show cause notices issued to them. The contents of the reply of each of the petitioners was identical. Since a detailed reply was filed by the petitioners, it is not expedient to extract the same herein for reasons of brevity. The relevant assertions made in the replies filed by the petitioners would however emerge by themselves, when different issues raised on behalf of the petitioners, are taken up for consideration for the disposal of the instant petitions. 8. Having issued a show cause notice to the petitioners on 07.10.2010, and having received a written response thereof dated 09.10.2010, and having also afforded an opportunity of hearing to the petitioners at 3.00 p.m. on 10.10.2010, the Speaker of the Karnataka Legislative Assembly, passed the impugned order on 10.10.2010 itself. 8. Having issued a show cause notice to the petitioners on 07.10.2010, and having received a written response thereof dated 09.10.2010, and having also afforded an opportunity of hearing to the petitioners at 3.00 p.m. on 10.10.2010, the Speaker of the Karnataka Legislative Assembly, passed the impugned order on 10.10.2010 itself. A copy of the impugned order has been appended to the writ petition as Annexure-H, its English translation was handed over to us during the course of hearing, the same is taken on record and marked as Annexure H/T. By the impugned order dated 10.10.2010, the disqualification petition filed by the Chief Minister Mr. B.S. Yeddyurappa against 13 members of the Karnataka Legislative Assembly was accepted qua all the 11 petitioners, the same was however not accepted in respect of 2 legislators against respondent nos.1 and 12, impleaded in the disqualification petition, i.e., Mr. M.P. Renukacharya and Mr. Narasimha Nayak. Dissatisfied with the aforesaid order dated 10.10.2010 passed by the Speaker of the Karnataka Legislative Assembly, all the 11 petitioners who were disqualified from the Membership to the Karnataka Legislative Assembly, have approached this Court, by filing the present writ petitions. 9. Having dealt with the factual background leading up to the passing of the impugned order dated 10.10.2010, I shall now venture to deal with the submissions advanced by the learned Counsel for the petitioners, to assail the same. 10. The first contention advanced on behalf of the petitioners was based on Rules 6 to 7 of the Defection Rules. Rules 6 and 7 aforementioned are being extracted hereunder: “6. Reference to be by Petitions: (1) No reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of this rule. (2) A petition in relation to a member may be made in writing to the Speaker by any other member. Provided that a petition in relation to the Speaker shall be addressed to the Secretary. (2) A petition in relation to a member may be made in writing to the Speaker by any other member. Provided that a petition in relation to the Speaker shall be addressed to the Secretary. (3) The secretary shall: (a) as soon as may be after the receipt of a petition under proviso to sub-rule (2) make a report in respect thereof to the House; and (b) as soon as may be after the House has elected a member in pursuance of the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule place the petition before such member. (4) Before making any petition in relation to any member, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such member has become subject to disqualification under the Tenth Schedule. (5) Every petition,- (a) shall contain a concise statement of the material facts on which the petitioner relies; and (b) shall be accompanied by copies of the documentary evidence, if any on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and address of such persons and the gist of such information as furnished by each such person. (6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings. (7) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as in the petition. 7. Procedure: (1) On receipt of a petition under rule 6, the Speaker shall consider whether the petition complies with the requirements of that rule. (2) If the petition does not comply with the requirements of rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly. 7. Procedure: (1) On receipt of a petition under rule 6, the Speaker shall consider whether the petition complies with the requirements of that rule. (2) If the petition does not comply with the requirements of rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly. (3) If the petition complies with the requirements of rule 6, the Speaker shall cause copies of the petition and of the annexures thereto be forwarded: (a) to the member in relation to whom the petition has been made; and (b) where such member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader, and as such member or leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker. (4) After considering the comments, if any, in relation to the petition, received under sub-rule (3) within the period allowed (whether originally or on extension under that sub-rule), the Speaker may either proceed to determine the question or, if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to the Committee for making a preliminary inquiry and submitting a report to him. (5) The Speaker shall, as soon as may be after referring a petition to the Committee under sub-rule (4), intimate the petitioner accordingly and make an announcement with respect to such reference in the House of, if the House is not then in Session, cause the information as to the reference to be published in the Bulletin. (6) Where the Speaker makes a reference under sub-rule (4) to the Committee, he shall proceed to determine the question as soon as may be after receipt of the report from the Committee. (6) Where the Speaker makes a reference under sub-rule (4) to the Committee, he shall proceed to determine the question as soon as may be after receipt of the report from the Committee. (7) The procedure which shall be followed by the Speaker for determining any question and the procedure which shall be followed by the Committee for the purpose of making a preliminary inquiry under sub-rule (4) shall be, so far as may be, the same as the procedure for inquiry and determination by the Committee of any question as to breach of privilege of the House by a member, and neither the Speaker nor the Committee shall come to any finding that a member has become subject to disqualification under the Tenth Schedule without affording a reasonable opportunity to such member to represent his case and to be heard in person. 11. First of all, reference is being made, to the submissions addressed by the learned Counsel for the petitioners, on the strength of Rule 6 of the Defection Rules. (i) Based on sub-rule (4) of Rule 6, it is the contention of the learned Counsel for the petitioners, that it is imperative for a petitioner(s) seeking disqualification of a member of the State Legislative Assembly, to satisfy himself/themselves that there are reasonable grounds to believe that a member of the State Legislature Assembly, had rendered himself eligible for disqualification under the Tenth Schedule of the Constitution of India. It is asserted, that in the absence of the aforesaid condition a disqualification petition cannot be entertained. It is asserted that the narration of facts, in the disqualification petition filed by the Chief Minister Mr. B.S. Yeddyurappa, having not disclosed any reasonable ground for disqualification, the same was liable to be rejected at the outset. (ii) Based on sub-rule (5) of Rule 6 of the Defection Rules, it is the submission of the learned Counsel for the petitioners, that every disqualification petition should not only contain a concise statement of material facts, but is also required to be supported by documentary evidence. It is submitted, that since the factual position depicted in the disqualification petition did not contain a concise statement of material facts, substantiating any ground of disqualification (contained in the Tenth Schedule of the Constitution of India), and additionally, because no documentary evidence supplementing the material facts, was furnished by Chief Minister Mr. It is submitted, that since the factual position depicted in the disqualification petition did not contain a concise statement of material facts, substantiating any ground of disqualification (contained in the Tenth Schedule of the Constitution of India), and additionally, because no documentary evidence supplementing the material facts, was furnished by Chief Minister Mr. B.S. Yeddyurappa, there was no basis whatsoever for passing the impugned order dated 10.10.2010. (iii) Based on sub-rule (6) of Rule 6 of the Defection Rules, it is the contention of the learned Counsel for the petitioners, that the disqualification petition filed by Chief Minister Mr. B.S. Yeddyurappa, was liable to be verified in the manner laid down by the Code of Civil Procedure, 1908, and since, it had not been so verified, the disqualification petition was liable to be rejected. Based on the aforesaid procedural discrepancies emerging out of Rule 6 of the Defection Rules, it is the contention of the learned Counsel for the petitioners, that the impugned order dated 10.10.2010 passed by the Speaker of the Karnataka Legislative Assembly, should be set aside. 12. Secondly, reference is being made to the submissions addressed by the learned Counsel for the petitioners, on the strength of Rule 7 of the Defection Rules. (i) Based on sub-rule (3) of Rule 7, it was contended, firstly, that if the requirements of Rule-6 of the Defection Rules have been complied with, copies of a disqualification petition (along with annexures appended therewith) can be furnished to the member(s) concerning whom the said disqualification petition has been filed. Since in the present case even the ingredients of Rule 6 had not been complied with, (for details please refer to the foregoing paragraph), it was not proper for the Speaker of the Karnataka Legislative Assembly, to furnish copies of the disqualification petition to the petitioners and to seek the petitioners response. (ii) Based on sub-rule (3) of Rule 7 of the Defection Rules, it was contended, secondly, that a minimum of 7 days should have been granted to the petitioners to file their response to the show cause notice issued by the Speaker of the Karnataka Legislative Assembly, whereas, in the instant case only 3 days time was afforded to the petitioners so as to enable them to respond to the show cause notices. This action of the Speaker of the Karnataka Legislative Assembly, according to the learned Counsel for the petitioners clearly violates a mandatory condition contained in the Defection Rules. This violation, according to the learned Counsel for the petitioners, has deprived the petitioners of an effective opportunity to defend themselves. (iv) Based on a collective reading of sub-rules (4) and (7) of Rule 7 of the Defection Rules, it is the contention of the learned Counsel for the petitioners, that the procedure laid down for determining an issue of breach of privilege of the House, by a member had to be followed, and since the said procedure had not been followed, the entire action stood vitiated. Based on the aforesaid procedural discrepancies, emerging out of Rule 7 of the Defection Rules, it is the contention of the learned Counsel for the petitioners, that the impugned order dated 10.10.2010 passed by the Speaker of the Karnataka Legislative Assembly, should be set aside. 13. So as to substantiate the submissions noticed in the foregoing two paragraphs, based on the provisions of the Defection Rules, learned Counsel for the petitioners placed emphatic reliance on the judgments rendered in Shri. Filipe Nery Rodrigues vs. Shri. Sadanand Mhalu Shet and another, (2006) 108 BOMLR 227, by a Division Bench of the Bomay High Court (Goa Bench), and in Sri. Paul Lyngdoh vs. State of Meghalaya (W.P. (C) No.60 (SH)/2009, decided on 18.3.2009) by a Single Judge of the Gauhati High Court (Shillong Bench). 14. Ordinarily, it would have been imperative for us to deal with all the submissions advanced on behalf of the learned Counsel for the petitioners alleging violations of the provisions of the Defection Rules. I, however, find no necessity for doing so, after having heard the learned Counsel for the respondents, who invited our attention to the declared position of law (on the subject under reference) at the hands of the Apex Court. I am of the view that it would be an exercise in futility to deal with the submissions advanced by the learned Counsel for the petitioners on the basis of the Defection Rules. 15. Reliance at the hands of the learned Counsel for the respondents, to repudiate the submissions advanced on behalf of the petitioners (on the strength of the Defection Rules), was firstly placed on the judgment rendered in Dr. 15. Reliance at the hands of the learned Counsel for the respondents, to repudiate the submissions advanced on behalf of the petitioners (on the strength of the Defection Rules), was firstly placed on the judgment rendered in Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council, (2004) 8 SCC 747 , wherein it was held as under: 16. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said rule and sub-rule (6) of the same rule provides that every petition shall be singed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 if “Procedure”. Sub-rule (1) of this rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said rule and sub-rule (2) says that if the petition complies with the requirement of Rule 6, the Chairman shall dismiss the petition. These Rules have been framed by the Chairman in exercise of power conferred by Paragraph 8 of the Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by Paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rules being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provisions in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which the Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under Paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires. 17. The petition filed by Shri. Salman Rageev was signed and verified in the following manner: “All the facts stated in this petition are true and correct to my knowledge and belief and no part of it is false. Sd/- (Salman Rageev) MLC 10.6.2004” 18. There cannot be any dispute that sub-rules (1), (2) and (3) of Order 6 Rule 15 CPC were complied with. Sd/- (Salman Rageev) MLC 10.6.2004” 18. There cannot be any dispute that sub-rules (1), (2) and (3) of Order 6 Rule 15 CPC were complied with. Learned Counsel for the petitioner has, however, laid great emphasis on the fact Shri. Salman Rageev had not fifed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order 6 Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit is required by sub-rule (4) of Order 6 Rule 15 CPC, the petition would not be rendered invalid nor would the assumption of jurisdiction by the Chairman on its basis be adversely affected or rendered bad in any manner”. (emphasis is mine) Secondly, reliance was placed on the decision rendered in Ravi S. Naik vs. Union of India, AIR 1994 SC 1558 , wherein, in so far as the Defection Rules are concerned, the Court had held as under: “18. The submission of Shri. Sen is that the petitions that were filed by Khalap before the Speaker did not fulfil the requirements of clause (a) of sub-rule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of the material facts on which the petitioner (Khalap) was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6 were also not complied with inasmuch as the petitions were not accompanied by copies of the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of such information as furnished by each such person. It was also submitted that the petitions were also not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri. Sen. We are unable to accept the said contention of Shri. Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule of the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of Paragraph 6 as construed by this Court in Kihoto Hollohan’s case (1992 AIR SCW 3497) (supra). Moreover, the filed of judicial review in respect of orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as constructed by this Court in Kihoto Hollahan’s case (supra) is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri. Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the Rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case (1992 AIR SCW 3497) (supra). 26. It is no doubt true that under Rule 7(3)(b) of the Disqualification Rules, it has been provided that the member concerned can forward his comments in writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days time for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. Having regard to the fact that there was no denial by the appellants of the allegation in paragraph 11 of the petitions about their having met the Governor on December 10, 1990 in the company of Dr., Barbosa and Dr. Willfred D’Souza and other Congress (I) MLAs and the only dispute was whether from the said conduct of the appellants an inference could be drawn that the appellants had voluntarily given up their leadership of the MGP, it cannot be said that the insufficient time given for submitting the reply has resulted in denial of adequate opportunity to the appellants to controvert the allegjations contained in the petitions seeking disqualification of the appellants”. (emphasis is mine) Since Rules 6 and 7 of the Defection Rules have been held by the Apex Court in the aforesaid two judgments to be directory in nature, it would not be possible for me, merely on account of the violation of the procedure envisaged under the aforesaid Rules, to set aside the impugned order, unless the violation of the aforesaid procedure is shown to have resulted in prejudice to the petitioners. The following inferences/conclusions clearly emerge from the pleadings in this case: (i) Firstly, the factual position depicted in the disqualification petition filed on 06.10.2010 was not disputed by the petitioners in their replies dated 09.10.2010 to the show cause notice issued to them, by the Speaker of the Karnataka Legislative Assembly). (ii) Secondly, although 3 days time was afforded to the petitioners, to respond to the show cause notice dated 07.10.2010, the petitioners filed detailed and exhaustive replies dealing not only with the factual aspect of the matter, but also of the nuances of the law involved in the controversy. (iii) Thirdly, it is not the case of the petitioners in the pleadings of the writ petitions, that they have been deprived of an opportunity to substantiate any of their pleas (which they could have raised before the Speaker of the Karnataka Legislative Assembly) on account of paucity of time furnished to them. Or that, they would have been able to controvert a factual aspect of the matter relied upon by the Speaker, had further time been afforded to them. Or that, they would have been able to controvert a factual aspect of the matter relied upon by the Speaker, had further time been afforded to them. (iv) Fourthly, the factual position depicted in the impugned order dated 10.10.2010, has not been disputed by the petitioners in the pleadings of the instant writ petition as well, even though the impugned order dated 10.10.2010 is the precise order which has been assailed by the petitioners though the instant writ petitions. Thus, viewed, we are of the view that no prejudice whatsoever was caused to the petitioners on account of any of the aspects of the matter dealt with by the learned Counsel for the petitioners, while relying upon the provisions of the Defection Rules. Based on the two judgments rendered by the Supreme Court, (i.e., in Dr. Mahachandra Prasad Singh’s case (supra) and also in Ravi S. Naik’s case (supra) and the declared legal position expressed therein (which has been duly highlighted) it is not possible to accept the contentions advanced on behalf of the learned Counsel for the petitioners, on the strength of the Defection Rules. I, therefore, find no merit in the first contention advanced by the learned Counsel for the petitioners. 16. The second contention advanced by the learned Counsel for the petitioners was based on the plea of violation of the rules of natural justice. In this behalf, a series of submissions were advanced at the hands of the learned Counsel for the petitioners. (i) Firstly, on the plea advanced by the learned counsel for the petitioners under the rules of natural justice, it was submitted, that the entire procedure of disqualification adopted against the petitioners, was carried out in extreme haste, only to complete the minimum requirements of the rules of natural justice, without effectively affording the petitioners a reasonable opportunity to defend themselves. It was pointed out, that even the show cause notices issued by the Speaker of the Karnataka Legislative Assembly dated 07.10.2010, were not served on the petitioners. The said show cause notices were merely pasted at their addresses at Karnataka Legislative House, Vidhana Soundha, Bangalore, when the petitioners were out of Bangalore. Despite that, the petitioners had responded to the show cause notices on 09.10.2010, even without knowing the full particulars/contents of the show cause notices. The said show cause notices were merely pasted at their addresses at Karnataka Legislative House, Vidhana Soundha, Bangalore, when the petitioners were out of Bangalore. Despite that, the petitioners had responded to the show cause notices on 09.10.2010, even without knowing the full particulars/contents of the show cause notices. It was asserted, that the petitioners were given complete copies of the show cause notices (as also the enclosures), on the morning of the date of hearing fixed by the Speaker, i.e., on 10.10.2010. It is further submitted, that only three days time was afforded to the petitioners to submit their reply, even though the petitioners had sought further time, and even though, a minimum of seven days time had to be afforded to the petitioners under Rule 7(3) of the Defection Rules, no further time was afforded to them. It was accordingly submitted, that the haste with which all the formalities were carried out and the denial of appropriate time to the petitioners, had resulted in the denial of a reasonable opportunity to the petitioners to defend themselves. (ii) Secondly, on the plea advanced by the learned Counsel under the rules of natural justice, it was the contention of the learned Counsel for the petitioners, that extensive facts were relied upon by the Speaker in the impugned order dated 10.10.2010, even though no reference was made to the same in the show cause notice dated 7.10.2010. In this behalf it is sought to be pointed out, that facts were placed before the Speaker, by the State President of the Bharatiya Janata Party, who had no right to do so. It is also submitted, that an affidavit filed by the State President of the Bharatiya Janata Party, on the date of hearing itself (i.e., on 10.10.2010) was taken into consideration to adjudicate the matter. It was contended that an effective opportunity to the petitioners under the rules of natural justice would necessarily envisage, adequate advance notice of all relevant materials, which were to be taken into consideration. Since substantial factual details, which were relied on by the Speaker (while passing the impugned dated 10.10.2010) were not incorporated in the show cause notices issued to the petitioners, it was asserted that the entire exercise initiated at the hands of the Speaker of the Karnataka Legislative Assembly was liable to be set aside. Since substantial factual details, which were relied on by the Speaker (while passing the impugned dated 10.10.2010) were not incorporated in the show cause notices issued to the petitioners, it was asserted that the entire exercise initiated at the hands of the Speaker of the Karnataka Legislative Assembly was liable to be set aside. So far as the instant contention is concerned, pointed reference has been made by the learned Counsel for the petitioners, invited our attention, to the following observations recorded in the impugned order dated 10.10.2010: “Personally I have also observed that the Respondents have been issuing such statements. The Respondents have not denied arguments of the Applicant that the Respondents have negotiated with another party of the State JD (S), its members and leader Sri. H.D. Kumara Swamy regarding formation of another government and that thereafter they have stated that there is no question of withdrawing the letter of withdrawal. In support of this, the reports of media are also observed. In the affidavit filed by the State President of Bharatiya Janata Party, it is stated that the Respondents have gone to Chennai, Goa and other places in group, were seen along with Sri. H.D. Kumara Swamy, the State President of JD (S), Karnataka and that they have stated that they would vote against the government in the Confidence Vote. In the affidavit it is made clear that the Respondents have appeared along with the leader of JD (S) Sri Jameer Ahmed Khan and that they have moved from place to place. The Respondents have not denied the same. In the affidavit filed by the State President of Bharatya Janata Party. It is stated that the Respondents have voluntarily given by the membership of the party and that therefore they are disqualified under Schedule 10 of the Constitution”. It is sought to be pointed out that none of the aforesaid facts were incorporated in the show cause notice issued by the Speaker of the Karnataka Legislative Assembly. For this, reference was also made to the disqualification petition filed by the Chief Minister Mr. B.S. Yeddyurappa (which has also been extracted in the instant order) to show, that the case set up against the petitioners, also did not refer to any such facts. For this, reference was also made to the disqualification petition filed by the Chief Minister Mr. B.S. Yeddyurappa (which has also been extracted in the instant order) to show, that the case set up against the petitioners, also did not refer to any such facts. It is, therefore sought to be asserted that the petitioners have been severely prejudiced by the procedure adopted by the Speaker, and as such, the entire action taken by the Speaker of the Karnataka Legislative Assembly is liable to be set aside. (iii) Thirdly, the contention advanced by the learned Counsel for the petitioners, on the plea advanced by him under the rules of natural justice was, that being an adjudication of a dispute between two parties, it was not open to the Speaker of the Karnataka Legislative Assembly to produce evidence or material to substantiate the charges contained in the disqualification petition filed by the Chief Minister, Mr. B.S. Yeddyurappa. By his act of doing so, the Speaker had sided with the Chief Minister, although he was required to decide the matter as a neutral umpire. In this behalf, learned Counsel for the petitioners placed reliance on the decision in State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86 , and specially on the following observations recorded therein: “It will be recalled that the forged letter of December 8, 1947, was suspected to have been manufactured or sent by or at the instance of the respondent to further his interest. The case against the respondent was that the offending letter had been typed by one Shariful Hasan, the typist attached to the office of the Superintendent of Police, Fathepur and, therefore, it was essential for the department to establish that the respondent was in friendly relations with Shariful Hasan who was said to have typed the letter. Apparently in some prelinary enquiry and in the presence of Shri. B.N. Bhala one Mohammad Khalil, a Head Constable had spoken about Sharfiful Hasan being very friendly with the respondent. But while giving his evidence at the departmental trial the said Mohammad Khalil denied having made any such statement. In the circumstances it became necessary to contradict him by the testimony of Shri. B.N. Bhala in whose presence that witness had, on a previous occasion, stated that Shariful Hasan was very friendly with the respondent. But while giving his evidence at the departmental trial the said Mohammad Khalil denied having made any such statement. In the circumstances it became necessary to contradict him by the testimony of Shri. B.N. Bhala in whose presence that witness had, on a previous occasion, stated that Shariful Hasan was very friendly with the respondent. But while giving his evidence at the departmental trial the said Mohammed Khalil denied having made any such statement. In the circumstances it became necessary to contradict him by the testimony of Shri. B.N. Bhalla in whose presence that witness had, on a previous occasion, stated that Shariful Hasan was very friendly with the respondent. Accordingly Shri. B.N. Bhalla had his testimony recorded by a Deputy Superintendent of Police. This was done at two stages, namely once before the charges were framed and again after the framing of the charges. The respondent’s grievance is that Shri. B.N. Bhalla, who had thus become a witness in the case, ought not to have further continued to act as the presiding officer and that his continuing to do so vitiated the trial and his order was a nullity. That Shri. B.N. Bhalla had his own testimony recorded in the case is not denied. Indeed the appellant State, in opposition to the respondent’s writ application, filed an affidavit affirmed by Shri. B.N. Bhalla, paragraph 8 of which runs as follows: “8. That the deponent gave his first statement on 13th October, 1948, which was recorded by Shri. Mohammad Sadiq, Deputy Superintendent of Police before the charge and the second statement on 25th October, 1948, which was recorded by another Deputy Superintendent of Police after the charge. One Head Constable, Mohammad Khalil, who was prosecution witness in the case, when cross-examined denied to have said that the appellant and Shariful Hasan were on friendly terms. He turned hostile and it became necessary for the deponent to depose about certain facts which had happened in his presence and which belied the testimony of Mohammad Khalil”. The salient facts being thus admitted there can be no escape from the conclusion that Shri. B.N. Bhala should not have presided over the trial any longer. The point in issue was whether Shariful Hasan was in friendly relationship with the respondent. Mohammad Khalil had in his evidence at the trial denied having made any statement to this effect. The salient facts being thus admitted there can be no escape from the conclusion that Shri. B.N. Bhala should not have presided over the trial any longer. The point in issue was whether Shariful Hasan was in friendly relationship with the respondent. Mohammad Khalil had in his evidence at the trial denied having made any statement to this effect. Shri. B.N. Bhalla gave evidence that Mohammad Khalil had in his presence admitted this friendship of Shariful Hasan with the respondent. Which of the two witnesses, Mohammad Khalil and Shri. B.N. Bhalla, was to be believed was the duty of the person presiding over the trial to determine. Shri. B.N. Bhalla was obviously most ill suited to undertake that task. Having pitted his evidence against that of Mohammad Khalil, Shri. B.N. Bhalla vacated the Judge’s seat and entered the arena as a witness. The two roles could not obviously be played by one and the same person. Indeed Shri. B.N. Bhala himself realized it and accordingly had his own evidence recorded on both the occasions by other high officers. It is futile to expect that he could, in the circumstances, hold the scale even. It is suggested that there might have been other evidence establishing the friendship between Shariful Hasan and the respondent and that the evidence of Shri. B.N. Bhala might not have been relied on or might not have been the deciding factor. There is nothing on record before us to support this suggestion. But assuming that Shri. B.N. Bhala did not rely on his own evidence in preference to that of Mohammad Khalil – a fact which is hard to believe, especially in the face of his own affidavit quoted above-the act of Shri. B.N. Bhala in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri. B.N. Bhala continuing to preside over the trial. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri. B.N. Bhala continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding”. 17. On the issue of natural justice itself, specially the plea taken on behalf of the petitioners that the entire proceedings held by the Speaker of the Karnataka Legislative Assembly were carried out in extreme haste, thereby depriving the petitioners of a reasonable opportunity to defend themselves, learned Counsel for the respondents placed reliance on the judgment rendered in Ravi S. Naik vs. Union of India, AIR 1994 SC 1558 , wherein, on the issue of natural justice, the Courts attention was invited, to the observations extracted hereunder: 20. Principles of natural justice have an important places in modern Administrative Law. They have been defined to mean “fair play in action”. (See : Smt. Maneka Gandhi vs. Union of India, (1978) 2 SCR 621 at p 676: ( AIR 1978 SC 597 at p 625), Bhagwati, J). As laid down by this Court “they constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by al men” (Union of India v. Tulsi Ram, 1985 Supp (2) SCR 131 at p 225): ( AIR 1985 SC 1416 at p.1456). An order of an authority exercising judicial or quasi judicial 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/Chairman by paragraph 6(1) of the Tenth Schedule such a decision is subject to judicial review on the ground of non-compliance 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 strait-jacket. 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 strait-jacket. 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. 26. It is no doubt true that under Rules 7(3)(b) of the Rules, it has been provided that the member concerned can forward his comments in writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days time for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. Having regard to the fact that there was no denial by the appellants of the allegation in paragraph 11 of the petitions about their having met the Governor on December 10, 1990 in the company of Dr., Barbosa and Dr. Wilfred D’Souza and other Congress (I) MLAs and the only dispute was whether from the said conduct of the appellants an inference could be drawn that the appellants had voluntarily given up their leadership of the MGP, it cannot be said that the insufficient time given for submitting the reply has resulted in denial of adequate opportunity to the appellants to controvert the allegations contained in the petitions seeking disqualification of the appellants. 28. The grievance that the appellants have been denied the opportunity to adduce the evidence is also without substance. The appellants were the best persons who could refute the allegations made in the petitions. In the impugned order the Speaker has mentioned that the appellants were present before him but they did not come forward to give evidence. Moreover, they could have sought permission to cross-examine Dr. Jhalmi in respect of the statement made by him before the Speaker that the appellants had given up their membership of their political party and had said so openly to him and to others, in order to refute the correctness of the said statement. They, however, failed to do so. 29. Moreover, they could have sought permission to cross-examine Dr. Jhalmi in respect of the statement made by him before the Speaker that the appellants had given up their membership of their political party and had said so openly to him and to others, in order to refute the correctness of the said statement. They, however, failed to do so. 29. In the light of the aforesaid facts and circumstances we are unable to hold that the impugned order of disqualification was passed by the Speaker in violation of the principles of natural justice. Since we are of the view that the appellants have failed to make out a case for interference with order dated December 13, 1990 passed by the Speaker disqualifying the appellants, we do not consider it necessary to go into the question about the appellants having disentitled themselves from invoking the jurisdiction of the High Court under Article 226 of the Constitution. The judgment of the High Court dismissing the writ petition of the appellants must be upheld and C.A.No.3309 of 1993 filed by the said appellants must be dismissed. On the issue of haste at the hands of the Speaker, it is the contention of the learned Counsel for the respondents relying on the decision in Ravi S. Naiks’ case (supra) that two days time granted to file a reply to the aggrieved party was held to be sufficient, because a detailed reply was actually filed within the time allowed, and also because, there was no denial of the allegations leveled in the disqualification petition. And as such, the Court declined to interfere with the impugned order on account of the alleged violation of the rules of natural justice. 