JOIN USHC Bench split on verdict
Delivering the judgment in a courtroom overflowing with curious onlookers and interested lawyers, the division bench of Chief Justice J S Khehar and Justice N Kumar pronounced divergent views over an issue of constitutional significance–– whether Assembly Speaker K G Bopaiah’s decision to disqualify the 11 BJP legislators, a few hours before the crucial (though aborted) vote of confidence on October 11, was in violation of legislative procedures.
What has taken aback the legal fraternity is that while Justice Khehar ruled in favour of the Speaker’s decision to disqualify the BJP rebels on the basis of the anti-defection law, Justice Kumar set aside Bopaiah’s ruling by his interpretation of the law relied upon by the Speaker.
The divergent reasonings of the judges on the division bench led Justice Khehar to admit that “we have agreed on three aspects of violation of rules, principles of natural justice and mala fides, but are of different opinion regarding para 2(1)(A)” of the Constitution’s 10th Schedule that deals with regulations governing the anti-defection law. The matter will now be posted on October 20 before a third judge whose decision will weigh the balance either in favour of Yeddyurappa or the 11 MLAs who were represented in court by constitutional lawyer P P Rao.
Justice Khehar said in the course of the hearing, the bench took into consideration four contentions raised by the petitioners: contravention of rules, violation of principles of natural justice, mala fide intent of the Speaker and that the anti-defection law did not apply in their case since they had not indulged in anti-party activities but were disillusioned by the government.
On the issue of violation of legislative rules by Bopaiah, the bench found that it was not mandatory on the part of the Speaker to give the rebel MLAs seven days to respond to the notice of disqualification.
Citing two Supreme Court orders, the Bench said that three days were sufficient for the MLAs to respond to the show cause notice issued by Bopaiah on October 7. In this context, the bench observed: “It is not the case of the petitioners that they have been deprived of an opportunity to substantiate any of their pleas they could have raised before the Speaker of the Karnataka Legislative Assembly on account of paucity of time furnished.”
As for the Speaker’s alleged malafide intention, the bench held that the pleadings in the case were not sufficient for them to arrive at any conclusion. On the issue of violation of principles of natural justice, the bench said there was no merit in this contention.
“The Speaker had extensively relied upon the facts within his personal knowledge,” the bench observed, adding that their “plea would have been acceptable, if the petitioners had contested the veracity of the facts taken into consideration”.
Justices Khehar and Kumar agreed that the allegations of the Speaker’s malafide intent were vague and bereft of specific details, and as such it was not possible to accept them.
But the critical point of divergence between Justice Khehar (74-page judgement) and Justice Kumar (92-page judgement) was on the Speaker’s controversial decision disqualify the rebel BJP MLAs.
Internal fight
Holding that the rebels dissented and did not defect to another party, Justice Kumar said: “The said assertion disclose that it is purely an internal fight in the party fought publicly. The dissent within the party has come out in the open. It is not a case of unprincipled and unethical political defection.”
Terming the rebels as whistleblowers, Justice Kumar said: “These petitioners knowingly or unknowingly have touched the right chord and they could be the whistle blowers in the present context, in the fight against unethical, unprincipled behaviour of politicians wielding power.”
Independents’ case on Nov 2
A division Bench comprising Chief Justice J S Khehar and Justice N Kumar has adjourned the matter pertaining to the disqualification of five Independent MLAs, who had earlier supported the government, to November 2, reports DHNS from Bangalore.
Hearing the petition by D Sudhakar and others challenging their disqualification, the division Bench said the matter should be heard by a different Bench.