Independents will not lose separate identity on joining coalition government: court

Posted in CONSTITUTION, LEGISLATURE by NNLRJ INDIA on January 26, 2012



Bench lists reasons for setting aside disqualification of five Independents for expressing lack of faith in Yeddyurappa regime

By joining a coalition government and becoming Ministers, Independents will not lose their separate identity, and later by expressing lack of faith in the Chief Minister, they will not attract disqualification, the Supreme Court ruled on Wednesday.

A Bench of Justices Altamas Kabir and Cyriac Joseph gave this ruling while setting aside the Karnataka Assembly Speaker’s order disqualifying five Independents for expressing lack of faith in the government, led by the former Chief Minister B.S. Yeddyurappa. In May 2011, the Bench quashed the order and said it would give detailed reasons later.

Writing the judgment, Mr. Justice Kabir interpreted the provisions of the Tenth Schedule of the Constitution relating to defections and held that the fact that the Independents had joined the BJP government would not mean that they had sacrificed their identities.

The Bench said: “It is no doubt true that an Independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Mr. Yeddyurappa and the decision to join his Cabinet, in our view, were not sufficient to conclude that the appellants had decided to join and/or had actually joined the BJP, particularly on account of the subsequent conduct in which they were treated differently from the members of the BJP.”

“In the facts of this case, there is no material or evidence to show that the appellants had, at any time, joined the BJP. Even as Independents, the appellants could extend support to a government formed by a political party and could become a Minister in such government. There is no legal bar on… such extension of support or joining the government. Hence, such extension of support or joining the government as Minister by an Independent does not by itself mean that he has joined the political party which formed the government. There is also no evidence to show that the appellants were accepted and treated as members of the BJP by that … party. It is to be noted that the petitioners before the Speaker had no grievance about the appellants supporting the BJP government and becoming Ministers in the government for more than two years.”

The Bench said: “Only when the appellants withdrew support to the government led by Mr. Yeddyurappa and a confidence vote was scheduled to be held did the petitioners rake up the issue of alleged disqualification. The appellants, D. Sudhakar and others, even while participating in the meetings of the BJP Legislature Party, were shown separately in a category different from the other participants in such meetings, which clearly indicates that the appellants, though Ministers in the government led by Mr. Yeddyurappa, were treated differently from members of the BJP and were considered to be only lending support to the government…, without losing their independent status. Mere participation in the rallies or public meetings organised by the BJP cannot lead to the conclusion that the appellants had joined the BJP.”

The Bench said: “The order of disqualification passed by the Speaker was against the constitutional mandate in para 2(2) of the Tenth Schedule of the Constitution.”

Indicting the Speaker for the procedure adopted by him to disqualify the MLAs, the Bench said: “It is obvious from the procedure adopted by the Speaker 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 13 BJP MLAs stood disqualified prior to the date on which the floor test was to be held. Having concluded the hearing on October10, 2010, by 5.00 p.m., the Speaker passed detailed orders, in which various judgments, both of Indian courts and foreign courts, and principles of law from various authorities, were referred to, … holding that the appellants and the other MLAs stood disqualified as Members of the House.”

The Bench pointed out that the vote of confidence took place on October 11 2010, in which the disqualified members could not participate, and in their absence Mr. Yeddyurappa was able to prove his majority. Unless it was to ensure that the trust vote did not go against the Chief Minister, there was hardly any reason for the Speaker to have taken up the disqualification applications in such a great haste.”

On the contention that the Speaker was not amenable to court jurisdiction, the Bench, citing various decisions, held that under the Constitution, “the Speaker discharges quasi-judicial functions, which makes an order passed by him in such capacity subject to judicial review.”

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