18. According to the learned Counsel for the respondents, a substantial answer to the assertions made on behalf of the petitioners, on the issue of taking into consideration facts beyond those depicted in the show cause notice can be drawn from the judgment rendered by the Supreme Court in Jagjit Singh vs. State of Haryana and others (2006) 11 SCC 1 . In the instant case the Speaker of the Legislative Assembly had extensively relied upon the facts within his personal knowledge. The facts relied upon by the Speaker, had not been put to the petitioners in the show cause notice. In the instant case the Speaker of the Legislative Assembly had extensively relied upon the facts within his personal knowledge. The facts relied upon by the Speaker, had not been put to the petitioners in the show cause notice. They were facts which the petitioners were confronted with, only at the time when an opportunity of hearing was granted to them by the Speaker. In so far as the factual aspect in Jagjit Singh’s case (supra) is concerned, it emerges that on 31.12.2003 a complaint was filed before the Speaker under the Tenth Schedule of the Constitution of India, seeking the disqualification of the petitioner – Jagjit Singh, on account of his alleged defection. On 17.03.2004, the Speaker issued a show cause notice to the petitioner. Since the aforesaid show cause notice was not served upon the petitioner, a further notice dated 23.04.2004 was issued to him, and thereafter, through another notice dated 18.05.2004, he was called upon to file his reply on or before 04.06.2004. The aforesaid notice dated 04.06.2004 was served on the “staff” of the petitioner on 31.05.2004. The petitioner filed an interim reply (as in the instant case) on 4.6.2004, and sought an extension of time by four weeks to file his final reply (as in the instant case 7 days time was sought to file a reply). On 23.06.2004, a request made by the petitioner for an adjournment of the proceedings beyond 28.6.2004 (as in the instant case beyond 10.10.2010) was rejected by the Speaker. The Speaker after hearing the arguments on 23.06.2004 listed the matter for further consideration on 24.6.2004. Along with an application dated 23.06.2004, an affidavit of one Ashwani Kumar was filed before the Speaker asserting, that he (Ashwani Kumar) had seen certain news television channels affirming, that the petitioner had joined the Indian National Congress on 14.06.2004. The original compact disc of the telecast and an English transcript thereof, was also appended therewith. The petitioner’s Counsel alleged, that the recording in the compact disc was not genuine. The Counsel (representing the petitioners) also denied the petitioner- Jagit Singhs’, signatures in the photocopy of the proceedings register of the Congress Legislature Party, in respect of proceedings held on 16.6.2004. The petitioner’s Counsel alleged, that the recording in the compact disc was not genuine. The Counsel (representing the petitioners) also denied the petitioner- Jagit Singhs’, signatures in the photocopy of the proceedings register of the Congress Legislature Party, in respect of proceedings held on 16.6.2004. On 24.6.2004, the Counsel representing the petitioner – Jagjit Singh, was asked to watch the interviews conducted by the news television channels, which were available on compact dick, as part of additional evidence with the application dated 23.6.2004. The said proposal was not accepted. In the background of the aforesaid factual position, the Apex Court in Jagjit Singhs’ case (supra) held as under: “38. It has to be remembered that the specific averment in respect of materials filed had already been made in the complaint dated 15.6.2004. The material filed on 23.6.2004 was supplementary to further support the allegations in the complaint dated 15.6.2004. The petitioners, despite the grant of opportunity, had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing that opportunity, the petitioners preferred to adopt the course of vague denial. 39. Under these circumstances, the Speaker concluded that “there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner”. The Speaker held: “… In this regard, it is to be noted that the petitioner had produced the original compact disks (CDs), containing the interviews conducted by Zee News and Haryana News (Punjab Today television channel) of the six independent Members of the Haryana Vidhan Sabha including the respondent and the same have been duly certified by both the televisions channels as regards their contents as well as having been recorded on 14.6.2004 at New Delhi. It has also been certified by both the television channels through their original letters (P-9 and P-12) duly singed by their authorized signatures that the original CDs were handed over to Ashwani Kumar who was authorized by the petitioner in this regard and whose affidavit is also on the record as Annexure P-8 wherein he stated that he had handed over the original CDs to the petitioner. The letters, Annexures P-9 and P12, also give out that the coverage of their interviews on 14.6.2004 was also telecast by both the television channels. The letters, Annexures P-9 and P12, also give out that the coverage of their interviews on 14.6.2004 was also telecast by both the television channels. In fact, the certificate given by the Haryana News (Punjab Today television channel) authenticates the place of the interview as the residence of Mr. Ahmed Patel at 23, Mother Teresa Crescent in Delhi which interview as per the certificate was conducted by the correspondent of the said television channel, namely, Shri. Amit Mishra on 14.6.2004. The same certificate, P12 also authenticates the coverage of the CLP meeting held in Chandigarh on 16.6.2004 conducted by their correspondent, Mr. Rakesh Gupta. Therefore, the electronic evidence which as per the petitioner is supplementary to the evidence of print media already on the record deserves to be taken on the record as it is admissible as per law”. (emphasis is mine) In addition to the aforesaid, in paragraph 41, the Speaker took into consideration the additional facts personally known to him. Paragraph-41 is being extracted hereunder: “41. In the impugned orders, Respondent 2 has further noted that while examining and considering the aforenoted electronic evidence, he was fortified by the fact that being the Speaker of the Haryana Vidhan Sabha, on many occasions as well as during the sessions of the House, he has seen and heard these Members. He found that these Members as seen and heard in the electronic evidence are genuinely identified as also their voices which are easily and clearly identified. The Speaker, thus, held that in view of the irrefutable and overwhelming documentary and electronic evidence, no other conclusion was possible other than that on 14.6.2004 these independent Members of the Haryana Vidhan Sabha joined the Congress Party. He has also referred to the documentary evidence regarding CLP meeting held on 16.6.2004 in the form of original sheet of proceedings’ register of CLP containing the signatures of the petitioners. In respect of the signatures also, the Speaker has noted that the signatures of the petitioners on the original sheet of the CLP proceedings are the same as their signatures on the vakaltnama filed by their counsel as is clear after comparison”. (emphasis is mine) Having taken into consideration the totality of the facts and circumstances of the case, the Apex Court held as under: “42. (emphasis is mine) Having taken into consideration the totality of the facts and circumstances of the case, the Apex Court held as under: “42. It was strenuously contended by learned counsel for the petitioners that the Speaker while passing the impugned orders has relied upon his personal knowledge which is wholly impermissible for a tribunal and contrary to the principles of fair play and violative of principles of natural justice. In support, reliance is placed on Dewan Singh v. Champat Singh (1969) 3 SCC 447 wherein this Court considered misconduct of the arbitrators who decided the disputes referred to them on the basis of their personal knowledge. On consideration of the arbitration agreement, it was held by this Court that it does not empower the arbitrators either specifically or by necessary implication to decide the disputes referred to them on the basis of their personal knowledge. 43. The principles laid down in the above case, have no application to the facts of the present case. The two situations have no similarity. The Speaker has only noticed that he has had various opportunities to see the petitioners in the Assembly and those shown in the recording are the same persons. We are unable to find fault with this course adopted by the Speaker. There is also nothing wrong or illegal in comparing signatures and coming to the conclusion that the same are that of the petitioners. These proceedings before the Speaker are not comparable with the arbitration proceedings before arbitrators. 44. Undoubtedly, the proceedings before the Speaker which is also a tribunal albeit of a different nature have to be conducted in a fair manner and by complying with the principles of natural justice. However, the principles of natural justice cannot be placed in a straitjacket. There are flexible rules. Their applicability is determined on the facts of each case. Here, we are concerned with a case where the petitioners had declined to avail of the opportunity to watch the recording on the compact disc. They had taken vague please in their replies. Even in respect of signatures on CLP register their reply was utterly vague. It was not their case that the said proceedings had been forged. The Speaker, in law, was the only authority to decide whether the petitioners incurred or not, disqualification under the Tenth Schedule to the Constitution in his capacity as Speaker. Even in respect of signatures on CLP register their reply was utterly vague. It was not their case that the said proceedings had been forged. The Speaker, in law, was the only authority to decide whether the petitioners incurred or not, disqualification under the Tenth Schedule to the Constitution in his capacity as Speaker. He had obviously opportunity to see the petitioners and hear them and that is what has been stated by the Speaker in his order. We are of the view that the Speaker has not committed any illegality by stating that he had on various occasions seen and heard these MLAs. It is not a case where the Speaker could transfer the case to some other tribunal. The doctrine of necessity under these circumstances would also be applicable. No illegality can be inferred merely on the Speaker relying upon his personal knowledge of having seen and heard the petitioners for coming to the conclusion that persons in the electronic evidence are the same as he has seen and so also their voices. Thus, even if the affidavit of Ashwini Kumar is ignored in substance it would have no effect no the questions involved”. For the same proposition, learned Counsel for the respondents also placed reliance on Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council, (2004) 8 SCC 747 and invited this Court’s attention to the following conclusions recorded therein: “Regarding the complaint of non-supply of the copy of the letter sent by Prof. Arun Kumar, leader of Indian National Congress in the Bihar Legislative Council, whereby he had informed that the petitioner Shri. Mahachandra Prasad Singh had ceased to be a member of Indian National Congress for violating the party discipline, the only relevant fact stated therein is that the petitioner had been elected as a member of the Bihar Legislative Council on a Congress ticket, but he had contested the parliamentary election as an independent candidate. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman of the Legislative Council and have also been admitted in Paragraphs 5 and 7 in the present writ petition. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman of the Legislative Council and have also been admitted in Paragraphs 5 and 7 in the present writ petition. Therefore, the non-supply of copy of the letter of the leader of Congress Legislative Party has no bearing at all as no prejudice can be said to have been caused to the petitioner and consequently in the facts of the present case, no principle of natural justice can be said to have been violated”. Based on the legal position expressed in the aforesaid extracts it is asserted at the hands of the learned Counsel for the respondents, that the plea of natural justice can lead to an effective result, only when facts taken into consideration, to pass the offending order are disputed. In the aforesaid situation, the aggrieved person would be justified in contending, that he had been prevented from repudiating the facts taken into consideration. 19. I have given my thoughtful consideration to the second contention advanced by the learned Counsel for the petitioners, based on the violation of the rules of natural justice. (i) On the first of the three pleas advanced under the second contention in so far as the grant of reasonable opportunity to the petitioners is concerned, there is no denial that a show cause notice dated 07.10.2010 was issued to the petitioners by the Speaker of the Karnataka Legislative Assembly. The petitioners submitted identical and detailed written replies on facts, and took all the legal objections available to them, on 09.10.2010. There is also no denial of the fact, that even an opportunity of hearing was afforded to the petitioners at 3.00 p.m. on 10.10.2010. From the submissions made to us, by the learned Counsel who represented the rival parties before the Speaker, it emerges that hearing had continued before the Speaker of the Karnataka Legislative Assembly, for several hours. Since the procedure required to be followed under the rules of natural justice was admittedly followed, should the proceedings conducted by the Speaker, culminating in the passing of the impugned order dated 10.10.2010 be set aside? I am of the view, that the answer to the aforesaid question has to be in the negative, because the procedure adopted has not resulted in any prejudice to the petitioners. I am of the view, that the answer to the aforesaid question has to be in the negative, because the procedure adopted has not resulted in any prejudice to the petitioners. At the cost of repetition it may be stated, that it is not the case of the petitioners that any false/ wrong fact has been taken into consideration by the Speaker, without affording the petitioners an opportunity to repudiate the same. The impugned order notices that the petitioners did not dispute the facts with which they were confronted during the course of hearing. That apart, it is not even the case of the petitioners even before us, that the facts relied upon by the Speaker in the impugned order are false or incorrect. As such, I am of the view, that the petitioners have not been adversely affected by the procedure adopted by the Speaker. Since no prejudice has been caused to the petitioners, I, find it difficult to accept the contention advanced on behalf of the petitioners that the entire proceedings held by the Speaker of the Karnataka Legislative Assembly, deserved to be set aside on account of an alleged hurried determination of the disqualification proceedings The instant conclusion is completely in consonance with the decisions rendered by the Apex Court in Ravi S. Naik’s case (supra) and Dr. Mahachandra Prasad Singh’s case (supra). Relevant extracts from the aforesaid judgments, (reproduced above) have been duly highlighted to depict the conclusion relevant to the present controversy. (ii) On the second of the three pleas advanced under the second contention, i.e., the assertion that facts in addition to the facts reflected in the show cause notices, were taken into consideration by the Speaker to pass the impugned order dated 10.10.2010. Out of the three submissions advanced on the plea of violation of the rules of natural justice, the instant contention seems to be the most serious. The affidavit filed by the State President of the Bharatiya Janata Party, is the first cause for agitation. The fact that the aforesaid affidavit was produced during the course of hearing before the Speaker, is the second cause of agitation. The consideration of facts recorded in the said affidavit by the Speaker while passing the final order, is the third cause for agitation. It was, therefore, important to peruse the said affidavit. It was produced for our consideration during the course of hearing. The consideration of facts recorded in the said affidavit by the Speaker while passing the final order, is the third cause for agitation. It was, therefore, important to peruse the said affidavit. It was produced for our consideration during the course of hearing. The affidavit of the State President of the Bharatiya Janata Party, along with its annexures, is taken on record and marked as Annexure-J. In fact its perusal reveals, that the same was only comprised of news paper cuttings. The facts narrated in the impugned order itself reveal, that during the course of hearing on 10.10.2010, none of the petitioners disputed the factual position expressed in the newspaper reports, produced before the Speaker. Even in the present petitions, the petitioners have not disputed the facts contained in the said newspaper articles. It is not even the case of the petitioners, that if they had been afforded more time, they would have shown that the facts recorded in the newspaper articles were not correct. The position in the present case is akin to Jagjit Singh’s case (supra), wherein on 23.06.2004 an application along with an affidavit of one Ashwani Kumar was filed, while the final hearing was fixed on 24.06.2004. The petitioner – Jagjit Singh’s, Counsel was confronted with the contents of the application, the compact disc and other material appended thereto. Similar pleas as have now been raised before us, were also raised before the Supreme Court in Jagjit Singh’s case, were not accepted. In the present case also, Chief Minister Mr. B.S. Yeddyurappa, in paragraph 5 of the disqualification petition dated 06.10.2010, made a reference to the statements made by the petitioners to the press and the electronic media. The actual press reports produced by the State President of the Bharatiya Janata Party, were therefore, merely in the nature of additional facts to supplement the factual position depicted in the disqualification petition. For the reasons, as have been recorded by the Apex Court in Jagjit Singh’s case, I am of the view, that taking into consideration additional facts, to supplement the factual position depicted in the disqualification petition at the hands of the Chief Minister Mr. B.S. Yeddyurappa cannot be accepted as a valid plea for setting aside the impugned order dated 10.10.2010. The instant plea would have been acceptable, if the petitioners had contested the veracity of the facts taken into consideration. B.S. Yeddyurappa cannot be accepted as a valid plea for setting aside the impugned order dated 10.10.2010. The instant plea would have been acceptable, if the petitioners had contested the veracity of the facts taken into consideration. But that is not so in the present case. We, therefore, find no merit even in the second contention of the learned Counsel for the petitioners based on the rules of natural justice. (iii) On the last, i.e., (third) of the three pleas advanced under the second contention, I am satisfied that the plea raised by the petitioner on the strength of the judgment in Mohammad Nooh’s case (supra), is clearly inapplicable to proceedings initiated under the Tenth Schedule of the Constitution of India, because as it has been held in Jagjit Singh’s case (supra), the Speaker is the “only” authority competent to decide whether a legislator had incurred the disqualification envisaged under the Tenth Schedule of the Constitution of India. The proceedings are to be held by the Speaker alone and by none else. If due procedure has been followed, based on a correct analysis of facts, the order passed by the Speaker can not be assailed. As such, the only way out for the petitioner to succeed is, to establish that the factual position taken into consideration by the Speaker was incorrect. Since there is no denial of the correctness of facts taken into consideration by the Speaker (while passing the impugned order) it is not possible for me, to accept the instant contention of the petitioners. 20. The third contention advanced by the learned Counsel for the petitioners, was based on paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. Paragraph 2(1)(a) is being extracted hereunder: “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 gives up his membership of such political party;”. Since learned Counsel for the petitioners did not place reliance on paragraphs 4 and 5 of the Tenth Schedule of the Constitution of India, I find no justification to extract the same herein. Since learned Counsel for the petitioners did not place reliance on paragraphs 4 and 5 of the Tenth Schedule of the Constitution of India, I find no justification to extract the same herein. The assertion at the hands of the learned Counsel for the petitioners relying paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India was that the petitioners had never voluntarily given up their membership of the Bharatiya Janata party, and as such, cannot be deemed to have suffered the disqualification on account of defection contemplated in paragraph 2(1)(a) in the Tenth Schedule of the Constitution of India. In this behalf, learned Counsel for the petitioners, in the first instance, placed reliance on the letter dated 06.10.2010 addressed by the petitioners to the Governor of the State of Karnataka. It is the vehement contention of the learned Counsel for the petitioners on the basis of the aforesaid letters, that the petitioners emphasized therein, that they were genuine well wishers of the Bharatiya Janata Party. Yet having been elected to the Karnataka Legislative Assembly on tickets of the Bharatiya Janata Party, they were disillusioned with the functioning of the Government headed by the Chief Minister Mr. B.S. Yeddyurappa. According to the petitioners, the manner of functioning of the Government had led to widespread corruption, nepotism, favourtism, abuse of power and misuse of Government machinery. It was, therefore, that the petitioners opposed the Government headed by Chief Minister Mr. B.S. Yeddyurappa, It is submitted, that the petitioners never expressed any dissatisfaction with the functioning of the Bharatiya Janata Party, nor expressed any intention of giving up their association with the Bharatiya Janata Party. As such, it was submitted, that it was unjustified for the Speaker of the Karnataka State Legislative Assembly to conclude, on the basis of the letter dated 06.10.2010 (addressed by the petitioners to the Governor of the State of Karnataka), that the petitioners had defected from the Bharatiya Janata Party, or had voluntarily given up their membership of the said party. Learned Counsel for the petitioners also invited this Court’s attention to the detailed reply dated 09.10.2010 filed by the petitioners. Learned Counsel for the petitioners also invited this Court’s attention to the detailed reply dated 09.10.2010 filed by the petitioners. Reading extensively therefrom, it was pointed out, that the petitioners repeatedly asserted therein, that they had neither voluntarily given up their membership of the Bharatiya Janata Party, nor had joined hands with any other political party, so as to attract their disqualification under Tenth Schedule of the Constitution of India. It was also asserted, that the petitioners had not supported or staked their claim to form Government, with any other political party. The petitioners also asserted in their reply, that their withdrawal of support from the Chief Minister Mr. B.S. Yeddyurappa, should be construed as a honest act of a true supporter/worker of the Bharatiya Janata Party. Through their act(s), according to learned Counsel, the petitioners wanted to salvage the image and reputation of the Bharatiya Janata Party, which had put up the petitioners as candidates for election to the Karnataka Legislative Assembly. It was also sought to be asserted, that the petitioners had nowhere (in their letter dated 06.10.2010) stated, that they were not interested to continue as members of the Karnataka Legislative Assembly as members of the Bharatiya Janata Party. It was submitted, that the image of the Bharatiya Janata Party, could be salvaged only by getting rid of the Chief Minister Mr. B.S. Yeddyurappa. The petitioners asserted that they would continue to support the Bharatiya Janata Party and would continue to be a part of the Bharatiya Janata Party, or any other Government formed by the BJP, headed by any other leader (other than the Chief Minister Mr. B.S. Yeddyurappa). As such, it is asserted, that the insinuation leveled against the petitioners, that they have defected from the Bharatiya Janata Party was not truthful, and was a mere device to disqualify the petitioners from their membership of the Karnataka Legislative Assembly. 21. While refuting the third contention advanced by the learned Counsel for the petitioners, the first and the foremost submission at the hands of the learned Counsel for the respondents was, that the letter dated 06.10.2010 addressed by the petitioners itself clearly demonstrates the intention of the petitioners. 21. While refuting the third contention advanced by the learned Counsel for the petitioners, the first and the foremost submission at the hands of the learned Counsel for the respondents was, that the letter dated 06.10.2010 addressed by the petitioners itself clearly demonstrates the intention of the petitioners. In this behalf, learned Counsel for the respondents invited our attention to the following expressed intention contained in the letter dated 06.10.2010; “… a situation has arisen that the governance of the State cannot be carried on in accordance Constitution…” Yet, again, our attention was invited to the last sentence recorded in the aforesaid letter dated 06.10.2010: “I request you to intervene and institute the constitutional process as constitutional head of the State”. It is the submission of the learned Counsel for the respondents, that what was sought to be suggested was, the adherence to the procedure envisaged under Article 356 of the Constitution of India, wherein exactly the same language (which has been used by the petitioners), has been used. Article 356 (1) of the Constitution is being extracted hereunder: “356. It is the submission of the learned Counsel for the respondents, that what was sought to be suggested was, the adherence to the procedure envisaged under Article 356 of the Constitution of India, wherein exactly the same language (which has been used by the petitioners), has been used. Article 356 (1) of the Constitution is being extracted hereunder: “356. Provisions in case of failure of constitutional machinery in States: .(1) If the President, on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation: .(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State: Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts” It was the contention of the learned Counsel for the respondents, that the provisions of Article 356 of the Constitution of India, are only invoked, when on account of failure of the constitutional machinery in a State, the proclamation of President’s rule has to be declared. This is a situation when the Government in a State is brought down, to install President’s rule. It is therefore the contention of the learned Counsel for the respondents, that the tenor of the letter dated 06.10.2010 addressed by the petitioners, was to bring down the Government of Bharatiya Janata Party, in the State of Karnataka, It was also contended, that the language of the letter dated 6.10.2010 was merely a camouflage. It is therefore the contention of the learned Counsel for the respondents, that the tenor of the letter dated 06.10.2010 addressed by the petitioners, was to bring down the Government of Bharatiya Janata Party, in the State of Karnataka, It was also contended, that the language of the letter dated 6.10.2010 was merely a camouflage. The factual intent thereof was clear, and was rightly assessed by the Governor, when on receipt of the letter dated 06.10.2010 (from the petitioners), he addressed a letter dated 06.10.2010 to the Chief Minister Mr. B.S. Yeddyurappa requiring him to prove his majority on the floor of the Legislative Assembly on or before 12.10.2010 (by 5.00 p.m.). BY withdrawing support, according to learned Counsel, the petitioners in conjunction with other independent members of the Karnataka State Legislative Assembly, had ventured to bring down the Bharatiya Janata Party led Government in Karnataka and not only the Chief Minister of the State of Karnataka. It is, therefore, submitted, that the Speaker had correctly arrived at the conclusion, that the petitioners by their acts of omission and commission must be deemed to have voluntarily given up their membership with the Bharatiya Janata Party. 22. In order to substantiate, that the action of the petitioners was sufficient to establish the plea of defection, under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India, learned Counsel for the respondents placed reliance on the judgment rendered in Rajendra Singh Rana vs. Swami Prasad Maura, (2007) 4 SCC 270 . In the instant case, the factual matrix which resulted in the disqualification of the petitioners, was that 8 MLAs of the BSP legislature party followed by another 5 members of the BSP party addressed identical letters dated 27.8.2003 to the Governor. The aforesaid letters reads as under: “We under mentioned MLAs whose signatures are marked below humbly request you that Shri. Mulyam Singh Yadav Ji be invited to form the Government because the public of Uttar Pradesh neither wants election nor wants President Rule. The plea raised in their defence, by the petitioners in Rajendra Singh Rannas’ case (supra) was, that their was a split in the original political party, and as such, the letter addressed by the petitioners, who were members of the BSP, to the Governor on 27.08.2003 did not constitute defection contemplated in the Tenth Schedule of the Constitution of India. The plea raised in their defence, by the petitioners in Rajendra Singh Rannas’ case (supra) was, that their was a split in the original political party, and as such, the letter addressed by the petitioners, who were members of the BSP, to the Governor on 27.08.2003 did not constitute defection contemplated in the Tenth Schedule of the Constitution of India. The question that came to be adjudicated by the Apex Court was, whether the act on the part of 13 MLAs in giving letters to the Governor (extracted above), requesting the Governor to call upon the leader of the other side to form the Government, would itself amount to voluntarily giving up of the membership of the party on whose ticket they had got elected? The Apex Court answered the aforesaid question as under: “48. The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. Be it noted that on 26.8.2003, the leader of their party had recommended to the Governor, a dissolution of the Assembly. The first eight were accompanied by Shivpal Singh Yadav, the General Secretary of the Samjwadi Party. In Ravi Naik, 1994 (2) SCC 641 this Court observed: (SCC p.649, para 11) “A person may voluntarily give up his membership of a political party even though ha has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily gives up his membership of the political party to which he belongs”. 49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the party in opposition and the submission letters requesting the Governor to invite the leader of that opposition party to form a Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly an irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that their action comes within para 2(1)(a) of the Tenth Schedule. No further evidence or enquiry is needed to find that their action comes within para 2(1)(a) of the Tenth Schedule. Then the only question is whether they had shown at least prima facie that a split had occurred in the original political party on 26.8.2003 and they had separated from it along with at least 24 others, so as to make up one-third of the legislature party”. 52. As we have indicated, nothing is produced to show that there was a split in the original political party on 26.8.2003 as belatedly put forward or put forward at a later point of time. But, still, the plea was of a split on 26.8.2003. On the materials, the only possible inference in the circumstances of the case, is that it has not been proved, even prima facie, by the MLAs sought to be disqualified that there was any split in the original political party on 26.8.2003 as claimed by them. The necessary consequence would be that the 24 members, who later joined the 13, could not also establish a split in the original political party as having taken place on 26.8.2003. In fact even a split involving 37 MLAs on 26.8.2003 is not established. That was also the inference rightly drawn by the learned Chief Justice in the judgment appealed against. 53. In view of our conclusion that it is necessary not only to show that 37 MLAs had separated but it is also necessary to show that there was a split in the original political party, the above finding necessarily leads to the conclusion that the 13 MLAs sought to be disqualified had not established a defence or answer to the charge of defection under para 2 on the basis of para 3 of the Tenth Schedule. The 13 MLAs, therefore, stand disqualified with effect from 27.8.2003. The very giving of a letter to the Governor requesting him to call the leader of the opposition party to form a Government by them itself would amount to their voluntarily giving up the membership of their original political party within the meaning of para 2 of the Tenth Schedule. The 13 MLAs, therefore, stand disqualified with effect from 27.8.2003. The very giving of a letter to the Governor requesting him to call the leader of the opposition party to form a Government by them itself would amount to their voluntarily giving up the membership of their original political party within the meaning of para 2 of the Tenth Schedule. If so, the conclusion is irresistible that the 13 members of BSP who met the Governor on 27.8.2003 who are the Respondents 2,3,4,5,6,9,10,14,16,19,20,21 and 37, in the writ petition filed by Mauyra, stand disqualified in terms of Article 191(2) of the Constitution read with para 2 of the Tenth Schedule thereof, with effect from 27.8.2003. If so, the appeal filed by the writ petitioner has to be allowed even while dismissing the appeals filed by the 37 MLAs, by modifying the decision of the majority of the Division Bench. Hence the writ petition filed in the High Court, will stand allowed with a declaration that the 13 members who met the Governor on 27.8.2003, being Respondents 2,3,4,5,6,9,10,14,16,19,20,21 and 37 in the writ petition, stand disqualified from the Uttar Pradesh Legislative Assembly with effect from 27.8.2003”. (emphasis is mine) Reference deserves also to be made to the decision in Dr. Mahachandra Prasad Singh vs. Chairman, Bihar Legislative Council, (2004) 8 SC 747. The facts of the aforesaid case disclose, that the petitioner (Dr. Mahachandra Prasad Singh) was elected as a member of the Bihar Legislative Council as a candidate of the Indian National Congress in 1998. The petitioner, despite being a member of the Bihar Legislative Council, also contested the fourteenth Lok Sabha election in 2004, as an independent. A member of the Bihar Legislative Council filed a petition on 10.6.2004 before the Chairman of the Legislative Council, stating that the petitioner who was a member of the Congress Party, having contested the Lok Sabha election as an independent candidate had become disqualified for being a member of the Legislative Council. The petitioner was issued a show cause notice dated 12.6.2004. In response, he submitted his explanation on 18.6.2004. The petitioner was issued a show cause notice dated 12.6.2004. In response, he submitted his explanation on 18.6.2004. BY an order dated 26.6.2004, the Chairman of Legislative Council arrived at the conclusion, that the petitioner had contested the election to the Bihar Legislative Council as a candidate of the Congress Party, and thereafter, his action in contesting the election to the Fourteenth Lok Sabha as an independent candidate, amounted to his having voluntarily given up his membership of the Indian National Congress Party, and therefore, he was disqualified from being a member of the Bihar Legislative Council under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. The Supreme Court while examining the controversy in Dr. Mahachandra Prasad Singhs’ case (supra) rules as under: “No new point has been urged by Shri. P.S. Mishra in the present case. It is admitted in paras 4 and 6 of the writ petition that the petitioner had been elected as member of the Legislative Council in the year 1998 as a candidate of Indian National Congress Party and that he filed his nomination papers for contesting the parliamentary election held in May 2004 as a candidate of Samajwadi Party. This factual position was not disputed by the petitioner in the replies given by him to the Chairman of the House. In such circumstances, there cannot be even the slightest doubt that the petitioner has voluntarily given up his membership of Indian National Congress Party. No exception can, therefore, be taken to the decision taken by the Chairman of the House that the petitioner has incurred the disqualification for being a member of the House under Paragraph 2(1)(a) of the Tenth Schedule and Article 191(2) of the Constitution and the seat held by him had fallen vacant”. 