(First appeared in The Pioneer dated October 22)
While the two Karnataka High Court judges who heard on October 18 the plea of the 11 state legislators disqualified by the Speaker under the anti-defection laws, differed on upholding the disqualification, they were unanimous in endorsing the Speaker on three significant grounds. One, the Speaker demonstrated no prejudice in passing the disqualification order; two, he had followed the principles of natural justice in arriving at the decision; and three, he had committed no procedural lapses in reaching his conclusion. These observations have effectively demolished the claims of dissident legislators that the Speaker was biased and had failed to comply with accepted procedures in ordering their disqualification.
What now remains to be settled is whether the conduct of these BJP legislators – dashing off a letter to the Governor withdrawing support to Chief Minister BS Yeddyurappa and openly hobnobbing with the opposition Congress and the JD (S) for several days – was sufficient reason for the Speaker to disqualify them under the 10th Schedule of the Constitution. Because one of the two judges, Chief Justice J S Khehar, found them so while Justice N Kumar did not concur with the opinion, a third judge is now engaged in deciding the matter. But, regardless of the outcome the fact will remain that the majority opinion has upheld the Speaker’s conduct in processing the case.
Dismissing charges of prejudice levelled by the disqualified legislators against the Speaker who gave them ‘just’ three days to respond to a show cause notice, Chief Justice Khehar (supported by Justice Kumar) pointed out that “although three days time was afforded to the petitioners to respond to the show cause notice, the petitioners filed detailed and exhaustive replies dealing not only with the factual aspect of the matter, but also of the nuances of the law involved in the controversy”. The inference is that, while the complainants quibbled over lack of adequate time to submit their defence, their replies, including “nuances” of the law that they quoted, did not show any suffering on this count.
It is clear from the court’s observations that the disqualified legislators worsened their case by not even disputing the findings of the Speaker – for example, having met the Governor and given him a letter withdrawing support to their party colleague and Chief Minister – that was there in the show cause notice and proved pivotal to their disqualification. The High Court said, “The factual position depicted in the (Speaker’s) order, has not been disputed by the petitioners (disqualified 11 legislators)… even though the order is the precise order which has been assailed by the petitioners through the instant writ petitions”. The interesting thing is that the legislators not only did not dispute the factual position before the court, but they even failed to challenge it in their replies to the Speaker, something that the judges remarked upon while dismissing the allegation of prejudice by the Speaker. The judges noted, “The factual position depicted in the disqualification petition filed was not disputed by the petitioners in their replies to the show cause notice issued to them by the Speaker of the Karnataka Legislative Assembly”.
The judges were equally dismissive of the disqualified MLAs’ contention that the Speaker had flouted the principles of natural justice in punishing them because he had acted in haste and not given them more time to prepare their defence. Moreover, they claimed, the Speaker had relied on material in his disqualification order that were not there in the show cause notice issued to them. While accepting that just three days had been given to respond, the Chief Justice, after giving “thoughtful consideration” to the issue, stated, “Since the procedure required to be followed (by the Speaker) under the rules of natural justice was admittedly followed, should the proceedings conducted by the Speaker… be set aside? I am of the view that the answer…has to be in the negative, because the procedure adopted has not resulted in any prejudice to the petitioners”.
In a helpful gesture, the Chief Justice ventured to elaborate on ‘natural justice’, saying it was a “flexible” concept. “The principles of natural justice cannot be placed in a straitjacket. There are flexible rules”, and they needed to be applied on a case to case basis.
As for the so-called additional material that the Speaker had relied on in his order but which were missing in the show cause letters, the court observed that the additional stuff was merely supplementary in nature comprising press clippings etc., and so had no great bearing on the final order. In any case, as the court pointed out, since the additional material supplemented the main factual position that had remained uncontested, the aggrieved parties had no cause to complain.
With the Speaker showing no mala fide intent and also meeting the rules of natural justice – even if in letter alone, allegations against the Speaker of procedural lapses do not stand scrutiny. The court observed that he had given the legislators time to respond and to even appear in person to clarify their position, before disqualifying them. The Chief Justice also set aside the contention that the Defection Rules had been violated by the Speaker. Quoting an earlier Supreme Court ruling, the Chief Justice stated, “Since Rules 6 and 7 of the Defection Rules have been held by the apex court to be directory in nature, it would not be possible for me, merely on account of the violations of the procedures envisaged under the aforesaid Rules, to set aside the (Speaker’s) order… unless the violation is shown to have resulted in prejudice to the petitioners”.
There have been cases in the past where the conduct of the legislators, who had neither quit their party nor joined another but had publicly rebelled like in the current one, was found fit for disqualification under the 10th Schedule. The Rajendra Singh Rana and others versus Swami Prasad Maurya and other in Uttar Pradesh, is a celebrated case in point. But the issue there had to contend with another factor – that of a split, which the BSP claimed had happened consequent to the letters it had dispatched to the Governor. After a long-winding legal battle that went right up, the Supreme Court in early 2007 pronounced the legislators disqualified under the anti-defection laws because the split could not be legally proved. But by then the political situation had completely ahead and the verdict held only academic value.
The third judge’s verdict on whether the 11 Karnataka legislators stand disqualified is the critical missing link in the current episode. Whatever be the outcome, one can safely assume it will be challenged by the aggrieved party in a higher court. It remains to be seen whether it will follow the UP trajectory or reach an early conclusion. In all this, let us also not forget that the fate of five Independent legislators, who too were disqualified by the Speaker, lies in the judiciary’s hands.