ORDER V.G. Sabhahit, J.— 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, 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. Yadiyurappa, Chief Minister of Karnataka. The petitioners submitted separate, but identical letters to His Excellency, the Governor of Karnataka on 06.10.2010 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. Yadiyurappa. They averred that there has been widespread corruption, nepotism in the functioning of the Government headed by Sri B.S. Yadiyurappa 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. Yadiyurappa 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. Yadiyurappa and as such, they are withdrawing their support to the Government headed by Sri B.S. Yadiyurappa, 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., 06.10.2010, 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 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 06.10.2010, Sri B.S. Yadiyurappa, 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 06.10.2010 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 06.10.2010, 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 Sri Avatar Singh Bhadana v. Khuldep Singh and Sri Rajesh Verma v. Sri 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 09.10.2010. 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 09.10.2010. The Speaker, after hearing the petitioners passed an order on 10.10.2010 in Disqualification Application No. 1/2010 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. 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. 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. 2.7 I have heard Sri K.G. Raghavan, the learned senior counsel appearing for petitioner No. 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 06.10.2010 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. Yadiyurappa, the Chief Minister and the contents of the letters dated 06.10.2010 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 06.10.2010, 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. Yadiyurappa before the Speaker as the leader of the Legislature Party dated 06.10.2010 and the show cause notices issued by the Speaker pursuant to the said application dated 07.10.2010 and the reply given by the petitioners on 09.10.2010 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 06.10.2010 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. Yadiyurappa 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 06.10.2010 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. Yadiyurappa 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 Shri Kihota Hollohon Vs. Mr. Zachilhu and others, AIR 1993 SC 412 . 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 Vs. Hon. Chairman, Bihar Legislative Council and Others, AIR 2005 SC 69 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 2(1)(a) to the 10th Schedule should be conclusive and unambiguous. 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 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 Rana 2007 (4) SCC 214. The learned senior counsel further submitted that the interference that were drawn is Avinash's case and also the decision in 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 B.J.P., 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 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 B.J.P. 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 B.J.P., 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 No. 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 B.J.P.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 B.J.P ticket. There is no averment in the application that the petitioners have voluntarily given membership of the B.J.P. and what was expressed in the letters submitted to the Governor on 06.10.2010 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 B.J.P., 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 B.J.P. 5. The learned senior counsel further submitted that the nature of proceeding before the Speaker is quas 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 S/o. Ramappa Vs. The State of Karnataka rep. by its Secretary, Dept. of Rural Development and Panchayath Raj, State Election Commission of Karnataka rep. by the Commissioner, K. Ramakrishnappa S/o. Gundappa and Alangur Ramanna S/o. Ganeshappa, ILR (2008) KAR 2185 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. Yadiyurappa and not against the B.J.P., 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. Yadiyurappa 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 B.J.P. and in the reply to the show cause notice, the petitioners have specifically averred that they continued to be members of the B.J.P. and they will continue to support the B.J.P. if there is change of leadership and any person other than B.S. Yadiyurappa is elected as leader. The learned senior counsel further submitted that the decision in Ravi Naik's case AIR 1994 SC 641 and AIR SC 1558 and Vishwanath's case 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 B.J.P.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 Sl. Nos. 1 and 12 on the basis of the affidavit filed by them and the statement of the applicant and the President of the B.J.P. 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 Sl. 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 Vishwanath's case AIR 1996 SC 1268 and submitted that even after the letter given to the Governor, the petitioners have continued to be members of the B.J.P. 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 Minister 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 malafide 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 Vs. 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 Vs. State of Haryana and Others, AIR 2007 SC 590 , 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 proceedings before the arbitrator or any statutory body or quasi judicial authorities 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 (a)(i) 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 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 06.10.2010, 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 06.10.2010 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 parimateria 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 irreresistible 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 B.J.P. The learned senior counsel further submitted that having given the letter on 06.10.2010 withdrawing support to the Government run by B.J.P. when the petitioners were elected on B.J.P., 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 B.J.P. despite withdrawing support to the Government led by B.J.P., is incompatible with the continuance of the membership as they cannot say that they are still members of the B.J.P., and the Government led by B.J.P. should be brought down. It is not open to the petitioners to contend that they have not left B.J.P. at all when they have given letter to the Governor that they have withdrawn support to the said legislative party. T he 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 06.10.2010 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 B.J.P. The learned senior counsel further submitted that the petitioners cannot be whistleblowers 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 Vishwanath's case AIR 1996 SC 1268 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. 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 06.10.2010, 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 petitioners gave letters to the Governor on 06.10.2010, 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 news papers would show that they had associated themselves with the members of the opposition persons not belonging to B.J.P. 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, B.J.P. 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 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 Cabient. Sri B.S. Yadiyurappa. Sri B.S. Yadiyurappa. 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 Allahabad High Court (AIR 1987 PUNJAB AND HARYANA), 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 06.10.2010 given by the petitioners to the Governor, wherein they had ventilated their grievance with regard to the conduct of Sri B.S. Yadiyurappa 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 B.J.P 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 06.10.2010 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. 