Third judge upholds 11 BJP MLAs' ouster

Small but significant victory for BSY; rebels to challenge verdict in apex court
Last Updated 29 October 2010, 19:39 IST

Justice Sabhahit, whose services were called upon after a division bench delivered a split verdict, concurred with Chief Justice J S Khehar’s opinion, observing that “the Speaker’s order is in consonance with provisions of Para 2(1)(a) of the 10th Schedule of the Constitution” that deals with the anti-defection law. He placed the rebels’ petition before the division bench for final orders.

Justice Khehar referred the case relating to the 11 BJP legislators to Justice Sabhahit after the bench headed by him and Justice N Kumar returned a split verdict, leaving the Yeddyurappa government, which won a second vote of confidence in the Legislative Assembly on October 14, on tenterhooks.

The 11 BJP MLAs, led by JD(S) chief H D Kumaraswamy, were quick to react to Justice Sabhahit’s order, saying they would challenge it in the Supreme Court.

But it will take a while before their petition is admitted in the Supreme Court which goes into a 15-day vacation beginning Monday. Besides, they will also have to await Justice Khehar to sign the orders of all the three judges before the former legislators are able to obtain a certified copy that is essential for moving the apex court.

Warning bell, says CM

On Friday, a jubilant Yeddyurappa hailed the verdict as “epoch making” and a major step towards stopping inter-party defection. “The order is like a warning bell for those who indulge in defection. I hope it will lead to a new chapter in politics in the country,” Yeddyurappa, flashing the ubiquitous V signal, said, as State BJP chief K S Eshwarappa and he shared sweets.

Although doubts continue to remain in the minds of political analysts on the means his party adopted in saving the government, Yeddyurappa said the verdict was a vindication of the state BJP’s stand on defection. “It has helped uphold the values of democracy,” the chief minister said. In interpreting the anti-defection law in his 126-page order, Justice Sabhahit said that the 11 BJP MLAs’ October 6 letter to Governor Bhardwaj, claiming withdrawal of support to the Yeddyurappa government, led to the inevitable inference that the legislators’ intention was to voluntarily give up party membership.

Justice Sabhahit observed that it was clear that though the petitioners had incurred disqualification on October 6, the Speaker was entitled to take into account the “material produced before him, which is not disputed by the legislators against whom action was sought to be taken”.

Refusing to recognise the rebels as whitle-blowers, Justice Sabhahit said that the legislators’ claim that they have not incurred disqualification cannot be accepted” since its acceptance would put a “premium on the breach of loyalty, political propriety and morale of the party”. Besides, Justice Sabhahit reasoned, it would “defeat the every objective of enacting Para 2(1)(a) as a separate ground for disqualification.”

Pointing out that the legislators could not wear two hats, Justice Sabhahit said that the rebels’ letter to the Governor who subsequently wrote back to the chief minister the same day asking him to seek a vote of confidence, as well as the process which followed later, “is incompatible with the continuance of their membership in the BJP and would also lead to the inference of incurring disqualification”.

Citing a number of Supreme Court orders related to interpreting Para 2(1)(a) of the Constitution 10 Schedule, Justice Sabhahit said the question of dissent and defection would be relevant only for the purpose of finding disqualification under the constitutional provision.

On the contention that the expression of dissent would not amount to defection, Justice Sabhahit reasoned: “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.”

According to Justice Sabhahit, the “anti-defection law seeks to recognise the practical need to place the properties of political and personal conduct — whose awkward erosion and grotesque manifestations have been the bane of the times — above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation”.

On the matter involving the 11 dissident MLAs writing to the Governor, Justice Sabhahit ruled that “their intention was not to convey to the Governor that the leadership of the party should be changed and making allegations against B S Yeddyurappa, but to request the Governor to initiate proceedings under Article 356 of the Constitution against the BJP government”.

What they say

“It’s a good case for appeal in the Supreme Court. We had no chance to argue in matters like principles of natural justice and mala fide action of the Speaker, which can be raised in the Supreme Court. The judgement rendered by Justice N Kumar was fair.”

-  B V Acharya,
counsel for Anand Asnotikar

“It is a landmark judgment. The object of the Anti-Defection Law has been achieved by the interpretation of the High Court. The stability of the government is of prime importance of the Tenth Schedule which has been taken note by the Court. Its a lesson for defectors.”

-  M B Naragund,
counsel for the Ruling Party

“It s a good verdict as the spirit of justice has been upheld. It’s a landmark decision in the Indian law and on par with S R Bommai case. It’s a caution for elements who defect and destabilise the government.”

-  Vivek Reddy,
counsel for BJP

Under the Anti-Defection law, if an MLA is disqualified, he should be barred from becoming an MLA. In commercial terms, he should become insolvent. It should be like a civil death. Disqualifying an MLA for the rest of the term he holds means nothing. The Anti-Defection law is not specific about disqualification.

- N K Bhat,
senior advocate, Supreme Court

(Published 29 October 2010, 08:57 IST)

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