Case Study Balchandra Jarkiholi v B S Yeddyurappa

8/10/2019 Case Study Balchandra Jarkiholi v B S Yeddyurappa

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Dr. Ram Manohar Lohiya

National Law University

Lucknow

Language Of Law

Case Study

Balachandra L Jarkiholi v B S Yeddyrappa

Submitted under supervision of Submitted by

Mr. Manvendra K. Tiwari Nazim Ashraf (76)

(Asst. professor) Semester II


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Table of Contents

Acknowledgment......................................................................................03

Schedule X.................................................................................................04

Interpretation............................................................................ 04

Disqualification on ground of defection............................................. 04

A nominated member.................................................................. 05

Disqualification on ground of defection not to apply in case of merger........05

Exemption............................................................................... 06

Decision on questions as to disqualification on ground of defection............06

Bar of jurisdiction of courts........................................................... 07

Rules...................................................................................... 07

Case Analysis.............................................................................................09

Brief facts................................................................................ .09

Issues ..................................................................................... 12

Judgment................................................................................. 13

Ratio decidendi.......................................................................... 14

Conclusion..................................................................................................14

Bibliography...............................................................................................16


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Acknowledgment

First and the foremost, I would like to thank my Language of Law teacher, Mr. Manvendra

K. Tiwari, who gave me the topic to research upon. Without him this project would not have

even started.

I must also thank Dr. Madhu Limya Library at Dr. Ram Manohar Lohiya National Law

University, Lucknow for providing me with enough books and study materials, for the

making of this project.

Also one cannot do without acknowledging the contribution of the web resources for the

purpose of research.I have given this project a fair bit of effort.


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Schedule X

The following case study is centered around the Schedule X of our Constitution that provides

for Anti-defection law, it is as follows:-

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. Disqualification on ground of defection.

(1) Subject to the provisions of [Paragraphs 4 and 5], a member of a House belonging to any

political party shall be disqualified for being a member of the House

(a) If he has voluntarily given up his membership of such political party; or

(b) If he votes or abstains from voting in such House contrary to any direction issued by the

political party to which he belongs or by any person or authority authorized by it in this

behalf, without obtaining, in either case, the prior permission of such political party, person

or authority and such voting or abstention has not been condoned by such political party,

person or authority within fifteen days from the date of such voting or abstention.


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(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.

A nominated member of a House shall be disqualified for being a member of the House if he

joins any political party after the expiry of six months from the date on which he takes his

seat after Complying with the requirements of article 99 or, as the case may be, article 188.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a

person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985,

is a member of a House (whether elected or nominated as such) shall -

(i) Where he was a member of political party immediately before such commencement, be

deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a

member of such House as a candidate set up by such political party;

(ii) In any other case, be deemed to be an elected member of the House who has been elected

as such otherwise than as a candidate set up by any political party for the purposes of sub-

paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member

of the House for the purposes of sub-paragraph (3) of this paragraph.

4. Disqualification on ground of defection not to apply in case of merger.

(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2

where his original political party merges with another political party and he claims that he

and any other members of his original political party

(a) Have become members of such other political party or, as the case may be, of a new

political party formed by such merger; or

(b) Have not accepted the merger and opted to function as a separate group, and from the

time of such merger, such other political party or new political party or group, as the case

may be, shall be deemed to be the political party to which he belongs for the purposes of sub-

paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-

paragraph.


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(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 that 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.


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(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 sub-paragraph (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 that 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

which 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 report 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


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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[2] or, as the case may be, article 194[3], and to any other power which he may

have under this Constitution direct that any willful 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.


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BALCHANDRA L. JARKIHOLI AND ORS. V. B.S. YEDDYURAPPA AND ORS:

These Civil Appeals were filed in Honble Supreme Court against the judgment passed by

Karnataka High Court on 15.11.2010 in at Bangalore in Writ Petition Nos. 32660-32670 of

2010 and is being decided by a bench of JUSTICE ALTAMAS KABIR and CYRIAC

JOSEPH on 13th May,2011.

The present Appeals are related to the issue relating to the Constitutionality of X Schedule of

the Indian Constitution that provides for the provisions relating to the Anti-Defection Law in

India.