23. I have examined the rival submissions, on the third contention advanced on behalf of the petitioners. In my considered view, a debate on the floor of the house is for enacting legislation. And in a debate on the floor of the house, all elected members will have a right to express their views, as also to cast their vote, as per their individual thought and wisdom, as long as a party whip has not been issued. In my considered view, a debate on the floor of the house is for enacting legislation. And in a debate on the floor of the house, all elected members will have a right to express their views, as also to cast their vote, as per their individual thought and wisdom, as long as a party whip has not been issued. If a party whip has been issued, all the members of the legislature in question, elected on the ticket of such party, (which has issued the whip), will have to vote as per the mandate of the party. Any breach of a party whip will result in earning a disqualification under paragraph 2(1) (b) of the Tenth Schedule of the Constitution of India. Paragraph 2((1)b) aforesaid is being extracted hereunder: “2(1)(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 authorized by it in this behalf, without obtaining, in either 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 date of such voting or abstention. Explanation: For the purpose of this sub-paragraph: (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall, (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. The issue in the present case, is not in respect of the manner in which the petitioners voted during the course of a debate. The issue is also not, that of violating the partys direction to vote in a particular fashion. The issue in the present case, is not in respect of the manner in which the petitioners voted during the course of a debate. The issue is also not, that of violating the partys direction to vote in a particular fashion. The issue here is, whether the petitioners, can be stated to have broken from the party, on whose ticket they were elected, and as such, can be deemed to have given up their allegiance to the said party. In other words, whether their actions can lead to the inference that they have voluntarily given up their membership to the political party to which they are affiliated? 24. When a voter votes during the course of an election, he does not cast his vote for the Government which will eventually be formed. He votes for one of the candidates contesting the election. If he votes for a candidate belonging to a particular party, the vote is cast keeping in mind the political compulsions of the candidate, as also, the ideology of the political party which has sponsored him. It is the collective mandate of all the constituencies, which will determine the constitution of the Government in the concerned legislative body. It would therefore, not be correct to assume, that there can be a duality in the obligations of the elected member, wherein, one of his obligations require him to act in one manner, and the other, to act in a diagonally opposite fashion. 25. After the addition of the Tenth Schedule to the Constitution of India, the sincerity of a member who is elected on a party ticket has to be such, that his actions can never be construed as leading to the conclusion, that he has voluntarily given up the membership of the political party on whose ticket he was elected. If a candidate desires to be free from any such obligations, he must contest as an independent. After the addition of the Tenth Schedule to the Constitution of India, even the electorate, while voting for a candidate sponsored by a political party, is conscious of the obligations and commitment of such a candidate, to the political party. There can thus be no duality, whether it is the mind of the electorate, or in the mind of the candidate elected (on the strength of political sponsorship). There can thus be no duality, whether it is the mind of the electorate, or in the mind of the candidate elected (on the strength of political sponsorship). If this is not so, there would be no difference between, being elected as an independent, and being elected on a party ticket. If the strength of the conscience of a candidate is such, that he does not desire to support the political party on whose ticket he was elected. He must resign, and forego the membership of the legislature, which he had procured on the basis of his sponsorship by the political party in question. Any action to the contrary, would expose him to the disqualification contemplated under the Tenth Schedule of the Constitution of India. 26. Likewise the leader of the party which forms the Government, is elected on the basis of the collective wisdom of the political party in question. For a change in such leadership, the rightful forum can only be within the political party. It is not open to a candidate elected on a party ticket, to seek a change in the leadership of the Government, either from the electorate or from any other forum, contrary to the collective wisdom of the political party which had required him (the leader) to run the Government. Such an act, in a given situation, could be construed against the concerned individual, as having voluntarily abandoned his membership, of the said political party. In the present controversy, this is the precise question arising for consideration. 27. I have no doubt whatsoever in my mind, that the letter dated 06.10.2010 addressed by the petitioners to the Governor of the State of Karnataka, was by itself sufficient to conclude, that the petitioners had suffered the disqualification envisaged under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. It is surprising, that out of the letters addressed by 19 legislators (including the 11 petitioners) there were no less then 7 Ministers in the cabinet of Chief Minister Mr. B.S. Yeddyurappa. If the petitioners were dissatisfied with the manner of functioning of the Government headed by Mr. B.S. Yeddyurappa, which according to them, had led to widespread corruption, nepotism, favoritism, abuse of power, and misuse of Government machinery, they ought to have resigned from their Ministerial berths, before taking recourse to any other action. B.S. Yeddyurappa. If the petitioners were dissatisfied with the manner of functioning of the Government headed by Mr. B.S. Yeddyurappa, which according to them, had led to widespread corruption, nepotism, favoritism, abuse of power, and misuse of Government machinery, they ought to have resigned from their Ministerial berths, before taking recourse to any other action. It was their Ministerial position, which associated them with the Chief Minister, in respect of the allegations leveled by them. This was however not done by the petitioners, as some of the petitioners continued to be Ministers even when they met the Governor, and submitted the letters dated 06.10.2010 to him. The 11 petitioners herein belong to the Bharatiya Janata Party. All the petitioners, along with some other legislators belonging to the Bharatiya Janata Party, besides 5 independent members of the Karnataka Legislative Assembly, had collectively informed the Governor of the State of Karnataka through individual written communications dated 06.10.2010, that they were withdrawing their support to the Government, headed by Chief Minister Mr. B.S. Yeddyurappa. Interestingly, in their letters the petitioners informed the Governor, that a situation had arisen that the governance of the State could not be carried out in accordance with the Constitution of India. Both the aforesaid factual aspects are of significance. Legislators elected on party tickets, and those elected as independent candidates, are treated as two separate entities under paragraph 2 of the Tenth Schedule of the Constitution of India. The object of the petitioners in meeting the Governor along with others who did not belong to the Bharatiya Janata Party was clear, i.e., they collectively desired to bring down the Bharatiya Janata Party led Government in the Karnataka Legislative Assembly. By asserting, that the governance in the State cannot be carried out in accordance with the provisions of the Constitution of India, the petitioners had expressly conveyed to the Governor of the State of Karnataka, that the Bharatiya Janata Party led Government in the Karnataka Legislative Assembly was not running according to the manner contemplated under the Constitution of India, and as such, deserved to be changed. The clear objective in the instant assertion again was, that the petitioners did not desire the Bharatiya Janata Party led Government to continue in the Karnataka Legislative Assembly. The clear objective in the instant assertion again was, that the petitioners did not desire the Bharatiya Janata Party led Government to continue in the Karnataka Legislative Assembly. The manner in which the Governor of the State of Karnataka reacted to the petitioners letters, demonstrates that the Governor also understood the said letters as per the conclusions recorded hereinabove, by requiring the Chief Minister to prove his strength on the floor of the house. The non-denial of the factual assertions recorded in the impugned order, through the pleadings in the writ petition, also discloses the hollowness of the petitioners contention. The decision of the petitioners not to support the Bharaitya Janata Party led Government in the Karnataka Legislative Assembly, as long as it was headed by Chief Minister Mr. B.S. Yeddyurappa was unequivocal and voluntary. The written assertions made by the petitioners leave no room for any doubt, that the petitioners would oppose the Bharatiya Janata Party led Government as long as it was led by Chief Minister Mr. B.S. Yeddyurappa, even on the floor of the Karnataka Legislative Assembly. In order words, the petitioners were determined to remove the leader of the Government who had been elected on the collective wisdom of the party which had sponsored them. Thus viewed, the wisdom of the petitioners was sought to be asserted, over and above the collective wisdom of the political party, which had brought them into the legislature itself. And as such, were even willing to bring down the Government led by their own political party itself, even though all the petitioners had been elected to the Karnataka Legislative Assembly on its tickets. This anti-party action of the petitioners, in my view, fully demonstrates that the petitioners had voluntarily given up their membership to Bharatiya Janata Party. 28. Reference also deserves to be made to the observations of the Apex Court in Kihoto Hollohan vs. Zachillhu (1992) Supp (2) SCC 651: “But a political party functions on the strength of the shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Reference also deserves to be made to the observations of the Apex Court in Kihoto Hollohan vs. Zachillhu (1992) Supp (2) SCC 651: “But a political party functions on the strength of the shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they places independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on Parliament Functions, Practice and Procedure (1989 end., 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 wise snacks of conspiracy”. The sentiment referred to in the judgment extracted above, above equally applies to actions outside the legislature also. This clearly emerges from the facts of all the cases referred to by the learned Counsel representing the respondents, i.e., Rajendran Singh Ranas’ case (supra), Dr. Mahachandra Prasad Singhs’ case (supra) and Jagjit Singh’s case (supra). The act of withdrawal of support to the Government headed by the Chief Minister Mr. This clearly emerges from the facts of all the cases referred to by the learned Counsel representing the respondents, i.e., Rajendran Singh Ranas’ case (supra), Dr. Mahachandra Prasad Singhs’ case (supra) and Jagjit Singh’s case (supra). The act of withdrawal of support to the Government headed by the Chief Minister Mr. B.S. Yeddyurappa, keeping in mind the judgments of the Supreme Court referred to above, in my view, fully justifies the conclusion recorded by the Speaker of the Karnataka Legislative Assembly, that the petitioners had incurred the disqualification contemplated under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India. 29. The last i.e., the fourth contention advanced by the learned Counsel for the petitioners was, that the entire action initiated by the respondents to disqualify the petitioners smacked of mala fides, and therefore, the impugned order dated 10.10.2010 deserved to be set aside. In this behalf it is the contention of the learned Counsel for the petitioners that the Chief Minister Mr. B.S. Yeddyurappa and the Speaker of the Karnataka Legislative Assembly were hand in glove with one another to manipulate the disqualification of the petitioners, so as to continue in their respective positions of authority. In so far as the plea of mala fides is concerned, the same is sought to be asserted on behalf of the petitioners, on the basis of the averments made in paragraph 6 of the writ petitions, which is being extracted hereunder: “6. That this is a clear case of abuse of constitutional power conferred on the Speaker by Paragraph 6 of the Schedule 10, going out of the way to save his own chair and the chair of the Chief Minister on which it depends. As such, the Show Cause Notice under reply is ex parte not only unconstitutional and illegal but motivated and mala fide and devoid of jurisdiction. As such, the Show Cause Notice under reply is ex parte not only unconstitutional and illegal but motivated and mala fide and devoid of jurisdiction. In the grounds raised in the writ petitions, the Court’s pointed attention was invited to paragraph 19K, in so far as the plea of mala fides is concerned, which is also being extracted hereunder: “19K Because the alleged petition made by Shri. B.S. Yeddyurappa is clearly mala fide and has been made with an oblique motive knowingly in violation of Rule 6(4) of Disqualification Rules, 1986, which require him to satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such member has become subject to disqualification under the Tenth Schedule. No reasonable person would in the facts of this case could come to the conclusion that the petitioner has incurred any disqualification on the ground of defection ever prima facie defection means leaving the party and joining another. Petitioners did not leave the B.J.P. at all”. It is on the aforesaid basis, that the learned Counsel for the petitioners has pressed the plea of mala fides. 30. I have examined the plea of mala fides raised at the hands of the learned Counsel for the 1petitioners. In my considered view the allegations of mala fide contained in the pleadings of the writ petitions are vague and bereft of specific details, and as such, it is not possible to accept the same. Moreover, respondent No.2, i.e., the Speaker of the Karnataka Legislative Assembly, against whom the plea of mala fides have been leveled, and who was the author of the impugned order dated 10.10.2010, has not been impleaded as party respondent by name. In the absence thereof, it is apparent that the petitioners have not invited the Speaker of the Karnataka State Legislative Assembly in is personal capacity, to respond to the allegations contained in the writ petitions. As such, it is not possible for me to accept the plea of mala fides raised at the hands of the learned Counsel for the petitioners to annul the entire action of disqualification, which eventually culminated in the passing of the impugned order dated 10.10.2010. Accordingly, I find no merit even in the last contention advanced by the learned Counsel for the petitioners. 31. Accordingly, I find no merit even in the last contention advanced by the learned Counsel for the petitioners. 31. Since I have found no merit in any of the four contentions advanced by the learned Counsel for the petitioners, I am of the view, that the order of disqualification dated 10.10.2010, passed against the petitioners by the Speaker of the Karnataka Legislative Assembly, suffers from no infirmity. Besides being in consonance with law, the order of disqualification passed by the Speaker of the Karnataka Legislative Assembly on 10.10.2010, is fully justified in terms of the provisions contained in the Tenth Schedule of the Constitution of India. (for reasons, see paragraphs 23 to 28 above). 32. The writ petitions are, accordingly, hereby dismissed. Sd/- Chief Justice Per N. Kumar J., 33. I have gone through the judgment prepared by the Hon’ble Chief Justice, wherein His Lordship has set out the facts of the case, referred to the material documents and recorded His Lordship’s conclusions on all the contentions which arise for consideration in these Writ Petitions. Except on third contention, regarding the interpretation to be placed on Paragraph 2(1)(a) of the Tenth Schedule, I am in agreement with the reasoning dealing with the rest of the contentions. My views on the said third contention are as under:- PARLIAMENTARY DEMOCRACY 34. In a Parliamentary Democracy, the mandate to rule the State is given to a political party, and not to any individual. All the members who are elected from a political party to the House form Legislature Party of that party. It is the Legislature Party which elects its leader. He becomes the leader of the Legislature Party. He also is amenable to party discipline. He will be one of the leaders of that political party and not the sole leader of that political party. When he is elected as a leader of the Legislature Party, it may be an unanimous choice or a person who has the majority support. Therefore, to become a leader of the Legislature Party one does not need the support of all the members. That is how Democracy works in practice. However, it is the leader who enjoys the majority in the House, and not the majority in the Legislature Party, who is called upon to form the Government. Such a leader is appointed by the Governor as Chief Minister. That is how Democracy works in practice. However, it is the leader who enjoys the majority in the House, and not the majority in the Legislature Party, who is called upon to form the Government. Such a leader is appointed by the Governor as Chief Minister. On the advice of the Chief Minister the Governor appoints the other Ministers. The Ministers hold office during the pleasure of the Governor. The Council of Ministers headed by the Chief Minister can continue in the office as long as they enjoy the confidence of the majority of the Members of the House. If the House expresses no confidence in the Chief Minister, it is not only the Chief Minister, but his entire Council of Ministers who ceases to be in office. 35. Till the fourth General Election in the Country, i.e., for nearly two decades after independence the principle underlying this Parliamentary Democracy was strictly adhered to by the elected members of all the political parties. Probably, the new generation of people who entered the political arena, who had not made any significant contribution to the freedom struggle got elected to these legislative bodies. Lure of office and the privileges attached to such office and money, became the sole consideration. It resulted in legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects. This evil of political defections became a matter of national concern. To combat this evil, which undermines the very foundation of the Democracy in the country and the principle which sustain it, on December 8, 1967, the Parliament by an unanimous resolution appointed a high level committee consisting of representations of political parties and constitution experts to consider this problem. The said committee known as the ‘Committee on Defections’ in its report dated 7th January, 1969, inter alia observed:- “Following the Fourth General Election, in the short period between March 1967 and February 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several Stats. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature or explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections”. 36. However, it took more than two decades before Tenth Schedule, “anti defection law” became a reality. 37. The word ‘defection’ is not defined under the Tenth Schedule. But, the grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. CONSTITUTIONAL PROVISION 38. Paragraph 2 of the Tenth Schedule reads as under:- “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 voluntary gives 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 authorized by it in this behalf, without obtaining, in either 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 15 days from the date of such voting or abstention. Explanation.- For the purpose of this sub-paragraph.- (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall,- (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on commencement of the constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,- (i) where he was a member of a political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party. (ii) In any other case, be deemed to be an elected member of House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. INTERPRETATION BY APEX COURT 39. INTERPRETATION BY APEX COURT 39. In interpreting Paragraph 2 of the Tenth Schedule the Constitution Bench of the Apex Court in the case of KIHOTO HOLLOHAN vs ZACHILLHU AND OTHERS reported in 1992 SUPP (2) SCC 651 has held as under:- “10. Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under Paragraph 2(1)(a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under clause (b) he would incur the disqualification if he votes or abstains from voting in the 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 case, 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. This sub-para would also apply to a nominated Member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath. 11. Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of a House would incur his disqualification under sub-para (3) if he joins any political party after the expiry of six months from the date of which he takes his seat. 12. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under Paragraph 2 in cases of “split” in the original political party or merger of the original political party with another political party. 13. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. (Underlining by me) 14. Paragraph 2(1)(b) deals with a slightly different situation i.e., a variant where dissent becomes defection. If a Member while remaining a Member of the political party which had set him up as a candidate at the election, votes or abstains from voting 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 he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party. 40. In the case of G. VISWNATHAN Vs. HON’BLE SPEAKER T.N. LEGISLATIVE ASSEMBLY reported in (1996) 2 SCC 353 , explaining the scope of paragraph 2(1)(a) held that even if a member is thrown out or expelled from the party, for the purposes of the Tenth schedule he will not cases to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as ‘unattached’. The act of voluntarily giving up the membership of the political party may be either express or implied. He will continue to belong to that political party even if he is treated as ‘unattached’. The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member. 41. The Apex Court in the case of Dr. MAHACHANDRA PRASAD SINGH Vs. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND OTHERS (2004) 8 SCC 747 has held as under:- “7. Paragraph 2 of the Tenth Schedule lays down the contingencies under which a member of the House belonging to any political party shall be disqualified for being a member of the House and they are enumerated in sub-paras (1), (2) and (3). Sub-para (2) deals with a situation where a member of the House elected as in independent candidate joins any political party after such election and sub-para (3) deals with a situation where a nominated member of the House joins any political party after the expiry of six months from the date on which he takes a seat. Sub-para (1) deals with a situation where a member of a House belonging to any political party voluntarily gives up his membership of such political party. It also deals with a situation where he votes or abstains from voting in the House, contrary to any direction issued by the political party to which he belongs, without obtaining prior permission of such political party and such voting or abstention has not bee condoned by such political party within fifteen days from the said voting or abstention. The scrutiny of the provisions of sub-para (2) would show that a member of a House belonging to any political party becomes disqualified for being a member of the House if he does some positive act which may be either voluntarily giving up his membership of the political party to which he belongs or voting or abstention from voting contrary to any direction issued by the political party to which he belongs and in the case of an independent or nominated member, on his joining a political party. On the plain language of paragraph 2, the disqualification comes into force or becomes effective on the happening of the event. Paragraph 4 is in the nature of an exception to paragraph 2 and provides for certain contingencies when the rule of disqualification will not apply in the case of merger of parties.” 42. The Constitution Bench of the Apex Court in the case of RAJENDRA SINGH RANA AND OTHERS Vs. SWAMI PRASAD MAURYA AND OTHERS reported in 2007 (4) SCC 270 , the Supreme Court has held as under: “33. It may be true that collective dissent is not intended to be stifled by the enactment of sub-article (2) of Articles 102 and 191 of the Tenth Schedule. But at the same time, it is clear that the object is to discourage defection which as assumed menacing proportions undermining the very basis of democracy. Therefore, a purposive interpretation of para 2 in juxtaposition with paras 3 and 4 of the Tenth Schedule is called for. One thing is clear that defection is a ground for disqualifying a member from the House. He incurs that disqualification if he has voluntarily given up his membership of his original political party, meaning that party on whose ticket he had got elected himself to the House. In the case of defiance of a whip, the party concerned is given an option either of condoning the defiance or seeking disqualification of the member concerned. But the decision to condone must be taken within 15 days of the defiance of the whip. This aspect is also relied on for the contention that relevant point of time to determine the question is when the Speaker actually takes a decision on the plea for disqualification.” SCHEME OF TENTH SCHEDULE 43. From the scheme of the Tenth Schedule it is clear it applies only to a Member of the House. He may be a person elected from the ticket of any political party or as an Independent. All Members of a political party are not Members of the House or the Legislature Party. However, every Member of a Legislature Party/Member of House, also, need not be a Member of the political party. But, a member of a political party who is elected as a Member of the House would automatically become Member of the Legislature Party in the said House. However, every Member of a Legislature Party/Member of House, also, need not be a Member of the political party. But, a member of a political party who is elected as a Member of the House would automatically become Member of the Legislature Party in the said House. Paragraph 2 deals with disqualification of such Members of the House. Paragraph (2) deals with disqualification of a Member of a House who belongs to a political party. Paragraph 2(2) deals with disqualification of a Member of a House elected as an Independent. In case of a Member of a House elected as an Independent candidate, the question of his voluntarily giving up his membership of a political party would not arise. Similarly, when he does not belong to any political party, the question of voting or abstaining from voting in such House contrary to the directions issued by the political party would not arise. These two instances apply only to a Member of a House who is also a Member of a political party. In the case of a Member of a House elected as an Independent he incurs disqualification only when if he joins any political party after such election. Therefore, it is clear once a person gets elected as an Independent candidate, the mandate of the voters is that he shall remain as an Independent throughout his tenure in the House. Under no circumstances he can join any political party. 44. In the case of a Member of a House belonging to a political party, the disqualification occurs when he voluntarily gives up the membership of the political party. It is because the mandate of the people is that he shall continue to be the member of that political party which set him up as a candidate for the election. If he wants to give up his membership of the House, he has to resign from the membership of the House as well as the membership of the political party and then contest for election in the vacancy caused because of his resignation and then only he is at liberty to have an independent course of his choice. If he does not want to resign from the political party, in other words, if he does not want to give up his membership of the political party, then he is bound by the party discipline. If he does not want to resign from the political party, in other words, if he does not want to give up his membership of the political party, then he is bound by the party discipline. On the floor of the House, at the time of voting, if the political party to which he belongs issues a direction, which is popularly known as a “whip”, he has to cast his vote in accordance with the said whip. He has no discretion. He has to attend the House, cast the vote in accordance with the whip. If he abstains from voting or votes contrary to the whip, then he incurs disqualification under paragraph 2(b) of the Tenth Schedule. If he abstains or casts contrary to the whip, it is open to the political party to condone the same. But, if they are not prepared to condone the said act, it is open to the political party to initiate proceedings for his disqualification. 45. Therefore, it is clear under Paragraph 2(1)(a) a Member of a House belonging to a political party by which he was set up as a candidate at the election would incur disqualification, if he voluntarily gives up his membership of such political party. That is if a member after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election. If a member has no intention to leave the political party which had set him up as a candidate at the election, and he has no intention of changing the affiliation, he intends to continue in the party, and fight for a cause which is dear to his heart, it does not constitute giving up his membership of the party. In his perception the conduct of the leader of the Legislature Party of the party, is contrary to the policy of the party, on the basis of which, his electors reposed confidence in the party and voted him, and his right to express dissent cannot be construed as an act of defection. Such an expression of dissent in public, outside the party forums, if it embarrasses the party and Government, it may attract disciplinary action by the party. He may be suspended or expelled from the party. It also would not amount to his leaving the party voluntarily and giving up his membership. Such an expression of dissent in public, outside the party forums, if it embarrasses the party and Government, it may attract disciplinary action by the party. He may be suspended or expelled from the party. It also would not amount to his leaving the party voluntarily and giving up his membership. If he expresses his intention to withdraw the support given to the Government of the party in writing to the Governor of the State, a Constitutional authority, it would also do not bring down the Government of the party. The said dissent also do not become defection. Only when the expression of such intention is given effect to by either actually voting or abstains from voting on the floor of the House, the Government of the party may fall. It is to meet such a contingency clause (1)(b) of Paragraph 2 is enacted. That is where dissent becomes defection. If a member while remaining a member of the political party which had set him up as a candidate at the election, votes or abstains form voting contrary to ‘any direction’ issued by the political party to which he belongs incurs disqualification, under para 2(1)(b) of the Tenth Schedule. 46. The language employed in paragraph 2(1)(a) and 2(1)(b) is significant. The Anti Defection Law, i.e., Tenth Schedule was enacted to prevent floor crossing, thereby destabilizing the Government which is duly elected for a term. If a member of the House voluntarily gives up his membership, the object was to prevent him from extending support to the opposition party to form the Government by his vote or if he resigns from his membership, his support is not available for forming the alternative Government by the opposite party. Therefore that is precisely the menace which was sought to be prevented by enacting the Tenth Schedule. Therefore the Parliament took care to see, once such an act happens, he forfeits the right to be a member of the house and therefore instantly he is disqualified of being a member of the House. Once the act of disqualification occurs, the question of condoning such act or taking him back to the party or on his tendering the apology or expressing his intention to come back to the party would not arise. Such a discretion is not given to a political party. Therefore, if the act falls under paragraph 2(1)(a), his membership becomes void. Once the act of disqualification occurs, the question of condoning such act or taking him back to the party or on his tendering the apology or expressing his intention to come back to the party would not arise. Such a discretion is not given to a political party. Therefore, if the act falls under paragraph 2(1)(a), his membership becomes void. However, in the case of disqualification being incurred under paragraph 2(1)(b), it is not void. It is voidable at the option of the political party. The political party has been given the discretion to condone such act, i.e., the act of voting or abstain from voting in the House contrary to any directions/whip issued by such party within 15 days from such act of disqualification. Only in the event of the political party not condoning such disqualification, the disqualification become effective. Therefore the intention is very clear. Remaining in the party, if a member of the House expresses his no confidence in the leader of a Legislature Party and if votes against him in a confidence motion to be taken on the floor of the House, the disqualification is not automatic. Such a disqualification can be condoned by a political party. It underlines the basic premise of democracy, that right to dissent is to be accommodated even in respect of Tenth Schedule which is brought with the avowed object of preventing defection and crossing the floor. Therefore expressing want of confidence in the leader of the political party which has formed the Government cannot be equated to such a member giving up voluntarily the membership of the political party. Such a conduct is outside the scope of paragraph 2(1)(a). Such an act falls within the scope of paragraph 2(1)(b). 47. When a Member of a House expresses his no confidence in the leader of his Legislature Party and if he happens to be the Chief Minister who is heading the Council of Ministers, to the Governor in writing that act by itself would not result in the act of floor crossing. Similarly, if the Governor after taking note of the said expression of no confidence is satisfied that the Chief Minister has lost majority in the House, he may call upon the Chief Minister to prove his majority on the floor of the House. Similarly, if the Governor after taking note of the said expression of no confidence is satisfied that the Chief Minister has lost majority in the House, he may call upon the Chief Minister to prove his majority on the floor of the House. If the Chief Minister on such request fails to establish majority support on the floor of the House, his Ministry would fall. The said act of fall of Ministry or his resignation would not constitute defection under Tenth Schedule. By that act the political party which had formed the Government do not lose its right to form a Government again. After the fall of the Government, it is not as if the Governor either can recommend for the President’s rule under Article 356 of the Constitution or call upon the leader of the opposition to form an alternate Government. Before he could embark upon those two options he is excepted to explore the possibility of formation of an alternate Government. He can call upon only that leader who enjoys majority support of the members of the House. It is open to the political party whose Government has fallen on the floor of the House, again to stake a claim before the Governor either with the same leader by producing necessary evidence showing the majority support of the members of the House or put forth its claim to form a Government by electing another leader of the party. Therefore, the stability of the Government of the political party is not really disturbed. What is disturbed by such an act is the Government of the political party with a particular leader against whom the members of the House of the same political party has no confidence. But, all this would not constitute the Member of the political party to which the Chief Minister belongs, voluntarily vacating the membership of that political party. In order to meet such a situation the Constitution provides for issue of direction to such dissenting members. By issuing such a direction/whip, those who have expressed their no confidence in the leader of the House, be directed to vote in his favour at the time of voting on the floor of the House. Contrary to that direction the member cannot neither abstain from voting nor vote contrary to such direction. If he does so, he incurs disqualification under Paragraph 2(1)(b) of the Tenth Schedule. Contrary to that direction the member cannot neither abstain from voting nor vote contrary to such direction. If he does so, he incurs disqualification under Paragraph 2(1)(b) of the Tenth Schedule. In fact, the said provision also provides for such an act being condoned so that by persuasion or by entering into any understanding, still their support could be cobbled up by the party and, either save the Government before voting or form a fresh Government after such voting, if in the voting the Government fails. The said dissent is a dissent within the party. 