Bangalore: Amid prolonged uncertainty
over the fate of the BJP government in Karnataka, a new single
bench of the high court will hear tomorrow the petitions filed
by 11 rebel BJP MLAs challenging their disqualification, two
days after a split verdict.
In a twist to the case, Chief Justice J S Khehar and
Justice N Kumar had yesterday differed on the provisions of
Para 2 (1) (a) of the 10th Schedule of the Constitution that
deals with disqualification of members of a legislature.
Khehar upheld Speaker K G Bopaiah`s order
disqualifying the 11 MLAs but Kumar set it aside in their
166-page order and referred the case to a "third judge".
Khehar said he has no doubt whatsoever in his mind,
that the October six letter addressed by the 11 MLAs to
Governor H R Bhardwaj was by itself sufficient to conclude
that they had suffered disqualification envisaged under
paragraph 2 (1) (a) of the Tenth Schedule of the Constitution.
The MLAs had said in their individual letters to the
Governor that they got disillusioned with the functioning of
the B S Yeddyurappa government, expressed lack of confidence
in it and withdrew their support to it.
Striking a different note from Justice Khehar, Justice
Kumar held that the Speaker`s order was in violation of
constitutional mandate and suffered from perversity and,
therefore, cannot be sustained.
He also referred to the same October six letters by
the MLAs in which they had said there has been widespread
corruption, nepotism, favouritism, abuse of power and misuse
of government machinery in government`s functioning.
According to Justice Kumar, expressing want of
confidence in the chief minister, or withdrawing their support
or demanding change of leadership of the legislature party or
threatening to vote against him on the floor of the House did
not amount to an unconstitutional act.
Nor was it an unconstitutional act to complain to the
Governor that the Governance cannot be carried on in
accordance with the provisions of the Constitution or the
governor asking the chief minister to prove his majority on
the floor of the House, the judge said.
The person who triggered this action cannot be called
a defector, he said.
"These actions do not constitute an act of defection
nor on that account a member of the House can be disqualified
under paragraph 2 of the Tenth Schedule," he said.
"These acts are strictly within the four corners of
the Constitution, and cannot constitute disqualification under
Paragraph 2 of the Tenth Schedule."
Kumar referred to the assertion of the petitioners
that in their letter to the governor, nowhere have they stated
that they are leaving the BJP.
The judge also noted that the MLAs had stated that
they would continue to be a part of BJP or any other
government formed by BJP headed by any leader other than
Yeddyurappa, and that they have not at all supported, joined
or staked claim to form government with any other political
"The said assertion discloses that it is purely an
internal fight in the party fought publicly," Kumar said.
"The dissent within the party has come out in the
open. It is not a case of unprincipled and unethical political
He observed that expression of no confidence in the
leader of the Legislature Party would not constitute an act
of a member voluntarily giving up membership of a political
The 11 MLAs and five Independents were disqualified by
the Speaker on the night of October 10, a day prior to the
trust vote sought by Chief Minister B S Yeddyurappa. The
Speaker had declared the confidence motion carried by a voice
vote which the governor had dubbed as unconstitutional and
recommended President`s rule.
A day later, the governor, however, gave a second
opportunity to Yeddyurappa to prove his majority in the House
on October 14. The government won the vote of confidence with
106 MLAs voting for it and 100 others against.
The petition by five independent MLAs would be decided
by a new division bench on November 2. The court had said
earlier that the October 14 trust vote was subject to its
verdict on the petitions by independents.