BRIEF FACTS OF THE CASE:

On 6th October,2010,13 members of the Karnataka Legislative Assembly belonging to the

Bharatiya Janata Party, hereinafter referred to as the "MLAs", wrote identical letters to the

Governor of the State indicating that they had been elected as MLAs on Bharatiya Janata

Party tickets, but had become disillusioned with the functioning of the Government headed

by Shri B.S. Yeddyurappa and were convinced that a situation had arisen in which the

Government of the State could not be carried on in accordance with the provisions of the

Constitution and that Shri Yeddyurappa had forfeited the confidence of the people as the

Chief Minister of the State. Accordingly, in the interest of the State and the people of

Karnataka, the legislators expressed their lack of confidence in the Government headed by

Shri B.S. Yeddyurappa and withdrew their support to the said Government. The contents of

one of the aforesaid letters dated 6th October, 2010, are reproduced herein below:

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. Yeddyurappa. There have been

widespread corruption, nepotism, favoritism, abuse of power, misusing of government

machinery in the functioning of the government headed by Chief Minister Shri B.S.

Yeddyurappa 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 Yeddyurappa as Chief


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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.

Yeddyurappa and as such I withdraw my support to the Government headed by Shri B.S.

Yeddyurappa the Chief Minister. I request you to intervene and institute the constitutional

process as constitutional head of the State.

On the basis of the aforesaid letters addressed to him, the Governor addressed a letter to the

Chief Minister, Shri B.S. Yeddyurappa, on the same day (6.10.2010) informing him that

letters had been received from 13 BJP MLAs and 5 independent MLAs, withdrawing their

support to the Government.

A doubt having arisen about the majority support enjoyed by the Government in the

Legislative Assembly, the Governor requested Shri Yeddyurappa to prove that he still

continued to command the support of the majority of the Members of the House by

introducing and getting passed a suitable motion expressing confidence in his Government in

the Legislative Assembly on or before 12 thOctober, 2010 by 5 p.m. In his letter he indicated

that the Speaker had also been requested accordingly.

On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in

the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of

the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection)

Rules, 1986, being Disqualification Application No. 1 of 2010, praying to declare that all the

said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth

Schedule to the Constitution.

Show-Cause notices were thereafter issued to all the 13 MLAs on 7th October, 2010,

informing them of the Disqualification Application filed by Shri Yeddyurappa stating that

having been elected to the Assembly as Members of the BJP, they had unilaterally submitted

a letter on 6th October, 2010 to the Governor against his Government withdrawing the

support given to the Government under his leadership. The Appellants were informed that

their act was in violation of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of

India and it disqualified them from continuing as Members of the Legislature. Time was

given to the Appellants till 5 p.m. on 10th October, 2010, to submit their objections, if any, to

the application. They were also directed to appear in person and submit their objections orally


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or in writing to the Speaker, failing which it would be presumed that they had no explanation

to offer and further action would thereafter be taken ex-parte, in accordance with law.

The Appellants to the Speaker submitted that replies on 9th October 2010 indicating that

having come to learn from the media that a Show-Cause notice had been issued as per the

orders of the Speaker and had been pasted on the doors of the MLA quarters in the MLA

hostels at Bangalore, which were locked and used by the legislators only when the House was

in session, they had the contents of the notices read out to them on the basis whereof interim

replies to the Show-Cause notices were being submitted. In the interim replies filed by the

Appellants on 9th October, 2010, it was categorically indicated that the interim reply was

being submitted, without prejudice and by way of abundant caution, as none of the

documents seeking disqualification had either been pasted on the doors of the MLA quarters

or forwarded to the Appellants along with the Show-Cause notice. Similarly, a copy of the

Governor's letter, which was made an enclosure to the Show-Cause notice, was also not

pasted on the doors of the residential quarters of the Appellants or otherwise served on them

personally. A categorical request was made to the Speaker to supply the said documents and

the Appellants reserved their right to give exhaustive replies after going through the aforesaid

enclosures to the Show-Cause notice as and when supplied.

When the hearing to this particular issue was held the speaker held that the MLAs have

voluntarily given up their membership and thus liable to be disqualified from the

Membership of State Assembly via provisions mentioned in Paragraph 2(1)(a) of the X

Schedule of the Indian Constitution. A Writ Petition was filed by the Appellants in Karnataka

High Court at Bangalore which was dismissed by Divisional Bench vide Judgment dated

15.11.2010 against which the present Civil Appeal lies.


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ISSUES INVOLVED:

Six issues had arisen in the appeals and they are reproduced herein below:

(i) The extent and scope of Judicial Review available against the order of the Speaker passed

in exercise of powers under the Tenth Schedule to the Constitution.4/1/2014

Lawyersclubindia Article : Critical Appraisal On Yedurappa's Case on Anti-Defection Law

(ii) Whether the Karnataka Disqualification Rules framed in exercise of powers under

paragraph 8 of the Tenth Schedule are directory and procedural in nature and whether judicial

review is available against an alleged breach of the said Rules?

(iii) Whether the Speaker's order impugned herein is mala fide?