48. Therefore, these two grounds which are set out in paragraph 2 of the Tenth Schedule are mutually exclusive. It operates in two different fields. Paragraph 2(1)(a) deals with a Member who voluntarily walks out of the party. Clause 2(1)(b) deals with a person who remains in the party and acts contrary to the directions of the party. 49. When once the member voluntarily gives up his membership of the party, then paragraph 2(1)(b) is not attracted. The condition precedent for application of the said provision is that member against whom any direction issued must be a member of a political party, by which he was set up as a candidate for election as such member. In order to avoid the disqualification under paragraph 2(1)(b) a member may choose to give up his membership of such political party. In order to meet such a situation, paragraph 2(1)(a) is enacted. In either event, it is the political party which is aggrieved by such conduct. However, it is open to the party to condone the conduct contemplated under paragraph 2(1)(b). It is purely a discretion left to them. However, such conduct has to be condoned within 15 days from the date of such voting or abstention. It only shows an opportunity is given to a political party to respect honest dissent, re-think, retrace its steps and take corrective methods, if its members do not agree with the official line of the party. It is a wake up call by the members of the party who are in minority, to the party, not to curb internal democracy, stifle dissent, to see reason, and confirm to the true democratic principles. It is a wake up call by the members of the party who are in minority, to the party, not to curb internal democracy, stifle dissent, to see reason, and confirm to the true democratic principles. This is an option available to a member of a House by remaining within the party and fighting against what he perceives as acts pursued by persons in power contrary to the programmes and policies of the political party. In such a fight though the Government headed by a leader falls, if the party still commands majority in the House, the party can form the Government with another leader. To give such an opportunity, the Parliament has advisedly provided for condoning such an act, within 15 days from such voting and abstention, in true spirit of democracy, respecting the wisdom of the elected representative. The intention is not to drive the dissenting members to the corner and make them desperate, which ultimately lead to floor crossing and leaving the party. The underlying premise is that dissent is the essence of democracy. The same concern is not shown to a person who voluntarily leaves the party. Paragraph 2(1)(a) do not provide for condoning such act. Because in a Parliamentary democracy, the right to dissent is acknowledged. Loyalty to the party is the norm, being based on shared beliefs. To vote against a party is disloyalty. Still it could be condoned. But to join other party, and extending support to the other party, or trying to form a Government with the support of the other party smacks of conspiracy. Therefore, such an act cannot be condoned and therefore once a member voluntarily gives up his membership, to achieve the aforesaid object, then the disqualification incurred by him cannot be condoned. Tenth Schedule is introduced into the Constitution to combat this conduct of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects. It should be an unprincipled defection. Lure of office and money should be the consideration for such defection. 50. Tenth Schedule is introduced into the Constitution to combat this conduct of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects. It should be an unprincipled defection. Lure of office and money should be the consideration for such defection. 50. The Apex Court while upholding the constitutional validity of the Tenth Schedule, took note of the competing interests of constitutionally stated principles and attempted harmonizing them, in the working of the constitution of which parliamentary democracy is a part, in the case of KIHOTO HOLLOHAN vs ZACHILLHU AND OTHERS reported in 1992 SUPP (2) SCC 651 as under: “33. The points raised in the petitions are, indeed, far-reaching and of no small importance – invoking the ‘sense of relevance of constitutionally stated principles to unfamiliar settings’. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political properties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil. 34. On the other hand, there are, as in all political and economic experimentations, certain side effects and fall out which might affect and hurt even honest dissenters and conscientious objectors. There are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a ‘hazy gray line’ and it is the Court’s duty to identify, “darken and deepen” the demarcating line of constitutionally – a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a “transitory delusion of certitude” where the “complexities of the strands in the web of constitutionality which the Judge must alone disentangle” do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. 51. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. 51. The parliament was also conscious of this problem which they have to encounter. Therefore, though they were anxious to prevent the imminent threat to the very fabric of Indian Democracy posed by political behaviour by their utter and total disregard of well recognized properties and moralities, they did not want to stifle the honest dissenters and conscious objectors. After all this Tenth Schedule is the legislative determination through experimental constitutional process to combat that evil. Therefore, they have adopted middle path. Debate, discussion and persuasion are the means and essence of the democratic process. During the debates the Members put forward different points of view. The members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines. When clause (b) of sub para (1) of paragraph 2 of the Tenth Schedule gives effect to the principle that loyalty to the party is the norm, being based on shared beliefs and to vote against a party is disloyalty and imposes a disqualification on a member who votes or abstain from voting contrary to any directions issued by the political party, the Constitution, however, recognizes two exceptions. One when the Member obtains from the political party with prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression ‘any direction’ in clause (b) of Paragraph 2(1) – whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extraordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification, the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. 52. In this regard it is necessary to notice the inter-relationship between the constituency and its elected representative. It is the avowed endeavour of the latter to fulfil the expectations of his voters. Occasionally, the might conflict with his political obligations to the political party sponsoring him which expects and exacts and exacts in its own way loyalty to it. This duality of capacity and functions may pose certain problems in his functioning as a member of the House. His function as a Member could be broadly classified into two kinds. When a voter at a general election puts his cross against the name of the candidate he is most often consciously performing two functions. He is seeking to return a particular person to the House. Secondly, seeking to return to power as the Government of the Group of individuals of the same party as that particular person. The voter votes for a representative and for a Government. When a candidate is elected as a Member of the House, he reflects those two aspirations of a voter. Therefore, he must listen to their grievances and often seek to persuade those in authority to provide remedies. He must have no regard to the political leanings of his constituents for the represents those who voted against him or who did not vote at all, as much as those who voted for him. It is because, after the elections he will be the representative of the Constituency consisting of voters irrespective of their party affiliation. He must have no regard to the political leanings of his constituents for the represents those who voted against him or who did not vote at all, as much as those who voted for him. It is because, after the elections he will be the representative of the Constituency consisting of voters irrespective of their party affiliation. So far as his own personal views on freedom of conscience are concerned, there may be exceptional occasions when the election representative finds himself compelled to consider more closely how he should act. He may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side. Thirdly, he may find his party after obtaining majority in the House and forming the Government, the leaders who are vested with the power to run the Government, may forget the electoral promises, party’s programs and policies and act contrary to the same. With power, money and advantages attached to the office they hold, they may try to stifle the honest dissent and conscious objectors, who are concerned about the party, as they are conscious that they have to again go to the voters after the term of the House seeking votes. In such circumstances, if within the Legislature Party of the party, they are unable to dislodge the leader who is well entrenched in the office, who is continuing in office by manipulations and who has become a despot, if they attempt to dislodge him from his seat, would it run counter to the object of the Tenth Schedule. The people give mandate to the party and not to a leader of the party. Therefore, a person who gets elected on a party ticket should be loyal to the party and loyal to the programs and policies of that party. Loyalty to the party is not synonyms with loyalty to the leader of the party. The people give mandate to the party and not to a leader of the party. Therefore, a person who gets elected on a party ticket should be loyal to the party and loyal to the programs and policies of that party. Loyalty to the party is not synonyms with loyalty to the leader of the party. Being loyal to the party, in the interest of the party and in implementing the policies and programs of the party on the basis of which the party has been given the mandate to form the Government, if the leader of the party is acting contrary to such mandate, they should have a right to dislodge such leader of the party and elect another leader. Dislodging a leader of the party and seeking for a new leader of the party is not what is sought to be prevented by the Tenth Schedule. It does not amount to defection, floor crossing or conspiracy. Recognising this important aspect of Parliamentary Democracy, that “dissent is the essence of Democracy” which is inherent in such Parliamentary Democracy, law recognizes that collective dissent is no disqualification under paragraph 2(1)(b). Therefore, it recognizes a split or merger and it would not constitute a defection as is clear from paragraph 4 of the Tenth Schedule, where not only the leader of the political party of which those members belong is dislodged, consequently the Government formed by such leader is thrown out of office, they are permitted to form a Government of their own, in coalition with the opposite groups of the House. 53. Therefore, to constitute a defection a Member should voluntarily give up his membership of the party from which he is elected. Further, it must be with an intention to join another political party or form a new party with the lure of office or money. It is that act which is sought to be forbidden by enacting paragraph 2(1)(a). What is sought to be prevented is an unprincipled defection which is a political and social evil. The anti defection law seeks to recognise the practical need to place the properties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the times. What is sought to be prevented is an unprincipled defection which is a political and social evil. The anti defection law seeks to recognise the practical need to place the properties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the times. However, if the act of a Member is within the parameters of the Constitution and the object to be achieved is legitimate, the means adopted to that end are appropriate, it is constitutional. A Member petitioning to the Governor a Constitutional functionary expressing his intention to withdraw his support to the Chief Minister of the day who is heading the Government of the party in pursuance of his mission in fighting corruption in the Government cannot be construed as unconstitutional. It is done within the framework of the Constitution. Similarly, if a Member who is also a Member of the Government brings to the notice of the Governor, the Government of the day headed by the Chief Minister of which he is a part, is unable to carry on the Government of the State in accordance with the provisions of the Constitution, it does not amount to his requesting the Governor to dissolve the House and impose President’s rule. Dissolution of the House and imposition of the President’s rule can happen only if the President of India on receipt of a report from the Governor or otherwise is satisfied that such a situation has arisen. When it is brought to the notice of the Governor, that the Chief Minister heading the Council of Ministers of the day, do not enjoy the confidence of the majority of the Members of the House, an obligation is cast on the Governor to take prompt steps to find out whether the Chief Minister enjoys the majority support in the House. If he requests the Chief Minister to prove his majority again it is not an unconstitutional act. 54. The Apex Court in the case of S.R.BOMMAI AND OTHERS vs UNION OF INDIA AND OTHERS [ AIR 1994 SC 1918 ] has considered what the Governor is expected to do when the support of the Ministry is withdrawn by some legislators. It is held that, the proper course to be adopted by the Governor for testing the strength of the Ministry is holding the test on the floor of the House. It is held that, the proper course to be adopted by the Governor for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides. The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that, that Government should enjoy the confidence of the House. Whether the Council of Ministers have lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House. Exceptional and rare situations may arise where because of all pervading atmosphere of violence or other extraordinary reasons, it may not be possible for the members of the Assembly to express their opinion freely. The Governor should be left free to deal with the situation according to his best judgment keeping in view the Constitution and the conventions of the Parliamentary system of Government. The Governor should be alive to the situation but he would be the sole Judge on the question whether or not conditions are conducive to resort to floor test. Therefore, when some legislators withdrew support to the Ministry and the Chief Minister in the absence of any exceptional and rate situation, the Governor is under a constitutional obligation to ask the Chief Minister to face the assembly and prove his majority within the shortest possible time. Therefore, when some legislators withdrew support to the Ministry and the Chief Minister in the absence of any exceptional and rate situation, the Governor is under a constitutional obligation to ask the Chief Minister to face the assembly and prove his majority within the shortest possible time. As far as possible, the verdict has to majority support claimed by the Chief Minister and his Council of Ministers should be left to the legislator and, therefore, if the Governor asks the Chief Minister to demonstrate his majority on the House on a representation being made by the legislators withdrawing their support and expressing their lack of confidence in the Chief Minister and the Ministry headed by them, neither those legislators nor the Governor committed any illegality and the conduct of such legislators cannot be construed as an act of defection under the provisions of the Tenth Schedule of the Constitution. It is a constitutional remedy and for pursuing a constitutional remedy, a person cannot be penalized under the Tenth Schedule. That is not the object of enacting Tenth Schedule. 55. The question as to when a member of a house belonging to a political party can be said to have given up his membership of such political party has been considered by the Apex Court in the following decisions:- In Dr. MAHACHANDRA PRASAD SINGH’s case, the petitioner was elected as a member of the Bihar Legislative Council from Tirhut Graduate Constituency as a candidate of Indian National Congress. He contested from Maharajganj Parliamentary Constituency as an independent candidate. By contesting the Parliamentary election as an independent candidate, he voluntarily gave up the membership of the Congress Party. Therefore it was held that he had incurred disqualification within the meaning of paragraph 2 (1)(a) of the Tenth Schedule. Therefore it is a case of a member of a political party who was a member of a House, contesting the Parliamentary election as an independent candidate. Therefore, he ceases to be a member of the political party which had set him up in the election to the Graduates Constituency of the Bihar Legislative Council. The intention was clear. He voluntarily gave up membership of the political party and contesting as independent. Even in the absence of any formal resignation letter, it amounts to voluntary giving up his membership of the political party to which he belongs. 56. The intention was clear. He voluntarily gave up membership of the political party and contesting as independent. Even in the absence of any formal resignation letter, it amounts to voluntary giving up his membership of the political party to which he belongs. 56. In G. VISWNATHAN’s case the appellants were members of the Tamil Nadu Legislative Assembly elected in the General Elections held in 1991 by All India Anna Dravida Munnetra Khazhagam (for short ‘AIADMK’), which had set them up as its candidates. Both of them were expelled from AIADMK party on 08.01.1994 for anti party activities. Thereafter, they joined another (new) party called Marumalarchi Dravida Munnetra Khazhagam (for short, MDMK). They were treated as unattached members of the Assembly by the Speaker. Therefore it was contended that as they were expelled from the AIADMK and they did not incur disqualification under paragraph 2(1)(a) of the Tenth Schedule. Repelling the said contention, the Apex Court held that if a person belonging to a political party that had set him up as a candidate, gets elected to the House and thereafter joins another political party for whatever reasons, either because of his expulsion from the party or otherwise, he voluntarily gives up his membership of the political party and incurs the disqualification. Therefore, when he joined another political party its presumed that he has given up the membership of the original political party even if he is expelled by such a political party. 57. In RAVI S NAIK Vs. UNION OF INDIA AND OTHERS ( AIR 1994 SC 1558 ), Ravi Naik did not dispute that he has given up his membership of his original political party but he claimed that there has been split in the said party. It is in that context as the High Court did not accept the case of split, it held that Ravi Naik and others had incurred disqualification under paragraph 2(1)(a), i.e., voluntarily giving up the membership of the original party. When the Supreme Court held that the split set up by Ravi Naik is proved from the material on record, then paragraph 2(1)(a) is not attracted by virtue of paragraph 4. 58. In the case of RAJENDRA SINGH RANA AND OTHERS Vs. When the Supreme Court held that the split set up by Ravi Naik is proved from the material on record, then paragraph 2(1)(a) is not attracted by virtue of paragraph 4. 58. In the case of RAJENDRA SINGH RANA AND OTHERS Vs. SWAMI PRASAD MAURYA AND OTHERS reported in 2007 (4) SCC 270 , 13 members belonging to Bahujan Samaj Party after their leader recommended for the dissolution of the Assembly, the leader of the Samajwadi Party staked his claim before the Governor for forming the Government. 13 members of the Bahujan Samaj Party met the Governor and requested him to invite the leader of the Samajwadi Party to form the Government. It is in this context it was held that the act of giving letter requesting the Governor to call upon the leader of the other side to form the Government itself would amount to act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. The conduct of meeting the Governor accompanied by the General Secretary of the Samajwadi Party, the opposition party, submission of letters, requesting the Governor to invite the leader of that opposition party to form the Government as against the advise of the Chief Minister belonging to their original party to dissolve the assembly and irresistible inference arises that the 13 members have clearly given up their membership of the BSP. No further evidence or enquiry is needed to find that action comes within para 2(1)(a) of the Tenth Schedule. Therefore 13 members stands disqualified with effect from 27.08.2003. The very giving of a letter to the Governor requesting him to call the leader of the opposition party to form a Government by them itself would amount to their voluntarily giving up the membership of their original party within the meaning of para 2 of the Tenth Schedule. 59. In JAGJIT SINGH’s case, the Supreme Court was dealing with a case of a Member of a House belonging to a Political Party namely, Democratic Dal of Haryana and Republican Party of India. They were the lone Member representing the party in the Assembly. Both of them decided to cast a split by passing an unanimous resolution and form a new political party. The question was whether the said split is valid and whether the rigorous of paragraph 2(1)(a) is not attracted to them. They were the lone Member representing the party in the Assembly. Both of them decided to cast a split by passing an unanimous resolution and form a new political party. The question was whether the said split is valid and whether the rigorous of paragraph 2(1)(a) is not attracted to them. As in those cases, those two Members leaving the political party is not in dispute, if the stipulation pleaded by them was to be valid it would not amount to defection because of paragraph 3. Therefore, the said judgment rendered in that context is of no assistance in this case. Similarly, four independents were accused of joining the Indian National Congress to enable them to form the Government. That is a case which falls under paragraph 2(2) and, therefore, it also has no application. 60. Therefore, from the aforesaid decisions it is clear that an act of expressing no confidence in one of the leader of the political or in the leader of the legislative party do not amount to his voluntarily giving up his membership of the political party. His act of expressing no confidence in the Government formed by the party with a particular leader as the Chief Minister would also not amount to a voluntary act of giving up the membership of the political party. Deserting the leader, deserting the Government, is not synonyms with deserting the party. If a Minister resigns from the ministry it does not amount to defection. What constitutes defection is deserting the party. Parliament in its wisdom, has consciously used the word “Political Party” in paragraph 2, after clearly defining the meaning of “Political Party”. There is no ambiguity. Therefore, there is no scope for interpretation of the word “Political Party” used in the paragraph. 61. In order to attract disqualification under paragraph 2(1)(a), a member of a House belonging to any political party has to voluntarily give up his membership of such political party on his own volition join another political party. It should be a conscious act. There should be an intention to severe his connection with the political party which set him up as a candidate for election as such member. He should lose his membership of such political party. The giving up of the membership of the political party may happen in several ways. It need not be in writing. It may be oral. There should be an intention to severe his connection with the political party which set him up as a candidate for election as such member. He should lose his membership of such political party. The giving up of the membership of the political party may happen in several ways. It need not be in writing. It may be oral. Even by conduct and circumstances, the intention could be gathered. But it should be unequivocal and voluntary. One such mode well understood is by way of tendering a resignation letter. But, that is not the only mode recognised. If a member of his own volition joins another political party, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged. Yet another instance is when he forms a new political party and claims to be a leader or member of that party, thereby he abandons the original political party. Being a member of a House belonging to a political party, contests for election as an independent or as a candidate of another political party, he ceases to be a member of the original political party. He joins hands with leader of the other political party and extends his support in writing, in forming the Government under his leadership before the Governor, it amounts to his voluntarily giving up membership of the original political party. These instances are only illustrative and not exhaustive. In order to attract the disqualification under this provision, a member of the House after the election changes his affiliation and leaves the political party which had set him up as a candidate at the election, then it amounts to giving up his membership of the legislature. The said giving up of membership should be established by positive, reliable and unequivocal evidence. The question of fact that a Member has voluntarily given up the membership of his original political party for all intent and purpose though not formal so as to incur disqualification provided in paragraph 2(1)(a) is to be determined on appreciation of the material on record. 62. Dissent is not defection. Tenth Schedule recognizes dissent but prohibits defection. Both these words have definite connotation in law. The distinction between what is constitutionally permissible and what is outside it, is marked by a hazy gray line. There is no single litmus test of constitutionally. 62. Dissent is not defection. Tenth Schedule recognizes dissent but prohibits defection. Both these words have definite connotation in law. The distinction between what is constitutionally permissible and what is outside it, is marked by a hazy gray line. There is no single litmus test of constitutionally. All distinctions of law – even constitutional law – are, in the ultimate analysis, “matter of degree”. It is only when dissent becomes defection the Tenth Schedule is attracted. At what point of time the dissent becomes defection is also provided in the Tenth Schedule. When dividing line between dissent and defection is very narrow and thin, and Tenth Schedule provides for such variant, keeping in mind the object with which the Tenth Schedule is enacted and other constitutional rights, it is pre-eminently an area where Judges should defer to legislative perception, and give literal meaning to the words used in the Tenth Schedule, without placing liberal interpretation of those provisions. It is to be borne in mind the serious consequences of upholding disqualification. The Member of the House would be disqualified for being a Member of the House for the remaining period. It is penal in nature. It also results in civil consequences. It is also to be noticed that the object of Tenth Schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundation of our democracy. After the Tenth Schedule, the defector cannot hold any office at all, on the contrary he loses his membership of the House. The object with which the Tenth Schedule is enacted is achieved. Therefore, the Tenth Schedule should not be allowed to be misused, to suppress honest dissent, and any interpretation the Courts place on this provision, should not aid such mischief. 63. Therefore, either expressing want of confidence in the Chief Minister, or withdrawing their support which was earlier given to him or demanding change of leadership of the legislature party or threatening to vote against him on the floor of the House or complaining to the Governor that the Government of the State cannot be carried on in accordance with the provisions of the Constitution or the Governor asking the Chief Minister to prove his majority on the floor of the House, do not amount to unconstitutional act and the person who triggered this action cannot be called a defector. These actions do not constitute an act of defection nor on that account a member of the House can be disqualified under paragraph 2 of the Tenth Schedule. These acts are strictly within the four corners of the Constitution, and cannot constitute disqualification under Paragraph 2 of the Tenth Schedule. ON FACTS 64. In the instant case, the petitioners who have been disqualified by the impugned order by the Speaker, were all members of the Bhartiya Janata Party, who were elected as members of the Legislative Assembly of Karnataka in the elections held in 2008. The complaint against them is, they gave a letter to the Governor on 06.10.2010 informing him that a situation has arisen that the Governance of the State cannot be carried on in accordance with the provisions of the Constitution and Sri. B.S. Yeddyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka, they expressed lack of confidence in the Government headed by Sri. B.S. Yeddyurappa. Therefore they withdrew support to the Government headed by Sri. B.S. Yeddyurappa. The Governor acting on such letter, on the same day addressed a letter to the Chief Minister, calling upon him to prove his majority on the floor of the House by 5 P.M. on 12.10.2010. It is thereafter Sri. B.S. Yeddyurappa filed a petition under Rule 6 as set out above setting out the facts. His grievance was the support which was given to him earlier to form the Government has been withdrawn by these petitioners in the absence of any resolution of the Legislature Party and any decision of the party. Therefore, they have clearly violated Tenth Schedule of the Constitution of India. Therefore they are eligible for disqualification of the membership. He referred to few decisions of the Courts where actions have been taken on members. On that basis it was contended that due to statements made by the petitioners before the Press and Electronic media and as per the gist of the letter sent by the Hon’ble Governor, it proves the violation of Tenth Schedule of the Constitution. 65. Therefore it is clear from the petition that the Chief Minister was not sure which provision of the Tenth Schedule is attracted to the facts of the case. He left it to the decision of the Speaker. 65. Therefore it is clear from the petition that the Chief Minister was not sure which provision of the Tenth Schedule is attracted to the facts of the case. He left it to the decision of the Speaker. When the Speaker sent notice to these petitioners, according to him, the aforesaid conduct amounts to violation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution. In view of the specific provision mentioned in the show cause notice, the petitioners understood that their case falls under paragraph 2(1)(a) of the Tenth Schedule. After raising several contentions, meeting the ground in paragraph 2(1)(a), they categorically stated in their statement of objections in paragraphs 8 and 10 as under: “I have not at all supported, joined or staked claim to form Government with any other political party. There is no such allegation in the show cause notice either. Therefore, my conduct does not amount to defection and does not attract the provisions of Schedule X of the Constitution of India, which only apply to ‘defection’ which means ‘floor crossing’ or ‘dal badal’, i.e., change of party”. My letter submitted to H.E. Governor of Karnataka of withdrawing the support from the Government headed by Shri B.S. Yeddiyurappa as Chief Minister of the State is an act of an honest worker of the BJP Party and a member of the Legislative Assembly to salvage the image and reputation of the BJP which set me up as a candidate for election for which I am grateful. Nowhere in the letter I have stated that I was not to continue as member of the Legislative party of BJP or the BJP as such. In fact my letter is aimed at cleansing the image of the party by getting rid of Shri B.S. Yeddiyurappa as Chief Minister of the State who has been acting as a corrupt despot in violation of the Constitution of India and contrary to the interests of the people of the State. If allowed to continue, he will completely destroy the credibility of the BJP not only in the State of Karnataka but in the entire nation. My act of withdrawal of support is from the present Council of Ministers headed by Shri B.S.Yeddiyurappa as Chief Minister of the State. If allowed to continue, he will completely destroy the credibility of the BJP not only in the State of Karnataka but in the entire nation. My act of withdrawal of support is from the present Council of Ministers headed by Shri B.S.Yeddiyurappa as Chief Minister of the State. I continue to support BJP and will continue to be part of the BJP or any government formed by BJP which is headed by any leader other than Shri B.S. Yeddiyurappa as Chief Minister of the State. As such, my act, by no stretch of imagination can be taken to be covered by the provisions contained in Schedule X to the Constitution of India which apply only to a conduct called defection which in common parlance means ‘crossing the floor’ or ‘dal badal’, i.e., change of party. ……I make it very clear and my letter addressed to H.E. Governor of Karnataka, which Shri B.S. Yediyurappa as Chief Minister of the State, has made the basis for seeking my disqualification, nowhere states that I am leaving the party; on the contrary the said letter only withdraws support from the Government headed by Shri B.S.Yeddiyurappa as Chief Minister of the State and I make it clear and reiterate that I am always a disciplined soldier of the BJP and will continue to support any government headed by a clean and efficient person who can govern the people of Karnataka according to the Constitution of India and provide good governance to the people of Karnataka there is no dearth of such leaders in BJP. It is only to save the party and the Government and to ensure that the people of Karnataka get rid of a thoroughly corrupt Chief Minister of the State namely Shri B.S. Yeddiyurappa that I have submitted the letter to H.E. Governor of Karnataka”. Therefore the question for consideration before the Speaker was whether their tendering a letter to the Governor and stating that a situation has arisen that the Governance of the State cannot be carried on in accordance with the provisions of the Constitution and Sri. B.S. Yeddyurappa as Chief Minister has forfeited the confidence of people and their expression of lack of confidence in the Government headed by Sri. B.S. Yeddurappa and their act of withdrawing their support to the Government headed by Sri. B.S. Yeddyurappa as Chief Minister has forfeited the confidence of people and their expression of lack of confidence in the Government headed by Sri. B.S. Yeddurappa and their act of withdrawing their support to the Government headed by Sri. B.S. Yeddyurappa constitutes these members voluntarily giving up their membership of the Bharathiya Janata Party. 