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 K.G. Raghavan, the learned senior counsel appearing for the petitioner No. 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 & 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, interalia observed: 6. The said Committee known as the "Committee on Defections" in its report dated January, 7 1969, interalia observed: 6. Following the Fourth General Election, in the short period between March 1967 and February 1968, the Indian political scene was characterized 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 authorized 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; (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; (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 subparagraph,- (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 House shall be disqualified for being a member of the House if he joins any complying with the requirements of Article 99 or, as the case may be, Article 188. (3) A nominated member of House shall be disqualified for being a member of the House if he joins any 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 purpose of sub-paragraph (20 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 subparagraph (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 Shri Kihota Hollohon Vs. Mr. Zachilhu and others, AIR 1993 SC 412 (hereinafter called 'KIHOTO'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 Hollohon Vs. Zachilhu and Others, JT (1991) 4 SC 281 . 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 , Honb'le 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. The majority judgment was rendered by Hon'ble Sri Justice M N Venkatachalaiah for himself , Honb'le 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, page 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. POINT (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 operations of those articles representing 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 Sub-article (2) of Article 368 of the Constitution of India. POINTS (C) & (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) & (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 noncompliance 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 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) & (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 decisions 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 judical review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and pervesity, 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 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 time 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 basis 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 & 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 basis 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. 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: 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 Sr. Counsel appearing for the parties and scrutinized 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 Sr. 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 Sr. 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 & 4 and referred question relates to contention No. 3 only. 21. The contention of the learned Sr. 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 Vs. Hon. Chairman, Bihar Legislative Council and Others, AIR 2005 SC 69 (paras 16, 17 & 18) and the principles laid down by the Apex Court in Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, AIR 1994 SC 1558 (paras 18 & 26) wherein the contentions that have been urged by the learned Sr. Hon. Chairman, Bihar Legislative Council and Others, AIR 2005 SC 69 (paras 16, 17 & 18) and the principles laid down by the Apex Court in Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, AIR 1994 SC 1558 (paras 18 & 26) wherein the contentions that have been urged by the learned Sr. 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. Mahachandra Prasad Singh Vs. Hon. Chairman, Bihar Legislative Council and Others, AIR 2005 SC 69 , 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 and Sanjay Bandekar Vs. Union of India and others, AIR 1994 SC 1558 the following principles have been laid down by the Hon'ble Supreme Court: 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 petititon 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. 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 AIR 1992 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 AIR 1992 SCW 3497 (supra). 24. There is no merit in the contentions of learned Sr. 24. There is no merit in the contentions of learned Sr. 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 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 Ltd. v. Shyam Sundar Jhunjhunwala). 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 Vs. State of Haryana and Others, AIR 2007 SC 590 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 Vs. Hon. Chairman, Bihar Legislative Council and Others, AIR 2005 SC 69 , 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 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. 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 Sr. 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 Hon'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 JAGJITH SINGH's case referred supra, 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. In JAGJITH SINGH's case referred supra, 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 & 7 and violation of principles of natural justice and malafide 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 Part 2(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 Sr. 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 Vs. Markandeya Chand and Ors., (1998) 7 AD SC 533 has laid down as follows: 104. In Associated Provincial Picture Houses Ltd. 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? 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.... 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) Ltd. v. Gledhill (5) (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 in reasonable, 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 corner 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 sometime used to denote particularly extreme behavior, 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 Ltd. 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 decide could have arrived at it. 107. In Nottinghamshire Country Council v. Secretary of the Environment and Anr. appeal (1986) I All ER 199 Lord Scarman observed a 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. 108. In Tata Cellular v. Union of India (1994) 6 SCC 651 : AIR 1994 SCW 33440, a Three judge 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 and another Vs. G. Ganayutham (Dead) by LRs., AIR 1997 SC 3387 this Court has interpreted reasonableness and rationality which are two grounds for judicial review. The court referred to the rule in Wednesbury (supra) 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 corners 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 order of the Speaker dated 10-10-2010 impugned in these writ petitions disqualifying the petitioners as per Part 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 Sr. counsel appearing for the petitioners to find out as to whether the order passed by the Speaker dated 10-10-2010 is perverse as to call for interference which would answer the question referred to this Court. 30. Before considering the contentions of learned Sr. 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. Before considering the contentions of learned Sr. 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 610-2010 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 Shri. B.S. Yediyurappa. There have been widespread corruption, nepotism, favoritisms abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri. B.S. Yedirupaa 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. Yediurappa, 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 610-2010 issued a letter to the Chief Minister which reads as follows: Dear Chief Minister, Letters from 14 BJPMLAs and 5independent 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. 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 & 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 06/10/2010 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 06.10.2010 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 hereby humbly pray to disqualify with immediate effect their membership & issue suitable orders. 