(iv) Whether Speaker's order can be said to be vitiated on account of noncompliance with the

principles of natural justice?

(v) The scope of paragraph 2(1)(a) of the Tenth schedule; and

(vi) Whether the Speaker's inference from the conduct of the MLA's in the present case that

they have given up the membership of the political party to which they belong, can be said to

be 'perverse'?


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JUDGMENT:

It was held, Speaker did not take into consideration rule of evidence that person making an

allegation has to prove same with supporting evidence. Mere fact that allegation was not

denied, did not amount to same having been proved on account of silence of person against

whom such allegations were made.

There was nothing on record in support of said allegations Speakers action amounted to

denial of principles of natural justice to Appellants. It also revealed partisan trait in Speakers

approach in disposing of Disqualification Application. There was no compulsion on Speaker

to decide Disqualification Application in a great hurry within time specified by Governor to

Speaker to conduct Vote of Confidence in Government. Such course of action was adopted

by Speaker; since the Vote of Confidence on floor of the House was slated Element of hot

haste was also evident in the action of the speaker.

It was further held, under Paragraph 2(1)(a) of the 10th Schedule, Speaker functions in quasi-

judicial capacity, which makes order passed by him in such capacity, subject to judicial

review. Paragraph 2(1)(a) Of the 10th Schedule enables Speaker in quasi-judicial capacity to

declare that Member of House stands disqualified for reasons mentioned in Paragraph 2(1)(a)

of the 10th Schedule to the Constitution.

Proceedings conducted by Speaker on Disqualification. Application did not meet twin tests of

natural justice and fair play. Speaker, proceeded in matter as if he was required to meet

deadline set by Governor, irrespective of whether, in process, he was ignoring constitutional

norms set out in 10th Schedule to Constitution and Disqualification Rules, 1986, and in

contravention of concept of fair hearing Show Cause Notices were issued within time fixed

by Governor for holding the Trust Vote.

Court set aside impugned order of Speaker disqualifying Appellant and the Appeal filed by

the appellant was allowed.


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RATIO DECIDENDI:

Under paragraph 2(1) (a) of the X Schedule, Speaker functions in quasi-judicial capacity,

which makes order passed by him in such capacity, subject to judicial review.

CONCLUSION:

Anti-defection law when it was passed, it aimed at bringing down the political defect but due

to ever increasing political dishonesty and corruption this law never evolved properly and

now a question have arose that whether achieving the goals of this law a reality or a myth?

Politicians found loopholes in this law and used it for their own benefit.

It is high time that a watchdog should be provided to our Parliament and there is a need for

our constitutional pundits to revisit the issue to combat the menace of corruption and

defection that has eroded the values of democracy.

Social activists like Anna Hazare and now public figures like Baba Ramdev are doing their

best with the help of citizens to make sure that our sleeping government should wake up and

start taking steps towards eradicating political corruption and only this will help in achieving

the goal which was set while passing this law.

This law can also work if certain recommendations are taken into consideration and an

amendment be made in this law.

If the Disqualification Rules were only directory in nature, even then sufficient opportunity

should have been given to the Appellants to meet the allegations leveled against them.

Various questions which have been raised, I think were constrained to hold that the

proceedings conducted by the Speaker on the Disqualification Application filed by Shri B.S.

Yeddyurappa do not meet the twin tests of natural justice and fair play. The Speaker, in our

view, proceeded in the matter as if he was required to meet the deadline set by the Governor,

irrespective of whether, in the process, he was ignoring the constitutional norms set out in the

Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention

of the basic principles that go hand-in-hand with the concept of a fair hearing.


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The procedure adopted by the Speaker seemed to indicate that he was trying to meet the time

schedule set by the Governor for the trial of strength in the Assembly and to ensure that the

Appellants and the other independent MLAs stood disqualified prior to the date on which the

Floor Test was to be held. Having concluded the hearing on 10th October, 2010, by 5.00

p.m., the Speaker passed a detailed order in which various judgments, both of Indian Courts

and foreign Courts, and principles of law from various authorities were referred to, on the

same day, holding that the Appellants had voluntarily given up their membership of the

Bharatiya Janata Party by their acts and conduct which attracted the provisions of paragraph

2(1)(a) of the Tenth Schedule to the Constitution, where under they stood disqualified. The

Vote of Confidence took place on 11th October, 2010, in which the disqualified members

could not participate and, in their absence Shri B.S. Yeddyurappa was able to prove his

majority in the House.


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BIBLIOGRAPHY:

[1] M.P. Jain, 5thEdition, 2003 Vol. 2 Indian Constitutional Law, Pg. 2292



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Case Study Balchandra Jarkiholi v B S Yeddyurappa

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