66. In fact, in the petition filed, there is no plea that these petitioners have voluntarily given up the membership of the Bharathiya Janata Party. In fact, Rule 6 (5) of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules 1986, clearly provides that every petition shall contain a concise statement of the material facts on which the petitioner relies and it shall be accompanied by the copies of the documentary evidence if any, on which the petitioner relies. If the petition does not comply with the requirement of Rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly as contemplated under Rule 7(2). When the petition did not even aver that the petitioners have voluntarily given up the membership of the Bharatiya Janata Party, the petition could not have been entertained by the Speaker. In the complaint, or the other material placed before the Speaker, it is not the case of the applicant that these petitioners have joined any other political party in the State. It is not his case that they have accepted any leader of such other political party as their leader nor is it his case that by such joining hands with any other political party or leader of such other political party, they are attempting to form an alternate Government. There is no plea of floor crossing. Therefore, it is clear that in the absence of material facts constituting a case of defection under paragraph 2(1)(a) of the Tenth Schedule, the Speaker ought not to have entertained the petition at all. 67. When the petitioners understood the averments in the complaint or the application as a request for disqualification on the ground stipulated in paragraph 2(1)(a) of the Tenth Schedule, they have filed their statement of objections in respect of the said ground. 67. When the petitioners understood the averments in the complaint or the application as a request for disqualification on the ground stipulated in paragraph 2(1)(a) of the Tenth Schedule, they have filed their statement of objections in respect of the said ground. As set out above, the petitioners have asserted in their statement of objections that no where in the letter given by them to the Governor they have stated that they do not want to continue as members of the Legislative Party of the Bharatiya Janata Party as such. They continue to support Bharatiya Janata Party and will continue to be part of the Bharatiya Janata Party or any Government formed by Bharatiya Janata Party which is headed by any leader other then Sri. B.S. Yeddyurappa as the Chief Minister of the State. In the said letter no where they have stated that they are leaving the party. They have made it clear that they are disciplined soldiers of the Bharatiya Janata Party and will continue to support any Government headed by clean, efficient person who can govern the people of Karnataka according to the Constitution of India and provide good governance to the people of Karnataka. There is no dearth for such leaders in Bharatiya Janata Party. It is only to save the party and the Government and to ensure that the people of Karnataka get rid of a thoroughly corrupt Chief Minister of the State, they have submitted the letter to the Governor. They have asserted that they have not at all supported, joined or stake claim to form Government with any other political party. 68. The said assertion disclose that it is purely an internal fight in the party fought publicly. The dissent within the party has come out in the open. It is not a case of unprincipled and unethical political defection. Expression of no confidence in the leader of the Legislature Party outside the House, would not bring down the Government. It is only when the said expression is given effect to inside the House at the time of voting it will lead to serious consequences. Therefore, the Parliament advisedly incorporated clause (1)(b) of paragraph 2 of Tenth Schedule, to meet such a contingency. Expression of no confidence would not constitute disqualification under clause (1)(a) of paragraph 2, as it exclusively deals with an altogether different situation. Therefore, the Parliament advisedly incorporated clause (1)(b) of paragraph 2 of Tenth Schedule, to meet such a contingency. Expression of no confidence would not constitute disqualification under clause (1)(a) of paragraph 2, as it exclusively deals with an altogether different situation. Expression of no confidence in the leader of the Legislature Party would not constitute an act of a member voluntarily giving up membership of political party. Therefore paragraph 2(1)(a) is not attracted to the facts of this case. Unfortunately, in the entire order of the Speaker, there is no reference to these assertions nor as he given any reasons for not accepting their stand, when it is not denied by the complainant by filing any reply. 69. The act of disqualification complained of is to be anterior to the date of the petition complaining of such disqualification. Then only it can be said that a cause of action arises to approach the Speaker to seek disqualification. Therefore, in order to succeed in such a claim, the person who is approaching the Speaker has to justify that as on the date he presented the petition before the Speaker, this act of disqualification had occurred. It is in this contest it is useful to refer the judgment of the Constitution Bench of the Apex Court in the case of RAJENDRA SINGH RANA AND OTHERS Vs. SWAMI PRASAD MAURYA AND OTHERS reported in 2007 (4) SCC 270 . 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 voluntarily 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. 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 Fifty-second 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 whip. It is really a decision ex post facto. The fact that in terms of para 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the ate of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision-making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. We are, therefore, of the view that the contention that (sic it is) only on a decision of the Speaker that the disqualification is incurred, cannot be accepted. This would mean that what the learned Chief Justice has called the snowballing effect, will also have to be ignored and the question will have to be decided with reference to the date on which the membership of the legislature party is alleged to have been voluntarily given up.” 70. Therefore the snow balling effect after the alleged disqualification will have to be ignored and the question will have to be decided with reference to the date on which the membership of the Legislature party is alleged to have been voluntarily given up, i.e., in this case, on 06.10.2010. Except relying on the letter written by the petitioners to the Hon’ble Governor, absolutely no material is placed before the Speaker in support of the contention that these petitioners have voluntarily given up the membership of the House. All the material that is produced are for the period subsequent to 06.10.2010. 71. Except relying on the letter written by the petitioners to the Hon’ble Governor, absolutely no material is placed before the Speaker in support of the contention that these petitioners have voluntarily given up the membership of the House. All the material that is produced are for the period subsequent to 06.10.2010. 71. In the impugned order in coming to the conclusion that the petitioners have by their conduct voluntarily given up their membership of the party, the Speaker has taken into consideration the following facts as is clear from his observations in the impugned order:- “The applicant has stated that after submitting the said letter to the Governor the respondents have gone from Karnataka to Goa and other places and have declared that they are a separate group and that there are together and that they have withdrawn their support to the Government. The applicant has produced press releases and the statements issued to electronic media and the same is not disputed by the respondents. Personally I have also observed that the respondents have been issuing such statements. The respondents have not denied arguments of the applicant that the respondents have negotiated with another party of the State JD(S), its members and leader Sri H.D. Kumara Swamy regarding formation of another Government and that thereafter they have stated that there is no question of withdrawing the letter of withdrawal. In support of this, the reports of media are also observed. In the affidavit filed by the State President of Bharatiya Janata Party, it is stated that the respondents have gone to Chennai, Goa and other places in group, were seen along with Sri H.D. Kumara Swamy, the state President of JD(S), Karnataka and that they have stated that they would vote against the Government in the confidence vote. In the affidavit it is made clear that the respondents have appeared along with the leader of JD(S) Sri Jameer Ahmed Khan and that they have moved from place to place. The respondents have not denied the same. In the affidavit filed by the State President of Bharatiya Janata Party, it is stated that the respondents have voluntarily given up the membership of the party and that therefore they are disqualified under Schedule 10 of the Constitution. The respondents have not denied the same. In the affidavit filed by the State President of Bharatiya Janata Party, it is stated that the respondents have voluntarily given up the membership of the party and that therefore they are disqualified under Schedule 10 of the Constitution. In this situation, it is noticed from the statement of these two respondents that the other respondents decided to support the government that may be formed by Sri H.D. Kumara Swamy who is the leader of JD(S) and they have acted against the Government and the party from which they are elected. This further buttresses that the respondents left the party by conduct. In view of all the reasons and factual background, I am convinced that the respondents 2 to 11 and 13 are disqualified from their respective posts of MLA under para 2(a) of Tenth Schedule of the Constitution and therefore my answer to this issue is in the affirmative.” 72. In view of the aforesaid judgment, the Speaker ought not to have looked into that material. That could not have been made the basis for an order of disqualification. Therefore it is a case of the impugned order being based on subsequent event, subsequent to the alleged act of disqualification and subsequent to the date of filing of the petition before the Speaker. If that material is ignored, there is no material on record to substantiate the plea. Therefore, it is obvious that, all the factors which are taken note of by the Speaker in coming to the conclusion that the petitioners have voluntarily given up their membership of the political party to which they belong is based on evidence which ought not to have been taken note of by the Speaker as held by the Apex Court in the aforesaid judgment. 73. Even otherwise, a careful reading of the aforesaid material do not disclose the said facts as set out by the Speaker. The said facts are not proved. They are not put to the petitioners. The Speaker has not taken into consideration the specific stand of the petitioners in the statement of objections. In the entire order there is no reference to the same, thus there is total lack of application of mind in so far as the defence of the petitioners are concerned. 74. They are not put to the petitioners. The Speaker has not taken into consideration the specific stand of the petitioners in the statement of objections. In the entire order there is no reference to the same, thus there is total lack of application of mind in so far as the defence of the petitioners are concerned. 74. It is not disputed by either of the parties the course of proceedings before the Speaker. On 06.10.2010 the petitioners gave a letter to the Governor withdrawing their support. On the same day, the Governor addressed a letter to the Chief Minister calling upon him to prove his majority on the floor of the House on or before 5 PM on 12.10.2010. The Chief Minister expressed his desire to have the test on the floor on 11.10.2010. After that is conceded, instead of gathering support of the petitioners by persuasion, discussion, trying to redress their grievances, which are the democratic path well recognized in such a situation by a duly elected leader in a democratic process, he chose the path of confrontation, and to stifle the voice of dissent. He chose the path of getting them disqualified from the membership of the House. He had the option of getting a whip issued to them to vote in his favour on the floor of the House, which is the constitutionally recognized mode. However, he chose to file a petition under Rule 6 of the Rules before the Speaker for disqualification of the petitioners. Notice was ordered to the petitioners fixing their date for appearance on 9.10.2010 at 5 PM. On 10.10.2010 the said hearing was preponed to 3 PM. Petitioners filed their interim reply, sought for time, time was refused. Arguments were heard, and it was submitted that it was concluded around 7 PM. The impugned order is passed on the same day i.e., within five hours from the conclusion of the hearing. It appears that the said order was published at 5 AM on 11.10.2010. The house had been convened at 10 AM on 11.10.2010 to consider the motion of confidence. The impugned order runs to 20 pages. It is typed both the Kannada and English. It appears that the said order was published at 5 AM on 11.10.2010. The house had been convened at 10 AM on 11.10.2010 to consider the motion of confidence. The impugned order runs to 20 pages. It is typed both the Kannada and English. It refers to the following judgments of the Apex Court: (1) BENGAL IMMUNITY COMPANY LIMITED vs STATE OF BIHAR ( AIR 1955 SC 661 ); (2) NEPC MICON LIMITED AND OTHERS vs MAGMA LEASING LIMITED (1999 SCC (CRIMINAL) 524); (3) RAVI S NAIK vs UNION OF INDIA ( AIR 1994 SC 1558 ); (4) JAGJITSINGH vs STATE OF HARYANA (2007 AIR SCW 158). It also refers to the passage of Lord Denning, L J, quoted with approval in the case of INTERNATIONAL ORE AND FERTILIZERS (INDIA) LIMITED vs ESI CORPORATION. From a perusal of the impugned order, it is difficult to believe that the impugned order was prepared within 5 hours of the conclusion of the arguments. 75. Be that as it may, the underlining premise in declaring an act as defection as forbidden is that lure of office or money. In the instant case 19 persons, i.e., 11 petitioners and 5 independents gave representation to the Governor withdrawing the support. Of them 7 were members of the Cabinet of Sri. B.S. Yeddyurappa. The effect of such representation and withdrawal of the support if it had been carried through, they would have lost their Ministership. Four amongst 11 petitioners in this case are the Ministers. If they had taken that extreme step which would have cost them their Ministerial berth in the Cabinet, can it be said that, lure of office or money is the object behind such withdrawal of support. Secondly, when they have no intention of joining the opposite party, the question of anybody luring them with office or money also do not arise. In fact, that was the position prior to the Tenth Schedule. After the enactment of Tenth Schedule to the Constitution, the question of any person who is elected on a party ticket joining another party would not arise. If he joins such a party, then he incurs disqualification and looses the membership of the House and such a person cannot become the Minister in the Ministry to be formed by the opposite party. Therefore the said act of withdrawing the support cannot be construed as an act of defection. 76. If he joins such a party, then he incurs disqualification and looses the membership of the House and such a person cannot become the Minister in the Ministry to be formed by the opposite party. Therefore the said act of withdrawing the support cannot be construed as an act of defection. 76. Further, in the statement of objections which is filed they have clearly set out the reasons for such extreme action on their part. The reason given is, a very high constitutional functionary like the Karnataka Lokayukta who is a former Supreme Court Judge, submitted his resignation on 2nd July 2010 in disgust by openly observing dissatisfaction on account of not only the government not assisting the Lokayukta in preventing corruption in the State but was shielding the corrupt and was promoting corruption. It is only on persuasion of the top leaders of the party at the Centre, he withdrew his resignation. The said act shocked the conscious of the people of the entire State who felt a sense of outrage. It brought shame to the BJP which had come to power on promise of providing clean administration. 77. Secondly, a series of land de-notification scams in and around Karnataka have surfaced involving Sri. B.S. Yeddyurappa and his family members which have again sullied and shamed the image of BJP which had made it extremely difficult for them to face the people of Karnataka. News paper reports and articles based on cogent documentary evidence were published in the print media and the electronic media showcausing the documentary records of the Government how fraudulently Sri. B.S. Yeddyurappa has acted illegally and defied all norms of constitutional governance to bestow benefits on his own family and on others for consideration which are nothing but extraneous in nature. Newspaper and media reports were also enclosed to substantiate the said contention. It is in these circumstances when after the expiry of the period of the House they have to face the public again, they have to answer the public about their conduct being part of the Ministry headed by Sri. Newspaper and media reports were also enclosed to substantiate the said contention. It is in these circumstances when after the expiry of the period of the House they have to face the public again, they have to answer the public about their conduct being part of the Ministry headed by Sri. B.S. Yeddyurappa or having extended their support in the formation of the Government, it is in that context as promised in their manifesto to give a clean, corrupt free administration in the State, they have failed in their effort to dislodge the Chief Minister in the party forum, they have resorted to this constitutional mode. It is in those circumstances, can it be said that by such act of withdrawing the support they have incurred disqualification under paragraph 2(1)(a) as held by the Speaker. Does the Tenth Schedule gives immunity to such acts? Is it the object of enacting Tenth Schedule? Is it not a case of abuse of Tenth Schedule? Can the Tenth Schedule be used to stifle the voice and fight against corruption, which is yet another social evil which is eating into the fabric of democracy in the country? These are the questions which arose for consideration before the Speaker. None of these things were adverted to in the impugned order by the Speaker. There is no application of mind in respect of these material facts which constitutes the defence of the petitioners. His approach is one sided. 78. The Chief Minister gave the compliant against 13 members. It is stated in the impugned order that Sri. M.P. Renukacharya and Sri Narasimha Nayak stated that they are aware that a letter dated 6.10.2010 consisting of their signatures is submitted to the Governor. However, they stated that they do not have the intention of withdrawing support given by them to the Government. They have full confidence in the Government headed by the applicant. When they were in Chennai and Goa, other respondents have taken a decision that they would support any Government that may be formed as per the order of Sri. H.D. Kumara Swamy of JD(S) stating that we will work in consortium and bring down the Government. They opposed the same. Later they have come out of the same and given a statement and expressed their support to the Government and prayed for withdrawal of any proposed action against them. H.D. Kumara Swamy of JD(S) stating that we will work in consortium and bring down the Government. They opposed the same. Later they have come out of the same and given a statement and expressed their support to the Government and prayed for withdrawal of any proposed action against them. Accepting the said contention of those tow persons, the Speaker held they are not disqualified in the Tenth Schedule of the Constitution. His reasoning reads as under:- “All the respondents have stated before the Governor that they would withdraw the support, but in later days the 1st respondent Sri M.P. Renukacharya and the 12th respondent Sri Narasimha Nayak (Raju Gowda) have not done any act with an intention to withdraw the support. On the contrary, they have stated that such a letter is given due to pressure from others and have expressed their support to the party and the Government and have declared that they would be faithful to the leader. The same is confirmed by the President of the party Sri K.S. Eswarappa in his letter. In view of the said reason, in my opinion, they are not disqualified in Tenth Schedule of the Constitution. Further, today they have appeared through their advocates and reiterated their support to the party and Government. Therefore, I am of the view that they are not disqualified.” 79. From the aforesaid facts it is clear those two persons also have signed the representation given to the Government. If the said representation according to the Speaker constitute an act of a Member voluntarily giving up the membership of a political party and the case falls under Paragraph 2(1)(a) the disqualification is automatic. Membership becomes void. The question of those members retracing their steps and reaffirming the confidence in the Chief Minister and the Party President confirming the same on a subsequent date is of no consequence. As is clear from the scheme of paragraph 2, there is no scope for condoning such an act as in the case of a disqualification arising under paragraph 2(1)(b) of the Tenth Schedule. Therefore, it shows the same yardstick is not applied. 80. A statutory power or a constitutional power whether it be administrative or quasi-judicial, although conferred in wide terms has certain implied limitations. Therefore, it shows the same yardstick is not applied. 80. A statutory power or a constitutional power whether it be administrative or quasi-judicial, although conferred in wide terms has certain implied limitations. The person on whom power is conferred must exercise it in good faith for furtherance of the object of the statute; he must not proceed upon a misconstruction of the statue; he should take into account the matter relevant for the exercise of power; he must not be influenced by irrelevant matters and he must not act perversely. A statutory authority cannot travel beyond the power conferred and any action without power has no legal validity which is ab initio void. 81. It is now well settled by the Constitution Bench judgment of the Apex Court in Kihoto Hollohan’s case, the Speaker while exercising powers and discharging functions under the Tenth Schedule act as a Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amendable to judicial review. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. The Speaker holds a high, important and ceremonial office. All questions of the well being of the House are matters of Speaker’s concern. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He hold the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings. However, everybody knows that he will intentionally do no injustice or show partiality. Such a person is naturally held in respect by all. The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation. In a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Such a person is naturally held in respect by all. The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation. In a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Therefore, it is right that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality. Within the walls of the House his authority is supreme. This authority is based on the Speaker’s absolute and unvarying impartiality-the main feature of his office, the law of its life. This obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes. Moreover, his impartiality within the House is secured by the fact that he remains above all considerations of party or political career, and to that effect he may also resign from the party to which he belonged. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The robes of the Speaker of change and elevate the man inside. The Speaker holds a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far-reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable. 82. These are the observations taken note of, approved and made by the Hon’ble Supreme Court in the aforesaid case which was presided over by Justice M.N. Venkatachaliah, as he then was, in negativing the argument that the investiture of the power of resolving such disputes in the Speaker does not answer the test of an independent, impartial quality of adjudicatory machinery, and the decision of the Speaker is not free from the tugs and pulls of political polarizations, he cannot be impartial, and at all events his functioning will not be free from reasonable likelihood of bias. However, just one decade thereafter, one of the recommendations made by the National Commission to review the working of the Constitution of which, Hon’ble Chief Justice, M N Venkatachalaiah was the Chairman, recommended that the power to decide on the question as to disqualification on grounds of defection should vest in the Election Commission instead of the Speaker of the House concerned. What a disillusionment in short span of 10 years. Similar is to the effect the views of number of other experts, committees, commissioner that, the power of disqualification as a result of defection need to be exercised in accordance with the opinion of the Election Commission as in the case of decision on question as to disqualification of Members provided for in Articles 103 and 194(2) of the Constitution. Taking note of the steep fall in standards, the Apex Court in Jagjit Singh’s case held that, whether to vest such power in the Speaker or Election Commission or any other institution is not for us to decide. It is only for Parliament to decide. We have noted this aspect so that Parliament, if deemed appropriate, may examine it, bestow its wise consideration to the aforesaid views expressed also having regard to the experience of last number of years and thereafter take such recourse as it may deem necessary under the circumstances. Alas! What a steep fall in the standards within a short span of a decade. 83. It is in this background it is necessary to notice the minority view in Kihoto Hollohan’s case about the role of the Speaker which is contained in paragraphs 180, 181 and 182. POSITION OF THE SPEAKER “180. The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Articles 103 and 192 for decision of such disputes by the President/Governor in accordance with the opinion of the Election Commission. The reason is not far to seek. 181. The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be rules out. The reason is not far to seek. 181. The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be rules out. The question as to disqualification of a Member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, rule against bias is a necessary concomitant; and basic postulates of rule against bias are: nemo judex in causa sua – ‘A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and ‘it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court is outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a Member of Legislature is outside the House as envisaged by Article 103 and 192. 182. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution sine the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality”. The view expressed by the minority judgment became PROPHETIC. 84. Right to dissent is the essence of democracy. The view expressed by the minority judgment became PROPHETIC. 84. Right to dissent is the essence of democracy. For success of democracy and democratic institutions honest dissent is to be respected by persons in authority. Power and position should not be abused to muzzle such dissent. If it is done that is the end of democracy. It would be unconstitutional. If the internal democracy in a political party is stifled, then, the persons who acquire power through democratic process would become despots. The intention of enacting Tenth Schedule in the Constitution is not to create such a situation. When the Courts are called upon to interpret the organic Constitution and working of the political institutions created therein, though the reference to the past is helpful in understanding the constitutional principle behind such legislation, while interpreting the same, the Courts have to keep in mind the present and the future. Certainly they have to take note of the way these constitutional provisions has worked in the past and he undesired results emanating from such provisions and has to place such reasonable interpretation which would be in the interest of democracy, rule of law as well as the constitutional principles enshrined in the Constitution. Seen from that angle, this abuse of the Tenth Schedule by the persons in power to stifle the honest dissent cannot be countenanced. These petitioners knowingly or unknowingly have touched the right chord and they could be the whistle blowers in the present context, in fight against unethical, unprincipled behavior of politicians wielding power. 85. The Apex Court in the case of INDIRECT TAX PRACTITIONERS ASSOCIATION Vs. R.K. JAIN reported in 2010 (5) Kar.L.J.249 dealing with the accused in a Criminal Contempt of Courts Act, bringing to light the malfunctioning of institutions established for dealing with the cases involving revenue of the State appreciated their action as whistle-blowers and found no reason to silence such person by invoking the provisions of Contempt of Courts Act. R.K. JAIN reported in 2010 (5) Kar.L.J.249 dealing with the accused in a Criminal Contempt of Courts Act, bringing to light the malfunctioning of institutions established for dealing with the cases involving revenue of the State appreciated their action as whistle-blowers and found no reason to silence such person by invoking the provisions of Contempt of Courts Act. In the context, it was held that if a speech or article, editorial, etc., contains something which appears to be contemptuous and the Supreme Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scadalise the Court or is an interference with the administration of justice. It was further held that when the petitioner has not even suggested that what has been mentioned in the editorial is incorrect or that the respondent has presented distorted version of the facts, there is no warrant for discarding the respondent’s assertion that whatever he has written is based on true facts and the sole object of writing the editorial was to enable the concerned authorities to take corrective/remedial measures. It will be opposite to notice the growing acceptance of the phenomenon of whistle-blower. A whistle-blower is a person who raises a concern about wrongdoing occurring in an organisation or body of people. Usually this person would be from that same organisation. The revealed misconduct may be classified in many ways; for example, a violation of law, rule, regulation and/or a direct thereat to public interest, such as fraud, health/safety violations and corruption. Whistle-blowers may make their allegations internally or externally. Most whistle-blowers are internal whistle-blower, who report misconduct on a fellow employee or superior within their company. A person like the respondent can appropriately be described as a whistle-blower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Article 129 or 215 of the Constitution or the provisions of the Act. 86. Seen in that background three among 11 petitioners before us were Ministers in the Cabinet. They are insiders. 86. Seen in that background three among 11 petitioners before us were Ministers in the Cabinet. They are insiders. After their efforts to fight against corruption, nepotism and other evils, in the party forum did not yield results, they have approached the Governor withdrawing their support to the Government, expressing no confidence in their leader who is heading the Government. From what they have stated in the letter, they want to fight against the social evil and want a clean administration. Can their voice be stifled by pressing into operation the provisions contained in the Tenth Schedule of the Constitution, which was enacted to curb the evil of political defection motivated by lure of office or other similar conditions. Is it the purpose of the Tenth Schedule? 87. From the aforesaid discussion it is clear that, the impugned order passed by the Speaker is in violation of constitutional mandate, as well suffer from perversity and therefore, it cannot be sustained. Accordingly, the impugned order is hereby set aside. GOPALA KRISHNA BELUR AND OTHERS Versus B.S. YEDDIYURAPPA, CHIEF MINISTER, KARNATAKA AND ANOTHER V.G. SABHAHIT, J. Writ Petition Nos. 32660 to 32670 of 2010 (GM-RES). Decided on: 29th October, 2010 Advocates Appeared: Sriyuths K.G. Raghavan, Senior Counsel for A.K. Subbaiah and A.S. Ponnappa, B.V. Acharya, Senior Counsel for Shashikiran Shetty and Ravivarma Kumar, Senior Counsel for A.L. Subbaiah and Ponnappa, Advocates for Petitioners; Sriyuths K. Soli J. Sorabji, Senior Counsel along with Satyapal Jain and K.N. Bhat, Senior Counsels, M.B. Naragund, Vivek S. Reddy, Bhupender Yadav, Vikram Phadke, Vinod Kumar, Prasanna Kumar B.T., Muralidhara M. and L.N. Hegde, Advocates for Respondents. These writ petitions having been reserved for determination of the question referred to this Court on 18-10-2010 by the order of the Hon'ble Chief Justice dated 18-10-2010, having been heard and reserved for order, on this day, following order is pronounced: ORDER These writ petitions are placed before me in view of the order of the Hon'ble Chief Justice dated 18-10-2010 passed in these writ petitions, wherein it is observed that in the judgment delivered by the Division Bench on 18-10-2010 (Gopala Krishna Belur and Others v B.S. Yeddiyurappa, Chief Minister, Karnataka and Another), they had recorded a difference of opinion on one of the issues and the said issue is placed for determination before me. The issue that is referred for determination is as follows.- ''Whether the impugned order dated 10-10-2010 passed by the Speaker of the Karnataka State Legislative Assembly is in consonance with the provisions of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India?" 2. The material facts leading up to this reference of the above said question for determination by this Court are as follows.- 2.1. The petitioners had contested the Karnataka Legislative Assembly election in 2008 on Bharatiya Janata Party tickets and were declared elected. Among the petitioners, two of them were working as Ministers in the Cabinet headed by Sri B.S. Yeddiyurappa, Chief Minister of Karnataka. The petitioners submitted separate, but identical letters to His Excellency, the Governor of Karnataka on 6-10-2010 along with five independent candidates, who had been declared elected in the Karnataka Assembly Election. One of such letters is produced as Annexure-F to the writ petitions, wherein the petitioners herein and five other independent Members of the Legislative Assembly, have expressed that they were disillusioned with the functioning of the Government headed by Sri B.S. Yeddiyurappa. They averred that there has been widespread corruption, nepotism in the functioning of the Government headed by Sri B.S. Yeddiyurappa and a situation has arisen that the governance of the State cannot. be carried on in accordance with the provisions of the Constitution of India and Sri B.S. Yeddiyurappa as Chief Minister has forfeited the confidence of the people and in the interest of the State and the people of Karnataka, the petitioners expressed their lack of confidence in the Government headed by Sri B.S. Yeddiyurappa and as such, they are withdrawing their support to the Government headed by Sri B.S. Yeddiyurappa, Chief Minister and requested the Governor to intervene and institute constitutional process as the constitutional head of the State. 2.2 On the same day i.e., 6-10-2010, the Governor of Karnataka, addressed a letter to the Chief Minister stating that he had received letters from 14 Bharatiya Janata Party Members of Legislative Assembly (MLAs.), and five independent MLAs., withdrawing their support to the Government and enclosed the list of MLAs., along with the letters submitted by them. The list included seven Ministers in the Government at the time of submitting the letter. The list included seven Ministers in the Government at the time of submitting the letter. The Governor has further stated that considering the relative strength of different groups in the Karnataka Legislative Assembly and in view of withdrawal of support by the said 19 members, a reasonable doubt had arisen about the support/confidence the Government enjoyed in the Legislative Assembly and wherefore, he requested the Chief Minister to prove that he still continued to command the support of the majority of the Members of the Legislative Assembly, by introducing and getting passed a suitable motion expressing confidence in his Government, in the legislative Assembly on or before 12-10-2010 by 5 p.m. and that he has also requested the Hon'ble Speaker accordingly. 