4. I would like to bring to your notice example under similar circumstances action taken in the Cases of Shir. Avatar Singh Bhadand v. Khuldep Singh & Shri. Rajesh Verma v. 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 roves 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 Sagar 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. Shri M.V. Nagaraj, MLA Nelamangala Constituency 10. Belubbi Sangappa Kalapa, MLA Basavana Bagevadi Constituency 11. Shivana Gowda Nayak, MLA Devadurag Constituency 12. Narasimha Nayak (Raju Gowda), MLA Surapura Devadurag Constituency 13. 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. Shri M.V. Nagaraj, MLA Nelamangala Constituency 10. Belubbi Sangappa Kalapa, MLA Basavana Bagevadi Constituency 11. Shivana Gowda Nayak, MLA Devadurag Constituency 12. Narasimha Nayak (Raju Gowda), MLA Surapura Devadurag Constituency 13. H.S. Shankaralingegowda, MLA, Chamaraj Devadurag 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. 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. Shri. B.S. Yeddiyurappa, the Leader of the Legislative Party of Bhartiya Janata Party and also Chief Minister has submitted a letter on 06.10.2010 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 05.10.2010 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. In this regard, you are hereby informed to appear in person and make your statement either orally or in writing before the Speaker. 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. 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 & 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, malafide 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. 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 Yadiyurappa 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 Yadiyurappa 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 Yadiyurappa and as such they are withdrawing support to the Government headed by Sri B S Yadiyurappa 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 Yadiyurappa would not attract disqualification under Part 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 Yadiyurappa 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 Yadiyurappa. The Speaker after considering the contentions of the parties, has passed the order dated 10-10-2010 holding that petitioners have incurred disqualification under Part 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 Part 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 Part 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 Jagjith Singh's case cited supra. 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 muchless 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 part 2(1)(a) and 2 (1) (b) constitute separate cause of action for disqualification and are independent of each other. The said provisions of Part 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. 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. 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. 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. 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 Sr. Even otherwise, the contention of learned Sr. 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 part 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 21(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 Sr. counsel for the petitioners and no further reasoning is required for declining to accept the contention of the learned Sr. counsel for the petitioners in this case. 36. The majority judgment in Kihoto's case regarding the contention of the Sr. counsel for the petitioners and no further reasoning is required for declining to accept the contention of the learned Sr. counsel for the petitioners in this case. 36. The majority judgment in Kihoto's case regarding the contention of the Sr. 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. Shri 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 v. Debi Ghosal observed (SCC 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. 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 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. 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. 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, recognizes 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 Yadiyurappa 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 recognize 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 ---- above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. 39. The anti- defection law seeks to recognize 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 ---- 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 Sr. 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 Sr. Therefore, the contention of the learned Sr. counsel appearing for the petitioners that Tenth schedule recognizes 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 Sr. 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 6-10-2010 and the application filed by Sri B S Yadiyurappa 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 Shri. B.S. Yediyurappa. 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, favoritisms abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri. B.S. Yedirupaa 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. Yediurappa, 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 Yadiyurappa and there is widespread corruption, nepotism, favoritisms abuse of power, misusing of government machinery in the functioning of the government headed by Chief Minister Shri. B.S. Yadiyurappa.s (c) A situation has arisen that the governance of the State cannot be carried on in accordance with the provisions of the constitution (d) Shri. Yediyurappa 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 Shri. B.S. Yediurappa; (f) Petitioners have withdrawn the support to the Government headed by Sri B S Yadiyurappa, 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 Yadiyurappa. 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. 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 Yadiyurappa 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 Yadiyurappa has forfeited the confidence of the people and petitioners have withdrawn their support from the Government headed by Sri B S Yadiyurappa 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 Yadiyurappa 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, petitioner Nos. 2 and 3 were the Ministers in the cabinet headed by Sri B S Yadiyurappa. 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. 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, their complaint is against Sri B S Yadiyurappa 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 Yadiyurappa. 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 Yadiyurappa 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 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. 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 Yadiyurappa 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 that 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 Yadiyurappa 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 Yadiyurappa, 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. 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. 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 Sr. 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. 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 Yadiyurappa 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 Sr. 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 Yadiyurappa 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. 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. 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 Yadiyurappa 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 Yadiyurappa and that they would vote for Bharatiya Janata Party only if any other person other than Sri B S Yadiyurappa 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 Yadiyurappa 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 Yadiyurappa which would necessarily mean that they will not vote in favour of the Government led by Sri B S Yadiyurappa 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 JAGJITH SINGH's case cited supra, 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 18-102010 which is referred for determination to this Court. 56.The writ petitions may be placed before the Division Bench for passing the final order.