2.3 In view of the aforesaid letter of the Governor dated 6-10-2010, Sri B.S. Yeddiyurappa, who is the leader of the Bharatiya Janata Party Legislature Party in the Karnataka Legislative Assembly, made an application to the Speaker of the Karnataka Legislative Assembly under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (hereinafter referred to as "the Rules") on 6-10-2010 as per Annexure-H to the writ petitions to declare that the petitioners herein, who were elected to the Karnataka Legislative Assembly on Bharatiya Janata Party tickets and two other members of the Legislative Assembly had incurred disqualification in view of the Tenth schedule to the Constitution. It is averred in the application that the petitioners herein were elected during the Karnataka Assembly Election held in 2008 on the tickets issued by the Bharatiya Janata Party and the Bharatiya Janata Party has unanimously elected him as the leader of the Legislature Party and on the basis of the same, he was appointed as the Chief Minister of Karnataka by the Governor and thereafter, on his recommendation, Ministers were appointed by the Governor. In view of the letter received from the Governor dated 6-10-2010, wherein it is stated that the petitioners herein and five independent MLAs., have withdrawn support from the Government and in the absence of any resolution passed by the Bharatiya Janata Party Legislature Party and the decision of the party in that regard, the letters submitted by the petitioners to the Governor expressing withdrawal of support to the Government would amount to disqualification under the Tenth Schedule to the Constitution and wherefore, the petitioners should be declared as disqualified. He referred to the action taken in the similar circumstances and cited decisions in the cases of Avatar Singh Bhadana v Khuldep Singh and Rajesh Verma v Mohammed Shahid Akhalak, BSP and requested that on the basis of the statements given by the petitioners in the electronic media and the press and the letters given to the Governor, the petitioners have to be disqualified under the 10th Schedule of the Constitution. 2.4 On receipt of the said application (Annexure-H to the writ petitions) from the leader of the Bharatiya Janata Party Legislature party, which has formed the Government in the State of Karnataka, the Speaker ordered issuance of show-cause notices and show-cause notices were issued to the petitioners. One such show-cause notice is produced as per Annexure-D to the writ petition, wherein it is stated that in view of the application filed by the leader of the Bharatiya Janata Party Legislature Party alleging that the conduct of the petitioners in submitting representation before the Governor, withdrawing support from the Government led by Bharata Janata Party in the absence of any resolution or decision of the BJP Legislature party in that regard, would amount to disqualification of the petitioners under Tenth Schedule to the Constitution and requested the petitioners herein to submit their objections before 5 p.m. on 10-10-2010 and if they did not file objections, the matter would be considered ex parte. 2.5 The petitioners, in response to the show-cause notice issued by the Speaker, gave reply, which were identical as per Annexure-E to the writ petitions on 9-10-2010. The Speaker, after hearing the petitioners passed an order on 10-10-2010 in Disqualification Application No. 1 of 2010 holding that the petitioners herein had incurred disqualification under para 2(1)(a) of the Tenth Schedule to the Constitution as they had voluntarily given up their membership of the political party. Being aggrieved by the said order, the writ petitioners who belong to Bharatiya Janata Party and disqualified by the order of the Speaker dated 10-10-2010, preferred these writ petitions. 2.6 The writ petitions were taken up for final hearing by the Division Bench of this Court comprising of Hon'ble Chief Justice and the learned Judge of this Court. The contentions urged by the petitioners were considered on the basis of the four questions which according to the Bench arose for determination. 2.6 The writ petitions were taken up for final hearing by the Division Bench of this Court comprising of Hon'ble Chief Justice and the learned Judge of this Court. The contentions urged by the petitioners were considered on the basis of the four questions which according to the Bench arose for determination. Having regard to the contentions urged in the writ petitions, the first contention was based upon the Rules 6 and 7 of the Rules. The second contention pertains to the plea of violation of Rules of natural justice. The third contention pertains to the question as to whether the impugned order passed by the Speaker is in consonance with the provisions of para 2(1)(a) of the Tenth Schedule of the Constitution of India. The fourth contention pertains to mala fides alleged in the writ petitions. The learned Chief Justice pronounced judgment on 18-10-2010 and answered all the four contentions against the petitioners and held that the order of disqualification dated 10-10-2010 passed against the petitioners by the Speaker of the Karnataka Legislative Assembly suffers from no infirmity and is fully justified in terms of the provisions contained in the Tenth Schedule of the Constitution and the writ petitions are accordingly, liable to be dismissed. However, the learned Judge constituting the Bench by a separate pronouncement on the same day i.e., 18-10-2010 held that except on the third contention regarding the interpretation to be placed on para 2(1)(a) of the Tenth Schedule of the Constitution, he is in agreement with the reasoning of the Hon'ble Chief Justice on the rest of the contentions. The learned Judge expressed his views on the said third contention and held that the impugned order passed by the Speaker of the Karnataka Legislative Assembly dated 10-10-2010 is in violation of the constitutional mandate and suffers from perversity and therefore, it cannot be sustained and accordingly, impugned order of the Speaker has to be set aside. Since there was divergence of opinion on the third question and the decision of the Division Bench was unanimous regarding contentions 1, 2 and 4, the third contention on which, there was divergence of opinion has been referred to me for determination as the third Judge and accordingly, these writ petitions are placed before me. Since there was divergence of opinion on the third question and the decision of the Division Bench was unanimous regarding contentions 1, 2 and 4, the third contention on which, there was divergence of opinion has been referred to me for determination as the third Judge and accordingly, these writ petitions are placed before me. 2.7 I have heard Sri K.G. Raghavan, the learned Senior Counsel appearing for petitioner 1 and Sri B.V. Acharya, the learned Senior Counsel for petitioners 2 and 3 and Sri Ravi Verma Kumar, the learned Senior Counsel for petitioners 4 to 11 and the arguments of Sri Soli J. Sorabji, the learned Senior Counsel and Sri Satyapal Jain, the learned Senior Counsel appearing for the respondents and the reply arguments of the learned Senior Counsel appearing for the petitioners. 2.8 The learned Senior Counsel Sri K.G. Raghavan submitted that the petitioners have submitted a representation to the Governor on 6-10-2010 and they have not committed any act, which would lead to the inference that they have voluntarily given up membership of Bharatiya Janata Party, the political party from which, they contested the election and were declared elected. They were only aggrieved by the conduct of the Chief Minister, which was not in consonance with the principles and policies of the Bharatiya Janata Party and wherefore, they gave a letter to the Governor stating that they had lost confidence in Sri B.S. Yeddiyurappa, the Chief Minister and the contents of the letters dated 6-10-2010 would never give rise to any inference that they have voluntarily given up the membership of Bharatiya Janata Party. The learned Senior Counsel has taken me through the letters given by the petitioners to the Governor dated 6-10-2010, the letter addressed by the Governor to the Chief Minister on the basis of the said letters given by the petitioners and the application filed by Sri B.S. Yeddiyurappa before the Speaker as the leader of the Legislature Party dated 6-10-2010 and the show-cause notices issued by the Speaker pursuant to the said application dated 7-10-2010 and the reply given by the petitioners on 9-10-2010 and also the order passed by the Speaker, which is impugned in the writ petitions. The learned Senior Counsel submitted that initially, the hearing of the objections had been fixed before the Speaker on 10-10-2010 at 5 p.m. and the same was preponed to 3:30 p.m. and the disqualification application has been filed by the Chief Minister only to prevent the petitioners from voting in the vote of confidence that was to be moved on 11-10-2010 and except the letters given to the Governor dated 6-10-2010 by the petitioners, no evidence was led before the Speaker. The petitioners, being the members of the Bharatiya Janata Party, the largest legislature party in the State, were entitled to ventilate their grievances before the Governor and they were not involved in any anti-party activity and they had no intention whatsoever to bring down the Government headed by Sri B.S. Yeddiyurappa as the Chief Minister. The learned Senior Counsel further submitted that the petitioners had not changed their loyalty to the party and they had only expressed their dissent, which is the essence of the democracy and it cannot be stifled by the way of the disqualification application filed before the Speaker and the order passed by the Speaker. The learned Senior Counsel further submitted that there is no averment made in the disqualification application even before the Speaker that the petitioners had voluntarily given up their membership to Bharatiya Janata Party and no material whatsoever was produced, which would lead to the conclusion that the conduct of the petitioners would amount to voluntarily giving up of their membership of the political party, namely, Bharatiya Janata Party in the present case and the order passed by the Speaker cannot at all be sustained as it is perverse, being not based upon any evidence on record. In the absence of any pleading or requisite material averred in the application, the order passed by the Speaker dated 10-10-2010 cannot at all be sustained. He also submitted that except the letter given by the petitioners on 6-10-2010 to the Governor, there was no further material, which could be considered by the Speaker and the said letter would not in any way, lead to the inference that the petitioners had voluntarily given up the membership of the Legislature party, which they represented, namely, Bharatiya Janata Party. The learned Senior Counsel submitted that the petitioners had only expressed their dissent regarding the conduct of Sri B.S. Yeddiyurappa as the Chief Minister of Karnataka. The learned Senior Counsel submitted that the petitioners had only expressed their dissent regarding the conduct of Sri B.S. Yeddiyurappa as the Chief Minister of Karnataka. They had not withdrawn support from the Government. They continued to be the members of the Bharatiya Janata Party and no disqualification under para 2(1)(a) of the Tenth Schedule to the Constitution could be attributed to the petitioners as they had not voluntarily given up the membership of the Bharatiya Janata Party and they had only expressed their dissent. The learned Senior Counsel further submitted that the affidavit of the President of the Bharatiya Janata Party and the documents relied upon by the Speaker could not have been relied upon by him as the same were not confronted to the petitioners. In support of his contention, he has relied upon the decision of the Hon'ble Supreme Court in Kilwto Hollohan v Zachillhu and Others. He has relied upon paras 9 and 10 at page 670 and also the contents of the paras 13 to 19 regarding the scope of judicial review and regarding his contention that the order passed by the Speaker is subject to the judicial review of this Court in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. He has also relied upon the decision of the Hon'ble Supreme Court in Dr. Mahachandra Prasad Singh v Chairman, Bihar Legislative Council and Others and taken me through para 2 of the said judgment at 753. He has also relied upon para 9 of the said judgment in support of his contention that the inference to be drawn from the company of the petitioner regarding disqualification under Para 2(1)(a) to the 10th Schedule should be conclusive and unambiguous. Therefore, in the absence of any positive evidence, any interference of voluntarily giving up membership of the legislative party could not have been drawn. He has also relied upon the observations made by the Hon'ble Supreme Court in para 16 in Rajendra Singh Rana and Others v Swami Prasad Maurya and Others. Therefore, in the absence of any positive evidence, any interference of voluntarily giving up membership of the legislative party could not have been drawn. He has also relied upon the observations made by the Hon'ble Supreme Court in para 16 in Rajendra Singh Rana and Others v Swami Prasad Maurya and Others. The learned Senior Counsel further submitted that the interference that were drawn is Avinash's case and also the decision in Rajendra Singh Rana's case is not applicable to the facts of the case as in the said case, there was specific conduct of the member of the State Legislative Assembly which amounted to rescindment from the membership of the political party as he had submitted the representation along with leader of the opposition in the legislative and other persons belonging to another party and he has expressed support to them and in the present case, since the letter dated 6-10-2010 will never lead to the inference that the petitioners have given up membership of the BJP, and the inference drawn on the basis of the averments made in the letter dated 6-10-2010 submitted to the Governor as done by the Speaker cannot at all be sustained and wherefore, the writ petitions are entitled to be allowed. 3. The learned Senior Counsel Sri B.V. Acharya, appearing for petitioners 2 and 3 submitted that since the disqualification of a sitting member of the said Legislature would entail serious consequences, the proof required to be discharged by the applicant is beyond reasonable doubt and cannot be proof on the basis of the preponderance of probabilities and the legislators are entitled to benefit of doubt and if two views are possible, on the basis of the inference of the conduct, the view that is beneficial to the 20 elected legislator should be accepted as the legislator would be unseated even though he has been elected by the voters in the constituency and will be disqualified as the member of the State Legislature. The learned Senior Counsel submitted that apart from the letter submitted by the petitioner dated 6-10-2010 no evidence whatever has been led before the Speaker constituting disqualification under para 2(1)(a) on the basis of the letter dated 6-10-2010 submitted to the Governor no reasonable man can infer that the petitioners have voluntarily given up the membership of the Bharatiya Janata Party. The learned Senior Counsel further submitted that the provisions of the Tenth Schedule would not restrict the power of judicial review of this Court under Articles 226 and 227 of the Constitution of India and there is no material whatever to show that the petitioners herein have identified themselves with the members of the other party and the inference drawn by the speaker is baseless and the grievance of the applicants was against the Chief Minister and not against the Government led by the BJP. The learned Senior Counsel further submitted that the Speaker could not have taken into account the facts subsequent to 6-10-2010 and no material, which was not confronted to the petitioners would have been relied upon by the Speaker and wherefore, the order of the Speaker, which has been passed by not considering the reply given by the petitioners and consideration of the events subsequent to 6-10-2010 and as no material, which was not confronted to the petitioners would have been relied upon by the Speaker, the impugned order cannot be sustained. The learned Senior Counsel further submitted that in view of Rules 6 and 7 of the Rules, when the petition was not in prescribed form and did not disclose any material to declare disqualification, the same ought to have been rejected under Rule 7(2) of the Rules and it was not necessary to issue show-cause notice also and wherefore, the entire enquiry itself is liable to be set aside and consequent orders subsequent to orders culminating in the order of the Speaker are liable to be set aside and wherefore, the order of the Speaker, which has been passed by not considering the reply given by the petitioners and on consideration of the events subsequent to 6-10-2010 and the inference drawn on the basis of the letter given to the Governor dated 6-10-2010 is perverse and wherefore, liable to be set aside. 4. 4. The learned Senior Counsel appearing for the petitioners 4 to 11 Sri Ravi Verma Kumar, submitted that the petitioners are the members of the BJP, and they have been elected on the ticket issued by the said party, they are accountable to the voters and also accountable for implementation of the policies of the party, which has been brought to power by the voters and the learned Senior Counsel further submitted that no order of disqualification can be passed when the legislators had expressed their honest dissent about the conduct of the Chief Minister leading the party in power and the learned Senior Counsel referred to the provisions of the Articles 148, 170, 171 and 173 of the Constitution of India and submitted that the Government legislative party, Speaker are all creatures of the Constitution and they cannot go beyond the powers conferred upon by them by the Constitution or cannot act ultra vires the Constitution. The learned Senior Counsel has taken me through the defence of petitioners in the reply and submitted that under Tenth Schedule to the Constitution elected person will not become a member of the Legislature unless he subscribes to the oath before some person authorized person in that behalf. The oath of affiliation and prescribed forms set out for the purpose and according to Form 7 prescribed by the legislature of the State is required to take oath in the name of God or on solemn affirmation that he will bear True faith and allegiance to the Constitution, uphold the unity and integrity of India and wherefore, having taken the oath of office owing allegiance to the Constitution of India, the members of the Legislature have got right to express their opinion and the dissent about the conduct of the Chief Minister heading the legislative party and the letter would clearly show that their letter was given by the petitioners as BJP M.L.As., and they had not ceased to be the members of the said party and even in the application filed by the Chief Minister before the Speaker, the petitioners have been described as members elected on BJP ticket. There is no averment in the application that the petitioners have voluntarily given membership of the BJP and what was expressed in the letters submitted to the Governor on 6-10-2010 is only expression of dissent by the disillusioned members of the party about the conduct of the Chief Minister and not the Government and there was no material whatever to infer that the petitioners had voluntarily given up membership of the legislative party and even in the reply given, it is averred that they have continued to be members of BJP, and they are only asking for change of leadership and not the change of Government and wherefore, there was no material whatever to interfere with the petitioners had voluntarily given membership of the BJP. 5. The learned Senior Counsel further submitted that the nature of proceeding before the Speaker is quasi-criminal and heavy burden lies upon the applicant to prove the disqualification, which would unseat a sitting member against the mandate of the Constituency and the order of Speaker cannot be arbitrary and without basis. He further submitted that no witness has been examined before the Speaker and the documents subsequent to 6-10-2010 have been considered by the Speaker and the learned Counsel further submitted that the Chief Minister has referred to the letter given by the petitioners on 5-10-2010 and petitioners have not given any letter on 5-10-2010 and therefore, initiation of show cause and entire proceedings are vitiated. 6. Learned Senior Counsel has relied upon the decision of this Court in R. Krishnappa v State of Karnataka and Others, in support of his contention that the proceedings before the Speaker is quasi-judicial in nature. The learned Senior Counsel further submitted that the petitioners have specifically averred in the reply statement that their grievance is against Sri B.S. Yeddiyurappa and not against the BJP, which is the ruling party in the State. In view of the provisions of the Constitution, leader of the largest political party in the Legislature is appointed as Chief Minister by the Governor and the other Ministers are appointed by the Governor on the recommendation of the Chief Minister. In view of the provisions of the Constitution, leader of the largest political party in the Legislature is appointed as Chief Minister by the Governor and the other Ministers are appointed by the Governor on the recommendation of the Chief Minister. Mere fact that the petitioners including the persons, who are Ministers in the Cabinet of Sri B.S. Yeddiyurappa have expressed their dissent cannot in any event or by any stretch of imagination, lead to the inference of voluntarily submitting the resignation to the BJP and in the reply to the show-cause notice, the petitioners have specifically averred that they continued to be members of the BJP and they will continue to support the BJP if there is change of leadership and any person other than B.S. Yeddiyurappa is elected as leader. The learned Senior Counsel further submitted that the decision in Ravi S. Naik v Union of India and Others and G. Viswanathan v Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras and Another and is not helpful to draw inference in the present case as in the said case, there was specific material to draw inference to the effect that the member of the State Legislature had voluntarily withdrawn from the membership of the political party and the reply given has not been denied by any rejoinder and the Speaker in his impugned order apart from referring to the objection has not at all considered the said objection and therefore, the order of the Speaker is perverse for having not considered the relevant material on record including the objections to the show-cause notice filed by the petitioner and in taking into account the irrelevant facts. The learned Senior Counsel further submitted that the complaint against the Chief Minister to the Governor was common to the petitioners and two BJP M.L.As., and on the basis of the same material on record letter dated 6-10-2010, the Speaker has not disqualified persons at S1. Nos. 1 and 12 on the basis of the affidavit filed by them and the statement of the applicant and the President of the BJP and same benefit ought to have been extended to the petitioners also who were also standing in the same position identical to the persons at S1. Nos. 1 and 12 as the only material before the Speaker was letter dated 6-10-2010. Nos. 1 and 12 as the only material before the Speaker was letter dated 6-10-2010. The learned Senior Counsel has relied upon the decision of the Hon'ble Supreme Court in G. Viswaoothan's case and submitted that even after the letter given to the Governor, the petitioners have continued to be members of the BJP and they have never ceased to be the members of the said party. The learned Senior Counsel further submitted that the petitioners had independently submitted separate letters to the Government and they had not gone to submit letters to the Governor along with the members of any other party, much less the members of the opposition party and wherefore, the inference drawn by the Speaker against the petitioner is baseless and perverse. The learned Senior Counsel further submitted that the entire reasoning given by the learned Judge of this Court dissenting with the opinion of the Hon'ble Chief Justice is justified having regard to the material on record as the order passed by the Speaker cannot at all be sustained and therefore, the petitions may be allowed. 7. Sri Soli J. Sorabhjee, the learned Senior Counsel appearing for the respondent submitted that the Hon'ble Chief Justice and the learned Judge of this Court have unanimously agreed on finding on contentions 1, 2 and 4 regarding violation of Rules 6 and 7, violation of the principles of natural justice and mala fide and the said contentions are answered against the petitioners and only point on which there was divergent opinion was on contention No.3, which has been referred to this Bench. The learned Senior Counsel further submitted that the only contention that is required to be considered by this Court is as to whether the order of the Speaker dated 10-10-2010 holding that the petitioners have incurred disqualification under para 2(1)(a) of the Tenth Schedule is perverse. The learned Senior Counsel further submitted that the only contention that is required to be considered by this Court is as to whether the order of the Speaker dated 10-10-2010 holding that the petitioners have incurred disqualification under para 2(1)(a) of the Tenth Schedule is perverse. The learned Senior Counsel further submitted that the nature of the proceeding before the Speaker scope of judicial review are well-settled in view of the decision of the Hon'ble Supreme Court in Kihoto's case and the order of the Speaker can be challenged only on the ground of violation of constitutional provision (2) violation of the principles of natural justice and (3) mala fides and perversity and all the contentions raised in that behalf at contentions 1, 2 and 4 have been unanimously held against the petitioners by the Division Bench and the only other ground on which, the order of the Speaker could be challenged is perversity of the order and since there was divergence of opinion among the Hon'ble Chief Justice and the learned Judge constituting the Bench, the said question is referred to this Court as a third Judge for determination of the question. The learned Senior Counsel submitted that according to the dictionary meaning of word "perversity" and the legal principles laid down by the Hon'ble Supreme Court in Jagjit Singh v State of Haryaoo and Others, paras 14, 15 and also at paras 42 and 43, the proceeding before the Speaker cannot be compared to any other Tribunal it is also not akin to the proceeding before the arbitrator or any statutory body or quasi-judicial authority and the order passed by the Speaker can be said to be perverse only when the conclusion arrived at by the Speaker is not reasonable and could not have been arrived at all and if two views are possible and if another view is possible to be arrived at, apart from the view arrived at by the learned Speaker in the impugned order, the view taken by the Speaker should be confirmed and the very fact that there are two divergent views regarding interference of the conduct of the petitioners for disqualification in para 2(1)(a) of the Tenth Schedule would itself show that two views were possible to be arrived at and therefore, view arrived at by the Speaker is entitled to be confirmed. The learned Senior Counsel further submitted that the Speaker has not only relied upon the contents of the letter dated 6-10-2010, has also relied upon the material that was produced before him, the contents of which have not been disputed and the Speaker was entitled to take all material into consideration before passing order of disqualification as the facts alleged in the complaint were not disputed and there is no averment in the writ petition that the facts stated as undisputed by the Speaker is not correct and they were disputed facts. The learned Senior Counsel further submitted that the distinction between disqualification in paras 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution of India is to be kept in mind as they are independent of each other and dissent amounting to defection which is dealt with in para 2(1)(b). The learned Senior Counsel further submitted that the contention that burden of proof required to be decided by the applicant is one beyond reasonable doubt cannot be accepted and it is always open to the Speaker to draw inference from the facts available and the conduct of the petitioners on disqualification in para 2(1) of the Tenth Schedule. The learned Senior Counsel further submitted that the averments made in the letter written by the Governor on 6-10-2010, the contents of which have not been disputed and reiterated by the petitioners in the reply statement and in the writ petition would clearly show that they have withdrawn support from the Government, which would lead only to the irresistible conclusion that they have ceased to be the members of the political party. The learned Senior Counsel further submitted that the contentions urged in the letter of the Governor dated 6-10-2010 is incompatible with the contention of the petitioners that they continue to be the members of the legislative party as it is not open to the petitioners, who also include two of the persons, who were in the Cabinet of Sri B.S. Yaddiyurappa to contend that they have lost confidence in the Chief Minister and therefore, the Chief Minister should be changed. The learned Senior Counsel submitted that the Governor cannot take disciplinary action or remove the Chief Minister and appropriate forum for the petitioners to ventilate their grievances would be before the legislative party and the only intention of the petitioners in submitting the representation dated 6-10-2010 was to request the Governor to initiate proceedings under Article 356 of the Constitution of India. Through the words in the letter petitioners have camouflaged the intention to bring down the Government in power and the fact that the said inference and the intention of the applicant has been drawn by the Governor and show-cause notice has been issued stating that there is a doubt about the Governor enjoying the majority and requesting the Chief Minister to seek vote of confidence would itself shows that they have withdrawn support to the party. The contents of the letter, which is on pari materia with the provisions of Article 356 of the Constitution of India that a situation has arisen that the governance of the State cannot be carried in accordance with the provisions of the Constitution and that the Governor should intervene and institute the constitutional process as the constitutional head of the State would clearly show that the only intention of the applicant was to bring down the Government and not mere allegation made against the Chief Minister as no allegation against the Chief Minister could be made to Governor who has no power to take action against the Chief Minister. Admittedly, the Governor has no such power and prayer in the letter on 6-10-2010 would also show that the Governor should initiate action according to the Constitution and on the same day 6-10-2010, the Governor has addressed a letter to the Chief Minister expressing doubt as to whether the Government enjoying the confidence of the majority in the Legislature and has requested the Chief Minister to move the vote of confidence to prove the majority on or before 12-10-2010 and wherefore, the only irresistible conclusion that can be drawn by the contents of the letter and the material on record is that the petitioners had voluntarily given up the membership of the BJP. The learned Senior Counsel further submitted that having given the letter on 6-10-2010 withdrawing support to the Government run by BJP when the petitioners were elected on BJP, ticket and two of them were Ministers in the Cabinet and therefore, there is collective responsibility of the petitioners as they are also part of the Cabinet accountable regarding the conduct of the members of the Cabinet, they cannot make an application making allegation against the members of the same Cabinet or the Chief Minister heading the Cabinet, which would necessarily lead to the only inference that the applicants are withdrawing their support to the Government. The learned Senior Counsel further submitted that the said contention of the petitioners that they have still continued to be the members of the BJP despite withdrawing support to the Government led by BJP, is incompatible with the continuance of the membership as they cannot say that they are still members of the BJP, and the Government led by BJP should be brought down. It is not open to the petitioners to contend that they have not left BJP at all when they have given letter to the Governor that they have withdrawn support to the said legislative party. The learned Senior Counsel further submitted that the order of the Speaker having taken note of the contents of the letter given by the petitioners to the Governor dated 6-10-2010 and other material on record, which is not disputed by the petitioners, would lead to the only conclusion that the petitioners have acquired disqualification by voluntarily resigning from the BJP. The learned Senior Counsel further submitted that the petitioners cannot be whistle-blowers and still continue to be in the party and wherefore, the action of the petitioners cannot be protected by saying that they are the whistle-blowers who are working in the party and there is no perversity in the order passed by the Speaker. The learned Senior Counsel has relied upon by the observations in G. Viswanathan's case in support of his contention and further submitted that there is no perversity in the order passed by the Speaker and wherefore, the only ground upon which the petitioners could have challenged the order of the Speaker is baseless and the question has to be answered against the petitioners by confirming the order passed by the Speaker. 8. 8. Sri Satyapal Jain, the learned Senior Counsel appearing for the respondent submitted that he adopts the submissions already made by Sri Soli Sorabjee, the learned Senior Counsel and further submitted that the conduct of the petitioners can never be countenanced. The petitioners gave letters to the Governor on 6-10-2010, withdrawing support to the Government and they are not even served with the show-cause notice by the Speaker is baseless and the question is to be answered against the petitioners by confirming the order passed by the Speaker. 9. The learned Senior Counsel further submitted that even after service of show-cause notice by the Speaker, they did not personally appear before the Speaker and they appeared through Counsel and petitioners were missing and they were traveling from place to place and were seen along with the members of the opposition in the Electronic media and the press statement and the news published in the newspapers would show that they had associated themselves with the members of the opposition persons not belonging to BJP. The learned Senior Counsel further submitted that the petitioners cannot blow hot and blow cold as they cannot contend that they have no confidence in the Government, which is alleged by the legislative party, to which they belong and they cannot also contend that they continue to be the members of the legislative party, namely, BJP. He has relied upon the Full Bench decision of the Allahabad High Court, wherein the Constitutional validity of the Tenth Schedule to the Constitution was challenged and the same has been 39 referred to in Kihoto's case, wherein the constitutional validity of the Tenth Schedule had been challenged and submitted that from the conduct of the petitioners, disqualification can be inferred voluntarily giving up membership need not be express, but, can also be implied from the conduct of the parties, and the petitioners, among whom two are Ministers and accountable as the members of the Cabinet cannot contend that they have no confidence in the leader of the Cabinet and Government by making unfounded allegations against the leader of the legislative party and try to bring down the Government on camouflage of expressing dissent only on the leader of the Cabinet. Sri B.S. Yeddiyurappa. Sri B.S. Yeddiyurappa. If at all the petitioners had any grievance against the Chief Minister and not against the party, they should have expressed their views in the appropriate forum before the party or in the house and could not have gone to submit letter to the Governor by camouflaging the contents of the letter with an intention that the Governor may initiate proceedings under Article 356 of the Constitution of India. In Full Bench decision of Punjab and Haryana High Court in Parkash Singh Badal and Others v Union of India and Others, he has referred to paras 18, 21 and 23 of the said judgment. He further submitted that the Speaker can also take into account the personal knowledge as he will be chairing the legislative session and he would be knowing the conduct of the parties and in the present case, having regard to the conduct of the parties, one and the only inference that can be drawn in that the petitioners have voluntarily given up membership of their legislative party and therefore, incurred disqualification in para 2(1)(a) of the Tenth Schedule to the Constitution and the order passed by the Speaker after affording opportunity to the petitioners can never be said to be perverse and as the inference arrived at by the Speaker is justified and the only inference that could be drawn having regard to the conduct of the petitioners and any view can be arrived at on the basis of the material on record and the view arrived at by the Speaker should be respected and should not be interfered with under the writ jurisdiction of this Court. 10. In reply to the arguments of the learned Senior Counsel appearing for the respondents, Sri B.V. Acharya, learned Senior Counsel appearing for petitioners 2 and 3 submitted that the scope of interference with the order passed by the Speaker cannot be restricted and the power of this Court under Articles 226 and 227 of the Constitution of India cannot be curtailed. He further submitted that the order passed by the Speaker is perverse and the same is not based upon the relevant material and it is based upon the irrelevant material, which could not be taken into account by the Speaker. He further submitted that the order passed by the Speaker is perverse and the same is not based upon the relevant material and it is based upon the irrelevant material, which could not be taken into account by the Speaker. No evidence was led before the Speaker apart from the letters dated 6-10-2010 given by the petitioners to the Governor, wherein they had ventilated their grievance with regard to the conduct of Sri B.S. Yeddiyurappa and not against the Government and wherefore, the inference drawn by the Speaker is baseless, arbitrary and perverse and therefore, liable to be set aside. 11. Sri Ravi Verma Kumar, the learned Senior Counsel appearing for petitioners 4 to 11 submitted that the petitioners have only ventilated their grievance against B.S. Yeddiyurappa and they have not withdrawn support to the BJP Government nor withdrawn their membership from the said Legislature party and they continue to be the members as stated in the reply and the order of the Speaker does not consider the contentions in the reply to the show-cause notice and is based upon the irrelevant material and conduct of the petitioners subsequent to 6-10-2010 is taken into account and hence impugned order is perverse and liable to be set aside. The petitioners are entitled to express their dissent as they owe responsibility to the persons, who have voted them and when the Chief Minister is not interested in the implementation of the policy of the party, it is always open to the petitioners to express their dissent and it cannot be equated with defection and the petitioners have never involved themselves in any anti-party activity and dissent is the essence of democracy and if such conduct of the petitioners is tried to be stifled down, the very basis of the democracy would be defeated and wherefore, the order passed by the Speaker is perverse and liable to be set aside. The learned Senior Counsel further submitted that the disqualification order could not have been passed in anticipation that the petitioners would not cast their vote in the favour of the Government. The confidence motion, was proposed to be moved in the Legislature on 11-10-2010 and the order has been passed only to scuttle the honest dissent of the petitioners and to prevent them from voting on 11-10-2010. 12. Sri KG. The confidence motion, was proposed to be moved in the Legislature on 11-10-2010 and the order has been passed only to scuttle the honest dissent of the petitioners and to prevent them from voting on 11-10-2010. 12. Sri KG. Raghavan, the learned Senior Counsel appearing for the petitioner 1 submitted that the order passed by the Hon'ble Speaker is perverse. The learned Senior Counsel further submitted that in view of the judgment of the Hon'ble Supreme Court in Jagjit Singh's case cited supra as observed at page 26, para 18, the provisions of the part 2 of the Tenth Schedule to the Constitution does not affect the right of expression and conscience and wherefore, mere expression of dissent of the petitioners against the leader of the legislature party and requesting for change of leadership can never amount to withdrawal of membership from the political party. Therefore, the order passed by the Speaker cannot at all be sustained and the same is liable to be dismissed. 13. The question that is referred for determination before this Court is as follows.- "Whether the impugned order dated 10-10-2010 passed by the Speaker of the Karnataka State Legislative Assembly is in consonance with the provisions of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India?" 14. There is difference of opinion only on the above said question between the Hon'ble Chief Justice and the learned Judge constituting the Bench and so far as other contentions on point Nos. 1, 2 and 4 are concerned, the judgment is unanimous. 15. Before the Tenth Schedule to the Constitution was introduced by the Constitution (Fifty-second Amendment) Act, 1985 with effect from 1-3-1985 (hereinafter called the "Amendment Act"), it is necessary to narrate the legislative history leading to the said amendment for including Tenth Schedule to the Constitution. On December 8, 1967, the Lok Sabha had passed an unanimous Resolution in the following terms.- "5. (A) High-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendation in this regard". The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter alia observed: "6. The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter alia observed: "6. Following the Fourth General Election, in the short period between March 1967 and February 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone. Among Independents, 157 out of a total of 376 elected joined various parties in this period. That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan, Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were: multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature or explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections. 8. Keeping in view the recommendations of the Committee on Defections, the Constitution (Thirty-second Amendment) Bill, 1973 was introduced in the Lok Sabha on May 16, 1973. It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection. This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty-second Amendment) Act, 1985". The objects and reasons appended to the Bill which was adopted as the Constitution (Fifty-second Amendment) Act, 1985 reads as follows.- "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance". 16. The Tenth Schedule to the Constitution reads as follows.- "TENTH SCHEDULE [Articles 102(2) and 191(2)] PROVISIONS AS TO DISQUALIFICATION ON GROUND OF DEFECTION 1. Interpretation.-In this Schedule, unless the context otherwise requires.- (a) 'House' means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;4 (b) 'Legislature party', in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) 'Original political party', in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) 'Paragraph' means a paragraph of this Schedule. 2. 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 gives 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 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. Explanation.-For the purposes of this sub-paragraph.- (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall.- (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be Article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall.- (i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph. 4. Disqualification on ground of defection not to apply in case of merger.--(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party.- (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. 5. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. 5. Exemption.-Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule.- (a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or (b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office. 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 become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212. 7. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212. 7. Bar of jurisdiction of Courts.-Notwithstanding anything in this Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. 8. Rules.-(1) Subject to the provisions of subparagraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for.- (a) the maintenance of registers or other records as to the political parties if any, to which different members of the House belong; (b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of Paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished; (c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and (d) the procedure for deciding any question referred to in sub-paragraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. (2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect. (3) The Chairman or the speaker of a House may, without prejudice to the provisions of Article 105 or, as the case may be, Article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.]". 17. The constitutional validity of Tenth Schedule introduced by Amendment Act, 1985 was challenged and adjudicated by the Hon'ble Supreme Court in Kihata Hallahan's case (hereinafter called "Kihato's case") and by order dated November 12, 1991 operative portion of the order was pronounced on findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368(2) of the Constitution and they have indicated that reasons for the conclusions would follow later Kihota Hallahan v Zachilhu and Others(2). Thereafter, by order dated 18-2-1992 reasons for the conclusions were set out. The majority judgment was rendered by Hon'ble Sri Justice M.N. Venkatachalaiah for himself, Hon'ble Sri Justice K. Jayachandra Reddy and Hon'ble Sri Justice S.C. Agarwal and minority judgment was rendered by Hon'ble Sri Justice J.S. Verma for himself and Hon'ble Sri Justice L.M. Sharma. 18. Thereafter, by order dated 18-2-1992 reasons for the conclusions were set out. The majority judgment was rendered by Hon'ble Sri Justice M.N. Venkatachalaiah for himself, Hon'ble Sri Justice K. Jayachandra Reddy and Hon'ble Sri Justice S.C. Agarwal and minority judgment was rendered by Hon'ble Sri Justice J.S. Verma for himself and Hon'ble Sri Justice L.M. Sharma. 18. In the majority judgment, contentions (A) to (H) were formed for determination and the same were answered as follows.- (A) The Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the Constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy. (para 25-53, pages 674 to 688) Answer to point 'A' : (Para 53, page Nos. 687-688) Re: Contention (A) "(T)hat the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended. The provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution. The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected". The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected". (B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the Constitution and would require to be ratified by the Legislature of the States before the Bill is presented for Presidential assent. (paragraphs 54 to 62) (pages 688 to 692) Answer to point 'B': Para 62 (pages 691 to 692) 62. In the present case, though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those articles respecting matter falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly, on Point (B), we hold: "That having regard to the background and evolution of the principles underlying the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to clause (2) of Article 368 of the Constitution of India". POINTS (C) and (D) (C) In view of the admitted non-compliance with the proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment. POINTS (C) and (D) (C) In view of the admitted non-compliance with the proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment. Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid. (D) That even if the effect of non-ratification by the Legislature of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non-severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional amendments. (paras 63 to 77) (pages 692 to 699) Answer to Points 'c' and 'D' (para 77) (page 699) 77. We accordingly hold on contentions (C) and (D): That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification. That accordingly, the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (Fifty-second Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. There is no justification for the view that even the rest of the provisions of the Constitution (Fifty-second Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. POINTS (E) and (F) (E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court. The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to, but constitutionally immune from curial adjudicative processes. (F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional "finality" to the decision of the Speaker or the Chairman, as the case may be, and that such concept of "finality" bars examination of the matter by the Courts. (paras 78 to 111) (pages 699 to 711) Answer to points 'E' and 'F': (para 111) (pages 711-712) 111. In the result, we hold on contentions (E) and (F): That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained Under Article 143 of the Constitution of India; In the matter of Special Reference No.1 of 1964, AIR 1965 SC 745 , in Keshav Singh case to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words "be deemed to be proceedings in Parliament" or "proceedings in the legislature of a State" confines the scope of the fiction accordingly. The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence. CONTENTION (G) (G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery. The investiture of the determinative and adjudicative jurisdiction in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The investiture of the determinative and adjudicative jurisdiction in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman. (paras 112 to 119) (pages 712 to 714) Answer to Point 'G' (para 119, pages 714) 119. Accordingly, the contention that the vesting of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far-reaching decisions in the functioning (of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such constitutional functionaries should not be considered exceptionable. CONTENTION (H) (H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the Constitution. Answer to Point 'H': (para 120, page 714) 120. In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure. However, in the minority judgment rendered, it was observed as follows.- "129. In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure. However, in the minority judgment rendered, it was observed as follows.- "129. The unanimous opinion according to the majority as well as the minority is that paragraph 7 of the Tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Article 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State Legislatures, it is paragraph 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, paragraph 7 alone is liable to be struck down rendering the Speaker's decision under Paragraph 6 that of a judicial Tribunal amenable to judicial review by the Supreme Court and the High Courts under Articles 136, 226 and 227. The minority opinion is that the effect of invalidity of Paragraph 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty-second Amendment) Act, 1985 which inserted the Tenth Schedule since the President's assent to the Bill without prior ratification by the State Legislatures is non est. The minority view also is that Paragraph 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire Constitution (Fifty-second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional amendment indicated therein". In the minority opinion, we have held that the entire Constitution (Fifty-second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional amendment indicated therein". It may also be noted here that paragraph 3 of the Tenth Schedule was omitted by the Constitution (Ninety-first Amendment) Act, 2003 with effect from 1-1-2004 and paragraphs 3, 4 and 5 were introduced. 19. I have given detailed anxious consideration to the contentions of the learned Senior Counsel appearing for the parties and scrutinised the material on record and perused the judgment of the Division Bench dated 18-10-2010 resulting in reference of contention No.3 to this Court. 20. It is clear on consideration of the arguments of the learned Senior Counsel appearing for the petitioners that they have reiterated the grounds urged in the writ petition and reasoning in the judgment of the learned Single Judge differing with the judgment of the Hon'ble Chief Justice dated 18-10-2010 and arguments of the learned Senior Counsel appearing for the respondents is reiteration of the argument made before the Division Bench and reasoning of the Hon'ble Chief Justice in the judgment dated 18-10-2010. It has to be noted at the outset that this Court is required to answer the only question as referred to above as the judgment of the Division Bench is unanimous on contention Nos. 1, 2 and 4 and referred question relates to contention No.3 only. 21. The contention of the learned Senior Counsel appearing for the petitioners regarding procedural irregularity committed by the Speaker, that no precise statement of facts was made in the application given to the Speaker which was not properly verified and ought to have been rejected under Rule 7(2) and there was no ground whatever made out for issuing show-cause notice has been already considered and negatived by the unanimous decision of the Division Bench in view of the principles laid down in Kihoto's case and decision of the Apex Court in Dr. Mahachandra Prasad Singh's case (paras 16, 17 and 18) and the principles laid down by the Apex Court in Ravi S. Naik's case (paras 18 and 26), wherein the contentions that have been urged by the learned Senior Counsel appearing for the petitioners while arguing contention No. (1) has been negatived and even otherwise, it is clear that the said contention would not in any way affect the validity of the order passed by the Speaker as unanimously held by the Division Bench. 22. The Supreme Court, in Dr. Iv1ahachandra's case, has made the following observations: "The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes qualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision viz., the Tenth Schedule". 23. In the case of Ravi S. Naik, the following principles have been laid down by the Hon'ble Supreme Court: "18. The submission of Sri Sen is that the petitions that were filed by Khalap before the Speaker did not fulfill the requirements of clause (a) of sub-rule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of the material facts on which the petitioner (Khalap) was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6 were also not complied with inasmuch as the petitions were not accompanied by copies of the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of such information as furnished by each such person. It was also submitted that the petitions were also not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Sri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule of the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by his Court in Kihoto Hollohan's case. Moreover, the filed of judicial review in respect of orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan's case, is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Sri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the Rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan's case". 24. They cannot therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan's case". 24. There is no merit in the contentions of learned Senior Counsel appearing for the petitioners that burden required to be discharged by the applicant before the Speaker in a disqualification proceeding is the burden to be discharged by the prosecution in criminal case i.e., proof beyond reasonable doubt and that if two views are possible on the material on record, the view which is favourable to the legislators should be adopted. The Apex Court has laid down the contours and characters of proceedings before the Speaker in a disqualification proceedings in Kihoto's case as follows.- "In the present case, the power to decide disputed disqualification under Paragraph 6(1) is pre-eminently of a judicial complexion". Further, in para 98 of the majority judgment in Kihoto's case, it has been laid down as follows.- "98. But then is the Speaker or the Chairman acting under Paragraph 6(1) a Tribunal? "All Tribunals are not Courts, though all Courts are Tribunals". The word "Courts" is used to designate those Tribunals which are set up in an organised State for the Administration of Justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. (See Harinagar Sugar Mills Limited v Shyam Sundar Jhunjhunwala, AIR 1961 SC 1669). In that case Hidayatullah, J. said: (SCR p. 362) 100. By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal". 25. In Jagjit Singh's case, the Hon'ble Supreme Court has laid down the same principles at paras 15 to 17. 26. The Apex Court in Dr. By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal". 25. In Jagjit Singh's case, the Hon'ble Supreme Court has laid down the same principles at paras 15 to 17. 26. The Apex Court in Dr. Mahachandra Prasad Singh's case, apart from reiterating the principles laid down in Kihoto's case regarding scope of judicial review and the nature of proceedings, has further held as follows.- "It may be noticed that the nature and degree of inquiry required to be conducted for various contingencies contemplated by Paragraph 2 of the Tenth Schedule may be different. So far as clause (a) of Paragraph 2(1) is concerned, the inquiry would be a limited one, namely, as to whether a member of the House belonging to any political party has voluntarily given up his membership of such political party. The inquiry required for the purpose of clause (b) of Paragraph 2(1) may, at times, be more elaborate. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision viz., the Tenth Schedule". In view of the above said principles laid down by the Hon'ble Supreme Court about the nature of proceedings and degree of proof required to be discharged is well-settled. 27. Having regard to the above said principles laid down by the Supreme Court, it is not possible to accept the contention of learned Senior Counsel appearing for the petitioners that the averment made in the complaint should be proved beyond reasonable doubt and if there is any doubt, benefit of the same should be given to the legislator. 27. Having regard to the above said principles laid down by the Supreme Court, it is not possible to accept the contention of learned Senior Counsel appearing for the petitioners that the averment made in the complaint should be proved beyond reasonable doubt and if there is any doubt, benefit of the same should be given to the legislator. On the other hand, observations made by the Horr'ble Supreme Court would show that it has laid down the character and nature of the proceedings and has further observed that where two views are possible to be arrived at, the mere ground that better view could have been arrived at would not be a ground to disturb the order passed by the Speaker disqualifying the legislator. In Jagjit Singh's case, the Supreme Court has observed as follows.- . "The conclusions reached by the Speaker cannot be held to be unreasonable, assuming that two views were possible". Since the contentions regarding violation of Rules 6 and 7 and violation of principles of natural justice and mala fide alleged have been answered against the petitioners by the unanimous decision of the Division Bench and the only question to be considered by this Court is as to whether the order of the Speaker disqualifying the petitioners under Para 2(1)(a) of the Tenth Schedule is perverse as to call for interference in exercise of writ jurisdiction of this Court. 28. Before considering the contention of learned Senior Counsel appearing for the parties, it is necessary to find out as to when the order of the learned Speaker disqualifying the Legislator can be said to be perverse. The Hon'ble Supreme Court in Mayawati v Markandeya Chand and Others has laid down as follows.- "104. In Associated Provincial Picture Houses Limited v Wednesbury Corporation, (1947)2 All ER 680, Lord Greene M.R. dealt with a case where the proprietors of a Cinema Theatre sought a declaration that a condition imposed by the Wednesbury Corporation on grant of permission, for Sunday performances to be held in that cinema was ultra vires. The Court dismissed the action. The relevant passage in the judgment reads as follows.- "In the present case we have heard a great deal about the meaning of the word "unreasonable". It is true that discretion must be exercised reasonably. What does that mean? The Court dismissed the action. The relevant passage in the judgment reads as follows.- "In the present case we have heard a great deal about the meaning of the word "unreasonable". It is true that discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, you may have something so absurd that 'no sensible person could ever dream that it lay within the power of the authority.....". After referring to a judgment of Theatre de Luxe (Halifax) Limited v Gledhill (1915)2 KB 49, the learned Judge observed: "I do not find in any of the language that he used any justification for thinking that it is for the Court to decide the question of reasonableness rater than the local authority. I do not read him as in any way dissenting from the view which I have ventured to express, that the task of the Court is not to decide what it thinks is reasonable, but to decide whether the condition imposed by the local authority is one which no "reasonable authority, acting within the four comer of their jurisdiction, could have decided to impose". 105. In "Judicial Review of Administrative Action" 5th Ed. at P. 549 it is stated as follows.- ""Unreasonableness" is sometimes used to denote particularly extreme behaviour, such as acting in bad faith, or a decision which is "perverse" or "absurd" - implying that the decision-maker has "taken leave of his senses"". 106. In CCSU v Minister for Civil Service, (1984)3 All ER 935" Lord Diplock observed: "By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (see Associated Provincial Picture House Limited v Wednesbury Corporation, (1947)2 All ER 680 : (1948)1 KB 223. 106. In CCSU v Minister for Civil Service, (1984)3 All ER 935" Lord Diplock observed: "By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (see Associated Provincial Picture House Limited v Wednesbury Corporation, (1947)2 All ER 680 : (1948)1 KB 223. It applies to a decision which is so outrageous in its defence of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it". 107. In Nottinghamshire Country Council v Secretary of the Environment and Another, (1986)1 All ER 199, Lord Scarman observed as follows.- "Such an examination by a Court would be justified only if a prima facie case were to be shown for holding that the Secretary of State had acted in bad faith or for an improper motive, or that the consequences of his guidance were so absurd that he must have taken leave of his senses". 108. In Tata Cellular v Union of India, (1994)6 SCC 651 : (1994 AIR SCW 3344, a Three Judges Bench of this Court to which one of us (M.M. Punchhi, J., as His Lordship then was) was a party, the law was stated thus: "Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety". 109. In Union of India v G. Ganayutham, (1997)7 SCC 463 : 1997 AIR SCW 3464, this Court has interpreted reasonableness and rationality which are two grounds for judicial review. The Court referred to the rule in Wednesbury and observed: "Therefore to arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four comers of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view". 29. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view". 29. The order of the Speaker dated 10-10-2010 impugned in these writ petitions disqualifying the petitioners as per para 2(1)(a) of the Tenth Schedule to the Constitution has to be considered in the light of the principles laid down by the Hon'ble Supreme Court and in the light of the contentions of learned Senior Counsel appearing for the petitioners to find out as to whether the order passed by the Speaker dated 10-10c2010 is perverse as to call for interference which would answer the question referred to this Court. 30. Before considering the contentions of learned Senior Counsel appearing for the parties, it is necessary to reproduce the contents of the letter given by the petitioners, contents of which have not been disputed and in fact, have been reiterated in the reply given to the show-cause notice to the petitioners as also the reply given by the petitioners. 31. It is necessary to reproduce the letter dated 6-10-2010 given by the petitioners though separately having identical contents which reads as follows.- "His Excellency I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Sri B.S. Yeddiyurappa. There have been widespread corruption, nepotism, favouritism abuse of power, misusing of Government machinery in the functioning of the Government headed by Chief Minister Sri B.S. Yeddiyuruppa and a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Constitution and Sri Yeddiyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the 81 State and the people of Karnataka I hereby express my lack of confidence in the Government headed by Sri B.S. Yeddiyurappa, Chief Minister, I request you to intervene and institute the constitutional process as constitutional head of the State". In response to the letter given by the petitioners to the Governor of Karnataka, the Governor of Karnataka, on 6-10-2010 issued a letter to the Chief Minister which reads as follows.- "Dear Chief Minister, Letters from 14 BJP MLAs and 5 independent MLAs have been submitted to me today, withdrawing their support to the Government. In response to the letter given by the petitioners to the Governor of Karnataka, the Governor of Karnataka, on 6-10-2010 issued a letter to the Chief Minister which reads as follows.- "Dear Chief Minister, Letters from 14 BJP MLAs and 5 independent MLAs have been submitted to me today, withdrawing their support to the Government. List of MLAs whose letters were submitted is enclosed. This includes 7 Ministers in the Government at the time of submitting the letter. Considering the relative strengths of different groups in Karnataka Legislative Assembly with the withdrawal of support of 19 members, a reasonable doubt has arisen about the support your Government enjoys in the Legislative Assembly. In view of this, I request you to prove that you still continue to command the support of the majority of the Member of the Legislative Assembly by introducing and getting passed a suitable motion expressing confidence in your Government, in the Legislative Assembly on or before 12-10-2010 by 5.00 p.m. I have also requested the Hon'ble Speaker accordingly. With warm regards, Yours sincerely, Sd/- (H.R. BHARDWAJ) Governor of Karnataka". The application given to a Speaker by the Chief Minister dated 6-10-2010 under Rule 6 of the Karnataka Rules reads as follows: "Subject: Disqualification of membership of the conduct of the following members of the Legislative Assembly. 1. The following members have contested the 2008 election as BJP candidates and have been elected as member of BJP Party. 2. The BJP Legislature Party has unanimously elected me as the Leaders of Legislature Party and on the strength of that position I have formed the Government and carrying out administration as Chief Minister of the State. 3. The following Members of the BJP Legislature Party on 6-10-2010 have submitted letter to the honorable Governor stating that they have withdrawn support to the Government headed by me. This matter has been communicated to me by the Governor vide his letter dated 6-10-2010 enclosed under Annexure-1 and further by intimating the Honorable Governor that support has been withdrawn to the Government in the absence of any resolutions of the legislature party and any decision of the party they have clearly violated Schedule 10 of Constitution of India and because of this they are hereby humbly pray to disqualify with immediate effect their membership and issue suitable orders. 4. 4. I would like to bring to your notice example under similar circumstances action taken in the cases of Sri Avatar Singh Bhadana v Khuldep Singh and Rajesh Verma v Mohammed Shahid Akhalak, BSP, where in actions have been taken merely on press reports. 5. Due to the Statements made by respondents before press and electronic media and as per the gist of the letter sent by Honorable Governor it roves the violation of Schedule 10 of the Constitution. 6. In view of that: 1. Sri M.P. Renukacharya, MLA, Honnali Constituency 2. Sri Gopalakrishna Belur, MLA, Sagar Constituency 3. Sri Anand Asnotiker, MLA, Karvara Constituency 4. Sri Balachandra Jarakiholi, MLA, Arabhavi Constituency 5. Dr. Bagali Sarvabowma N., MLA, Indi Constituency 6. Sri Bharamagowda H. Kage, MLA, Kagawada Constituency 7. Sri Y. Sampangi, MLA, KGF Constituency 8. G.N. Nanjunda Swamy, MLA, Kolegala Constituency 9. Shri M.V. Nagaraj, MLA, Nelamangala Constituency 10. Belubbi Sangappa Kalapa, MLA, Basavana Bagevadi Constituency 11. Shivana Gowda Nayak, MLA, Devadurga Constituency 12. Narasimha Nayak (Raju Gowda), MLA, Surapura Devadurga Constituency 13. H.S. Shankaralingegowda, MLA, Chamaraj Devadurga Constituency 7. The above members have become ineligible to continue as legislations as per Schedule 10 of the Constitution of India. 8. Hence I humbly pray to disqualify from membership with immediate effect the above Members and Issue Suitable Orders. A perusal of the petition filed by the Chief Minister reveals, that all the 13 respondents impleaded in the disqualification petition (including the 11 petitioners herein), were liable to be disqualified on the basis of the letters dated 6-10-2010 addressed by them to the Governor of the State of Karnataka, as also, on account of the consequential letter dated 6-10-2010 written by the Governor of the State of Karnataka to him (the Chief Minister). In the disqualification petition reference was also made to reports in the press and electronic media, to show, that the petitioners had violated the provisions contained in the Tenth Schedule of the Constitution of India". In the disqualification petition reference was also made to reports in the press and electronic media, to show, that the petitioners had violated the provisions contained in the Tenth Schedule of the Constitution of India". On receipt of the said letter by the Chief Minister to the Speaker, the following show-cause notice was issued by the Speaker on 7-10-2010: "Sri B.S. Yeddiyurappa, the Leader of the Legislative Party of Bhartiya Janata Party and also Chief Minister has submitted a letter on 6-10-2010 under Rule 6 of Karnataka Legislative Assembly Disqualification Rules, 1986 and has stated in his petition that you being a Member of Legislative Assembly elected on Bharatiya Janata Party without any resolution or order from the party have submitted a letter to His Excellency Governor on 5-10-2010 withdrawing support to the Government headed by him. This is in violation of para 2(1)(a) of the 10th Schedule of the Constitution of India. Hence, he has submitted a petition to disqualify you from the membership of the Legislature. Therefore, you have been given time till 5.00 p.m. of 10th October, 2010 to reply if you have anything to say on the petition. In this regard, you are hereby informed to appear in person and make your statement either orally or in writing before the Speaker. In case, if you fail, it will be construed that you have nothing to say and future legal steps will be taken ex parte". 32. The petitioners have replied to the show-cause notice issued by the Speaker on 9-10-2010 as per Annexure-E to the writ petition. It is contended in the reply statement that since they have been given time till 5.00 p.m. of 10-10-2010, they are submitting their interim reply with liberty reserved to them to give an exhaustive reply after going through enclosures to the show-cause notice as and when supplied. It is contended that there is violation of Rules 6 and 7 of the Rules. It is contended that there is violation of Rules 6 and 7 of the Rules. The intention behind issuing of show-cause notice is an abuse and misuse of the Constitutional provisions for the purpose of achieving the unconstitutional object of disqualifying sufficient number of members of the Assembly including the petitioners from membership and preventing them in participating in the Vote of Trust scheduled to be tabled on the floor of the house at 11.00 a.m. on 11-10-2010 and wherefore, the show-cause notice is ex facie not only unconstitutional and illegal but motivated, mala fide and devoid of jurisdiction. It was further averred that averment made in the letter dated 6-10-2010 would not amount to voluntarily giving up membership of the political party - Bharatiya Janata Party on whose ticket petitioners are elected to the Legislative Assembly. The petitioners are dissatisfied with the functioning of the Government headed by Sri B.S. Yeddiyurappa and there is widespread corruption, nepotism, favouritism, abuse of power and misuse of Government machinery in the functioning of the Government headed by the Chief Minister and now a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Statute and Sri B.S. Yeddiyurappa has forfeited the confidence of the people and in the interest of State and the people of Karnataka, they express lack of confidence in the Government headed by Sri B.S. Yeddiyurappa and as such they are withdrawing support to the Government headed by Sri B.S. Yeddiyurappa as the Chief Minister and they are not withdrawing support from the Government and they have not left Bharatiya Janata Party at all and therefore, incurring any disqualification would not arise. The said contents of the letter given to the Governor withdrawing the support to the Government headed by Sri B.S. Yeddiyurappa would not attract disqualification under Para 2(1)(a) of the Tenth Schedule. The said contents of the letter given to the Governor withdrawing the support to the Government headed by Sri B.S. Yeddiyurappa would not attract disqualification under Para 2(1)(a) of the Tenth Schedule. It was also contended that letter was written to the Governor to salvage the image and reputation of the Bharatiya Janata Party and nowhere in the letter it is stated that Legislators have given up membership of Legislative Party - Bharatiya Janata Party and in fact, the letter is made to cleanse the who has been acting as a corrupt despot in violation of Constitution of India and contrary to the interests of the people of the State and if he is allowed to continue, he will completely destroy the credibility of BJP not only in the State of Karnataka but in the entire nation and they continue to support BJP and will continue to be part of the BJP or any Government formed by BJP which is headed by any leader other than Sri B.S. Yeddiyurappa as Chief Minister of the State. As such, any act by no stretch of imagination, contents of letter would not amount to disqualification as nowhere the petitioners have stated that they are leaving the party but they are withdrawing support from the Government headed by Sri B.S. Yeddiyurappa. The Speaker after considering the contentions of the parties, has passed the order dated 10-10-2010 holding that petitioners have incurred disqualification under Para 3 of Tenth Schedule to the Constitution as their conduct gives rise to inevitable inference that petitioners have voluntarily given up membership of Bharatiya Janata Party - the political party from which they have elected. 33. It is well-settled that scope of disqualification contemplated under Para 2(1)(a) and 2(1)(b) is entirely different and is independent of each other. In the present case, the finding of the Speaker is that petitioners have incurred disqualification under Para 2(1)(a) of the Tenth Schedule. It is well-settled that in order to conclude that the petitioners have voluntarily given up the membership of the political party Bharatiya Janata Party, it is not necessary that they should expressly submit their resignation as the fact of voluntarily giving up membership of the Legislative Party may be express or implied as held by the Hon'ble Supreme Court in Jagjit Singh's case. It may also be inferred from the conduct of the petitioners and material on record is not disputed by the learned Counsel appearing for the petitioners. However, according to the learned Counsel for the petitioners, facts placed before the contents of the letter dated 6-10-2010 does not lead to an inference much less any inevitable inference that petitioners have voluntarily given up membership of Bharatiya Janata Party whereas, according to the Speaker, the conduct and contents of the letter dated 6-10-2010 given to the Governor of Karnataka would lead to the only inference that they have voluntarily given up membership of the Bharatiya Janata Party. The distinction between disqualification under para 2(1)(a) and (b) of Tenth Schedule has to be borne in mind while considering the validity of the order as to whether the order passed by the Speaker is perverse as to call for interference in these writ petitions, it is necessary to bear in mind the distinction that provisions of para 2(1)(a) and 2(1)(b) constitute separate cause of action for disqualification and are independent of each other. The said provisions of para 2(1)(a) and 2(1)(b) cannot better be evaluated than in the words of Hon'ble Justice M.N. Venkatachalaiah in Kihoto's case wherein it has been laid down by rendering the majority judgment as follows.- "10. Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under Paragraph 2(1)(a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under clause (b) he would incur the disqualification if he votes or abstains from voting in the 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 case, 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. This sub-para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath. 11. This sub-para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath. 11. Paragraph 2(2) deals with a member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of a House would incur his disqualification under sub-para (3) if he joins any political party after the expiry of six months from the date of which he takes his seat. 13. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. 14. Paragraph 2(1)(b) deals with a slightly different situation i.e., a variant where dissent becomes defection. If a member while remaining a Member of the political party which had set him up as a candidate at the election, votes or abstains from voting 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 he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party". 34. The provisions in the Tenth Schedule give recognition to a political party in the political process. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party". 34. The provisions in the Tenth Schedule give recognition to a political party in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of para 2(1)(a) are based on principle that political propriety and morality demand that if such a person after the election changes his affiliation and leaves the political party which had set him up as a candidate at the' election, he must give up his membership of the Legislature and go back before the electorate as laid down in Kihoto's case. 35. It is clear from the analysis of para 2(1)(a) and 2(1)(b) of Tenth Schedule as laid down by the Hon'ble Supreme Court in Kihoto's case as culled out above that para 2(1)(a) and 2(1)(b) constitute separate acts of disqualification and they are independent of each other. The provisions of para 2(1)(a) is based on principle that political propriety and morality demand but if such a person after the election changes his affiliation and leaves the political party which had set him up as a candidate at the election, he must give up his membership of the legislature and go back before the electorate. However, para 2(1)(b) deals with slightly different situation i.e., a variant where dissent becomes defection and therefore, the disqualification contemplated by the legislator under para 2(1)(a) and 2(1)(b) of Tenth Schedule are entirely independent of each other and are not interconnected and therefore the contention as to whether dissent is honest or not and as to in what circumstances honest dissent would amount to defection, would become necessary only where disqualification is alleged under para 2(1)(b) to the Tenth Schedule to the Constitution and for the purpose of ascertaining the disqualification under para 2(1)(a), the said defence are not available. Even otherwise, the contention of learned Senior Counsel appearing for the petitioners that for proving disqualification under para 2(1)(a), the dissent which is honest and is not for any lure of office or money would not amount to disqualification unless the petitioners have given up their membership of their political party and have voted against the party in the House and therefore, honest dissent would amount to defection only if there is whip issued by the party in the Legislature and unless that intention is realized, the question of disqualifying member of the legislature under para 2(1)(a) would not arise and also the contention that it is fundamental right of the petitioner to express honest dissent to save the party and its programmes and to displace the dishonest Chief Ministers and also the contention that the petitioners have been elected from the particular constituency and they owe a duty to the constituency and are expected to perform the wishes of the constituency and they are entitled to express honest dissent which is the essence of democracy and the dissent expressing want of confidence in the leader of the political party which has formed the Government cannot be equated to such a member giving up voluntary membership of the party and such a conduct is outside the scope of para 2(1)(a), said contentions are based on the lines of the reasoning given by the learned Judge constituting the Bench while rendering divergent opinion on contention No.3 which is referred to this Court, cannot be accepted as these contentions have been argued while the constitutional validity of the Tenth amendment introduced by Amendment Act was challenged in Kihoto's case and identical contentions and reasonings have been answered against the petitioners and therefore, observations made by the Hon'ble Supreme Court in Kihoto's case is a complete answer to the contention of the learned Senior Counsel for the petitioners and no further reasoning is required for declining to accept the contention of the learned Senior Counsel for the petitioners in this case. 36. 36. The majority judgment in Kihoto's case regarding the contention of the Senior Counsel appearing for the petitioners in this case that the provisions of Tenth Schedule is held to be not violative of Article 19(1)(a) of the Constitution and therefore, expression of honest dissent would not amount to misconduct and the said right cannot be scuttled was also the argument in Kihoto's case and while considering the said contention, Hon'ble Supreme Court has laid down as follows.- "39. Sri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides: "105. Powers, privileges, etc., of the Houses of Parliament and of the Members and committees thereof.-..... (2) No Member of Parliament shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings". 40. The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any "Court" for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing. 41. Secondly, on the nature and character of electoral rights this Court in Jyoti Basu and Others v Debi Ghosal and Others, (1982)1 SCC 691 , observed: (See p. 696, para 8) "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation''. 37. The contention that the legislators like the petitioners are entitled to express their honest dissent which would attract the disqualification as they have dual obligation to the voters as well as the implementation of the policy of the party and to what extent they can defy the policies of the Government which is of the legislative party on whose ticket they were elected has been considered in Kihoto's case as follows.- "43. Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not un-often the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines. 44. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance ... nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. 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 smacks of conspiracy". (emphasis supplied) Clause (b) of sub-para (1) of paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression "any direction" in clause (b) of paragraph 2(1) ..... whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extraordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth schedule. We shall deal with this aspect separately". We shall deal with this aspect separately". Further, the contention as to whether the petitioners who are admittedly the legislators belonging to Bharatiya Janata Party and were elected on the ticket issued by the said party and two of whom are Ministers in the Cabinet headed by Sri B.S. Yeddiyurappa and the basis of forming the Government was argued and has been considered by the Hon'ble Supreme Court in Kihoto's case as follows.- "But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects .... and exacts in its own way.... loyalty to it. This duality of capacity and functions are referred to by two learned authors thus: "The functions of Members are of two kinds and flow from the working of representative Government. When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is most often consciously performing two functions: seeking to return a particular person to the House of Commons as Member for that constituency; and seeking to return to power as the Government of the country a group of individuals of the same party as that particular person. The voter votes for a representative and for a Government. He may know that the candidate he votes has little chance of being elected...". So far as his own personal views on freedom of conscience are concerned, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act. Referring to these dilemmas the authors say: "... The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. He may think this because of his personal opinions or because of its special consequences for his constituents or outside interests or because it reflects a general position within the party with he cannot agree. On many occasions, he may support the party despite his disapproval. He may think this because of his personal opinions or because of its special consequences for his constituents or outside interests or because it reflects a general position within the party with he cannot agree. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side. Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips"". Further, in para 47 of the said judgment, the Supreme Court has quoted with approval the following observations of Rodney Brazier "once returned to the House of Commons the Member's party expects ,him to be loyal and this is not entirely unfair or improper, for it is the price of the party's label which secured his election". 38. There is also no merit in the contention that proof the expression of dissent wound not amount to defection. The said dissent or defection should for the lure of the office or profit has to be proved before the legislator is disqualified was also argued before the Hon'ble Supreme Court and the Hon'ble Supreme Court in Kihoto's case has observed as follows.- "49. Indeed, in a sense an anti-defection 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. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct - whose awkward erosion and grotesque manifestations have been the bane of the times - above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation". 39. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct - whose awkward erosion and grotesque manifestations have been the bane of the times - above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation". 39. The Hon'ble Supreme Court has further held while repealing the contention of learned Counsel for the petitioners in the case as to what is the object of declaring individual legislator as disqualified whereas exempting the group of requisite number of legislators defecting from the party which is excluded, by observing as follows.- "51. This exercise to so hold up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature envisaged the need to provide for such "floor-crossing" on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bona fides. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between "defection" and "split"". 40. In view of the above said principles laid down by the Supreme Court, the contention of learned Senior Counsel appearing for the petitioners that unless dissent or defection is for lure of office or profit or money and is not with the intention of protecting the interest of the party, would not attract disqualification, cannot be accepted as there is presumption that conduct of the legislator amounting to disqualification under para 2 is based upon the principles of political propriety and morality and it is presumed that such conduct or defection is for lure of money or office. Therefore, the contention of the learned Senior Counsel appearing for the petitioners that Tenth Schedule recognises dissent but prohibits defection and dissent would become defection only when the said defection is to the object with the ulterior motive of lure of money or office need not be proved to attract disqualification. Further, it may also be noted here that the observation made by the Hon'ble Supreme Court in Kihoto's case referred to above would clearly show that question of dissent and defection would be relevant only for the purpose of finding disqualification under para 2(1)(b) and not under para 2(1)(a). In view of the above said reasoning, the contentions of the learned Senior Counsel appearing for the petitioners as referred to above, cannot be accepted. 41. The only point that is required to be considered is as to whether the conduct of the petitioners amounts to disqualification as defined in para 2(1)(a) of the Tenth Schedule i.e., voluntary giving up of membership of the political party. 42. On scrutiny of the material on record namely, identical letters given by the petitioners to the Governor dated 6-10-2010 and the letter written by the Governor of Karnataka to the Chief Minister dated 6-102010 and the application filed by Sri B.S. Yeddiyurappa as the leader of the legislative party in the legislative assembly for disqualification of the petitioners under para 2 of the Tenth Schedule; the show-cause notice issued to the petitioners and the reply given by the petitioners to the said notice as also the order passed by the Speaker disqualifying the petitioners under para 2(1)(a) of the Tenth Schedule of the Constitution, it is clear that disqualification of the petitioners was sought for on the basis of the letter given by the petitioners on 6-10-2010 to the Governor and their conduct and other material produced along with the application. It is necessary to reproduce the contents of the letter given by the petitioners to the Governor along with five other independent legislators from the Karnataka Legislative Assembly which reads as follows. - "His Excellency I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Sri B.S. Yeddiyurappa. - "His Excellency I was elected as an MLA on BJP ticket. I being an MLA of the BJP got disillusioned with the functioning of the Government headed by Sri B.S. Yeddiyurappa. There have been widespread corruption, nepotism, favourtism abuse of power, misusing of Government machinery in the functioning of the Government headed by Chief Minister Sri B.S. Yeddiyuruppa and a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the constitution and Sri Yeddiyurappa as Chief Minister has forfeited the confidence of the people. In the interest of the State and the people of Karnataka I hereby express my lack of confidence in the Government headed by Sri B.S. Yeddiyurappa, Chief Minister, I request you to intervene and institute the constitutional process as constitutional head of the State". 43. The fact that the above said letter was voluntarily handed over by the petitioners containing identical averment and the prayer is not disputed. On the other hand, the fact that petitioners along with two other MLAs from BJP and five independent MLAs had voluntarily given above referred letter to the Governor on 6-10-2010 has been reiterated in the reply statement given by the petitioners which is also identical and therefore, it is necessary to analyse the contents of the above said letter dated 6-10-2010 given by the petitioners to the Governor of Karnataka to find out as to whether their conduct in voluntarily submitting the letter to the Governor would amount to disqualification of voluntarily resigning from political party so as to constitute disqualification under para 2(1)(a) of the Tenth Schedule to the Constitution. 44. 44. It is clear from the contents of the above letter that the petitioners cannot dispute the contents of the said letter in which they have clearly averred the following facts.— (a) The petitioners were elected as MLA on BJP ticket; (b) The petitioners are disillusioned with the functioning of the Government headed by Sri B.S. Yeddiyurappa and there is widespread corruption, nepotism, favourtism abuse of power, misusing of Government machinery in the functioning of the Government headed by Chief Minister Sri B.S. Yeddiyurappa; (c) A situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the constitution; (d) Sri Yeddiyurappa as Chief Minister has forfeited the confidence of the people; (e) In the interest of the State and the people of Karnataka petitioners express their lack of confidence in the Government headed by Sri B.S. Yeddiyurappa; (D Petitioners have withdrawn the support to the Government headed by Sri B.S. Yeddiyurappa, the Chief Minister; and (g) The petitioners have requested the Governor to intervene and institute process as constitutional head of the State. 45. It is well-settled that the above said facts are not disputed and are reiterated in the reply. Reiterating the averments made in the letter, they further contend that petitioners have not resigned from BJP at all and their grievance is only against the Government headed by the Chief Minister B.S. Yeddiyurappa. In the reply, contents of the letter have been quoted and reiterated contending that giving of the said letter would not amount to disqualification under para 2(1)(a) of the said scheme of Tenth Schedule to the Constitution. It is also averred in the objection statement that the letter of withdrawal of support dated 6-10-2010 to his Excellency, the Governor of Karnataka cited supra was given being disillusioned with the functioning of the Government headed by Sri B.S. Yeddiyurappa and there is widespread corruption, nepotism, favouritism, abuse of power, misusing of Government machinery and these have made them to believe that the governance of the State cannot be carried on in accordance with the provisions of the Constitution and as such, Sri B.S. Yeddiyurappa has forfeited the confidence of the people and petitioners have withdrawn their support from the Government headed by Sri B.S. Yeddiyurappa as Chief Minister and it is within their constitutional right to do so in parliamentary democracy. In all the letters replying to the show-cause notice given by the petitioners, it is averred as follows.- "I continue to support BJP and continued to be part of BJP or any Government formed by BJP which is headed by any person other than Sri B.S. Yeddiyurappa as the Chief Minister of the State. I am always a disciplined solder of BJP and continue to support the Government headed by efficient person who can govern the people of Karnataka according to the Constitution and provide good governance to the people". 46. It is not disputed by the petitioners that among the petitioners, two of the applicants namely, petitioners 2 and 3 were the Ministers in the cabinet headed by Sri B.S. Yeddiyurappa. It is also not disputed that identical letters were given by each of the petitioners along with two other members of the legislative assembly from BJP and five independent members of the legislative assembly of the State Legislature in Karnataka. 47. It is clear from the scheme of the Constitution that recognition was given to political parties and political proprieties in the political process by introducing Tenth Schedule to the Constitution by Amendment Act, 1985. The averment made in the letter and the facts as elucidated above would clearly show that according to the petitioners, heir complaint is against Sri B.S. Yeddiyurappa heading the BJP Government in Karnataka and that they will continue to be in BJP and support the Government which is headed by any other person other than Sri B.S. Yeddiyurappa. The Governor has no power to direct legislative party to change the Chief Minister or to change the leader of the legislative party. Though the contents of the letter would show that the petitioners were disillusioned by the conduct of Sri B.S. Yeddiyurappa as Chief Minister and the conduct has been stated in the letter stated above. The averment made in the letter elucidated above would clearly show that it is in consonance with the wordings of Article 356 of the Constitution of India and it is for the Government to initiate proper action to find out about the confidence enjoyed by the ruling party in the State namely BJP in the present case. The averment made in the letter elucidated above would clearly show that it is in consonance with the wordings of Article 356 of the Constitution of India and it is for the Government to initiate proper action to find out about the confidence enjoyed by the ruling party in the State namely BJP in the present case. The contents of Article 356 would clearly show that the words occurring in the said article of the Constitution which would enable the Governor to initiate action under Article 356 of the Constitution. 48. Article 356 deals with failure of constitutional machinery in the State which enables the President on receipt of report from the Governor of a State of otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution. (emphasis supplied) The above sentences contained in Article 356 has been reproduced in the letter given to the Governor dated 6-10-2010 as referred to above wherein it is stated: "a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Constitution". The prayer of the petitioners to the Governor while giving the letter' dated 6-10-2010 is "I request you to intervene and institute the constitutional process as the constitutional head of the State". Therefore, having regard to the contents of the above said letter, it is clear that though petitioners are referred to the conduct of Sri B.S. Yeddiyurappa as Chief Minister of Karnataka, the substance of the letter on which the Governor was empowered to take action under the constitution as the constitutional head of the State is that a situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the Constitution and therefore the Governor has initiated proceedings under Article 356 of the Constitution. In fact, in the present case, in response to the letter dated 6-10-2010 given by the petitioners, the Governor of Karnataka had addressed a letter to the Chief Minister which is culled out supra stating at contents of the letter given to him is enclosed to the letter dated 6-10-2010 and stated: "considering the relative strength of different groups in Karnataka Legislative Assembly with the withdrawal of support of 19 Members, a reasonable doubt has arisen about the support your Government enjoys in the Legislative Assembly. In view of this, I request you to prove that you still continue to command the support of the majority of the Members of the Legislative Assembly by introducing and getting passed a suitable motion expressing confidence in your Government, in the Legislative Assembly on or before 12-10-2010 by 5.00 p.m. I have also requested the Hon'ble Speaker accordingly". Therefore, it is clear that intention of the petitioners in giving the letter to the Governor on 6-10-2010 as referred to above was to bring to the notice of the Governor that contingency has arisen for the Governor to initiate action under Article 356 of the Constitution and that they are withdrawing support from the Government. The averment made in the reply statement would further manifest the intention of the petitioners that they will continue to be in BJP in the State legislature and if there is change in the leadership and if some person other than Sri B.S. Yeddiyurappa is elected as Chief Minister, they have no intention to withdraw support from the Government and their intention in substance, was not to convey to the Governor that the leadership of the party should be changed and making allegations against Sri B.S. Yeddiyurappa, the Chief Minister heading the BJP Government but to request the Governor to initiate proceedings under Article 356 of the Constitution against BJP Government. 49. 49. The leader of the legislative party who form the Government is elected on the basis of collective wisdom of political party in question, for changing the leadership, right forum can only be within the political party and the petitioners who contested on the ticket of Bharatiya Janata Party in the Assembly elections and the party secured the election to the State legislature and two of them have been in the cabinet of Ministers and they are expected to be loyal to the party is not unfair and improper, for loyalty is the price of party's label which secured their election to the legislature. When voters cast a vote to the petitioners, they have cast their vote not only to elect the petitioners but also with the expectation that the political party which had set up the petitioners should come to power and therefore, political propriety and morale demands that if the conduct of the petitioners is incompatible with the loyalty expected by the party and voters, they should incur disqualification and they should go before the electorate as they have voluntarily given up membership of the legislative party as laid down by the Apex Court in Kihoto's case. The petitioners cannot also contend that they have no confidence in the Government led by the Chief Minister whom they have elected unanimously as a leader of the legislative party and the Government headed by him and still contend that they continue to be the members of Bharatiya Janata Party and therefore, the conduct of the petitioners in contending that they continue to be members of Bharatiya Janata Party and have not incurred any disqualification and conduct of the petitioners in writing letter to the Governor are incompatible and petitioners by their conduct cannot claim themselves as whistleblowers. 50. 50. The contents of the letter dated 6-10-2010 given by the petitioners to the Governor along with the independent members in the Karnataka Legislature is voluntary and unequivocal and the said decision amounts to breach of political propriety and morale as laid down in Kihoto's case, their conduct is incompatible with the contention of the petitioners that they still continue to be the members of the Bharatiya Janata Party and the said conduct would lead to the only inference that the petitioners have incurred disqualification under para 2(1)(a) of the Tenth Schedule and therefore, the contention of the learned Senior Counsel appearing for the petitioners on line with the dissenting opinion of the learned Judge of the Division Bench that any member of the House expresses that he has no confidence in the leadership of the legislative party who happens to be the Chief Minister cannot lead to inference of disqualification in this case cannot be accepted. The contention that there is mere possibility that if the Chief Minister Sri B.S. Yeddiyurappa when seeks the vote of confidence, his resolution is defeated, the Bharatiya Janata Party can still form the Government as they are the largest party and entitled to make a claim for forming the Government under the leadership of some other leader would not in any mitigate the conduct of the petitioners if their conduct leads to inevitable inference of voluntarily giving up membership of the party attracting the disqualification under para 2(1)(a) of the Tenth Schedule to the Constitution. Therefore, the contention of learned Senior Counsel appearing for the petitioners that they have only sought for change of leadership and even if such letter leads to the Governor calling upon Sri B.S. Yeddiyurappa to move the vote of confidence, the same would not affect the legislative party from which the petitioners have been elected and therefore, they have not incurred disqualification cannot be accepted and the acceptance of such contention would be a premium on the breach of loyalty, political propriety and morale of the political party and would defeat the very object of enacting para 2(1)(a) as a separate ground for disqualification. 51. 51. There is also no merit in the contention of the learned Counsel appearing for the petitioners that on the same material, the letter dated 6-10-2010 petitioners have been declared as disqualified under para 2(1)(a) of the Tenth Schedule whereas, two members who had also given identical letters along with the petitioners were not disqualified and when once the Speaker has come to the conclusion that the letter against the said persons at Sl. Nos. 1 and 12 - the persons who had given letter identical to the letter given by the petitioners, would not incur disqualification, the same benefit should be extended to the petitioners. 52. It is clear from the material on record that the said two persons had given letter with the petitioners but they did not pursue the same. They did not give reply reiterating the averments made in the letter dated 6-10-2010 and the affidavit was filed before the Speaker by the said two persons namely, Sri M.P. Renukacharya and Sri Narasimha Nayak (Rajugowda) and they have appeared before the Speaker and stated that the letter was given by them due to the pressure of others who had given objection and Sri K.S. Eshwarappa, President of the Bharatiya Janata Party has also filed an affidavit and the said two members had explained the circumstances under which the letter was given to the Governor and did not try to reiterate the same and expressed their desire to support the Government headed by Sri B.S. Yeddiyurappa and therefore, the said two persons stand on a different footing than the petitioners as the petitioners in their reply have reiterated the averments of the letter dated 6-10-2010 and have also made certain averment in the reply reiterating and reinforcing withdrawal of the support to the Government which is headed by Sri B.S. Yeddiyurappa and that they would vote for Bharatiya Janata Party only if any other person other than Sri B.S. Yeddiyurappa is elected as leader of the legislative party and therefore, when the petitioners do not stand on the same footing as that of the said two persons, it is not open to the petitioners to contend that the same benefit should be extended to the petitioners. It is also well-settled that the petitioners cannot be permitted to resort to dual hat theory contending that they are elected by the voters, they were elected on the basis of their credibility having an expectation that they would be fulfilling the aspirations of the voters and implementing the manifesto of the Bharatiya Janata Party and therefore, claiming precedence to the expectations of the voters over the policy and political propriety and morale of the philosophy of the party, it is not open to the petitioners to contend that they will still vote for the leader of the Bharatiya Janata Party any person other than Sri B.S. Yeddiyurappa as leader of the Bharatiya Janata Party and the petitioners having given the letter to the Governor on 6-10-2010 which led to the Governor writing a letter to the Chief Minister on the same day to seek for vote of confidence, cannot contend that they will vote for any leader of Bharatiya Janata Party other than Sri B.S. Yeddiyurappa which would necessarily mean that they will not vote in favour of the Government led by Sri B.S. Yeddiyurappa as the leader of the legislative party and the Chief Minister as he has been unanimously elected as leader of legislative party including petitioners. The said conduct of the petitioners which is incompatible with the continuance of their membership in the Bharatiya Janata Party, would also lead to the inference of incurring disqualification under para 2(1)(a) of the Tenth Schedule to the Constitution. The very existence of the political party in the Government and political propriety and morale would be defeated by accepting the said contentions. 53. In view of the above said reasoning, it is clear that contents of the letter given to the Governor dated 6-10-2010 by the petitioners would lead to the inevitable inference that the intention of the petitioners was to voluntarily giving up of membership of Bharatiya Janata Party and it is unnecessary to go into other material relied upon by the Speaker could not have been relied upon. Even otherwise, in view of the decision of the Hon'ble Supreme Court in Jagjit Singh's case, it is clear that though the petitioners have incurred disqualification on 6-10-2010 itself, the decision is expost facto and the speaker is entitled to take into account the material produced before him which is not disputed by the legislators against whom action is sought to be taken. 54. In view of the above reasoning and findings, I answer the question referred for determination in the affirmative against the petitioners by holding that the impugned order dated 10-10-2010 passed by the Speaker of the Karnataka Legislative Assembly is in consonance with the provisions of Para 2(1)(a) of Tenth Schedule to the Constitution of India. 55. In view of my answer to the referred question, I concur with the finding of Hon'ble Chief Justice on third contention in the writ petitions in the order dated 18-10-2010 which is referred for determination to this Court. The writ petitions may be placed before the Division Bench for passing the final order.